The European Commission's eCommunications Consultation Task Force (ECCTF) has today published 5 sets of formal comments relating to notifications (market definition and Significant Market Power designations) made by the Finnish regulatory authority FICORA.
As was the case with previous ECCTF comments relating to the UK, The Netherlands and Austria, these documents are of great interest, and contain statements which amount to the formation of regulatory precedent, with a high degree of relevance not only for Finland, but also for other EU Member States
Document SG(2003)D/233817 (dated 18 Dec 2003, but published today) indicates that the European Commission is opening its first so-called Phase II investigation pursuant to Article 7(4) of the Framework Directive 2002/21/EC.
The Phase II investigation concerns markets 4 and 6: i.e. retail markets for publicly available international telephone services provided at a fixed location for residential and non-residential customers.
FICORA decided not to declare any fixed operator as having Significant Market Power (SMP) on the retail markets for international calls, even though the leading operator has a market share of 55% on the residential market and around 50% on the business market, and other operators also have high market shares.
The Commission expresses "serious doubts" on whether the SMP analysis carried out by FICORA meets the requirements laid down in Articles 14 and 16 of the Framework Directive, in particular with regard to Article 8(2)(b) of the Framework Directive read in conjunction with Articles 10 and 82 of the EC Treaty.
According to the ECCTF, there is lack of evidence to support the finding by FICORA of the absence of SMP, and, on the contrary, prima facie evidence of SMP. The ECCTF also criticises a lack of consideration by FICORA of the effect of existing remedies.
The immediate consequence of the opening of a Phase II investigation by the European Commission is that FICORA is prevented from adopting these two envisaged decisions for a period of 2 months.
The European Commission may subsequently formally veto the decisions in question.
The full text of the letter by means of which the European Commission announces the opening of the Phase II investigation can be accessed by clicking here.
The four other comments released by the ECCTF today in response to notifications made by Finland are also of great interest (the comment on mobile call termination in particular), and constitute precedent amongst others relating to call termination on individual (mobile and fixed) networks, the treatment of small networks, etc. Quite remarkably, they also contain statements about the choice of regulatory remedy, and about the role of the National Regulatory Authority in a situation where national law is not in line with the EU directives.
For an in-depth discussion, please contact Yves Blondeel.