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Telecommunications

Overview

European citizens and businesses rely more and more on convenient, reliable and high quality telecoms networks and services. Today there are more than 250 million daily internet users in Europe, and virtually every European owns a mobile phone. The competition rules work side by side with regulation specific to the telecoms sector to bring innovative, affordable services to European consumers.

Telecommunications markets in the EU, traditionally characterised by a series of national public monopolies, were opened up in several legislative packages, starting in 1988 and culminating in 1998 with full liberalisation. The current Telecoms Regulatory Framework for electronic communications was adopted in 2002 and updated in 2009 and has subsequently been supplemented by a number of additional legislative instruments.

The framework is made of a package of 5 Directives (unofficially consolidated versions) and 2 Regulations:

One of the main features of the Telecoms Regulatory Framework is the set-up of ex ante access regulation, which consists of a procedure to identify competitive bottlenecks in telecoms markets (typically in fixed markets) and to impose remedies to address such bottlenecks, following competition law principles and methodologies. Access regulation is implemented by national regulatory authorities (NRAs) in close cooperation with the Commission. EU rules (Article 7 and Article 7a of the Framework Directive) require national regulatory authorities (NRAs) to conduct national and EU consultations on draft regulatory measures they intend to take prior to their adoption. These consultations should comprise the definition and analysis of relevant markets, designation of operator(s) having significant market power (SMP) and the proposed imposition or removal of regulatory remedies on providers of telecoms networks or services. The combination of ex ante access regulation and competition law enforcement has been instrumental in ensuring that EU telecoms markets operate more competitively, allowing consumers and businesses to benefit from increased choice, affordable prices, high quality and innovative services. However, the liberalization has been felt so far only at Member State level and has not resulted in a true single market for telecoms.

Digital Single Market (DSM)

The Commission's Initiative on a Digital Agenda for Europe, launched in August 2010, set out the Commission's priorities in the field of the digital economy and highlighted the creation of a single market for content and telecom services as a vital tool to regain progress lost during the economic crisis. In May 2015 the Commission adopted a Digital Single Market for Europe Communication, setting out an ambitious strategy to remove both regulatory and company-erected barriers to a true DSM which benefits both consumers in terms of more choice and better prices and companies in terms of economies of scale. The DSM Strategy includes 16 specific initiatives which were delivered by the Commission by January 2017. Legislative proposals are now discussed by the co-legislator, the European Parliament and the Council.

A first essential step to tackle market fragmentation was the adoption of the Telecoms Single Market package providing harmonized rules for net neutrality and setting in motion the final elimination of roaming surcharges in particular for data, resulting in Regulation (EU) 2015/2120 (the TSM - Telecoms Single Market -Regulation), adopted on 27 October 2015. This Regulation abolished roaming surcharges in the EU as of 15 June 2017 and enshrined for the first time the principle of net neutrality in EU law.

Another important DSM priority is to review the telecoms regulatory framework and create reliable, trustworthy, high-speed, affordable networks and services that safeguard consumers' fundamental rights to privacy and personal data protection while also encouraging innovation. This requires a strong, competitive and dynamic telecoms sector to carry out the necessary investments, to exploit innovations such as Cloud computing, Big Data tools or the Internet of Things. ICT networks provide the backbone for digital products and services which have the potential to support all aspects of our lives, and drive Europe's economic recovery. Well-functioning markets deliver access to high-performance fixed and wireless broadband infrastructure, at affordable prices. Successive adaptations of the EU's telecoms rules combined with the application of EU competition rules, have been instrumental in ensuring that markets operate more competitively, bringing lower prices and better quality of service to consumers and businesses. Effective competition is a key driver for investment in telecoms networks.

In September 2016 the Commission presented proposals for an ambitious overhaul of the telecoms regulatory framework focusing on a consistent single market approach to spectrum policy, tackling regulatory fragmentation, ensuring a level playing field, incentivising investment in high speed broadband networks and a more effective regulatory institutional framework in the form of the Connectivity for a European Gigabit Society Commission proposals. They comprise:

  • a new European Electronic Communications Code Directive, including forward-looking and simplified rules that make it more attractive for all companies to invest in new top-quality infrastructures, everywhere in the EU, both locally and across national borders,
  • a Regulation on the Body of European Regulators of Electronic Communications (BEREC),
  • a Communication on common EU broadband standards for 2025,
  • a Communication on 5G for Europe
  • and a Wifi4EU Regulation.

The legislative proposals are in the process of being discussed within the European Parliament and Council. DG Competition will continue to remain involved in the legislative process, ensuring that the new rules remain pro-competitive.

