[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 11.7.2007

SEC(2007) 962

COMMISSION STAFF WORKING DOCUMENT Accompanying document to the COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS

on market reviews under the EU Regulatory Framework (2 nd report)

{COM(2007) 401 final}

ANNEX I

THE ARTICLE 7 PROCEDURE

Under the procedures set out pursuant to Article 7 of the Framework Directive (2002/21/EC), NRAs must define the boundaries of relevant markets in accordance with competition law principles, taking utmost account of the SMP Guidelines and the Recommendation on relevant markets. If they find that relevant markets are not effectively competitive, NRAs are obliged to propose appropriate regulatory measures to address market failures. A market is not effectively competitive if one or more players is dominant (or has significant market power, “SMP”) in this market. Where operators are found to be dominant, NRAs are required to propose appropriate regulatory remedies to ensure effective competition. In the event of effective competition on the market, existing regulation has to be lifted. The market analysis has to be carried out in cooperation with the national competition authorities.

Before adopting final measures on market definition, market analysis and the imposition of remedies NRAs must not only carry out a national consultation but are also required to notify their draft measures to the Commission. Once an NRA notifies the Commission of its proposed measure for a particular market, the case is registered, and an ad hoc case team comprising officials of the services of both the Information Society and Media and the Competition Directorates General is appointed. The case team analyses the notification and may ask the NRA concerned to provide further information or clarification for the purpose of conducting the assessment. The team must carry out its assessment and comply with the necessary internal checks and balances, within the legally binding deadline of one month. At the end of this period, and provided that the notified measure does not raise “serious doubts” as to its compatibility with Community law, the Commission may decide to make comments. NRAs are to take utmost account of comments issued by the Commission before adopting the draft measure in question.

Table 1: Overview of the Phase 1 investigation

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In the event that the Commission expresses serious doubts, the investigation period is extended by a further two months ("phase two" investigation) during which the NRA may not adopt its proposed measure. During these two months, the case team resumes an in-depth examination of the case and invites third parties to make known their views. What follows thereafter is an intense exchange of information between all interested parties (including the NRAs and industry players); all data provided and views expressed are carefully considered by the Commission. At the end of the investigation period, the Commission may withdraw its serious doubts (in which case the NRA may adopt the draft measure), make comments (of which the NRA must take utmost account when implementing the draft measure) or require the NRA to withdraw its proposed measure. In such an event, the Commission, before issuing its decision, submits its draft decision to the Communications Committee for an opinion. The NRA in question may decide to withdraw its draft measure at any stage of the notification procedure.

Table 2. Overview of the phase 2 investigation

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ANNEX II

TABLE CONCERNING COMPETITION/REGULATION IN THE EU (31/03/2007)

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ANNEX III

MARKETS OVERVIEW

This document highlights the main trends and conclusions of all markets assessed before 31 March 2007.

Retail access for residential and non-residential users (markets 1 and 2)

Retail access can be described as the provision of a connection to the fixed public telephone network for the purpose of making and/or receiving telephone calls and related services (such as faxes and dial-up internet). 24 NRAs have completed and notified their analysis of the retail access markets[1].

In line with the Recommendation, most NRAs defined separate markets for residential and non-residential customers, while the British, Dutch, Greek, Cypriot, and Irish NRAs defined the retail access markets on the basis of different levels of access (mainly PSTN or ISDN). Some NRAs included alternative means of access into the market, including optical cable and local area networks. In most cases, this inclusion did not affect the finding of SMP or the scope of regulation. Nevertheless the Commission requested the Polish NRA, UKE, to withdraw its measures concerning markets 1 and 2 because UKE had not provided sufficient data to support the inclusion of xDSL access services in markets 1 and 2.

All NRAs that notified the markets for retail access thus far found the incumbent operators dominant on these markets. Even if NRAs generally imposed the full set of remedies, including price control[2], carrier selection and carrier pre-selection obligations, as well as wholesale line rental[3] the application of remedies raised some concerns.

In particular, the Commission commented upon the absence of effective ex-ante price control obligations in Germany, the Czech Republic and – with the exception of carrier (pre-) selection – in Finland. Additionally, it considered the "retail-minus" approach chosen by the NRA in Luxemburg insufficient. The Commission also questioned the effectiveness of the ex-post price control in Germany and reminded Germany of Article 19(3) of the Universal Service Directive which foresees that CS/CPS must be provided on a cost-orientated basis; it also commented on the missing cost accounting methodology in Slovakia.

Further, the Commission had doubts whether the NRAs in Hungary, France, Slovenia and Spain had sufficiently assessed the impact of wholesale remedies in addressing market failures at retail level. According to Article 17(1) of the Universal Service Directive, obligations at retail level can only be imposed if remedies at wholesale level would not result in the achievement of the objectives defined in the Framework Directive (including the promotion of competition, the completion of the internal market for electronic communication services and benefits for users). The insufficient consideration of wholesale remedies when defining retail obligations could create barriers to the single market. In particular, the Commission commented on wholesale line rental in Portugal and Spain and asked Poland to specify its wholesale line rental obligation.

Retail local, national and international voice calls for residential and non- residential users (markets 3 to 6)

These markets comprise all outgoing telephone calls from a fixed location. Publicly available telephone services for residential and non-residential customers are still commonly provided over traditional fixed telephone networks. 24 out of 25 NRAs notified their analysis in 2006. A second phase examination was launched by the Commission issuing doubts on the exclusion of calls made 0708 numbers via calling card operators from the Polish market. After additional information was provided by the Polish NRA, the Commission decided to withdraw its serious doubts.

In a majority of notifications, the fixed line incumbent was found to have SMP in all calls markets. However, the following number of national markets was (partly) found competitive: two markets for national calls for residential customers (market 3); eight markets for international calls for residential customers (market 4); three markets for national calls for non-residential customers (market 5) and nine markets for international calls for non-residential customers (market 6).

Retail leased lines (market 7)

A leased line is a permanently connected communications link between two premises dedicated to the customer’s exclusive use. The market for retail leased lines corresponds to the minimum set of leased lines, as defined in the Commission Decision 2003/548/EC[4]. Thus far, 24 NRAs have notified their review of market 7. Most NRAs defined the retail leased lines market in line with the Recommendation, while the Austrian, Portuguese and British NRA chose a broader market. Additionally, the Irish NRA defined a separate market for international leased lines, beyond the recommended market, in order to lift previous regulation, whereas the Maltese NRA included international leased lines in a global retail leased lines market. Finally, the Dutch NRA split the retail leased lines market into six separate national and five separate international markets, while the French NRA demonstrated that the inclusion of leased lines above 2 Mbit/s and leased lines with alternative interfaces was justified by specific national circumstances.

It can however be assumed that competition of the retail market of leased lines will be achieved by the regulation of the corresponding wholesale markets (markets 13 and 14) in most Member States.

Regarding regulatory remedies, Annex VII of the Universal Service Directive provides that NRAs shall ensure that the provision of the minimum set of leased lines follows the basic principles of non-discrimination, cost orientation and transparency. With the exception of the Finnish, Dutch, Spanish, Slovak and Hungarian NRA, NRAs imposed all the regulatory remedies foreseen by the Universal Service Directive.

Wholesale fixed call origination (market 8)

Provision of wholesale call origination enables alternative operators to provide end users with retail fixed telephone services, including dial-up Internet services. All but one NRA have notified their analysis on call origination at a fixed location. NRAs defined the market in line with the Recommendation, with the exception of the British, German, Dutch and Danish NRAs[5].

The incumbent operator was found to have SMP in all notified cases, which indicates that wholesale fixed call origination remains one of the bottlenecks in electronic communications. When regulating this market effectively, through carrier selection, carrier pre-selection obligations and wholesale line rental obligations, barriers to enter the downstream retail access and calls markets may be lowered so that retail regulation could be phased out. In this context, it is of paramount importance that NRAs impose effective and proportional remedies. Therefore the Commission commented upon the fact that the Polish NRA had not specified the details of the price control obligations before the introduction of a new cost accounting model and noted that the Slovenian NRA should introduce cost oriented tariffs within the shortest timeframe possible. Further, the Commission expressed its concern regarding the non-imposition of (i) WLR in Spain and (ii) of a cost-orientation obligation in the Slovak Republic. In Hungary, the NRA allowed the four local incumbents to charge origination rates 40% higher than those of Matáv, which might impede further decreases of retail charges in the view of the Commission.

Wholesale fixed call termination (market 9)

Wholesale call termination can be defined as the wholesale service offered by operator A to operator B in order to enable the subscribers of operator B to call subscribers of operator A. In line with the Recommendation, all NRAs defined each individual fixed telephone network to constitute a relevant market for call termination. It follows that fixed termination markets are natural monopolies. With the exception of an initial notification by BNetzA – which was vetoed by the Commission – NRAs designated all the terminating operators as having SMP. In most cases the full set of remedies set out in the Access Directive were imposed on large SMP operators. Many NRAs applied asymmetric remedies, for example by imposing lighter cost control obligations on newly established operators.

As outlined in Chapter 4.2.2. of the Communication, the Commission emphasised the need for a coherent EU approach. It underlined that the imposition of asymmetric remedies necessitates an adequate reasoning. The Commission also stressed the importance of efficient cost-orientation and cost-accounting obligations. To the extent that it would be considered disproportionate to impose costly cost-orientation and cost-accounting obligations on a small operator, other forms of cost-control for such operators, such as benchmarking, could be considered.

In several cases price control obligations were imposed in a way that does not guarantee legal certainty, such as ex post price control[6], "reasonable" prices[7], unclear cost accounting systems[8] or the freedom of the SMP operator to choose the accounting system. Further, the Commission underlined the importance (i) of accounting separation in order to ensure transparency[9].Accordingly, the Commission asked NRAs to modify the remedies in order to provide for transparency and consistency among Member States. In addition, the Commission commented on reviewing the need for asymmetric application of remedies[10]. For instance in Hungary, four local incumbents were allowed to charge termination rates that are 40% higher than those of Matáv; in Poland, alternative operators were not made subject to any form of price control.[11] Although such asymmetry might be justified in exceptional cases because of objective cost differences which are beyond the control of the operators concerned, they must be adequately reasoned. If asymmetries in termination rates are not based on objective cost differences, they must be phased out within a reasonable time frame. In this context, it is of paramount importance for the purpose of guaranteeing legal certainty that glide paths for the reduction of termination rates are specified in the regulatory measures[12].

Transit services in the public fixed telephone network (market 10)

Transit services refer to the (long distance) conveyance of switched calls on the public fixed telephone network. Depending on the network topology, the delineation between transit services and call origination may vary. Most NRAs defined the market in line with the Recommendation. The British, Dutch and German NRA, however, proposed more narrow market definitions; additionally, the British, Irish, Maltese, Cypriot and French[13] NRA segmented national and international transit services. In the case of the Austrian NRA, the Commission required the NRA to withdraw the draft measure on the basis of a flaw in the market definition[14].

In a large number of Member States, new entrants are still dependent on the incumbent for the provision of transit services on many routes. Out of the 24 NRAs[15] that have notified the market thus far, 16 NRAs designated operators as having SMP[16]. In addition, BNetzA found certain of the more narrowly defined transit markets to be effectively competitive. Some of the notifying NRA imposed the full set of the remedies, whereas the Commission commented upon the non-imposition of price control obligations in Slovenia. Further, the Commission invited the Spanish NRA to consider imposing differentiated remedies given that alternative operators have gained significant market shares on some routes, while Telefonica still enjoys a quasi-monopoly on others.

Wholesale unbundled access (including shared access) to local loops (market 11)

This market covers wholesale access to the metallic local loops and sub-loops, i.e., to the “last mile” of the public fixed telecommunications network connecting the subscriber to the local exchange and to the main distribution frame, respectively.[17] Once access is granted, new entrants can provide both voice and data services to end users over the local loop rented from the incumbent. Owing to the financial and social cost of duplicating this very last section of the fixed network, barriers to entry to this market are generally considered to be very high. All 24 notifying NRAs found that this market is not effectively competitive and designated the incumbent operators as SMP operators.

Wholesale broadband access (market 12)

Wholesale broadband access, (“bitstream” access or equivalent wholesale access), enables new entrants to provide retail broadband access services to end users by relying on their own backbone network in combination with access to the middle and lower parts of the incumbent’s network. Bitstream access is generally considered as an essential stepping stone for new entrants towards investment in full-scale own network roll-out on the basis of local loop unbundling (so-called “ladder of investment” theory[18]). The question whether wholesale bitstream access products provided over non-PSTN infrastructure, typically cable but also other networks, currently or prospectively form part of this market continues to be debated. The Dutch and Maltese NRAs have defined the markets in this encompassing way[19], so that the outcome of the market analysis was affected. Several other NRAs have included cable in the market but in none of these cases the inclusion of cable had any impact on the SMP finding or the remedies proposed.

24 NRAs have completed and notified their analysis; the large majority of them found the incumbent PSTN operators dominant[20]. In most cases, the designated SMP operators were made subject to the full set of remedies under the Access Directive. Access obligations were not always imposed at several network levels.

The Commission had to comment in a number of cases on the proposed remedies imposed by the NRAs. Among other things the Commission asked Germany[21], the Czech Republic, the Slovak Republic[22], Luxemburg and Finland to adopt effective ex ante price regulation[23]. Luxemburg, Lithuania, Poland[24] and the Czech Republic[25] were invited to grant access at appropriate levels / specify the level of access in order to enable the development of competition.. The Commission asked Germany and Spain to apply access obligations to VDSL infrastructure and Germany and Luxemburg to implement stand alone bitstream access (in particular "naked DSL"), which enables alternative operators to provide broadband to end customers without the obligation to rent a telephone line from the incumbent. The Commission also stressed the importance of accounting separation with a view to ensuring transparency[26].

The Commission had to ask the German NRA to accelerate its notification of remedies, as Germany submitted a belated market analysis without notifying final remedies for more than one year afterwards.

Wholesale terminating segments of leased lines (market 13) and wholesale trunk segments of leased lines (market 14)

Wholesale leased lines consist of dedicated unmanaged connections between two points. Operators use them either to complete their own network infrastructure or to provide retail leased line services (see market 7 above). Under the Recommendation, the precise delineation between trunk and terminating segments of leased lines is recognised as being highly dependent on the network topology specific to the Member States concerned. Consequently, the determination of the boundaries between trunk and terminating segments varies significantly among Member States[27]. Further, the Explanatory Memorandum to the recommendation does not exclude segmentation between high and low capacity leased lines, provided such segmentation is justified pursuant to the principles of competition law. Some NRAs (including the British, Dutch, Greek and Lithuanian NRA) thus segmented wholesale leased lines markets according to bandwidth[28]. Finally, it should be recalled that the Recommendation does not restrict the markets for terminating and trunk segments of leased lines to any particular interface or technology. Therefore some NRAs included wholesale leased lines with alternative interfaces (in particular Ethernet) in the wholesale leased lines markets because they are functionally equivalent to wholesale leased lines with traditional interfaces.

24 NRA have notified the market for terminating segments for leased lines[29]. All notifying NRAs found that the fixed incumbent operator(s) had SMP on this market, although the British NRA found that there was no SMP on the more narrowly defined market for very high capacity terminating segments of leased lines, whereas the Lithuanian NRA designated the incumbent operator as having SMP only on the market for low capacity leased lines.

The market for wholesale trunk segments of leased lines was notified by all NRAs with the exception of the Polish and the Estonian NRA[30]. Most of the NRAs notifying the market found it to be effectively competitive, whereas NRAs in the UK, Ireland, Portugal, Italy, Malta, France, Greece, Lithuania, Cyprus, Spain and Luxemburg designated operators as having SMP.

Regarding remedies in the market for wholesale terminating segments of leased lines, the Commission commented upon price control obligations in several cases in order to ensure the consistent application of remedies across the Community, in particular because the Commission was not convinced that the proposed draft measures contained sufficiently effective mechanisms for the implementation of cost accounting methodologies. Further, the Commission invited the Spanish NRA not to limit the scope of the remedies to leased lines with traditional interfaces.

Access and call origination on public mobile telephone networks (market 15)

Currently, access and call origination on public mobile telephone networks are typically supplied together by mobile network operators as part of the same market at wholesale level. These services allow new entrants to make use of the infrastructure of a mobile network operator to provide mobile telephone services to retail customers. The 22 NRAs having notified this market thus far[31] did not deviate from the market definition contained in the Recommendation.

Although the Explanatory Memorandum to the Recommendation states that "… the level of competition generally observed in this market at the retail level indicates that ex-ante regulatory intervention at a wholesale level may not be warranted", the Irish[32], Spanish and Maltese NRAs found joint dominance on this market, whereas the Slovenian and Cypriot NRAs designated one operator as having single SMP on this market. Further, the Commission required the Finnish NRA to withdraw its notification following a veto decision; in its final measure the Finnish NRA concluded that the market is effectively competitive.

The fact that at the wholesale level no access to third parties is granted does not per se mean that the market is non – competitive. Where the majority or all supply on the relevant market is captive, i.e. provided internally by vertically integrated mobile network operators, the structure of supply at the wholesale level can be derived from supply at the retail level. Competitive conditions at retail level are of crucial importance: they may provide an indicator of a rent to protect by the refusal to grant access at the wholesale level.

In order to find joint SMP in the wholesale market of mobile access and call origination, it is not indispensable to find joint SMP at the retail level, but – among the other criteria defined in the "Air Tours" case[33] – it must be shown that (i) fringe competitors, such as emerging mobile network operators, do not have the ability to challenge any anticompetitive coordinated outcome and (ii) that pent-up demand exists, which means that it must be demonstrated that third parties have been denied access to the networks of mobile network operators despite their reasonable request.

Voice call termination on individual mobile networks (market 16)

Termination services are described under market 9 above. When provided on a mobile network, they are referred to as mobile termination services. 25 NRAs have notified the markets so far, having defined the market in line with the Recommendation, i.e. voice call termination by each individual network operator was found to constitute a separate relevant market. It follows that termination markets are natural monopolies and all NRAs found that all mobile network operators had SMP on their respective markets.

