The Commission has just published results of the public consultation related to the review of Guidelines on market analysis and significant market power (SMP Guidelines).

The public consultation on the review of the SMP Guidelines ran from 27 March 2017 to 26 June 2017. The consultation aimed at gathering input on the need to update individual sections of the SMP Guidelines, in particular on market definition, single and joint SMP, regulatory obligations and procedural issues. 54 stakeholders from 22 EU countries provided their views.

SMP Guidelines are a key document outlining principles related to market analyses and the assessment of the significant market power under the present EU regulatory framework. They will continue to perform this important role under the Commission's proposal to the Electronic Communications Code.

The SMP Guidelines are addressed to the National Regulatory Authorities (NRAs) that have to take them into utmost account when defining relevant markets and assigning telecommunications operators with single or joint SMP in view of imposing on them appropriate regulatory obligations to redress retail competition problems identified on a forward looking basis.

Who replied to the consultation?

54 stakeholders from 22 EU countries participated in the public consultation, including the Body of European Regulators for Electronic Communications (BEREC), 5 NRAs, electronic communications operators and services providers, industry association, as well as one individual. 51 submissions were received via EU Survey and 3 respondents provided their contribution by e-mail.

Preliminary trends observed in the Public consultation

The great majority of respondents considered that the present SMP Guidelines do not require a major review of the competition law principles of market definition. However, guidance was requested, for instance, on the competitive constraints posed by over the top (OTT) services and the definition of bundle markets (e.g. telephony, internet access and TV), both at retail and wholesale level.

The majority of respondents considered that the criteria in the current SMP Guidelines related to the significant market power are still appropriate. However, several respondents suggest specific amendments. Several operators, including incumbent and alternative operators, argue that market shares should not be considered determinative per se and all relevant market circumstances should be taken into account.

Incumbent operators and some other operators and associations (representing mobile network operators and fibre investors) hold that the regulation of oligopolies should be rigorously based on SMP findings. They believe that the criteria provided in the Airtours ruling are sufficient to identify collective dominance. On the contrary, alternative operators are concerned that the Airtours criteria might not be capable of fully capturing certain forms of anticompetitive behaviour. Four NRAs called for powers to address situations of collective dominance as well as tight oligopolies to tackle alleged risks of prices above competitive levels, lack of innovation and poor quality.

Majority of the participants emphasize that guidance relative to the regulatory obligations should be aligned with the objectives of the Code.

Next steps

The Commission has analysed the contributions. A synopsis report summarising the replies has been published. The results will feed into Commission's Communication setting out the guidelines on market analysis and significant market power. The Communication is planned to be adopted in the second quarter of 2018.

Contributions

The contributions submitted can be consulted here:

1. NRAs and Member States

2. Operators

3. Associations

4. Private individual

5. BEREC