The Commission Guidelines on Significant Market Power (“SMP Guidelines”) are also part of the telecoms framework and are in the process of being reviewed. They were adopted in 2002 on the basis of Article 15(2) of the Framework Directive to provide guidance to national regulatory authorities for the analysis of markets and effective competition under the regulatory framework. DG CNECT is working towards the adoption of new SMP Guidelines at the same time as the entry into force of the European Electronic Communications Code. DG Competition is closely involved in this process, as important notions as for instance the criteria to assess joint dominance, are stemming from competition cases.

Competition Rules

The Directorate-General for Competition – in cooperation with national competition authorities – ensures that telecoms networks and services can expand and innovate, by safeguarding a level playing field in and access to the IT and telecoms markets. This means applying the general EU competition rules on

  • Antitrust: prohibiting anti-competitive agreements or abuse of dominant positions
  • State aid: prohibiting certain types of State aid that distort competition
  • Mergers: prohibiting mergers that would significantly impede competition on a market

The European Commission has worked successfully to increase competition in telecoms, bringing new entrants into the telecoms sector throughout Europe, forcing incumbent providers to raise their standards of service and reduce their prices, and applying the competition rules to maintain competition between telecoms operators.

Competition is also crucial to help spur investments. Investment in telecom networks is vital since those networks set the limits of how digital services and thereby the economy in general can grow. See Commissioner's Vestager speech on Competition and investment in telecoms of 28 November 2016.

The Commission's most recent actions in Antitrust were:

  • Telekomunikacja Polska (AT.39525)

    By decision of 22 June 2011 the Commission imposed a fine of € 127 554 194 on telecom operator Telekomunikacja Polska S.A. (TP). Although as a dominant company TP was under an obligation to allow remunerated access to its network and wholesale broadband services in order to allow the effective entry of alternative operators on downstream broadband markets, TP consistently refused to do so or made it difficult for more than four years (August 2005 – October 2009), therefore abusing its dominant position. By judgment of 17 December 2015 in case T-486/11, the General Court dismissed Orange Polska S.A.'s (formerly Telekomunikacja Polska S.A.) application for annulment of the Commission decision. An appeal against the General Court's judgment is pending before the Court of Justice under case C-123/16 P.
  • Telefónica and Portugal Telecom (AT.39839)

    By decision of 23 January 2013 the Commission imposed fines of € 66 894 000 on Telefónica and of € 12 290 000 on Portugal Telecom for agreeing not to compete with each other on the Iberian telecommunications markets, in breach of Article 101 TFEU. By judgments of 28 June 2015 in cases T-208/13 and T-216/13, the General Court upheld the Commission's reasoning that Telefónica and Portugal Telecom infringed EU competition law by inserting a non-compete clause in the share-purchase agreement which had as its subject-matter the exclusive control of Vivo by Telefónica. However, the General Court ordered the Commission to determine once again the sales linked directly or indirectly to the infringement in order to recalculate the amount of the fines. By judgment of 13 December 2017 the Court of Justice rejected Telefonica's appeal from the General Court's judgment (which did not concern the parts concerning the fines). 
  • Slovak Telekom (AT.39523)

    By decision of 15 October 2014 the Commission imposed a fine of € 38 838 000 on Slovak Telekom A.S. and its parent company, Deutsche Telekom AG, for having pursued during more than five years an abusive strategy to shut out competitors from the Slovak market for broadband services. Deutsche Telekom also received an additional fine of € 31 070 000 to ensure sufficient deterrence as well as to sanction its repeated abusive behaviour as it had already been fined in 2003 for a margin squeeze in broadband markets in Germany. Although the incumbent telecom operator in Slovakia, Slovak Telekom was under a regulatory obligation to give access to the local loops within its legacy telephone network, it delayed or prevented the entry of alternative operators into the retail broadband services market, through refusal to grant access and margin squeeze, therefore abusing its dominant position. An action for annulment of the Commission's decision in currently pending before the General Court under case T-827/14.
  • More recently, on 25 October 2016, the Commission opened an investigation into a network sharing agreement between two Czech operators of mobile telephony, O2 CZ / CETIN and T-Mobile CZ. The Commission investigates in particular whether the cooperation between O2 CZ/CETIN and T-Mobile CZ risks slowing down quality improvements in existing infrastructure, and delaying or hindering the deployment of new technologies, such as 4G/LTE and future technologies, and new services based on them, in particular in densely populated areas. See IP/16/3539.
  • In July 2017, the Commission published a study by external contractors on so-called 'Zero-rating'. This refers to the practice by internet service providers (ISPs) of not counting the data consumption for certain applications (e.g. WhatsApp, Facebook) or classes of applications (e.g. music streaming services) towards a user's overall data allowance under a particular tariff plan. While ISPs consider zero-rating as a means of attracting users of applications consuming big amounts of data such as music and video streaming services, concerns have been raised about its potentially foreclosure effects on competing services that are not zero-rated. In view of the growing importance of zero-rating offers in the EU, DG Competition commissioned a report with a view to gaining a better understanding of the effects of this practice on the market. The survey was carried out by the economic consultancy DotEcon, in close collaboration with the telecoms consultancy Aetha and the law firm Oswell&Vahida.