In all countries price control have been imposed on the operators, albeit in a number of countries, asymmetrical remedies have been applied, i.e. certain operators benefited from a higher regulatory termination fee.

Remedies have been highly heterogeneous throughout the EU, which cannot be explained solely due to different costs of the termination, but among other things to different costing models and highly different glide paths leading to a "cost oriented" level. As a consequence the regulatory outcome has been fragmented, despite the consistent method of SMP finding described above, leading to significantly different termination rates within the EU.

The Commission had asked in several cases to bring termination rates down by shortening glide paths and ending asymmetric treatment (i.e. favourable treatment for specific operators) earlier. Moreover, the Commission asked not to let termination rates being negotiated by operators, in order to avoid further delay and the lack of transparency. Enforcement of the Commission's comment would not only have led to more harmonisation but also to lower termination fees in a number of Member States which can be expected to translate into lower calling costs for consumers and enterprises.

Wholesale national markets for international roaming on public mobile networks (Market 17)

When a mobile subscriber travels abroad, his home operator needs to have negotiated with a mobile network operator in that country a network access agreement in order to enable the subscriber to make and receive calls. The network access corresponds to the provision of wholesale international roaming services. All of the 11 NRAs that have notified this market thus far found it effectively competitive. This market will be regulated via an EC Regulation.

Broadcasting transmission services to deliver broadcast content to end users (market 18)

This market includes the transmission of broadcasting signals (radio and television signals) on behalf of the content providers to the end users. The 16 NRAs that have notified the broadcasting market thus far have segmented it into various more narrowly defined product markets on the basis of the platform used (cable, satellite or terrestrial), the transmission mode (analogue or digital), the geographical coverage of the network (local or national) and/or the signal transmitted (radio or television). Concrete market circumstances, underlying the market definition, appear to vary substantially from one Member State to the other. A considerable number of submarkets were found to be competitive. Where NRAs wanted to exempt parts of the market from regulation (for example cable transmission networks and satellite networks), the Commission has carefully analysed whether such an approach was justified on the basis of the three criteria test not being met and/or on the basis of no operator having SMP the market.

National terrestrial TV transmission systems seem to remain a bottleneck, in particular due to barriers to entry. Most cable submarkets were found to be competitive, the Netherlands and Germany being the exception, were SMP in the cable markets was found.

However, on a forward looking basis competitive conditions can be expected to improve considerably in all Member States due to increased platforms competition, given the emergence of terrestrial digital television and internet television.

The type of remedies imposed is subject to significant variations in the Member States, which was commented upon in several cases by the Commission in order to safeguard the consistency of regulation in the broadcasting transmission market. In particular, the Commission was concerned about the fact that some NRAs did not impose transparency and price control obligations. Further, the Commission services commented upon the implementation of price control obligations, either because they were not accompanied by an appropriate cost accounting methodology or the use of benchmarking, or because the timeframe foreseen for the introduction of price control was excessively long.

ANNEX IV |

Market 1: Access to the public telephone network provided at a fixed location for residential customers |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

*Refinement, broader/narrower market and/or merger of markets |

**Imposition of WLR |

*** Universal service-based price control obligation only |

**** Differentiated or no remedy imposed on certain SMP operators |

***** second market review |

Overview of notifications assessed until 31 March 2007 |

Market 1: Access to the public telephone network at a fixed location for residential customers Overview of notifications assessed until 31 March 2007 |

UK/2003/0009 and UK/2003/0010 | 2 segments defined: (i) residential retail analogue exchange line services and (ii) residential retail ISDN2 exchange line services. | UK (excluding the Hull area) and the Hull area | BT and Kingston | 1 - Non-discrimination | The Commission made a comment on: Markets defined more narrowly than in the Recommendation: A broader market definition, in line with the Recommendation, is not likely to lead to a different SMP outcome. Therefore the conclusion on the exact scope of the markets is not relevant. |

2 - Publication of charges, terms and conditions of supply |

3 - BT only: annual ceiling for charges equivalent to RPI increase |

4 - BT only: cost-accounting in respect of residential analogue access |

FI/2003/0020 | Similar to the Recommendation. | Regional | 43 regional operators | 1 - Users' right to a connection to fixed telephone network | The Commission made a comment on: Remedies at retail level: No further obligations are imposed on the SMP operators at retail level in addition to CS/CPS and other non-SMP obligations based on the Universal Service Directive. NRA should assess the impact of regulation at wholesale level and of CS/CPS on the market and consider additional regulation at retail level. |

2 - Obligation to publish standard agreement terms and tariff information on services |

3 - User's right to pre-selection / carrier pre-selection |

PT/2004/0053 and PT/2004/0091 | Similar to the Recommendation. | National | PT Group | 1 - Transparency | The Commission made a comment on: Wholesale line rental Wholesale line rental is an appropriate remedy to address the lack of competition in the relevant retail market. The need for Wholesale Line rental should decrease, as competitors to the incumbent invest in their infrastructure. |

2 - Non-discrimination |

3 - Cost orientation and cost accounting |

4 - Accounting separation |

5 - Carrier(Pre)Selection |

6 - Price affordability |

7 - Wholesale line rental |

AT/2004/0109 AT/2005/0303 AT/2007/0579 | In the second round of market review retail broadband access has been included | National | Telekom Austria | 1 - Carrier(Pre)Selection | The Commission made comments on: Inclusion in the access markets of broadband access lines over which VoB services are provided TKK includes broadband access lines over which VoB services are provided in the retail access markets essentially on the basis of the argument that such lines are effectively being used, inter alia, to make and receive calls in full connectivity with the PSTN network.[34] However, the functionality of narrowband access lines and broadband access lines in general overlap only partly. Although broadband connections are also capable of facilitating delivery of telephone services, customers generally will not switch from a narrowband to a broadband connection for the sole purpose of accessing voice services. Consumers switch from narrowband to broadband connections primarily to get access to higher speed Internet services. From a functional viewpoint, broadband access therefore tends to be only partially substitutable with narrowband access lines. Moreover, in accordance with competition law principles, product characteristics and intended use are insufficient to show whether two products are substitutes. Functional interchangeability or similarity in characteristics may not, in themselves, provide sufficient criteria, because the responsiveness of customers to relative price changes may be determined by other considerations as well.[35] Before including certain broadband access lines within the same relevant markets as PSTN and ISDN access lines, TKK should therefore examine the prices of the various products and investigate what the impact would be if a hypothetical monopolist on the narrowband access markets would impose a small but significant non-transitional price increase of 5 to 10%. Only if such a price increase causes customers to switch to broadband access so that the price increase becomes unprofitable, should broadband access be included in the relevant market.[36] Even though broadband access services, however, may not be part of the relevant markets, such services, when offered by alternative operators, may have an impact on TA's market power since competitive constraints can, in particular circumstances, also stem from neighbouring markets. TKK could therefore have taken the provision of broadband access lines over which VoB services are or can be offered into account at the stage of the SMP finding. In any event, since TA does not provide any such broadband access lines as TKK has included in the relevant market, the exclusion of such services from the relevant market would not affect the SMP finding in this case nor on the scope of the remedies imposed.[37] Should TA, however, within the period of this review start offering broadband access lines over which it offers VoB services, the remedies currently imposed should not be extended to cover such broadband access lines without TKK justifying on the basis of further evidence that the inclusion of such lines in the relevant markets is justified on the basis of competition law principles. Such a finding would be subject to the procedure foreseen in Article 7 Framework Directive. Efficiency of wholesale regulation TKK's analysis does not indicate any significant changes in the competitive conditions in the retail calls markets since the first market review. This calls for the reassessment of the effectiveness of the current wholesale regulation. The Commission already commented upon this issue in the context of TKK's second market review of the fixed wholesale markets[38]. With regard to the present notifications, the Commission services would like to invite TKK in particular to supervise closely the standard WLR offer of TA and to reassess whether the upfront payment applied by TA, that TKK considers to constitute a barrier to enter the retail access markets, could be lowered. |

2 - Wholesale line rental |

3 - Non-discrimination |

4 - Accounting separation |

5 - Cost orientation and cost accounting |

6 - Ex ante approval of end-users tariffs |

2 - Non-discrimination |

3 - Accounting separation |

4 - Carrier(Pre)Selection, also in respect of access supplied via Wholesale line rental to another operator |

5 - Obligation to supply calls not covered by carrier pre-selection (freephone, emergency, premium rate calls) |

6- Provision of unbundled broadband access (no requirement to purchase telephone subscription) |

HU/2005/0130 | Similar to the Recommendation. Includes public payphones. | Regional | 5 regional operators: Matáv, Invitel Távközlési Szolgáltató, Hungarotel Távközlési, Emitel, Monor Telefon Társaság | 1 - Carrier(Pre)Selection | The Commission made a comment on: Remedies imposed at retail level prior to analysing the corresponding wholesale markets: Retail market remedies are supposed to be imposed after it has been recognised that remedies imposed on the wholesale market do not provide for effective competition. When carrying out the review of the relevant wholesale markets, the NRA should assess the effectiveness of remedies imposed at wholesale level in addressing market failures in the relevant retail market. |

2 - Not to increase prices in excess to the consumer price index. |

IE/2005/0158 | Access for residential and non-residential customers are included in one market. Lower narrowband access (PSTN, FWA, ISDN) and higher narrowband access (ISDN2 and ISDN30) are in different markets. | National | Eircom | 1 - Carrier (Pre) Selection and Wholesale Line Rental, including price control in the form of retail minus | The Commission made a comment on: Further consultations planned by ComReg on details of cost accounting and accounting separation are required to be notified to the Commission. |

2 - Access obligation |

3 - Non-discrimination |

4 - Transparency |

5 - Accounting separation |

6- Cost orientation and cost accounting |

7 - Not to unreasonably bundle services |

SK/2005/0172 | Similar to the Recommendation. | National | Slovak Telecom | 1 - Carrier(Pre)Selection | The Commission made comments on: Proper national consultation on each draft measure when the measure has a significant impact on the relevant market. Give all interested parties the opportunity to comment on draft measures. Implementation of price control and cost accounting: Details on the implementation of price control and cost accounting have to be specified in the final measure. Reference to Art. 17(4) of the Universal Service Directive. Implementation of cost orientation related to CS/CPS: The Commission pointed out that cost orientation on CS/CPS should be implemented with an appropriate cost accounting method. |

2 - Price control (not allowed to charge unreasonably high or low prices) |

3 - Non-discrimination |

4 - Prohibition of bundling of products |

2 - Price regulation (due to the Universal service obligations) |

FR/2005/0221 | Similar to the Recommendation. | Metropolitan France, overseas territories and Mayotte (except the territory of Saint-Pierre-et-Miquelon) | France Télécom | 1 - Carrier (Pre) Selection and Wholesale Line Rental | The Commission made a comment on: Remedies and next market review: ARCEP is invited to ensure full, effective and appropriate enforcement of the obligations imposed in markets 8 to 12 within the shortest possible timeframe, and accordingly to commit reviewing the present market analysis following such enforcement, in any case at an earlier timing than the proposed 2008 review. |

2- Non discrimination |

3 - Prohibition of abusive bundling of access and call products |

4 - Prohibition of excessive or predatory pricing |

5 - Ex ante tariff information vis-a-vis the NRA |

6 - Accounting separation |

SI/2005/0231 SI/2007/0600 | Similar to the Recommendation. | National | Telekom Slovenije | 1 - Obligation to offer wholesale line rental (WLR) | Concerning the first round of market review, the Commission made comments on: Remedies at retail level: When carrying out the forthcoming review of the corresponding relevant wholesale market, it is necessary to assess the effectiveness of remedies to be imposed at wholesale level in addressing market failures at retail level. Obligation to provide ADSL services not only to end-users who subscribe also to ISDN: The remedy imposed (non-discrimination) would be more appropriate if it included a general prohibition to oblige end-users of fixed access products to subscribe to a particular type of access product under any circumstances unless it is technically necessary for the provision of a given service. As regards the notification SI/2007/0600 (second market review) the Commission made no comments. |

2 - Carrier Selection (CS) and Carrier Pre-selection (CPS |

3 - Prohibition to charge excessive prices: price cap for subscription fees and maintains the cost-oriented price obligation with regard to the other end-user prices linked to access to the public telephone network. |

4 - Prohibition to limit competition by setting predatory pricing: As mentioned above, APEK maintains the method of cost oriented prices for those prices which are not regulated by price cap. The cost oriented prices methodology is based on fully allocated costs (FAC) and current cost accounting (CCA) |

5 - Obligation not to discriminate among end-users purchasing access to the fixed telephone network, namely to offer ADSL services to end-users irrespective of whether they also subscribe to ISDN services. |

6 - Prohibition of unjustified bundling of services. APEK imposes on TS the obligation not to make certain services conditional upon the purchase of another service which the user does not need/want. |

2 – non discrimination |

3 - transparency |

4 – not to unduly bundle products and services |

5 – price control |

NL/2005/0287 | OPTA distinguishes two retail access markets, (1) a low capacity access market that includes telephone connections with no more than two voice channels -i.e. analogue, ISDN1 and ISDN 2 connections; and (2) a high-capacity access market that includes those connections with more than two telephone lines -i.e. ISDN 15, ISNDN 20, and ISDN 30 connections | National | KPN | 1 – cost accounting | The Commission made a comment on: Narrow market definition OPTA defines certain markets more narrowly than foreseen in the Recommendation. In particular, OPTA defines isolated markets for fixed-to mobile calls, narrowband data services, calls to information numbers and calls to personal assistant numbers. The Commission is not convinced that such a narrow market definition is justified. However, in these particular cases, as it does not have any impact on the finding of SMP, nor on the remedies imposed, the exact market definition can be left open. |

2 – price regulation |

3 – non discrimination |

4 - transparency |

DE/2005/0306 DE/2006/0402 | the markets for access to the public telephone network at a fixed location as a single market for all customers using analogue access lines, ISDN lines and ISDN-PMX lines | National | DTAG | 1 - CS/CPS | Effectiveness of the proposed remedies in resolving the identified market failure in the fixed access market The Commission considers that in view of the fact that DTAG hence faces limited (potential) competition on the retail access market, the risk of excessive pricing by DTAG cannot be excluded. Ex post price control may not be effective in protecting consumers against that risk, in particular in view of the fact that the ex post price control foreseen in the Telekommunikationsgesetz (TKG) only prohibits tariffs that would be manifestly abusive. Therefore BNetzA should consider imposing a more efficient price control mechanism. Non-imposition of cost orientation for the CS / CPS obligation Article 19 (3) of the Universal Service Directive provides that CS and CPS must be offered on a cost oriented basis. On the basis of this provision and Article 8 of the Framework Directive, the Commission reminds BNetzA of Article 19(3) of the Universal Service Directive which provides that CS/CPS must be provided for on a cost oriented basis and asks BNetzA to indicate how it will implement this obligation. Non-imposition of accounting separation The Commission also considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, BNetzA should impose on DTAG an obligation of accounting separation. Without such an obligation, it seems difficult for BNetzA to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

2 - The obligation to notify new tariffs |

ES/2006/0336 | Similar to the Recommendation | National | TESAU | CS/CPS | Remedies at retail level: Article 17 of the Universal Service Directive provides that if, as a result of a market analysis carried out in accordance with Article 16(3) of the Framework Directive, an NRA determines that a given retail market is not effectively competitive and concludes that wholesale obligations imposed under the Access Directive or the obligation to provide CS and CPS do not result in the achievement of the regulatory objectives set out in Article 8 of the Framework Directive, the NRA shall impose appropriate regulatory obligations on undertakings identified as having SMP on a given retail market. The Commission notes that CMT has not yet completed the review of the related wholesale markets, in particular markets 8 and 11 of the Recommendation. In that respect, the Commission would like to remind CMT that when carrying out the forthcoming review of the corresponding relevant wholesale markets, it should assess the impact, appropriateness and the effectiveness of remedies to be imposed at wholesale level in addressing market failures in the relevant retail market. Should this review lead to a need to amend the retail remedies as currently proposed in this notification, CMT is required to notify any possible resulting modification of retail remedies to the Commission pursuant to Article 7(3) of the Framework Directive. |

Price control for analogue access lines |

Non-discrimination |

Prohibition of anti-competitive behaviour |

transparency |

Accounting separation |

CZ/2006/0356 | Similar to the Recommendation. | National | CTU | 1 – CS/CPS | The Commission made a comment on: Efficiency of the proposed remedies in resolving identified market failures: CTU considers that the proposed retail remedies, in combination with the remedies imposed on related wholesale markets, in particular wholesale unbundled access to metallic loops and sub-loops, are sufficient to remedy the market failure on these retail markets. Therefore, CTU does not intend to impose any pricing conditions neither in relation to the provision of access for resale by third parties nor in relation to the retail access market for non-residential customers. The Commission notes that the incumbent still has a very strong position on both retail access markets. CTU is invited to closely monitor the development of competition on these markets, to verify whether the remedies imposed at wholesale and retail level are effective in addressing the market failures in the retail access markets. In case the development of competitive conditions would not be satisfactory, CTU should consider before the end of the three year period of review whether to amend the retail remedies as currently proposed in this notification |

2 – accounting separation |

3 - provision of access services to the public telephone network at a fixed location for resale by third parties |

4 – cost orientation (only market 1) |

MT/2006/0394 | The inclusion of Broadband Wireless Access (BWA). | National | Maltacom | CS/CPS | The Commission made a comment on: The inclusion of BWA in the same market as fixed residential analogue and cable access lines The MCA considers that BWA is a potential substitute to fixed access services over the PSTN and over cable-TV networks. Within the timeframe of the review, the MCA expects the roll-out of the BWA networks to be at an advanced stage and predicts that BWA networks will have the capability to offer access services. Therefore, the MCA includes BWA in the same relevant market as fixed residential analogue and cable access lines. As regards BWA, the Commission notes that the MCA has not conducted a substitution analysis before defining the relevant market. In particular, the MCA has neither assessed whether end-users would consider switching from a fixed narrowband access product to a BWA product in case of small but non-significant price increase, nor the functionality of the BWA product. However, the Commission recognises the fact that in this particular case the inclusion of this technology in the relevant market does not affect the finding of SMP or the scope of regulation. |

