The appropriate identification of relevant markets susceptible to ex ante regulation at EU level is a key to the overall functioning of the EU Regulatory Framework. It allows the National Regulatory Authorities (NRAs) to focus their efforts on crucial European markets where competition appears as yet ineffective at EU level. This contributes to the development of the internal market and provides market players with legal certainty and thus stable business planning.
The Study on "Future electronic communications product and service markets subject to ex ante regulation (Recommendation on relevant markets)” should advise on the continued susceptibility of currently covered markets for ex ante regulation. It should also advise on any addition of new markets to the revised list, in accordance with competitive conditions and emerging trends.
In doing so, the Study should assess in detail the likely impact of the technological or regulatory developments, the relevant market trends as well as other changes in the structure or functioning of markets. The impact of altering the list of relevant markets should be assessed against the key policy objectives identified in Article 3 of the Electronic Communication Code (Code) with a qualitative and quantitative impact analysis.
The EU's regulatory framework for electronic communications is a set of rules which apply throughout the EU with the aim of encouraging competition and efficient investment, improving the functioning of the internal market and guaranteeing basic user rights. The existing framework is made up of a package of 4 Directives and 2 Regulations. In 2016, within the scope of the so-called “connectivity package” the Commission proposed a new simplified framework updated for the digital age and to reinforce its coherence and accessibility, consistently with the Digital Single Market strategy for Europe. The new Code has recently been adopted and Member States are required to apply their national measures from 21 December 2020, on which date the Directives making up the existing framework will be repealed.
Article 64(1) of the new Code sets out a legal requirement to review the current Recommendation on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation (“Recommendation”) within two years of the date of entry into force of the Code, i.e. by 21 December 2020.
Five years after the current version of the Recommendation was adopted (2014), it is considered appropriate to start the procedure for the revision of the list of relevant markets, in particular in light of the fast moving character of the electronic communications markets. When a first Recommendation was adopted in 2003, the Commission originally identified eighteen markets within the electronic communications sector. In the last and current version of the Recommendation, only five markets remained on the list; all of which were wholesale markets. No retail market was considered still to be susceptible to ex ante regulation.
Pursuant to Article 64 of the Code, the Commission is under a legal obligation to review the Recommendation by 2020. In view of this, the European Commission launched as well a targeted consultation on the review of the Recommendation, which is open from 15 February 2019 until 10 May 2019 and will feed into the Study.