The eCommunications Consultation Task Force (eCCTF) of the European Commission has published its comments on the market analysis performed by the Hungarian regulatory authority Nemzeti Hírközlési Hatóság (NHH) with regard to the wholesale market for access and call origination on public mobile telephone networks (Market 15).
NHH concluded that, in the absence of commercial transactions in the relevant market, it was not possible to analyse any of the criteria in order ascertain the presence of Significant Market Power (SMP). The NHH therefore made an analysis of the corresponding retail market, and found that no operator possesses SMP (individually and/or collectively). NHH therefore did not designate any of the mobile operators as having SMP.
In addition, NHH pointed out that there is currently no demand in the relevant market and that there have been no complaints in relation to the relevant market. T-REGS Note: Only three responses were filed in the national consultation process preceding the NHH's conclusion; all three reactions were filed by Hungarian mobile operators.
The European Commission's eCCTF has pointed out in its letter relating to the NHH's notification, that the fact that “at the wholesale level no transactions are taking place (i.e. no sales to independent third parties) does not exclude the possibility to analyse the relevant market. […] The absence of such transactions indicates that all supply on the relevant market, as defined by NHH, is captive, and provided internally by vertically integrated mobile network operators.”
The eCCTF further explains that in such cases, “the structure of supply at the wholesale level (e.g. market shares of the undertakings active on the relevant market) is derived from supply at the retail level, and the relevant market would need to be analysed on the basis of the competitive conditions at the retail level.”
In this case, although the eCCTF does not agree with the methodology and its application, the conclusions reached in the notification are unaffected (on the basis of the information provided by NHH). The European Commission however “invites NHH to monitor the relevant market, especially with regard to the fact that – as NHH admits – it can be presumed that within the timeframe of its review market players will appear on the demand side of the relevant market (i.e. on the merchant market)”.