Wholesale Line Rental |

Cost orientation |

Cost accounting and accounting separation |

Non discrimination |

Transparency |

Prohibition to bundle services |

transparency |

Non-discrimination |

Wholesale Line Rental |

Price control and cost accounting |

Accounting separation |

Information and notification obligation |

LT/2006/0411 and LT/2006/0512 | Similar to the Recommendation. | National | TEO LT AB | CS/CPS | The Commission made a comment on: The inclusion of wireless radio, optic cable and local area networks in the same market as fixed residential analogue and cable access lines RRT considers that cable TV networks, wireless radio, optic cable and local area networks could provide a potential substitute to fixed access services over PSTN and ISDN. Within the timeframe of the review, RRT expects the further growth of cable TV networks and an increased ability to offer access services. For the other alternative platforms, RRT does not provide a forecast that would show that, within the timeframe of the review, these access technologies would effectively develop as alternative access platforms. Also, as regards wireless radio, optic cable and local area networks and cable TV networks, the Commission notes that RRT has not conducted a substitution analysis before defining the relevant market. In particular, RRT has not assessed whether end users would be able to switch from the metallic loop to any of the other access platforms in case of a small but significant price increase in the metallic loop access prices. In order to assess the substitutability, RRT is invited to examine inter alia the functionality of these alternative access technologies and include the result of this analysis in its final measure. However, the Commission notes that, in this particular case, the inclusion of any of the alternative access technologies in the definition of the relevant market does not affect the finding of SMP or the scope of regulation. |

Price control and cost accounting |

Accounting separation |

Wholesale Line Rental |

Non discrimination |

Transparency |

Accounting separation |

Price control and cost accounting |

Prohibition of unreasonable bundling of products and services |

EL/2006/0500 | (i) lower level narrowband and (ii) higher level narrowband access. | national | OTE | WLR | No comments made by the Commission |

Non discrimination |

transparency |

Price control |

Unbundling of services |

Cost accounting and accounting separation |

PL/2006/0518 | An access through x DSL included in the market definition | national | TP SA | a prohibition of excessive pricing | The Commission vetoed the draft measure based on: Lack of evidence that ISDN/PSTN access and broadband access in Poland are substitutable products |

an obligation to refrain from distorting the market entry of other undertakings |

an obligation to refrain from limiting competition by fixing prices below the costs of their provision |

an obligation to refrain from applying preferential treatment to end users |

an obligation to refrain from obliging the end users to use unnecessary services |

cost orientation and cost accounting obligation |

an obligation to submit for approval prices and other conditions of service provision |

LU/2007/0526 | analogue access and basic digital access included. ISDN PRA excluded from the market | national | EPT | Wholesale obligations: 1 – access (CS/CPS and WLR) 2 – non discrimination 3 – transparency 3 – accounting separation 4 – price control Retail obligations: 1 – non discrimination 2 – transparency 3 – price control | The Commission made a comment on: Price control obligation ILR intends to base the price control obligation for WLR on the "retail minus" methodology. It should be recalled that retail access prices for residential and non residential customers are above the EU average in Luxemburg. A retail minus methodology might result in WLR prices that exceed costs. Given the fact that the cost orientation obligation at retail level is proposed to be removed, it is all the more important that WLR prices are set at cost. Consequently, the Commission invites ILR to impose a cost orientation obligation concerning WLR prices. This would ensure that users are offered attractive prices, whilst allowing EPT to recover its costs. |

LV/2007/0565 | Similar to the Recommendation | national | Lattelecom | 1 - CS/CPS | Lack of details concerning price control obligation The Commission notes that SPRK has not clearly specified in its measures details of the imposed price control obligation. In order to enhance legal certainty, the Commission would like to invite SPRK to clarify in its final measure the details of the price control remedy imposed. Non-imposition of accounting separation The Commission considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, SPRK should impose on Lattelecom an obligation of accounting separation. Without such an obligation, it seems difficult for SPRK to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

2 – price control |

Market 2: Access to the public telephone network |

provided at a fixed location for non residential customers |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

* Refinement, broader/narrower market and/or merger of markets |

** Imposition of WLR |

*** Universal service-based price control obligation only |

**** Differentiated or no remedy imposed on certain SMP operators |

*****second market review |

Overview of notifications assessed until 31 March 2007 |

Market 2: Access to the public telephone network at a fixed location for non-residential customers Overview of notifications assessed until 31 March 2007 |

UK/2003/0009 and UK/2003/0010 | 3 segments defined: (i) business retail analogue exchange line services; (ii) business retail ISDN2 exchange line services and (iii) business retail ISDN30 exchange line services. | UK (excluding the Hull area) and the Hull area | BT and Kingston | 1 - Non-discrimination | The Commission made a comment on: Markets defined more narrowly then in the Recommendation: A broader market definition, in line with the Recommendation, is not likely to lead to a different SMP outcome. Therefore the conclusion on the exact scope of the markets is not relevant. |

2 - Publication of charges, terms and conditions of supply |

3- BT only: annual ceiling for charges equivalent to RPI increase |

FI/2003/0021 | Similar to the Recommendation. | Regional | 43 regional operators | 1 - Users' right to a connection to fixed telephone network | The Commission made a comment on: Remedies at retail level: No further obligations are imposed on the SMP operators at retail level in addition to CS/CPS and other non-SMP obligations based on the Universal Service Directive. NRA should assess the impact of regulation at wholesale level and of CS/CPS on the market and consider additional regulation at retail level. |

2 - Obligation to publish standard agreement terms and tariff information on services |

3 - User's right to pre-selection / carrier pre-selection |

PT/2004/0054 and PT/2004/0091 | Similar to the Recommendation. | National | PT Group | 1 - Transparency | The Commission made a comment on: Wholesale line rental: Wholesale line rental is an appropriate remedy to address the lack of competition in the relevant retail market. The need for Wholesale Line rental should decrease, as competitors to the incumbent invest in their infrastructure. |

2 - Non-discrimination |

3 - Cost orientation and cost accounting |

4 - Accounting separation |

AT/2004/0110 AT/2005/0303 AT/2007/0580 | In the second round of market review retail broadband access has been included | National | Telekom Austria | 1 - Carrier(Pre)Selection | The Commission made comments on: Inclusion in the access markets of broadband access lines over which VoB services are provided TKK includes broadband access lines over which VoB services are provided in the retail access markets essentially on the basis of the argument that such lines are effectively being used, inter alia, to make and receive calls in full connectivity with the PSTN network. However, the functionality of narrowband access lines and broadband access lines in general overlap only partly. Although broadband connections are also capable of facilitating delivery of telephone services, customers generally will not switch from a narrowband to a broadband connection for the sole purpose of accessing voice services. Consumers switch from narrowband to broadband connections primarily to get access to higher speed Internet services. From a functional viewpoint, broadband access therefore tends to be only partially substitutable with narrowband access lines. Moreover, in accordance with competition law principles, product characteristics and intended use are insufficient to show whether two products are substitutes. Functional interchangeability or similarity in characteristics may not, in themselves, provide sufficient criteria, because the responsiveness of customers to relative price changes may be determined by other considerations as well. Before including certain broadband access lines within the same relevant markets as PSTN and ISDN access lines, TKK should therefore examine the prices of the various products and investigate what the impact would be if a hypothetical monopolist on the narrowband access markets would impose a small but significant non-transitional price increase of 5 to 10%. Only if such a price increase causes customers to switch to broadband access so that the price increase becomes unprofitable, should broadband access be included in the relevant market. Even though broadband access services, however, may not be part of the relevant markets, such services, when offered by alternative operators, may have an impact on TA's market power since competitive constraints can, in particular circumstances, also stem from neighbouring markets. TKK could therefore have taken the provision of broadband access lines over which VoB services are or can be offered into account at the stage of the SMP finding. In any event, since TA does not provide any such broadband access lines as TKK has included in the relevant market, the exclusion of such services from the relevant market would not affect the SMP finding in this case nor on the scope of the remedies imposed. Should TA, however, within the period of this review start offering broadband access lines over which it offers VoB services, the remedies currently imposed should not be extended to cover such broadband access lines without TKK justifying on the basis of further evidence that the inclusion of such lines in the relevant markets is justified on the basis of competition law principles. Such a finding would be subject to the procedure foreseen in Article 7 Framework Directive. Efficiency of wholesale regulation TKK's analysis does not indicate any significant changes in the competitive conditions in the retail calls markets since the first market review. This calls for the reassessment of the effectiveness of the current wholesale regulation. The Commission already commented upon this issue in the context of TKK's second market review of the fixed wholesale markets. With regard to the present notifications, the Commission services would like to invite TKK in particular to supervise closely the standard WLR offer of TA and to reassess whether the upfront payment applied by TA, that TKK considers to constitute a barrier to enter the retail access markets, could be lowered. |

2 - Wholesale line rental |

3 - Non-discrimination |

4 - Accounting separation |

5 - Cost orientation |

6 - Ex ante approval of end-users tariffs |

2 - Non-discrimination |

3 - Accounting separation |

4 - Carrier(Pre)Selection, also in respect of access supplied via WLR to another operator |

5 - Obligations to supply calls not covered by carrier pre-selection (freephone, emergency, premium rate calls) |

6- Provision of unbundled broadband access (no requirement to purchase telephone subscription) |

HU/2005/0131 | Similar to the Recommendation. | Regional | 5 regional operators: Matáv, Invitel Távközlési Szolgáltató, Hungarotel Távközlési, Emitel, Monor Telefon Társaság | 1 - Carrier(Pre)Selection | The Commission made a comment on: Remedies imposed at retail level prior to analysing the corresponding wholesale markets: Retail market remedies are supposed to be imposed after it has been recognised that remedies imposed on the wholesale market do not provide for effective competition. When carrying out the review of the relevant wholesale markets, the NRA should assess the effectiveness of remedies imposed at wholesale level in addressing market failures in the relevant retail market. |

2 - Not to increase prices in excess to the consumer price index. |

IE/2005/0159 | Access for residential and non-residential customers are included in one market. Lower narrowband access (PSTN, FWA, ISDN) and higher narrowband access (ISDN2 and ISDN30) are in different markets. | National | Eircom | 1 - Carrier (Pre) Selection and Wholesale Line Rental, including price control in the form of retail minus | The Commission made a comment on: Further consultations planned by ComReg on details of cost accounting and accounting separation are required to be notified to the Commission. |

2 - Access obligation |

3 - Non-discrimination |

4 - Transparency |

5 - Accounting separation |

6 - Cost orientation and cost accounting |

7 - Not to unreasonably bundle services |

SK/2005/0173 | Similar to the Recommendation. | National | Slovak Telecom | 1 - Carrier(Pre)Selection | The Commission made comments on: Proper national consultation on each draft measure when the measure has a significant impact on the relevant market. Give all interested parties the opportunity to comment on draft measures. Implementation of price control and cost accounting: Details on the implementation of price control and cost accounting have to be specified in the final measure. Reference to Art. 17(4) of the Universal Service Directive. Implementation of cost orientation related to CS/CPS: The Commission pointed out that cost orientation on CS/CPS should be implemented with an appropriate cost accounting method. |

2 - Price control (not allowed to charge unreasonably high or low prices) |

3 - Non-discrimination |

4 - Prohibition of bundling of products |

2 - Price regulation (due to the Universal service obligations) |

FR/2005/0222 | Similar to the Recommendation. | Metropolitan France, overseas territories and Mayotte (except the territory of Saint-Pierre-et-Miquelon) | France Télécom | 1 - Carrier (Pre) Selection and Wholesale Line Rental | The Commission made a comment on: Remedies and next market review: ARCEP is invited to ensure full, effective and appropriate enforcement of the obligations imposed in markets 8 to 12 within the shortest possible timeframe, and accordingly to commit reviewing the present market analysis following such enforcement, in any case at an earlier timing than the proposed 2008 review. |

2- Non-discrimination |

3 - Prohibition of abusive bundling of access and call products |

4 - Prohibition of excessive or predatory pricing |

5 - Ex ante tariff information vis-à-vis the NRA |

6 - Accounting separation |

SI/2005/0231 SI/2007/0601 | Similar to the Recommendation. | National | Telekom Slovenije | 1 - Obligation to offer wholesale line rental (WLR) | Concerning first market review, the Commission made comments on: Remedies at retail level: When carrying out the forthcoming review of the corresponding relevant wholesale market, it is necessary to assess the effectiveness of remedies to be imposed at wholesale level in addressing market failures at retail level. Obligation to provide ADSL services not only to end-users who subscribe also to ISDN: The remedy imposed (non-discrimination) would be more appropriate if it included a general prohibition to oblige end-users of fixed access products to subscribe to a particular type of access product under any circumstances unless it is technically necessary for the provision of a given service. As regards the notification SI/2007/0600 (second market review) the Commission made no comments. |

2 - Carrier Selection (CS) and Carrier Pre-selection (CPS |

2 – non discrimination |

3 - transparency |

4 – not to unduly bundle products and services |

5 – price control |

NL/2005/0288 | OPTA distinguishes two retail access markets, (1) a low capacity access market that includes telephone connections with no more than two voice channels -i.e. analogue, ISDN1 and ISDN 2 connections; and (2) a high-capacity access market that includes those connections with more than two telephone lines -i.e. ISDN 15, ISNDN 20, and ISDN 30 connections | National | KPN | 1 – cost accounting | The Commission made a comment on: Narrow market definition OPTA defines certain markets more narrowly than foreseen in the Recommendation. In particular, OPTA defines isolated markets for fixed-to mobile calls, narrowband data services, calls to information numbers and calls to personal assistant numbers. The Commission is not convinced that such a narrow market definition is justified. However, in these particular cases, as it does not have any impact on the finding of SMP, nor on the remedies imposed, the exact market definition can be left open. |

2 – price regulation |

3 – non discrimination |

4 - transparency |

DE/2005/0306 DE/2006/0402 | the markets for access to the public telephone network at a fixed location as a single market for all customers using analogue access lines, ISDN lines and ISDN-PMX lines | National | DTAG | CS/CPS | The Commission made comments on: Effectiveness of the proposed remedies in resolving the identified market failure in the fixed access market DTAG has a market share of approximately 94% in the retail access market. Competitive pressure resulting from LLU may be limited in particular in certain geographic areas. On a prospective basis, WLR is not available in Germany rendering it more difficult for alternative operators to climb the ladder of investment towards full unbundling. The Commission considers that in view of the fact that DTAG hence faces limited (potential) competition on the retail access market, the risk of excessive pricing by DTAG cannot be excluded. Ex post price control may not be effective in protecting consumers against that risk, in particular in view of the fact that the ex post price control foreseen in the Telekommunikationsgesetz (TKG) only prohibits tariffs that would be manifestly abusive. Therefore BNetzA should consider imposing a more efficient price control mechanism. Non-imposition of cost orientation for the CS / CPS obligation Article 19 (3) of the Universal Service Directive9 provides that CS and CPS must be offered on a cost oriented basis. On the basis of this provision and Article 8 of the Framework Directive, the Commission reminds BNetzA of Article 19(3) of the Universal Service Directive which provides that CS/CPS must be provided for on a cost oriented basis and asks BNetzA to indicate how it will implement this obligation. Non-imposition of accounting separation The Commission also considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, BNetzA should impose on DTAG an obligation of accounting separation. Without such an obligation, it seems difficult for BNetzA to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

The obligation to notify new tariffs |

CZ/2006/0356 | Similar to the Recommendation. | National | CTU | 1 – CS/CPS 2 – accounting separation | The Commission made a comment on: Efficiency of the proposed remedies in resolving identified market failures: CTU considers that the proposed retail remedies, in combination with the remedies imposed on related wholesale markets, in particular wholesale unbundled access to metallic loops and sub-loops, are sufficient to remedy the market failure on these retail markets. Therefore, CTU does not intend to impose any pricing conditions neither in relation to the provision of access for resale by third parties nor in relation to the retail access market for non-residential customers. The Commission notes that the incumbent still has a very strong position on both retail access markets. CTU is invited to closely monitor the development of competition on these markets, to verify whether the remedies imposed at wholesale and retail level are effective in addressing the market failures in the retail access markets. In case the development of competitive conditions would not be satisfactory, CTU should consider before the end of the three year period of review whether to amend the retail remedies as currently proposed in this notification. |

3 - provision of access services to the public telephone network at a fixed location for resale by third parties |

Wholesale Line Rental |

Cost orientation |

Cost accounting and accounting separation |

Non discrimination |

Transparency |

Prohibition to bundle services |

DE/2005/0306 DE/2006/0402 | the markets for access to the public telephone network at a fixed location as a single market for all customers using analogue access lines, ISDN lines and ISDN-PMX lines | national | DTAG | CS/CPS | The Commission made comments on: Effectiveness of the proposed remedies in resolving the identified market failure in the fixed access market DTAG has a market share of approximately 94% in the retail access market. Competitive pressure resulting from LLU may be limited in particular in certain geographic areas. On a prospective basis, WLR is not available in Germany rendering it more difficult for alternative operators to climb the ladder of investment towards full unbundling. The Commission considers that in view of the fact that DTAG hence faces limited (potential) competition on the retail access market, the risk of excessive pricing by DTAG cannot be excluded. Ex post price control may not be effective in protecting consumers against that risk, in particular in view of the fact that the ex post price control foreseen in the Telekommunikationsgesetz (TKG) only prohibits tariffs that would be manifestly abusive. Therefore BNetzA should consider imposing a more efficient price control mechanism. Non-imposition of cost orientation for the CS / CPS obligation Article 19 (3) of the Universal Service Directive9 provides that CS and CPS must be offered on a cost oriented basis. On the basis of this provision and Article 8 of the Framework Directive, the Commission reminds BNetzA of Article 19(3) of the Universal Service Directive which provides that CS/CPS must be provided for on a cost oriented basis and asks BNetzA to indicate how it will implement this obligation. Non-imposition of accounting separation The Commission also considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, BNetzA should impose on DTAG an obligation of accounting separation. Without such an obligation, it seems difficult for BNetzA to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