Fixed broadband markets

Currently, at retail level, competition is driven partly by ex-ante regulation and infrastructure competition stemming from alternative networks (including, in some cases, mobile broadband services).Wholesale broadband markets, to a large extent, were created by ex-ante regulation. The current regulatory interventions have focussed on the incumbent operators copper and now fibre networks which are subject to regulation with very few exceptions. This led to a creation of service based competition in the fixed broadband markets. As regards the traditional copper telephone networks, regulation has been based on the ladder of investment concept to allow new entrants to enter the markets step by step in a manner where each step requires a certain level of investment in own infrastructure with the benefit of allowing the access seeker to increase its capabilities to offer better services at the retail level.

In addition, tv-cable networks have been rolled out by public administrations (e.g. Belgium, the Netherlands, Germany) or by private investors. In the areas covered by the tv-cable networks there exists now a second fixed broadband infrastructure in parallel to the traditional telephone networks. These two infrastructures are nowadays used to distribute media content (TV and digital radio), broadband access and Voice over IP ("VoIP)" telephony services. For the time being, when it comes to regulatory interventions, it is general practice of NRAs to arrive at solutions which support only the regulation of the incumbent and not to impose any regulation on cable.

Mobile broadband markets

On average, there are three or four MNOs per member state. This number is partly determined by the competitive situation in the market, but also by the approach of competition authorities in case of merger control and the nationally governed spectrum allocation rounds. The number of MNOs has been constant during the last years and is fairly common in all member states. Detailed SMP regulation exists with respect to the markets for wholesale voice call termination on individual mobile networks (regulation of mobile termination rates). Indeed, termination markets are structural monopolies where competitive conditions are not prone to change due to the calling party pays principle (CPP), according to which terminating operators do not have sufficient incentives to negotiate efficient termination rates to the ultimate benefit of final consumers.

The need to quickly and efficiently deploy new mobile networks triggered some operators to engage in different forms of network sharing agreements. Network sharing refers to a situation where two or more mobile network operators (MNOs) agree to share network infrastructure, typically with a view to reducing the cost of deployment and/or operation of the network. Network sharing can either cover only the "non-intelligent" part of the radio access network (RAN) such as sites, masts and antennas (passive network sharing), or also include the "intelligent" elements of the RAN such as base stations or controllers (active network sharing). Advanced forms of active network sharing include the sharing of radio spectrum. Network sharing has the potential to bring about significant efficiencies. However, in some instances, it may also reduce the intensity of competition between the sharing partners and result in negative effects for consumers and businesses. It therefore needs to be assessed on a case-by-case basis whether network sharing agreements are compatible with Article 101 TFEU.

State aids

The antitrust cases mentioned focused on ensuring that competition in retail broadband markets remained free and fair. What happens, though, when broadband is not available in some areas? Although private sector investment will often provide broadband infrastructure, State intervention may sometimes be necessary. The State aid rules provide a framework that ensures that State intervention is justified, and properly targeted.

The Commission therefore monitors the awards of telecoms licences and state support for telecoms companies to ensure that:

  • support for broadband is justified
  • support does not harm commercial broadband providers
  • alternative operators are not discouraged from entering the market

State aid is crucial in achieving the Commission's objective of providing broadband to all European citizens. Many public initiatives at national, regional and local level are driving the development of broadband networks, but in rural and remote regions, telecoms firms often do not offer broadband because it is not profitable. State aid can help bring broadband to these areas.

Guidelines for applying state aid rules on rapid deployment of broadband networks

Commission decisions on state aid to broadband

Mergers

  • Prohibition in 2016 of the proposed acquisition of O2 UK by Hutchison – In May 2016, following an in-depth investigation, the Commission prohibited the proposed acquisition of the UK mobile network operator O2 by its competitor Hutchison as there were strong concerns that UK mobile customers would have had less choice and paid higher prices as a result of the takeover, and that the deal would have harmed innovation in the mobile sector, while the remedies offered were not sufficient to address those concerns (IP/16/1704).
  • Clearance of the proposed joint venture between Vodafone and Liberty Global in the Netherlands, subject to remedies – In August 2016, the Commission cleared the proposed creation of a joint venture in the Netherlands by mobile telecom operator Vodafone and cable company Liberty Global. The approval was conditional on Vodafone divesting its consumer fixed line business in the Netherlands (IP/16/2711).
  • Clearance of the proposed joint venture between Hutchison and VimpelCom in Italy, subject to remedies – In September 2016, following an in-depth investigation, the Commission approved a proposed telecommunications joint venture between Hutchison and VimpelCom in Italy, conditional to the divestment of sufficient assets (spectrum and sites) that would allow a new operator to enter the market (IP/16/2932).
  
  
Related links
Digital Single Market Portal