Slightly ahead of schedule, the European Commission has published draft guidelines on substantial market powers (SMP), updating the definition of market and substantial powers.
The new guidelines will help national regulators to correctly define the markets in the electronic communications sector and identify substantial market powers for operators.
Markets and substantial powers
The idea is to update the current guidelines, which date back to 2002, to help national regulatory watchdogs (NRA) detect potential anti-competitive practices on electronic communications markets. Identification by a NRA of significant market power will make it possible to issue remedies in terms of price and access or non-discriminatory action.
The draft Commission communication updates the definition of markets and the notion of significant power. It takes account of Court of Justice case law and addresses previously excluded issues such as the competitive impact of online service suppliers that provide services on the internet, the increase in provision of groups of services (internet, TV and telephone) at retail level, the competitive pressure of cable services and moves from monopolies to oligopolistic structures in a number of countries. It is based on a public consultation from March to June 2017 and an external study and an opinion from the Body of European Regulators for Electronic Communications.
Adjustments to timeline
The presentation of the guidelines was brought forward slightly to coincide with the review of the Belgian regulation on broadband. Like the Netherlands, Belgium has to deal with the coexistence of a historic operator and cable operators with a similar weight on the market. The draft guidelines promote the emergence of ‘joint dominance’ for such situations, a term which isn’t used in the current code of electronic communications that is in the process of being revised. The guidelines are in addition to the code of electronic communications and were identified by the EU institutions as a priority issue for the creation of a digital single market, explains the Commission in a press release.
The document notes, in addition to other points, that the starting point for any analysis must be an assessment of the relevant retail market, taking account of sustainability of supply and demand from the viewpoint of the end user. The communication can be found at https://bit.ly/2I3KSxn . (Original version in French by Sophie Petitjean)