The obligation to notify new tariffs |

ES/2006/0336 | Similar to the Recommendation. | National | TESAU | CS/CPS | The Commission made a comment on: Remedies at retail level: Article 17 of the Universal Service Directive provides that if, as a result of a market analysis carried out in accordance with Article 16(3) of the Framework Directive, an NRA determines that a given retail market is not effectively competitive and concludes that wholesale obligations imposed under the Access Directive or the obligation to provide CS and CPS do not result in the achievement of the regulatory objectives set out in Article 8 of the Framework Directive, the NRA shall impose appropriate regulatory obligations on undertakings identified as having SMP on a given retail market. The Commission notes that CMT has not yet completed the review of the related wholesale markets, in particular markets 8 and 11 of the Recommendation. In that respect, the Commission would like to remind CMT that when carrying out the forthcoming review of the corresponding relevant wholesale markets, it should assess the impact, appropriateness and the effectiveness of remedies to be imposed at wholesale level in addressing market failures in the relevant retail market. Should this review lead to a need to amend the retail remedies as currently proposed in this notification, CMT is required to notify any possible resulting modification of retail remedies to the Commission pursuant to Article 7(3) of the Framework Directive. |

Price control for analogue access lines |

Non-discrimination |

Prohibition of anti-competitive behaviour |

transparency |

Accounting separation |

transparency |

Non-discrimination |

Wholesale Line Rental |

Price control and cost accounting |

Accounting separation |

Information and notification obligation |

LT/2006/0412 and LT/2006/0513 | Similar to the Recommendation. | National | TEO LT AB | CS/CPS | The Commission made a comment on: The inclusion of wireless radio, optic cable and local area networks in the same market as fixed residential analogue and cable access lines RRT considers that cable TV networks, wireless radio, optic cable and local area networks could provide a potential substitute to fixed access services over PSTN and ISDN. Within the timeframe of the review, RRT expects the further growth of cable TV networks and an increased ability to offer access services. For the other alternative platforms, RRT does not provide a forecast that would show that, within the timeframe of the review, these access technologies would effectively develop as alternative access platforms. Also, as regards wireless radio, optic cable and local area networks and cable TV networks, the Commission notes that RRT has not conducted a substitution analysis before defining the relevant market. In particular, RRT has not assessed whether end users would be able to switch from the metallic loop to any of the other access platforms in case of a small but significant price increase in the metallic loop access prices. In order to assess the substitutability, RRT is invited to examine inter alia the functionality of these alternative access technologies and include the result of this analysis in its final measure. However, the Commission notes that, in this particular case, the inclusion of any of the alternative access technologies in the definition of the relevant market does not affect the finding of SMP or the scope of regulation. |

Price control and cost accounting |

Accounting separation |

Wholesale Line Rental |

Non discrimination |

Transparency |

Accounting separation |

Price control and cost accounting |

Prohibition of unreasonable bundling of products and services |

EL/2006/0501 | (i) lower level narrowband and (ii) higher level narrowband access. | national | OTE | WLR | No comments made by the Commission |

Non discrimination |

transparency |

Price control |

Unbundling of services |

Cost accounting and accounting separation |

PL/2006/0524 | An access through x DSL included in the market definition | national | TP SA | a prohibition of excessive pricing | The Commission vetoed the draft measure based on: Lack of evidence that ISDN/PSTN access and broadband access in Poland are substitutable products |

an obligation to refrain from distorting the market entry of other undertakings |

an obligation to refrain from limiting competition by fixing prices below the costs of their provision |

an obligation to refrain from applying preferential treatment to end users |

an obligation to refrain from obliging the end users to use unnecessary services |

cost orientation and cost accounting obligation |

an obligation to submit for approval prices and other conditions of service provision |

LU/2007/0527 | (i) analogue access, (ii) basic digital access, and (iii) primary digital access. | national | EPT | Wholesale obligations: 1 – access (CS/CPS and WLR) 2 – non discrimination 3 – transparency 3 – accounting separation 4 – price control Retail obligations: 1 – non discrimination 2 – transparency 3 – price control | The Commission made a comment on: Price control obligation ILR intends to base the price control obligation for WLR on the "retail minus" methodology. It should be recalled that retail access prices for residential and non residential customers are above the EU average in Luxemburg. A retail minus methodology might result in WLR prices that exceed costs. Given the fact that the cost orientation obligation at retail level is proposed to be removed, it is all the more important that WLR prices are set at cost. Consequently, the Commission invites ILR to impose a cost orientation obligation concerning WLR prices. This would ensure that users are offered attractive prices, whilst allowing EPT to recover its costs. |

LV/2007/0566 | Similar to the Recommendation | National | Lattelecom | 1 - CS/CPS | Lack of details concerning price control obligation The Commission notes that SPRK has not clearly specified in its measures details of the imposed price control obligation. In order to enhance legal certainty, the Commission would like to invite SPRK to clarify in its final measure the details of the price control remedy imposed. Non-imposition of accounting separation The Commission considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, SPRK should impose on Lattelecom an obligation of accounting separation. Without such an obligation, it seems difficult for SPRK to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

2 - Price control |

Market 3: Publicly available local and/or national telephone services |

provided at a fixed location for residential customers |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

* Refinement, broader/narrower market and/or merger of markets |

** On local calls. No SMP for national calls. |

*** Differentiated or no remedy imposed on certain SMP operators |

****second round of the review |

Overview of notifications assessed until 31 March 2007 |

Market 3: Publicly available local and/or national telephone services provided at a fixed location for residential customers Overview of notifications assessed until 31 March 2007 |

3 - BT only: price control implying price freeze (adjusted for inflation) |

4 - BT only: cost accounting |

3 - Cost orientation (for geographic numbers only) and cost accounting |

4 - Accounting separation |

5 - Price affordability (geographic numbers only) |

6 -Numbering plan (non-geographic service numbers only) |

2 - Access obligation |

3 - Non-discrimination |

4 - Transparency |

5 - Accounting separation |

6 - Cost orientation and cost accounting |

3 - Ex ante tariff information vis-a-vis the NRA |

3 – non discrimination |

4 - transparency |

3 – reporting obligation |

4 – cost accounting |

5 – accounting separation |

6 – prohibition to charge excessive or predatory prices |

transparency |

Accounting separation |

Price control |

Prohibition of unreasonable bundling of products and services |

obligation to provide separately each component of a service package |

Accounting separation |

Price control |

Accounting separation |

Price control |

provided at a fixed location for residential customers |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Austria | YES | NO SMP FOUND |

Finland | YES | NO SMP FOUND |

Belgium | YES | NO SMP FOUND |

Denmark | NO* | 1 operator | No remedies imposed |

*Refinement,broader/narrower market and/or merger of markets /**At a prior notification the Commission issued a Veto on the Non-SMP-finding / *** Differentiated or no remedy imposed on certain SMP operators/ Overview of notifications assessed until 31 March 2007 |

Market 4: Publicly available international telephone services provided at a fixed location for residential customers Overview of notifications assessed until 31 March 2007 |

UK/2003/0007, UK/2003/0008 and UK/2003/0045 | Separation (i) a market with competitive input at wholesale level ("category A") and (ii) many markets on a route-by-route basis with non-competitive input at wholesale level ("Category B"). Operator-assisted calls are not included (together with national calls a separate market, see market 3). | Separate markets: Hull area and UK outside Hull | Hull: Kingston; UK outside Hull: BT | 1 - Non-discrimination | The Commission made comments on: Reliance on comments from parties other than the Commission and other NRAs: The Commission stresses the fact that any material modification to the notified draft measure will require the draft measure to be re-notified under Article 7(3) of the Framework Directive. Markets defined more narrowly than in the Recommendation on relevant markets: Oftel defined retail narrowband markets more narrowly than in the Recommendation. However, a broader market definition along the lines of the Recommendation on relevant markets is not likely to lead to a different result of the SMP analysis. Consequently, a conclusion on the exact scope of the markets is not relevant in this specific context for the purposes of SMP assessment. Finding of SMP in the IDD calls markets: Oftel does not have sufficiently detailed market share information to calculate both residential and business market shares in each of the relevant IDD calls markets. However, the Commission considers the other, non market- share-related assumptions made regarding the finding of significant market power to be convincing. In any event, in this particular case, the Commission does not consider that any measure concerning these markets would affect trade between Member States. |

2 - Transparency |

3 - BT only: price control implying price freeze (adjusted for inflation) |

4 - BT only: cost accounting |

FI/2003/0024 | Similar to the Recommendation. | National | No SMP | No remedies imposed | The Commission vetoed the draft measure based on: Lack of evidence to support the finding of the absence of SMP: Ficora has submitted neither sufficient facts nor sufficient reasoning to rebut the presumption of dominance in the presence of a market share in excess of 50%.Ficora failed to provide 1) any market data related to the exact degree of changes in market shares over the past years, 2) market data related to price levels and 3) market data related to other factors which are relevant to the assessment of market power. Lack of consideration of existing remedies: Ficora did not justify its conclusions in light of existing regulatory obligations, and did not consider what the outcome of the market analysis is likely to be in the absence of such obligations. Conversely, Ficora did not consider how the justification for existing regulatory obligations, which are imposed on undertakings in the same or other closely related markets, and which may have a substantial competitive effect on markets for publicly available international telephone services provided at a fixed location, would be affected by the conclusions of its market analyses. |

2 - Non-discrimination |

3 - Cost orientation and cost accounting |

4 - Accounting separation |

HU/2005/0133 | Similar to the Recommendation. Public payphones and prepaid cards included. | Regional | 5 regional operators: Matáv, Invitel Távközlési Szolgáltató, Hungarotel Távközlési, Emitel, Monor Telefon Társaság | 1 - Carrier(Pre)Selection | The Commission made comments on: Consideration of additional retail remedies: In view of the continuing high market shares of the incumbents and their relatively high retail prices compared to EU best practices, the Commission invites NHH to consider whether the notified remedies (CS/CPS) over a given period are sufficient to address the market failure in the four retail calls markets under review. Remedies imposed at retail level prior to analysing the corresponding wholesale markets: The Commission reminds NHH that it should assess the effectiveness of remedies to be imposed at wholesale level in addressing market failures in the relevant retail markets. Should this review lead to a need to amend the retail remedies, particular attention should be paid to the possibility of a price or margin squeeze? |

SE/2005/0147 | Notification withdrawn by the National Regulatory Authority. |

SE/2005/196 | Similar to the Recommendation. Explicitly includes IP-Telephony. | National | No SMP found, due to regulation in the wholesale and retail access markets | No remedies imposed | The Commission made a comment on: Inclusion of IP-telephony in the notified markets: PTS has included IP-telephony in the notified markets without supporting this conclusion by a substitutability analysis. When assessing whether IP-telephony services are part of any of the markets for publicly available fixed telephony services, national regulatory authorities must examine - taking national circumstances into account - the objective characteristics, prices and intended use of the IP-telephony services, as well as their demand-side and supply side substitution with other fixed telephony services. |

IE/2005/0161 | Residential and non-residential in one market, public cell phones excluded. | National | Eircom | 1 - Carrier Access and Carrier (Pre) Selection | The Commission made a comment on: Further consultations planned by ComReg: on details of cost accounting and accounting separation: Possible further measures must be notified to the Commission. |

2 - Access obligation |

3 - Non-discrimination |

4 - Transparency |

5 - Accounting separation |

6 - Cost orientation and cost accounting |

FR/2005/0224 | VoiP calls offered by access providers ("managed VoiP") are included, VOIP calls by non-access providers are not included. | Metropolitan France and overseas territories except for the territory of Saint-Pierre-et-Miquelon | France Télécom | Remedies only for PSTN calls, no remedies for VOIP calls | The Commission made comments on: Inclusion of managed IP-telephony in the notified calls markets: The Commission recalls that, when assessing whether IP-telephony services are part of any of the markets for publicly available fixed telephony services, national regulatory authorities must examine - taking national circumstances into account - the objective characteristics, prices and intended use of the IP-telephony services, as well as their demand-side and supply side substitution with other fixed telephony services. The Commission believes that, in the present case the inclusion of managed IP-telephony (VoB) in the relevant retail calls markets is not inconsistent with the Recommendation. Remedies and next market review: The Commission considers that the decision not to extend PSTN obligations to VoB is justified. The Commission notes the existing wholesale remedies on markets 11 and 12 as well as ARCEP’s commitment to monitor this part of the retail markets closely for any anti-competitive practices and considers that should such practices occur, ARCEP has the right and the obligation to intervene as appropriate. The Commission invites ARCEP to ensure full, effective and appropriate enforcement of the obligations imposed in markets 8 to 12 within the shortest possible timeframe, and accordingly to commit reviewing the present market analysis following such enforcement, in any case at an earlier timing than the proposed 2008 review. |

1 - Prohibition of abusive bundling of access and call products |

2 - Prohibition of excessive or predatory pricing |

3 - Ex ante tariff information vis-a-vis the NRA |

4 - Accounting separation |

5 - Price control on fixed to mobile calls |

6 - Non-discrimination |

DK/2005/0269 | No distinction between residential and non residential customers | National | TDC | No remedies imposed | The Commission made comments on: The exclusion of IP-telephony from the relevant markets: The Commission considers that the justifications given by NITA for its decision to exclude IP telephony from the notified markets are insufficient. NITA states that IP-telephony currently does not have the same functionalities as PSTN and ISDN, without describing these differences in functionality. When assessing whether or not IP telephony should be included in any of the retail markets for fixed telephony services, NRAs must examine – taking national circumstances into account – the objective characteristics, prices and intended use of IP-telephony services, as well as their demand-side and supply-side substitution with other fixed telephony services. However, the possible inclusion of IP-telephony in the notified markets would seem to change neither NITA’s assessment of SMP, nor its decision not to impose any remedies in these markets. NITA considers that the remedies imposed on PSTN wholesale markets (call origination, call termination and transit) solve the identified competition problems in the retail markets. Including IP-telephony in the relevant retail markets would only further reduce barriers to market entry. Any provider of broadband connection can, in principle, provide IP-telephony as an alternative service to PSTN or ISDN telephony. The Commission services also note the existing wholesale remedies on markets 11 and 12 in Denmark, which can be expected to facilitate market entry for IP-telephony operators. Monitoring of effects of wholesale regulation on the notified retail markets: Considering NITA’s intention not to impose any retail remedies despite the fact that TDC is deemed to have SMP in the two notified markets, it is imperative that NITA monitors market developments closely in order to verify whether the wholesale remedies imposed in markets 8 to 12 have the desired effect on the notified retail markets. Should any anti-competitive practices occur in these markets, NITA has the right and the obligation to intervene as appropriate. |

SI/2005/0298 | Similar to the Recommendation. | National | Telecom Slovenije | Prohibition to restrict competition by setting predatory prices Prohibition to grant unjustified priority to certain end-customers, prohibition to implement the unjustified bundling of various services. | The Commission made comments on: Impact of wholesale obligations on the relevant retail markets: The Commission recalls that in accordance with the Universal Service Directive10 NRAs should intervene at retail level only if remedies imposed at the wholesale level, together with the obligations to provide carrier selection/carrier pre-selection, do not render the relevant retail markets competitive. Therefore, the Commission would like to invite APEK to closely monitor the impact of the proposed wholesale obligations11, in particular the implementation of cost-oriented wholesale charges and non-discrimination, on the relevant retail markets and to reassess the need to intervene at retail level accordingly when reviewing the notified markets. The exclusion of IP telephony from the relevant markets: The Commission notes that APEK will monitor the development of IP-telephony and in its next market analysis (which according to national law is to be carried out within one year) assess whether IP-telephony, from a demand and supply-side perspective, should be included in any of the retail markets for fixed telephony services. Taking into account the early stage of development of IP-telephony in Slovenia and the low level of broadband penetration, IP-telephony is not expected to have any significant impact on the market before APEK’s next market review. In this context, the Commission further notes that full and effective enforcement of the wholesale obligations, in particular those in market for LLU and market for wholesale bitstream access, could have an impact on the entry for IP-telephony operators, and therefore invites APEK to complete the review of the related market for wholesale broadband access, market 12 of the Recommendation, as soon as possible. |

NL/2005/0290 | No SMP found | No comments made by the Commission |

DE/2005/0309 | No distinction between residential and non residential customers | national | No SMP found | No remedies imposed | The Commission made comments on: Exclusion of fixed-to-mobile calls from the relevant markets BNetzA defines the calls markets more narrowly than foreseen in the Recommendation. In particular, BNetzA defines isolated markets for fixed-to-mobile calls. The Commission is not convinced that such a narrow market definition is justified. Since BNetzA indicates that it would analyse the fixed-to-mobile calls markets separately, omitting a proper analysis of it in the context of the present notification might be acceptable. However, the Commission would propose to request BNetzA to analyse the separate markets for fixed-to-mobile calls and to propose remedies, if appropriate, within the shortest possible timeframe. Fixed-to-fixed calls and fixed-to-mobile calls are generally offered as a bundle, in particular by DTAG. Regulation of fixed-to-fixed calls without regulation of fixed-to-mobile calls may therefore be only partly effective. VoIP When assessing IP-telephony services, national regulators should examine in the light of national circumstances objective product characteristics, prices and intended use of VoIP services, as well as their demand- and supply-side substitutability. Indicators such as broadband penetration rates, price elasticities, VoIP penetration, VoIP connection costs or the incumbent’s position should be taken into account when performing such analysis. The Commission takes the view that the technology for VoIP services is progressing dynamically and the large majority of those services will ultimately emerge as substitutes for traditional fixed telephony services. At present, unmanaged VoIP-services do however seem to have different product characteristics6, which may call for special analytical diligence whenever they are proposed to be included in a market definition. Since the exclusion of unmanaged VoIP from the relevant markets in the present case would not have any impact on the SMP-finding, the issue might, however, be left open. Effective competition of international calls On the basis of the information provided, the Commission concurs with BNetzA’s finding of effective competition on the market for publicly available international telephone services. However, the competitive status of this market is dependent on the existence of mandated carrier selection/carrier pre-selection (“CS/CPS”) obligations. These obligations, which are currently imposed by BNetzA on DTAG on the basis of the previous legal framework, are to be imposed under the current regulatory framework on the basis of finding SMP in a closely related retail access market7. As BNetzA finds DTAG to have SMP in the retail access market it will maintain the obligations to provide CS/CPS. |

ES/2005/0327 | Similar to the Recommendation. | National | TESAU | 1 - communication to CMT any changes to applicable prices and conditions of the relevant services at least 10 days before their effective date of application/launch date; | The Commission made a comment on: Exclusion of IP-telephony in the notified markets: The Commission considers that the justification given by CMT for its decision to exclude IP-telephony from the notified markets is insufficient insofar as CMT’s arguments are based on the fact that IP-telephony currently does not have the same functionalities as (and are thus not regulated like) publicly available telephone services (provided over PSTN and ISDN). When assessing whether or not IP-telephony should be included in any of the retail markets for fixed telephony services, the NRA should duly examine – taking account of national circumstances – the objective characteristics, prices and intended use of IP-telephony services, as well as their demand-side and supply-side substitution with other fixed telephony services. |

2 – communication to CMT (within 10 days, on request) of prices and conditions applicable to TESAU's personalised offers to customers whose overall billing with TESAU exceeds €600,000 per year. |

SK/2006/0344 | Similar to the Recommendation | National | Slovak Telecom | Price control | The Commission made a comment on: National public consultation: The Commission would like to remind TÚSR that according to Article 6 of the Framework Directive, NRAs must conduct a national consultation on each draft measure taken in accordance with the Framework Directive or the Specific Directives which have a significant impact on the relevant market, i.e. including the market definitions, and to give all interested parties the opportunity to comment on the draft measures |

Non discrimination |

Prohibition of unreasonable bundling of products and services |

transparency |

Non discrimination |

Accounting separation |

Non-discrimination |

transparency |

Accounting separation |

Price control |

Prohibition of unreasonable bundling of products and services |

EL/2006/0504 (withdrawal of notification) EL/2007/0556 (market re-notified) | No SMP found |

PL/2006/0528 | Similar to the Recommendation | national | TP SA | an obligation not to impose excessively high prices; | Inclusion in the final measures of the additional data and arguments provided to the Commission The Commission invites UKE to include the data and arguments that UKE provided to the Commission in the course of the second phase procedure in the final measures. UKE is invited to indicate in particular TP's market shares including calls via 0 708 numbers and via pre-paid calling cards in the relevant markets. Monitoring of the market dynamics and the next review The information available suggests a certain dynamic in the Polish calls markets, in particular in the international calls markets. This is indicated inter alia by the increasing market shares of alternative providers and the availability of various methods of call placing (direct call, call selection and pre-selection, calls via 0 708 numbers, emergence of VoIP services). In the short to medium term, it can be expected that wholesale line rental[41] becomes operational and other wholesale regulation should become effective as well. In view thereof, UKE is invited to closely monitor the market trends and to undertake a new market analysis at the latest within one year following adoption of the final measures. |

an obligation not to hinder market entry; |

non discrimination |

an obligation to refrain from limiting competition by fixing prices below the costs of their provision; |

obligation not to force end customers to purchase unwanted services; |

an obligation of regulatory cost accounting and cost orientation based on FL-FDC; |

an obligation to present retail call tariffs and conditions of provision for UKE’s approval. |

transparency |

Accounting separation |

Price control |

LV/2007/0568 | Similar to the Recommendation | national | Lattelecom | 1 – CS/CPS | Lack of details concerning price control obligation The Commission notes that SPRK has not clearly specified in its measures details of the imposed price control obligation. In order to enhance legal certainty, the Commission would like to invite SPRK to clarify in its final measure the details of the price control remedy imposed. Non-imposition of accounting separation The Commission considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, SPRK should impose on Lattelecom an obligation of accounting separation. Without such an obligation, it seems difficult for SPRK to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

2 – price control |

Market 5 : Publicly available local and/or national telephone services |

provided at a fixed location for non-residential customers |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

** Differentiated or no remedy imposed on certain SMP operators |

***second round of the review |

Overview of notifications assessed until 31 March 2007 |

Market 5: Publicly available local and/ or national telephone services provided at a fixed location for non - residential customers Overview of notifications assessed until 31 March 2007 |

UK/2003/0007, UK/2003/0008 | Separation between local, national, calls to mobile phones and operator-assisted calls. | UK excluding Hull area and Hull area | Hull: Kingston; UK excluding Hull: BT | 1 - Non-discrimination | The Commission made comments on: Reliance on comments from parties other than the Commission and other NRAs: The Commission stresses the fact that any material modification to the notified draft measure will require the draft measure to be re-notified under Article 7(3) of the Framework Directive. Markets defined more narrowly than in the Recommendation on relevant markets: Oftel defined retail narrowband markets more narrowly than in the Recommendation on relevant markets. However, a broader market definition is not likely to lead to a different result of the SMP analysis. Consequently, a conclusion on the exact scope of the markets is not relevant in this specific context for the purposes of SMP assessment. |

2 - Transparency |

3 - BT only: price control implying price freeze (adjusted for inflation) |

4 - BT only: cost accounting |

UK/2004/0045 (further amended by cases UK/2005/0217-0218) | See Case UK/2003/0007-0008 | Financial reporting obligations (in addition to the remedies imposed in Cases UK/2003/0007-0008). | The Commission made comments on: Publication of a statement concerning compliance with the cost accounting systems: It is necessary for a statement concerning compliance with the cost accounting system to be published annually, following verification by a qualified independent body. National consultation running in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

FI/2003/0025 and FI/2003/0026 | Local and national calls are included in separate markets. | National calls : national market; local calls: regional markets | Local calls: SMP for 43 regional operators. No SMP found for national calls. | On local calls: | The Commission made comments on: Relationship between existing regulation and finding of lack of SMP (national calls): The Commission invites Ficora to consider what the competitive conditions in the defined markets would be like in the absence of an obligation to provide CS, CPS or their equivalent. The Commission also prompts Ficora to make explicitly clear in their final measures whether its findings rely principally on the existing regulatory obligations (i.e. CS and CPS for all types of calls) imposed as a result of a finding of SMP in the retail access and local calls markets. Remedies at retail level (local calls): Ficora does not impose any further regulatory obligations on SMP undertakings at retail level, in addition to CS/CPS and other non-SMP obligations based on the Universal Service Directive. Therefore, the Commission has doubts as to whether the notified remedies over a given period are sufficient to remedy potential market failure at retail level and, in view of the continuing high market shares, recommends that Ficora also consider appropriate additional regulatory measures at the retail level. |

1 - Users' right to a connection to fixed telephone network |

2 - Obligation to publish standard agreement terms and tariff information on services |

3 - User's right to pre-selection / carrier pre-selection |

PT/2004/0056, PT/2004/59 and PT/2004/0091 | Broadly similar to the Recommendation. Additionally, includes a market for non-geographic (service) numbers. This additional market includes both residential and non-residential customers. | National | PT Group | 1 - Transparency | No comments made by the Commission. |

2 - Non-discrimination |

3 - Cost orientation (geographic numbers only) and cost accounting |

4 - Accounting separation |

5 - Price affordability (geographic numbers only) |

6 -Numbering plan (non-geographic service numbers only) |

AT/2004/0126 AT/2007/0583 | Similar to the Recommendation. | National | Telekom Austria | 1 - Price control / Cost orientation 2- Accounting Separation | The Commission made comments on: Efficiency of wholesale regulation TKK's analysis does not indicate any significant changes in the competitive conditions in the retail calls markets since the first market review. This calls for the reassessment of the effectiveness of the current wholesale regulation. The Commission already commented upon this issue in the context of TKK's second market review of the fixed wholesale markets[42]. With regard to the present notifications, the Commission services would like to invite TKK in particular to supervise closely the standard WLR offer of TA and to reassess whether the upfront payment applied by TA, that TKK considers to constitute a barrier to enter the retail access markets, could be lowered. |

HU/2005/0134 | Similar to the Recommendation. Public payphones and prepaid cards included. | Regional | 5 regional operators: Matáv, Invitel Távközlési Szolgáltató, Hungarotel Távközlési, Emitel, Monor Telefon Társaság | 1 - Carrier(Pre)Selection | The Commission made comments on: Consideration of additional retail remedies: In view of the continuing high market shares of the incumbents and their relatively high retail prices compared to EU best practices, the Commission invites NHH to consider whether the notified remedies (CS/CPS) over a given period are sufficient to address the market failure in the four retail calls markets under review. Remedies imposed at retail level prior to analysing the corresponding wholesale markets: The Commission reminds NHH that it should assess the effectiveness of remedies to be imposed at wholesale level in addressing market failures in the relevant retail markets. Should this review lead to a need to amend the retail remedies, particular attention should be paid to the possibility of a price or margin squeeze? |

SE/2005/0148 | Notification withdrawn by the National Regulatory Authority |

SE/2005/197 | Similar to the Recommendation. IP-Telephony explicitly included. | National | No SMP | No remedies imposed | The Commission made a comment on: Inclusion of IP-telephony in the notified markets: PTS has included IP-telephony in the notified markets without supporting this conclusion by a substitutability analysis. When assessing whether IP-telephony services are part of any of the markets for publicly available fixed telephony services, national regulatory authorities must examine - taking national circumstances into account - the objective characteristics, prices and intended use of the IP-telephony services, as well as their demand-side and supply side substitution with other fixed telephony services. |

IE/2005/0162 | No distinction between residential and non-residential markets. | National | Eircom | 1 - Carrier Access and Carrier (Pre) Selection | The Commission made a comment on: Further consultations planned by ComReg: The Commission reminds ComReg that draft measures relating to the details and implementation of accounting separation and cost accounting obligations are required to be notified under Article 7(3) of the Framework Directive. |

2 - Access obligation |

3 - Non-discrimination |

4 - Transparency |

5 - Accounting separation |

6 - Cost orientation and cost accounting |

FR/2005/0225 | VoIP calls offered by broadband access providers ("managed VOIP") included in the product market. | Metropolitan France and overseas territories except for the territory of Saint-Pierre-et-Miquelon | France Télécom | Remedies only for PSTN calls, no remedies for VOIP calls | The Commission made comments on: Inclusion of managed IP-telephony in the notified calls markets: The Commission recalls that, when assessing whether IP-telephony services are part of any of the markets for publicly available fixed telephony services, national regulatory authorities must examine - taking national circumstances into account - the objective characteristics, prices and intended use of the IP-telephony services, as well as their demand-side and supply side substitution with other fixed telephony services. The Commission believes that, in the present case the inclusion of managed IP-telephony (VoB) in the relevant retail calls markets is not inconsistent with the Recommendation. Remedies and next market review: The Commission considers that the decision not to extend PSTN obligations to VoB is justified. The Commission notes the existing wholesale remedies on markets 11 and 12 as well as ARCEP’s commitment to monitor this part of the retail markets closely for any anti-competitive practices and considers that should such practices occur, ARCEP has the right and the obligation to intervene as appropriate. The Commission invites ARCEP to ensure full, effective and appropriate enforcement of the obligations imposed in markets 8 to 12 within the shortest possible timeframe, and accordingly to commit reviewing the present market analysis following such enforcement, in any case at an earlier timing than the proposed 2008 review. |

1 - Prohibition of abusive bundling of access and call products |

2 - Prohibition of excessive or predatory pricing |

3 - Ex ante tariff information vis-a-vis the NRA |

4 - Accounting separation |

5 - Price control on fixed to mobile calls |

6 - Non-discrimination |

SI/2005/0265 | IP telephony excluded | National | Telecom Slovenije | 1 – prohibition to restrict competition by setting predatory prices | Impact of wholesale obligations on the relevant retail markets: The Commission would like to recall APEK that in accordance with the Universal Service Directive NRAs should intervene at retail level only if remedies imposed at the wholesale level together with the obligations to provide carrier selection/carrier pre-selection do not render the relevant retail markets competitive. The Commission notes that in Slovenia there are no alternative operators present on the relevant markets yet. It furthermore acknowledges that the current level of retail prices in relation to the relevant wholesale prices may risk leaving too low a margin between the retail and wholesale prices and that therefore the proposed retail price control appears to be justified. However, the Commission would like to invite APEK to closely monitor the impact of the proposed wholesale obligations, in particular the implementation of cost-oriented wholesale charges and non-discrimination obligation, on the relevant retail markets and to reassess the need to intervene at retail level accordingly when reviewing the notified markets. |

2 – price control and cost accounting obligation |

NL/2005/0289 NL/2005/0293 NL/2005/0294 NL/2005/0295 NL/2005/0296 | Separate market for fixed to mobile calls, narrowband data services, calls to information numbers, calls to information assistant numbers. VoB included. | National | KPN | 1 – cost accounting and accounting separation | The Commission made comments on: Narrow market definition OPTA defines certain markets more narrowly than foreseen in the Recommendation. In particular, OPTA defines isolated markets for fixed-to mobile calls, narrowband data services, calls to information numbers and calls to personal assistant numbers. The Commission is not convinced that such a narrow market definition is justified. However, in these particular cases, as it does not have any impact on the finding of SMP, nor on the remedies imposed, the exact market definition can be left open. Inclusion of VoB – appropriateness of remedies The Commission believes that in the present case and in the light of the market characteristics of the access and voice calls market in the Netherlands, the inclusion of managed VoB- telephone in the relevant retail access and calls markets is not inconsistent with the Recommendation. The regulation of VoB should not prevent the SMP operator from switching to a new, more cost-efficient, technology. In this context, the Commission notes the flexible regulatory approach proposed by OPTA, which is introduced via the price floor taking into account the different cost structure of the products based on VoB. |

2 – price control |

3 – non discrimination |

4 - transparency |

DE/2005/0310 | No distinction between residential and non-residential customers. Exclusion of F/M calls. | national | DTAG | an obligation to notify new tariffs to BNetzA two months in advance of commercialisation to allow BNetzA to supervise the ex post price control obligation. | The Commission made a comment on: Non-imposition of accounting separation The Commission also considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, BNetzA should impose on DTAG an obligation of accounting separation. Without such an obligation, it seems difficult for BNetzA to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive. |

ES/2005/0328 | IP telephony excluded | National | TESAU | 1 - TESAU must communicate to CMT any changes to applicable prices and conditions of the relevant services at least 10 days before their effective date of application/launch date; | The Commission made a comment on: Exclusion of IP-telephony in the notified markets: The Commission considers that the justification given by CMT for its decision to exclude IP-telephony from the notified markets is insufficient insofar as CMT’s arguments are based on the fact that IP-telephony currently does not have the same functionalities as (and are thus not regulated like) publicly available telephone services (provided over PSTN and ISDN). When assessing whether or not IP-telephony should be included in any of the retail markets for fixed telephony services, the NRA should duly examine – taking account of national circumstances – the objective characteristics, prices and intended use of IP-telephony services, as well as their demand-side and supply-side substitution with other fixed telephony services. |

2 - TESAU must make available to CMT (within 10 days, on request) prices and conditions applicable to personalised offers offered by TESAU to those customers whose overall billing with TESAU exceeds €600,000 per year. |

SK/2006/0349 | Similar to the Recommendation | National | Slovak Telekom | 1 - Price control | The Commission made a comment on: National public consultation: The Commission would like to remind TÚSR that according to Article 6 of the Framework Directive, NRAs must conduct a national consultation on each draft measure taken in accordance with the Framework Directive or the Specific Directives which have a significant impact on the relevant market, i.e. including the market definitions, and to give all interested parties the opportunity to comment on the draft measures. |

2 – non discrimination |

3 - Prohibition of unreasonable bundling of products and services |

2 – transparency and non - discrimination |

3 – cost accounting and accounting separation |

4 – measures to counter unreasonable bundling of prices |

BE/2006/0437 | no distinction between local and national calls | National | Belgacom | 1 – non discrimination | The Commission made comments on: Review of the national calls markets The Commission takes note that the review period for the notified markets is set for 3 years. Taking into account Belgacom's declining market shares in the national call markets, remedies proposed in the retail access markets (in particular wholesale line rental and carrier-selection/carrier pre-selection) and in fixed wholesale markets, the Commission invites IBPT to review the competitive situation in the national call markets within a shorter timeframe. |

2 - transparency |

3 – reporting obligation |

4 – cost accounting |

5 – accounting separation |

6 – prohibition to charge excessive or predatory prices |

2 – accounting separation |

Non discrimination |

transparency |

Accounting separation |

Price control |

Prohibition of unreasonable bundling of products and services |

IT/2006/0408 | AGCOM defines markets for (i) local, (ii) national and (iii) fixed to mobile calls | national | Telecom Italia | 1 – non - discrimination | The Commission made a comment on: Monitoring of the proportionality of retail regulation The Commission recalls that AGCOM imposed an asymmetric termination charge regulation in the related market of wholesale call termination following the designation of TI and 11 ANOs each as having SMP on their respective networks. The wholesale obligation entails inter alia that TI will be charged maximum 1.54€ cent/minute for terminating a call on an ANOs network whereas the ANOs may not be charged more than 0.84€ cent/minute at single national commuters level. AGCOM intends to remove this asymmetry in termination charges by means of a 4-year glide path towards equivalent charges for both TI and the ANOs, but did not specify the detailed implementation of such glide path in its draft regulatory measure. In order to increase legal certainty for all parties involved, the Commission invited AGCOM to specify the glide path in its final measure and to develop a cost model as soon as possible for calculating ANO’s termination rates taking into account the necessity for ANOs to become efficient over time. The Commission notes that in the present retail calls market, AGCOM does not allow TI to differentiate its prices of local, national and fixed to mobile calls (residential and non residential), according to the termination network of the ANO. AGCOM maintains that the obligation of non-discrimination between generalised on-net and off-net rates is motivated by demands for transparency of the rates for the end-users and the need to avoid anticompetitive effects. AGCOM believes that TI’s dominant position in the relevant markets may induce it to adopt discriminatory pricing strategies to the advantage of its own users with the dual objective of raising barriers so as to make market entry unprofitable for new entrants and of recovering market shares to the detriment of competitors present on the market. The Commission does not primarily object to retail price differentiation. However in this particular case it has to be noted that 95% of all traffic in Italy is terminated on TI’s network illustrating the still small size of ANOs. Therefore, the Commission agrees with AGCOM that it may be justified not to allow operators with a very high market share compared to their competitors, to price discriminate between on-net and off-net calls. At the same time, the Commission is of the view that operators should have the ability to recoup their higher regulated wholesale costs by setting the appropriate retail price, without having to have recourse to restrictive practices. The Commission notes that in the present case AGCOM stated in its draft regulatory measure that TI is able to recoup through appropriate retail prices the wholesale costs for terminating calls on the ANOs’ networks. In any event, considering the difference in termination rates between TI and ANOs at wholesale level, which is expected to be reduced progressively over the next four years, the Commission invites AGCOM to monitor the proportionality of the retail regulation for local and national calls markets on the basis of the market’s evolution. |

2 - transparency |

3 – price control |

4 – submission of other offers to the price test |

5 - Prohibition of unreasonable bundling of products and services |

6 – cost accounting |

transparency |

obligation to provide separately each component of a service package |

Accounting separation |

Price control |

PL/2006/0530 | Similar to the Recommendation | national | TP SA | an obligation not to impose excessively high prices; | Inclusion in the final measures of the additional data and arguments provided to the Commission The Commission invites UKE to include the data and arguments that UKE provided to the Commission in the course of the second phase procedure in the final measures. UKE is invited to indicate in particular TP's market shares including calls via 0 708 numbers and via pre-paid calling cards in the relevant markets. Monitoring of the market dynamics and the next review The information available suggests a certain dynamic in the Polish calls markets, in particular in the international calls markets. This is indicated inter alia by the increasing market shares of alternative providers and the availability of various methods of call placing (direct call, call selection and pre-selection, calls via 0 708 numbers, emergence of VoIP services). In the short to medium term, it can be expected that wholesale line rental[43] becomes operational and other wholesale regulation should become effective as well. In view thereof, UKE is invited to closely monitor the market trends and to undertake a new market analysis at the latest within one year following adoption of the final measures. |

an obligation not to hinder market entry; |

non discrimination |

an obligation to refrain from limiting competition by fixing prices below the costs of their provision; |

obligation not to force end customers to purchase unwanted services; |

an obligation of regulatory cost accounting and cost orientation based on FL-FDC; |

an obligation to present retail call tariffs and conditions of provision for UKE’s approval. |

transparency |

Accounting separation |

Price control |

LV/2007/0569 | Similar to the Recommendation | national | Lattelecom | 1 – CS/CPS | Lack of details concerning price control obligation The Commission notes that SPRK has not clearly specified in its measures details of the imposed price control obligation. In order to enhance legal certainty, the Commission would like to invite SPRK to clarify in its final measure the details of the price control remedy imposed. Non-imposition of accounting separation The Commission considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, SPRK should impose on Lattelecom an obligation of accounting separation. Without such an obligation, it seems difficult for SPRK to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

2 – price control |

Market 6: Publicly available international telephone services |

provided at a fixed location for non-residential customers |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Finland | YES | NO SMP FOUND** |

Belgium | NO* | NO SMP FOUND |

Czech Republic | YES | NO SMP FOUND |

Denmark | NO* | NO SMP FOUND |

*Refinement, broader/narrower market and/or merger of markets |

** At a prior notification the Commission issued a Veto on the Non-SMP-finding |

***second market review |

Overview of notifications assessed until 31 March 2007 |

Market 6: Publicly available international telephone services provided at a fixed location for non-residential customers Overview of notifications assessed until 31 March 2007 |

UK/2003/0007 and UK/2003/0008 | Separation (i) a market with competitive input at wholesale level ("category A") and (ii) many markets on a route-by-route basis with non-competitive input at wholesale level ("Category B"). Operator-assisted calls are not included (together with national calls a separate market, see market 3). | Separate markets: Hull area and UK outside Hull | Hull area: Kingston; UK outside Hull: No SMP removal of existing obligations on BT | 1 - Non-discrimination | The Commission made comments on: Reliance on comments from parties other than the Commission and other NRAs: The Commission stresses the fact that any material modification to the notified draft measure will require the draft measure to be re-notified under Article 7(3) of the Framework Directive. Markets defined more narrowly than in the Recommendation on relevant markets: Oftel defined retail narrowband markets more narrowly than in the Recommendation. However, a broader market definition along the lines of the Recommendation on relevant markets is not likely to lead to a different result of the SMP analysis. Consequently, a conclusion on the exact scope of the markets is not relevant in this specific context for the purposes of SMP assessment. Finding of SMP in the IDD calls markets: Oftel does not have sufficiently detailed market share information to calculate both residential and business market shares in each of the relevant IDD calls markets. However, the Commission considers the other, non market- share-related assumptions made regarding the finding of significant market power to be convincing. In any event, in this particular case, the Commission does not consider that any measure concerning these markets would affect trade between Member States. |

2 - Transparency |

FI/2003/0027 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | The Commission vetoed the draft measure based on: Lack of evidence to support the finding of the absence of SMP: Ficora has submitted neither sufficient facts nor sufficient reasoning to rebut the presumption of dominance in the presence of a market share in excess of 50%.Ficora failed to provide 1) any market data related to the exact degree of changes in market shares over the past years, 2) market data related to price levels and 3) market data related to other factors which are relevant to the assessment of market power. Lack of consideration of existing remedies: Ficora did not justify its conclusions in light of existing regulatory obligations, and did not consider what the outcome of the market analysis is likely to be in the absence of such obligations. Conversely, Ficora did not consider how the justification for existing regulatory obligations, which are imposed on undertakings in the same or other closely related markets, and which may have a substantial competitive effect on markets for publicly available international telephone services provided at a fixed location, would be affected by the conclusions of its market analyses. |

2 - Non-discrimination |

3 - Cost orientation and cost accounting |

4 - Accounting separation |

AT/2005/0124 AT/2007/0584 | Similar to the Recommendation. All types of calls included | National | TA | 1 - Cost orientation, ex-ante approval of tariffs | The Commission made a comment on: Efficiency of wholesale regulation TKK's analysis does not indicate any significant changes in the competitive conditions in the retail calls markets since the first market review. This calls for the reassessment of the effectiveness of the current wholesale regulation. The Commission already commented upon this issue in the context of TKK's second market review of the fixed wholesale markets. With regard to the present notifications, the Commission services would like to invite TKK in particular to supervise closely the standard WLR offer of TA and to reassess whether the upfront payment applied by TA, that TKK considers to constitute a barrier to enter the retail access markets, could be lowered. |

2 - Accounting separation |

HU/2005/0135 | Similar to the Recommendation. Public payphones and prepaid cards included. | Regional | 5 regional operators: Matáv, Invitel Távközlési Szolgáltató, Hungarotel Távközlési, Emitel, Monor Telefon Társaság | 1 - Carrier(Pre)Selection | The Commission made comments on: Consideration of additional retail remedies: In view of the continuing high market shares of the incumbents and their relatively high retail prices compared to EU best practices, the Commission invites NHH to consider whether the notified remedies (CS/CPS) over a given period are sufficient to address the market failure in the four retail calls markets under review. Remedies imposed at retail level prior to analysing the corresponding wholesale markets: The Commission reminds NHH that it should assess the effectiveness of remedies to be imposed at wholesale level in addressing market failures in the relevant retail markets. Should this review lead to a need to amend the retail remedies, particular attention should be paid to the possibility of a price or margin squeeze? |

SE/2005/0146 | Notification withdrawn by the National Regulatory Authority. |

SE/2005/0198 | Similar to the Recommendation. Explicitly includes IP-Telephony. | National | No SMP found, due to regulation in the wholesale and retail access markets. | No remedies imposed | The Commission made a comment on: Inclusion of IP-telephony in the notified markets: PTS has included IP-telephony in the notified markets without supporting this conclusion by a substitutability analysis. When assessing whether IP-telephony services are part of any of the markets for publicly available fixed telephony services, national regulatory authorities must examine - taking national circumstances into account - the objective characteristics, prices and intended use of the IP-telephony services, as well as their demand-side and supply side substitution with other fixed telephony services. |

IE/2005/0163 | Residential and non-residential in one market | National | Eircom | 1 - Carrier Access and Carrier (Pre) Selection | The Commission made a comment on: Further consultations planned by ComReg: The Commission reminds ComReg that draft measures relating to the details and implementation of accounting separation and cost accounting obligations are required to be notified under Article 7(3) of the Framework Directive. |

2 - Access obligation |

3 - Non-discrimination |

4 - Transparency |

5 - Cost orientation and cost accounting |

FR/2005/0226 | VoIP calls offered by access providers ("managed VOIP") are included, VOIP calls by non-access providers are not included into the market. | Metropolitan France and overseas territories except for the territory of Saint-Pierre-et-Miquelon | France Télécom | Remedies only for PSTN calls, no remedies for VOIP calls | The Commission made comments on: Inclusion of managed IP-telephony in the notified calls markets: The Commission recalls that, when assessing whether IP-telephony services are part of any of the markets for publicly available fixed telephony services, national regulatory authorities must examine - taking national circumstances into account - the objective characteristics, prices and intended use of the IP-telephony services, as well as their demand-side and supply side substitution with other fixed telephony services. The Commission believes that, in the present case the inclusion of managed IP-telephony (VoB) in the relevant retail calls markets is not inconsistent with the Recommendation. Remedies and next market review: The Commission considers that the decision not to extend PSTN obligations to VoB is justified. The Commission notes the existing wholesale remedies on markets 11 and 12 as well as ARCEP’s commitment to monitor this part of the retail markets closely for any anti-competitive practices and considers that should such practices occur, ARCEP has the right and the obligation to intervene as appropriate. The Commission invites ARCEP to ensure full, effective and appropriate enforcement of the obligations imposed in markets 8 to 12 within the shortest possible timeframe, and accordingly to commit reviewing the present market analysis following such enforcement, in any case at an earlier timing than the proposed 2008 review. |

1 - Prohibition of abusive bundling of access and call products |

2 - Prohibition of excessive or predatory pricing |

3 - Ex ante tariff information vis-a-vis the NRA |

4 - Accounting separation |

5 - Price control on fixed to mobile calls |

6 - Non-discrimination |

NL/2005/0292 | No SMP found | No comments made by the Commission |

SI/2005/0299 | Similar to the Recommendation. | National | Telecom Slovenije | Prohibition to restrict competition by setting predatory prices | Impact of wholesale obligations on the relevant retail markets: The Commission recalls that in accordance with the Universal Service Directive10 NRAs should intervene at retail level only if remedies imposed at the wholesale level, together with the obligations to provide carrier selection/carrier pre-selection, do not render the relevant retail markets competitive. Therefore, the Commission would like to invite APEK to closely monitor the impact of the proposed wholesale obligations11, in particular the implementation of cost-oriented wholesale charges and non-discrimination, on the relevant retail markets and to reassess the need to intervene at retail level accordingly when reviewing the notified markets. The exclusion of IP telephony from the relevant markets: The Commission notes that APEK will monitor the development of IP-telephony and in its next market analysis (which according to national law is to be carried out within one year) assess whether IP-telephony, from a demand and supply-side perspective, should be included in any of the retail markets for fixed telephony services. Taking into account the early stage of development of IP-telephony in Slovenia and the low level of broadband penetration, IP-telephony is not expected to have any significant impact on the market before APEK’s next market review. In this context, the Commission further notes that full and effective enforcement of the wholesale obligations, in particular those in market for LLU and market for wholesale bitstream access, could have an impact on the entry for IP-telephony operators, and therefore invites APEK to complete the review of the related market for wholesale broadband access, market 12 of the Recommendation, as soon as possible. |

prohibition to grant unjustified priority to certain end-customers, |

prohibition to implement the unjustified bundling of various services. |

DE/2005/0311 | No distinction between residential and non residential customers | national | No SMP found | No remedies imposed | Exclusion of fixed-to-mobile calls from the relevant markets BNetzA defines the calls markets more narrowly than foreseen in the Recommendation. In particular, BNetzA defines isolated markets for fixed-to-mobile calls. The Commission is not convinced that such a narrow market definition is justified. Since BNetzA indicates that it would analyse the fixed-to-mobile calls markets separately, omitting a proper analysis of it in the context of the present notification might be acceptable. However, the Commission would propose to request BNetzA to analyse the separate markets for fixed-to-mobile calls and to propose remedies, if appropriate, within the shortest possible timeframe. Fixed-to-fixed calls and fixed-to-mobile calls are generally offered as a bundle, in particular by DTAG. Regulation of fixed-to-fixed calls without regulation of fixed-to-mobile calls may therefore be only partly effective. VoIP When assessing IP-telephony services, national regulators should examine in the light of national circumstances objective product characteristics, prices and intended use of VoIP services, as well as their demand- and supply-side substitutability. Indicators such as broadband penetration rates, price elasticities, VoIP penetration, VoIP connection costs or the incumbent’s position should be taken into account when performing such analysis. The Commission takes the view that the technology for VoIP services is progressing dynamically and the large majority of those services will ultimately emerge as substitutes for traditional fixed telephony services. At present, unmanaged VoIP-services do however seem to have different product characteristics6, which may call for special analytical diligence whenever they are proposed to be included in a market definition. Since the exclusion of unmanaged VoIP from the relevant markets in the present case would not have any impact on the SMP-finding, the issue might, however, be left open. Effective competition of international calls On the basis of the information provided, the Commission concurs with BNetzA’s finding of effective competition on the market for publicly available international telephone services. However, the competitive status of this market is dependent on the existence of mandated carrier selection/carrier pre-selection (“CS/CPS”) obligations. These obligations, which are currently imposed by BNetzA on DTAG on the basis of the previous legal framework, are to be imposed under the current regulatory framework on the basis of finding SMP in a closely related retail access market7. As BNetzA finds DTAG to have SMP in the retail access market it will maintain the obligations to provide CS/CPS. |

ES/2005/0329 | Similar to the Recommendation. | National | TESAU | 1 - TESAU must communicate to CMT any changes to applicable prices and conditions of the relevant services at least 10 days before their effective date of application/launch date; | Exclusion of IP-telephony in the notified markets: The Commission considers that the justification given by CMT for its decision to exclude IP-telephony from the notified markets is insufficient insofar as CMT’s arguments are based on the fact that IP-telephony currently does not have the same functionalities as (and are thus not regulated like) publicly available telephone services (provided over PSTN and ISDN). When assessing whether or not IP-telephony should be included in any of the retail markets for fixed telephony services, the NRA should duly examine – taking account of national circumstances – the objective characteristics, prices and intended use of IP-telephony services, as well as their demand-side and supply-side substitution with other fixed telephony services. |

SK/2006/0345 | Similar to the Recommendation | National | Slovak Telecom | Price control | National public consultation: The Commission would like to remind TÚSR that according to Article 6 of the Framework Directive, NRAs must conduct a national consultation on each draft measure taken in accordance with the Framework Directive or the Specific Directives which have a significant impact on the relevant market, i.e. including the market definitions, and to give all interested parties the opportunity to comment on the draft measures |

Non discrimination |

Prohibition of unreasonable bundling of products and services |

transparency |

Non discrimination |

Accounting separation |

BE/2006/0438 | No SMP found | No comments made by the Commission |

CZ/2006/0446 | No SMP found | No comments made by the Commission |

Non-discrimination |

transparency |

Accounting separation |

Price control |

Prohibition of unreasonable bundling of products and services |

EL/2006/0504 (notification withdrawn) EL/2007/0556 (re-notified market analysis) | No SMP found | No comments made by the Commission |

PL/2007/0531 | Similar to the Recommendation. | National | TP SA | an obligation not to impose excessively high prices; | Inclusion in the final measures of the additional data and arguments provided to the Commission The Commission invites UKE to include the data and arguments that UKE provided to the Commission in the course of the second phase procedure in the final measures. UKE is invited to indicate in particular TP's market shares including calls via 0 708 numbers and via pre-paid calling cards in the relevant markets. Monitoring of the market dynamics and the next review The information available suggests a certain dynamic in the Polish calls markets, in particular in the international calls markets. This is indicated inter alia by the increasing market shares of alternative providers and the availability of various methods of call placing (direct call, call selection and pre-selection, calls via 0 708 numbers, emergence of VoIP services). In the short to medium term, it can be expected that wholesale line rental[44] becomes operational and other wholesale regulation should become effective as well. In view thereof, UKE is invited to closely monitor the market trends and to undertake a new market analysis at the latest within one year following adoption of the final measures. |

an obligation not to hinder market entry; |

non discrimination |

an obligation to refrain from limiting competition by fixing prices below the costs of their provision; |

obligation not to force end customers to purchase unwanted services; |

an obligation of regulatory cost accounting and cost orientation based on FL-FDC; |

an obligation to present retail call tariffs and conditions of provision for UKE’s approval. |

transparency |

Accounting separation |

Price control |

LV/2007/0570 | Similar to the Recommendation | National | Lattelekom | CS/CPS | Lack of details concerning price control obligation The Commission notes that SPRK has not clearly specified in its measures details of the imposed price control obligation. In order to enhance legal certainty, the Commission would like to invite SPRK to clarify in its final measure the details of the price control remedy imposed. Non-imposition of accounting separation The Commission considers that in order to effectively remedy the market failures identified on the retail access and local and national calls markets, SPRK should impose on Lattelecom an obligation of accounting separation. Without such an obligation, it seems difficult for SPRK to exercise effectively any price control. Such an accounting separation obligation seems also necessary to implement effectively a cost-orientation obligation for CS/CPS services as required by Article 19(3) of the Access Directive |

Price control |

Market 7: Minimum set of leased lines |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

* Refinement, broader/narrower market and/or merger of markets |

** Differentiated or no remedy imposed on certain SMP operators |

Overview of notifications assessed until 31 March 2007 |

Market 7: The minimum set of leased lines Overview of notifications assessed until 31 March 2007 |

UK/2003/0035-0036, UK/2004/0123 (modification of remedies) | Retail low bandwidth traditional interface leased lines (up to & incl. 8 Mbps). | UK excluding Hull area and Hull area | BT (UK excluding Hull), Kingston (Hull) | 1- Supply minimum set of leased lines (BT & Kingston) | No comments made by the Commission. |

2 - Not to discriminate unduly (BT & Kingston) |

3 - Cost orientation and cost accounting (only on BT) |

4 - Publish reference offer (BT & Kingston) |

5- Publish information on delivery and repair times (BT & Kingston) |

UK/2004/0045 (further amended in UK/2005/0217-0218) | See Cases UK/2003/0035-0036. | 1 - Financial reporting obligations | The Commission made comments on: Publication of a statement concerning compliance with the cost accounting systems: It is necessary for a statement concerning compliance with the cost accounting system to be published annually, following verification by a qualified independent body. National consultation running in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

UK/2004/0077 | See Case UK/2003/0035. | 1 - Amendments to the interim charge control obligation imposed on BT | No comments made by the Commission. |

UK/2004/0123 | See Case UK/2003/0035. | Slight modification of the remedies already notified because of the establishment of the Telecommunications Adjudicator. | No comments made by the Commission. |

2 - Non-discrimination |

3 - Cost orientation |

4 - Accounting separation |

5 -Requirement to publish a reference offer, delivery conditions and technical information |

FI/2004/0079 | Similar to the Recommendation. | Regional | 42 local operators | 1 - Obligation to provide the minimum set | The Commission made a comment on: Regulatory obligations reminding Ficora of the obligations set out in Annex VII of the Universal Service Directive requiring NRAs to ensure that the provision of the minimum set of leased lines referred to in Article 18 follows the basic principles of non-discrimination, cost orientation and transparency and asking Ficora to adapt its proposed remedies accordingly. |

AT/2004/0097 | Minimum set of retail leased lines + (i) all leased lines with a capacity of a multiple of 64 kbit/s up to an upper limit of 2048 bit/s; and (ii) unconnected copper double wire between network termination points, which have been leased by communications network and service operators | National | Telekom Austria | Minimum set of leased lines: | No comments made by the Commission. |

1 - Provision of a minimum set of leased lines |

2 - Cost orientation and cost accounting |

3 - Non discrimination |

4 - Publication of information with regard to the minimum set |

5 - Accounting separation |

Other leased lines: |

1 - Cost orientation |

2 - Approval of terms and conditions |

IE/2005/0137 | Similar to the Recommendation. | National | Eircom | 1 - Non discrimination | The Commission made a comment on: Further consultation planned by ComReg: the draft measures relating to the details and implementation of accounting separation and cost accounting obligations are required to be notified under Article 7(3) of the Framework Directive. |

2 - Cost orientation (pricing model based on fully distributed historic costs) |

3 - Transparency |

4 - Cost accounting and accounting separation |

2 - Transparency |

3 - Cost orientation and cost accounting |

2 - Transparency |

3 - Cost orientation and cost accounting (based on modified historic cost method) |

NL/2005/0279 | Six relevant retail national product markets: (i) analogue leased lines; (ii) <2Mbit/s digital leased lines; (ii) 2Mbit/s digital leased lines; (iv) >2Mbit/s digital leased lines; (v) data communication services over copper; (vi) data communication services over fibre. | National | KPN on the national analogue leased lines; national leased lines <2Mbit/s and international analogue leased lines | Market for national analogue leased lines: - price regulation. | The Commission made a comment on: Market analysis methodology: Without contesting OPTA conclusions as to the identification of retail markets which are not part of market 7 as defined in the Recommendation on relevant markets, i.e. a market for international analogue leased lines, the Commission invited OPTA to justify in its final measure why it considers the market for international analogue leased lines susceptible to ex ante regulation taking utmost account of the three criteria test. |

Market for national leased lines <2Mbit/s Minimum package obligations: - obligation to deliver; - price regulation; - transparency; Non minimum package obligations: - non-discrimination; - unbundling; - transparency; - price regulation. |

Five international analogue leased lines markets: (i) international analogue leased lines market (ii) international <2Mbit/s digital leased lines; (iii) international 2Mbit/s digital leased lines, (iv) international >2Mbit/s digital leased lines, (v) international data communication services. | Market for international analogue leased lines: obligation to supply; non discrimination; transparency. |

Market for international analogue leased lines: - obligation to supply; - no discrimination; - transparency. |

IT/2005/0315 | Notification withdrawn by the NRA (re-notified under case number IT/2006/0371) |

2 – Price cap |

3 - Cost accounting and accounting separation |

4 – Non discrimination |

5 - Prohibition of anticompetitive behaviour such as price squeeze or predatory pricing, abusive bundling (e.g. abusive bundle prices, non-replicability of wholesale elements), and abusive contractual clauses (e.g. loyalty agreements and exclusivity agreements). |

2 – Price control |

MT/2006/0373 | Minimum set of retail leased lines including both (i) retail national leased lines and (ii) retail international leased lines | National | Maltacom | 1 - Non discrimination | The Commission made a comment on: The inclusion of international lines in the wholesale and retail market definitions: By including international lines in the retail markets for the provision of leased lines and wholesale trunk segments of leased lines respectively, the MCA deviates from the Recommendation. In its notification, the MCA did not conduct the three criteria test considering this unnecessary as in its view the two markets as defined in the Recommendation include international leased lines. Without contesting the MCA’s conclusions, the Commission invited the MCA to clarify in its final measure (i) that two new markets have been defined by including international lines, thereby deviating from the Recommendation, (ii) that the three criteria test has been carried out for these markets and (iii) that the cumulative criteria of this test are fulfilled. Remedies imposed in the market of the international segments of leased lines MCA considered that prices would inevitably rise if not regulated. Accordingly it proposed to maintain the current price regulation on the retail market of the international leased lines (cost-oriented prices approved by the MCA). The Commission invited the MCA to consider whether imposing a less stringent type of price regulation rather than maintaining the current cost-oriented prices would be more justified and proportionate in relation to the achievement of the regulatory objectives - taking into account both the short term objective to protect consumers and the longer term objective to induce effective c competition. |

2 - Cost orientation and cost accounting |

3 - Transparency |

4 - Accounting separation |

FR/2006/0415 | Four retail leased lines markets: (i) the minimum set, (ii) leased lines other than the minimum set, up to and including 2 Mbit/s, (iii) leased lines above 2 Mbit/s, and (iv) leased lines with alternative interfaces. | National | France Telecom | Minimum set of leased lines 1 - Non discrimination; 2 – Transparency; 3 – Cost orientation and cost accounting | The Commission made a comment on: The inclusion of leased lines above 2 Mbit/s in the retail leased lines market The evidence provided by ARCEP in its notification showed that (i) the described ruptures in demand and supply side substitutability might diminish as technology develop and (ii) the definition of the separate markets (in particular leased lines with traditional interfaces up to and including 2 Mbit/s, and leased lines with traditional interfaces above 2 Mbit/s) would not have led to different results as regards the finding of SMP or the fulfilment of the three criteria test. Moreover, the Commission noted that ARCEP will closely monitor the market and remove ex ante regulation in the retail market once effective wholesale regulation has proven to have a substantial impact on the downstream market. |

Other leased lines markets: 1- Non discrimination; 2 – Price control (prohibition of predatory pricing); 3 – Cost accounting |

2 - Transparency |

3 - Price control and cost accounting |

4 – Accounting separation |

2 - Provision of the minimum set of leased lines |

3 - Price control |

4 – Cost accounting |

5 – Accounting separation |

SK/2006/0463 | Similar to the Recommendation. | National | Slovak Telekom | 1- Non-discrimination | The Commission made a comment on: Appropriate justification of remedies The data provided by TÚSR indicated that the competitive situation may not be homogeneous within the whole minimum set of leased lines. In particular, competitive constraints faced by Slovak Telekom seem to be more stringent in the provision of high capacity digital leased lines. Therefore, without contesting the SMP finding, the Commission invited TÚSR to reconsider before adopting the final measure whether the competition problems identified would justify a differentiated application of remedies for different types of leased lines, taking also into account the development of retail prices for leased lines within the minimum set. |

2 – Price control (prohibition of predatory and excessive prices) |

3 – Obligation not to unreasonably bundle services |

4 - Transparency |

2 - Transparency (publication of a reference offer, including Service Level Agreements), |

3 - Provision of the minimum set of leased lines |

4 - Price control (based on cost orientation) and cost accounting |

5 – Accounting separation |

6 – Prohibition of unreasonably bundling products |

2 - Transparency |

3 - Price control and cost accounting |

5 – Accounting separation |

AT/2006/0507 | Minimum set of leased lines + n*64 kbit/s leased lines up to 2048 kbit/s | National | Telekom Austria AG | Minimum set of leased lines 1 - Provision of the minimum set of leased lines on non-discriminatory and cost-oriented basis 2 - Publication of information related to the minimum set 3 – Obligation to submit prices and standard contracts conditions to TKK for ex-ante approval 4 – Accounting separation | No comments made by the Commission. |

Leased lines n*64 kbit/s up to 2048 kbit/s 1- Non-discrimination 2 - Obligation not to unduly increase costs for end users wishing to cancel their TA subscription 3 - Cost orientation and cost accounting 4 - Accounting separation |

PL/2006/0550 | Similar to the Recommendation. | National | Telekomunikacja Polska S.A. (“TP”) | 1- Provision of the minimum set of leased lines on non-discriminatory and transparent basis | The Commission made a comment on: Remedies at retail level UKE has not yet completed the review of the related wholesale market for trunk segments of leased lines (i.e. market 14 in the Recommendation). Therefore the Commission invites UKE to finalize this review as quickly as possible in order to ensure effective wholesale regulation if the wholesale trunk segments of leased lines market is found not to be effectively competitive. Moreover, UKE is invited to ensure full and effective implementation of the obligations imposed on the wholesale market for terminating segments of leased lines (i.e. market 13 in the Recommendation) within the shortest possible timeframe. |

2 – Price control (prohibition of predatory and excessive prices) |

3 – Ex ante approval of pricelists and conditions |

4 - Transparency |

5 – Cost accounting and accounting separation |

BE/2006/0551 | Similar to the Recommendation. | National | Belgacom | 1- Provision of the minimum set of leased lines | The Commission made a comment on: Cost accounting for wholesale terminating segments of leased lines: The Commission notes that currently IBPT does not apply a cost accounting system for all products included in market 13 as defined by IBTP and that a consultation on the cost modelling methodology is planned to take place six months after adoption of the final measures in market 13. Given the relevance of a cost accounting system in relation to all products included in market 13 and in particular alternative interfaces, the Commission invites IBPT to shorten the timeframe for elaborating the details of the cost accounting model and its implementing measures. |

2 - Non-discrimination |

3 - Transparency |

4 – Price control and cost accounting |

2 - Non discrimination |

3 - Transparency |

4 – Cost orientation and cost accounting |

2 - Transparency (publication of the reference offer for the minimum set of leased lines) |

3 – Cost orientation and cost accounting |

Market 8: Call origination on the public telephone network provided at a fixed location |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

*** Imposition of WLR **** second market review |

Overview of notifications assessed until 31 March 2007 |

Market 8 - Call origination on the public telephone network provided at a fixed location Overview of notifications assessed until 31 March 2007 |

UK/2003/0011-0012 | Similar to the Recommendation. | UK excluding Hull area and Hull area | BT (UK excluding Hull), Kingston (Hull) | 1- Provide network access on reasonable request | The Commission made comments on: Reliance on comments from parties other than the Commission and other NRAs: Any material modification to the notified draft measure will require the draft measure to be re-notified under Article 7(3) of the Framework Directive. Flat rate Internet access call origination (FRIACO): The Commission emphasises that in addition to remedy the lack of competition in the market identified, unmetered wholesale products, like FRIACO, may also be used for the provision of retail services other than the provision of unmetered Internet access. |

2 - Non-discrimination |

3 - Cost orientation of charges and cost accounting |

4- Charge control |

5 - Transparency |

6 - Accounting separation |

7 - Carrier (Pre) Selection and indirect access in relation to call origination |

8 - Flat rate Internet access call origination (FRIACO) - only on BT |

UK/2004/0045 (further amended in UK/2005/0217-0218) | See Cases UK/2003/0011-0012. | Financial reporting obligations (in addition to the remedies imposed in Cases UK/2003/0011-0012). | The Commission made comments on: Publication of a statement concerning compliance with the cost accounting systems: It is necessary for a statement concerning compliance with the cost accounting system to be published annually, following verification by a qualified independent body. National consultation running in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

UK/2004/0071 | See Case UK/2003/0012. | Provision of a CPS local calls option service by BT Wholesale | No comments made by the Commission. |

UK/2004/0072 | See Case UK/2003/0012. | Modifications to the charge control obligation already imposed on BT in case UK/2003/0012. | No comments made by the Commission. |

UK/2004/0115 (amended by UK/2005/0180) | See Case UK/2003/0012. | Directions on BT's ability to use Cancel Other functionality (dispute resolution) | No comments made by the Commission. |

UK/2004/0122 | See Case UK/2003/0012. | Modifications to BT's charge control obligation (details of measurement of compliance) | No comments made by the Commission. |

UK/2005/0165 | See Case UK/2003/0012. | 1- Revised charge control | No comments made by the Commission. |

2 - Amendments to the requirement (i) not to unduly discriminate and (ii) to notify charges, terms and conditions. |

UK/2005/0166 | See Case UK/2003/0012. | 1 - Modifications to the amounts that BT can charge for providing CPS facilities | No comments made by the Commission. |

UK/2003/0013-0014 (wholesale exchange line markets) | Fixed narrowband wholesale exchange lines market: a new market. | UK excluding Hull area and Hull area | BT (UK excluding Hull), Kingston (Hull) | 1 - Wholesale line rental - only on BT | The Commission made comments on: Market definition for wholesale exchange line markets: The Commission stated that more consideration could have been given to assessing potential merchant wholesale demand and supply (i.e. demand from, and supply to, independent purchasers of wholesale exchange lines). Wholesale line rental (WLR): The Commission considers that WLR may also be imposed as a retail remedy in the retail access markets, since it serves to introduce additional sources of competition at that level. |

FI/2003/0028 | Similar to the Recommendation. | Regional | 46 local operators | Asymmetrical regulation between 4 groups of operators | The Commission made comments on: Geographic divide of the market for call origination: The Commission invites Ficora to monitor the development of the market for signs of a common pricing constraint which may permit the delineation of larger geographic markets in the future. Exemption from certain ex ante obligations: The imposition of different remedies on different operators within similarly defined markets should be adequately reasoned. To the extent that it would be considered disproportionate to impose costly cost orientation and cost accounting obligations on a small operator, the Commission is of the view that other forms of cost control for such operators, such as benchmarking against the larger operators who are under a cost orientation obligation, could be considered. Cost orientation and cost accounting obligations: The Commission expresses concerns on the approach not to specify the method on which cost-orientation will be assessed, which it believes will limit the measure’s contribution to consumer benefit, the enhancement of competition and the development of the internal market. |

1 - Access and interconnection |

2 - Publication of delivery terms and tariff information |

3 - Obligations concerning pricing and other terms (cost orientation and non discrimination) |

4 - Cost accounting |

5 - Accounting separation |

SE/2004/0049 | Similar to the Recommendation. | National | 1 - Obligation to meet reasonable request for interconnection (including via direct connections), network access, network capacity | No comments made by the Commission. |

2 - Cost orientation and cost accounting |

3 - Non-discrimination |

4 - Accounting separation |

5 - Transparency (reference offer) |

PT/2004/0060, PT/2004/0092 (remedies) | Similar to the Recommendation. | National | PT Group | 1 - Transparency - publication of a reference offer, prices, terms and conditions, technical information and relating to the quality of service | The Commission made a comment on: Asymmetrical application of remedies: The Commission invites the NRA to monitor closely the development of the cost structures of the operators on which the obligation to charge “fair and reasonable prices” is imposed and to assess whether its current assumptions on “fair and reasonable prices” will remain relevant over the period of the market review. |

2 - Non discrimination |

3 - Accounting separation |

4- Access on reasonable request |

5 - Cost orientation and cost accounting |

6- Price control |

SK/2004/0103 | Similar to the Recommendation. | National | Slovak Telekom | 1 - Transparency (publication of reference offer, technical specifications); | The Commission made comments on: CS/CPS obligation and non-imposition of cost orientation in the wholesale market for call origination: The Commission invites TÚSR to consider explicit imposition of cost orientation obligations in the wholesale call origination market. National public consultation: According to Article 6 of the Framework Directive NRAs must conduct a national consultation on each draft measure which have a significant impact on the relevant market, i.e. including the market definitions, and to give all interested parties the opportunity to comment on the draft measure. |

2 - Non-discrimination |

3 - Accounting separation |

4 - Obligation to provide access to certain network components |

5 - Carrier selection/carrier pre-selection (CS/CPS) |

AT/2004/0105 AT/2006/0543 | Similar to the Recommendation. | National | Telekom Austria | 1 - access | No comments made by the Commission during first round of market review. The Commission made the following comment during second market review: The Commission made a comment on: Reduction of minimum interconnection loads Minimum interconnection loads, depending on their level, might imply an unjustified refusal to supply in the markets for wholesale voice call origination and termination markets. The Commission is of the opinion that it would be more effective that the TKK decides upon minimum loads in the present SMP decision, and not in a dispute settlement procedure. Therefore the TKK is invited to address this issue in the present SMP decision, for instance through reducing the minimum number of traffic minutes to the extent that the minimum interconnection loads would exceed the level which TA is able to economically and/or technically justify |

2 – non discrimination |

3 – transparency (including the obligation to publish a Reference Interconnection Offer) |

4- cost orientation and cost accounting |

5 – accounting separation |

DK/2005/0141 | Wholesale access (connections) is included in the market for call origination on the public telephone network at a fixed location. | National | TDC | 1 - Access to i) wholesale call origination, ii) wholesale purchase of services for resale, iii) co-location | The Commission made a comment on: Inclusion of wholesale access connections in the product market definition: The Commission expressed doubts that wholesale access forms part of the wholesale origination market (market 8). Access services are not substitutes but rather complementary to call origination services. In addition, the Commission noted that the proposed remedies do not necessarily require the delineation of a separate access market, since they may be imposed in respect of the call origination market alone. |

2 - Cost orientation and cost accounting |

3 - Non-discrimination |

4 - Reference offer |

5 - Transparency |

6 - Accounting separation |

DK/2005/0205 (modification of a remedy) | See case DK/2005/0141. | 1 - Retail minus price regulation on Wholesale Line Rental | No comments made by the Commission. |

DE/2005/0143 (market analysis), DE/2005/0233 (remedies) DE/2005/0254 (further remedies) | Three separate markets for wholesale call origination: i) call origination for carrier (pre-) selection services; ii) call origination for value-added services and iii) call origination for dial-up internet services. | National | DT AG | 1 - Access (including interconnection services, collocation) | The Commission made comments on: Remedies to be determined at a later stage: The Commission reminded RegTP of the need to notify remedies in accordance with Article 7(3) of the Framework Directive. Accounting separation: Given the risk of cross-subsidisation arising from the operations of a vertically- integrated company, the Commission invites BNetzA for the purposes of enhancing transparency and legal certainty to consider imposing accounting separation as a separate measure. |

2 - Non-discrimination |

3 - Price control (in relation to interconnection, conveyance and collocation) |

4- obligation to make internal transfer prices transparent and to make them accessible to BNetzA upon request |

HU/2005/0151 | Similar to the Recommendation. | Regional | 5 regional operators: Matáv, Invitel Távközlési Szolgáltató, Hungarotel Távközlési, Emitel, Monor Telefon Társaság | 1 - Transparency (reference offer) | The Commission made a comment on: The obligation of cost orientation on the designated local incumbents: The Commission was not convinced that the fact that, Invitel, Hungarotel, Emitel and Monortel would be entitled to set their origination charges at a level which cannot exceed by more than 40% would effectively contribute to further decrease the relevant retail charges. |

2 - Accounting separation |

3 - Obligation related to access and interconnection |

4 - Price control and cost-accounting |

IE/2005/0190 | Similar to the Recommendation. | National | eircom | 1 - Transparency | The Commission made a comment on: Further consultation planned by ComReg: The Commission reminds that draft measures relating to the details and implementation of accounting separation, cost accounting and wholesale price caps are required to be notified under Article 7(3) of the Framework Directive. |

2 - Non-discrimination |

3 - Provision of access to and use of specific network elements and associated facilities on reasonable request |

4 - Price control and cost accounting |

5 – Accounting separation |

FR/2005/0227 | Similar to the Recommendation. Includes also non-switching based interconnection (mainly IP). | Territory of metropolitan France, the French over-seas territories and Mayotte | FT | 1 - Access to, and use of specific network facilities | No comments made by the Commission. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Cost orientation and cost accounting |

SI/2005/0257 | Similar to the Recommendation. | National | Telekom Slovenije | 1 - Provision of access to and use of specific network elements and associated facilities on reasonable request | The Commission made a comment on: Implementation of the proposed price control obligation The notified draft measures provide that until the application of cost-oriented wholesale call origination and call termination charges, Telekom Slovenije would be obliged to provide wholesale call origination and call termination services at a “reasonable” rate subject to APEK’s approval. The Commission however notes that the current level of these wholesale charges does not seem to be appropriate to foster competition, which is also clearly demonstrated by the current 100% market share of Telekom Slovenije in the two relevant wholesale markets. Accordingly, the application of the non-cost oriented wholesale charges (including the “reasonable” character of the wholesale charges to be applied during the transitional period) should be replaced by cost oriented wholesale charges within the shortest timeframe possible. |

2 - Non-discrimination |

3 - Transparency |

4 - Price control and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 – Transparency (publication of the Reference Offer) |

4 - Carrier (pre) selection |

5 – Cost orientation |

6 - Accounting separation |

CZ/2006/0351 | Similar to the Recommendation. | National | Český Telecom | 1 - Transparency | The Commission made a comment on: Price regulation applied only to minute based prices Considering that the incumbent will be obliged to provide flat rate origination services at the wholesale level, and since CTU’s concerns for potential excessive pricing by the incumbent would seem to be valid also for flat rate services, CTU is invited to consider imposing to flat rate origination services a price regulation equivalent to that applying to services billed on a per-minute-basis. This will avoid relying on multiple dispute resolutions that could result in a lack of certainty in the market. |

2 - Non-discrimination |

3 - Provision of access to and use of specific network elements and associated facilities |

4 - Price control |

5 – Accounting separation |

ES/2006/0355 and ES/2007/0589 (further remedy*) | Similar to the Recommendation. | National | TESAU | 1 – Transparency (publication of a Reference Offer) | The Commission made a comment on: Non-imposition of wholesale line rental remedy CMT does not consider imposing a wholesale line rental (“WLR”) obligation on TESAU arguing that such a remedy would not promote investments in infrastructure, in particular in local loop unbundling (“LLU”). The Commission welcomes CMT’s objective to encourage infrastructure competition but would like to emphasise that WLR could also support such competition in the short run by making it easier for alternative operators to climb the ladder of investment. The Commission therefore considers that WLR can be an appropriate remedy to address the lack of competition in the relevant retail markets. It allows the incumbent’s competitors to bundle their products and services in the retail markets as they deem most efficient, complementing carrier-selection/carrier-pre-selection (“CS/CPS”). Therefore, taking into account the market failures identified at the retail level and the fact that the use of CS/CPS has been significantly decreasing over the last years in Spain, and presuming that this is not only due to the increasing market shares of alternative operators providing services on the basis of LLU, the Commission invites CMT to consider imposing a WLR remedy on TESAU bearing in mind that the need for market entrants to rely on inputs such as WLR, should decrease over time as their investment in alternative network infrastructure is increased. |

2 - Non-discrimination |

3 - Provision of access to and use of specific network elements and associated facilities (including imposition of Wholesale Line Rental*) |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 – Transparency (publication of the Reference Offer) |

4 – Cost orientation and cost accounting |

5 - Accounting separation |

LV/2006/0365 | Similar to the Recommendation except for the exclusion of calls to non-geographic numbers. | National | SIA Lattelekom | 1 – Access to call origination services and unbundled access to local loop | The Commission made a comment on: Obligation of local loop unbundling: In principle, the Commission agrees with SPRK’s finding that the lack of access to the end customer is a significant obstacle to enter the wholesale markets for fixed origination (and termination) and an impediment to the development of competitive electronic communication markets. However, wholesale unbundled access (including shared access) to the local loops and sub-loops for the purpose of providing broadband and voice services is identified as a separate market susceptible to ex ante regulation in the Commission’s Recommendation on the relevant markets (market 11). Indeed, access to local loops is neither from the demand-side nor from the supply-side substitutable with wholesale call origination services. The Commission hence considers that LLU (including the publication of a reference offer for access to local loops) should not be imposed as a remedy in market 8 without prior proper analysis of market 11. Instead, pursuant to Article 16 of the Framework Directive, SPRK is invited carry out an analysis of the market for wholesale unbundled access to the local loops market in view of determining whether this market is effectively competitive and, if one or more undertakings are found to have SMP on this market, impose appropriate regulatory obligations. |

2 – Non-discrimination |

3 – Transparency (publication of a Reference Offer) |

4 – Price control and cost accounting |

5 – Accounting separation |

PL/2006/0380 | Similar to the Recommendation. | National | Telekomunikacja Polska S.A. ("TP") | 1 – Access (including the provision of Wholesale Line Rental) | The Commission made comments on: Price control before approval of LRIC cost calculation UKE has not clearly specified in its measure on which criteria it will verify the appropriateness of call origination charges proposed by TP prior to the approval of its LRIC-based cost calculation by an independent auditor. This approach fails to provide adequate transparency and legal certainty for market players, in particular since no timing is foreseen by which the LRIC-based cost calculation of the SMP operator must be approved. The Commission therefore invites UKE to clarify in the final measure which verification method it will use to approve the call origination charges proposed by the SMP operator before the cost calculation has been conclusively approved. The verification method that UKE will use in this interim period should ensure that the SMP operator, without delay, offers wholesale origination services at prices which allow competition to develop. UKE may in particular want to consider imposing retail-minus price regulation pending the approval of LRIC based prices. Wholesale Line Rental The Commission notes that Wholesale Line Rental (WLR) is imposed on TP on the basis of TP’s SMP status in the relevant market and understands that this obligation will replace any WLR obligations that may have been imposed on TP under the old regulatory framework. The draft measure, however, fails to specify on which conditions WLR must be provided. When determining the conditions for the provision of WLR, UKE should take into account the objectives set out in Article 8 of the Framework Directive, namely the promotion of competition as well as the encouragement of efficient investment. The Commission hence invites UKE to ensure that the imposition of mandated WLR which increases competition in the short-term does not reduce incentives for competitors to invest in alternative facilities that will secure more competition in the long-term. Specifically, WLR conditions must leave a sufficient margin with retail prices to avoid margin squeezes, but on the other hand must not discourage investments in LLU in areas where such investment is economically feasible. |

2 – Non-discrimination |

3 – Transparency (publication of a Reference Offer) |

4 – Price control and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 – Transparency (publication of the Reference Offer) |

4 – Price control (based on the network cap) and cost accounting |

5 - Accounting separation |

6 – CS/CPS |

MT/2006/0387 | Similar to the Recommendation. | National | Maltacom | 1 - Access | The Commission made comments on: The inclusion of BWA networks in the wholesale call origination market BWA has been included in the wholesale call origination market without conducting a full substitution analysis. Furthermore, the conclusion that it cannot be determined whether BWA operators will offer voice services and hence call termination services over their own individual networks during the lifetime of this review would seem to cast equally doubts as to whether call origination services will be provided over the life time of the review. However, in this particular case the inclusion of BWA networks in the relevant market does not affect the finding of SMP or the scope of regulation. |

2 - Non-discrimination |

3 – Transparency |

4 – Cost orientation and cost accounting |

5 - Accounting separation |

2 - Non-discrimination |

3 – Transparency (publication of a Reference Offer) |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 – Transparency including the obligation to disclose all information needed and to publish a Reference Offer (including additional facilities such as co-location) |

4 – price control and cost accounting |

5 – Accounting separation |

2 – CS/CPS |

3 - Non-discrimination |

4– Transparency (including the obligation publish a Reference Interconnection Offer) |

5 – Price control and cost accounting |

6 – Accounting separation and auditing |

2 - Non-discrimination |

3 – Transparency |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

2 – non discrimination |

3 – transparency (including publication of a reference offer) |

4 – price control and cost accounting |

Market 9: Call termination on individual public telephone network provided at a fixed location |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

** Differentiated or no remedy imposed on certain SMP operators |

Overview of notifications assessed until 31 March 2007 |

Market 9 - Call termination on individual public telephone network provided at a fixed location Overview of notifications assessed until 31 March 2007 |

UK/2003/0003 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | BT Kingston 61 other alternative network operators ("ANO") | 1 - Provision of call termination on reasonable request (on all) | The Commission made a comment on: BT’s countervailing buyer power: The Commission notes that a detailed assessment of the competitive effects of obligations to be imposed on BT as a result of finding BT to have SMP is important for the finding that all other PECNs have SMP as well. |

2 - Cost orientation of call termination charges (LRIC) and cost accounting (on BT and Kingston) |

3 - Accounting separation (on BT and Kingston) |

4 - Non-discrimination (on BT and Kingston) |

5 - Publication of a reference interconnection offer (RIO) (on BT and Kingston) |

6 - Notification of new charges 90 days before changes become effective (on BT and Kingston) |

7 - Call termination charge control setting the annual ceiling for charges at retail price index (RPI) increases less 10% (RPI –10) (on BT) |

UK/2004/0045 (further amended by cases UK/2005/0217-0218) | See Case UK/2003/0003. | Financial reporting obligations (in addition to the remedies imposed in Cases UK/2003/003). | The Commission made comments on: Publication of a statement concerning compliance with the cost accounting systems: It is necessary for a statement concerning compliance with the cost accounting system to be published annually, following verification by a qualified independent body. National consultation running in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

UK/2004/0072 | See Case UK/2003/0003. | Modifications to BT's charge control obligation | No comments made by the Commission |

UK/2004/0122 | See Case UK/2003/0003. | 1 - Modifications to BT's charge control obligation (details of measurement of compliance) | No comments made by the Commission. |

UK/2005/0165 | See Case UK/2003/0003. | 1- Revised charge control | No comments made by the Commission. |

2 - Amendments to the requirement (i) not to unduly discriminate and (ii) to notify charges, terms and conditions. |

FI/2003/0029 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | 50 SMP operators | Asymmetrical regulation between 4 groups of operators | The Commission made comments on: Exemption from certain ex ante obligations: The impositions of different remedies on different operators within similarly defined markets should be adequately reasoned. To the extent that it would be considered disproportionate to impose costly cost orientation and cost accounting obligations on a small operator, the Commission is of the view that other forms of cost control for such operators, such as benchmarking against the larger operators who are under a cost orientation obligation, could be considered. Cost orientation and cost accounting obligations: The Commission expresses concerns on the approach not to specify the method on which cost orientation will be assessed, which it believes will limit the measure’s contribution to consumer benefit, the enhancement of competition and the development of the internal market. |

1 -Provision of interconnection |

2 - Publication of delivery terms and tariff information |

3 - Obligations concerning pricing and other terms (cost-orientation and non discrimination) |

4 - Cost accounting |

5 - Accounting separation |

IE/2004/0050 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | 22 SMP operators | 1 - Access and interconnection: meet reasonable request of access & interconnection (all operators); meet reasonable request for a direct billing agreement (all operators); meet reasonable request for interconnection via direct connections (TeliaSonera, Tele2, Telenor); meet reasonable request for access to network capacity (only TeliaSonera) | No comments made by the Commission. |

2 - Price regulation: cost oriented pricing (TeliaSonera); to charge reasonable & fair prices (others) |

3 - Non-discrimination |

4 - Accounting separation: accounting separation and obligation to submit separated accounts to PTS annually or on PTS' request (TeliaSonera, Tele2, Telenor); obligation to submit separated accounts to PTS on its request (others); |

5 - Transparency: publish reference offer (TeliaSonera); compile and publish information necessary for interconnection, direct connections and direct billing purposes (Tele2, Telenor); compile and publish information necessary for interconnection and direct billing agreements (others) |

PT/2004/0061, PT/2004/0092 (remedies) | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | PT Group Cabovisão Coltel Jazztel Novis Telecom OniTelecom Refer Telecom Vodafone Telecel | 1 - Transparency | The Commission made a comment on: Asymmetrical application of remedies: The Commission invites ANACOM to monitor closely the development of the cost structures of the operators on which the obligation to charge “fair and reasonable prices” is imposed and to assess whether its current assumptions on “fair and reasonable prices” will remain relevant over the period of the market review. |

2 - Non Discrimination |

3 - Accounting separation |

4 - Access on reasonable request |

5 - Cost orientation and cost accounting |

SK/2004/0102, SK/2005/0187 (further details of a remedy) | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Slovak Telecom | 1 - Transparency (technical specifications) | The Commission made comments on: Implementation of the proposed cost orientation obligation in the call termination market: The Commission invited TÚSR to notify pursuant to Article 7(3) of the framework Directive these implementing draft measures setting out the timeframe and stages applicable for the reduction of termination charges. By notification SK/2005/0182 TÚSR notified these measures. National public consultation: According to Article 6 of the Framework Directive NRAs must conduct a national consultation on each draft measure which has a significant impact on the relevant market, i.e. including the market definitions, and to give all interested parties the opportunity to comment on the draft measure. |

2 - Non-discrimination ; |

3 - Transparency |

3 - Accounting separation |

4 - Obligation to provide access to certain network components |

5 - Cost orientation based on LRAIC |

AT/2004/0106 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Telekom Austria AG Information-Technologie Austria GmbH Colt Telecom Austria GmbH Tele.ring Telekom Service GmbH Telekabel Wien GmbH eTel Austria AG Equant Austria GmbH UTA Telekom AG LIWEST Kabelmedien GmbH | Telekom Austria: | No comments made by the Commission. |

1 - Non Discrimination |

2 -Publication of a Reference Interconnection Offer (“RIO”) |

3 -Accounting separation |

4 -Access on reasonable request |

DE/2005/0144 (market analysis), | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | No SMP for alternative networks operators ("ANO"s) because of claimed countervailing buyer power by DT AG | The Commission vetoed the draft measures concerning ANOs: No justification for the considered strict Greenfield approach: Any Greenfield approach must ensure that absence of SMP is only found and regulation only rolled back where markets have become sustainably competitive, and not where the absence of SMP is precisely the result of the regulation in place. This implies that regulation which will continue to exist throughout the period of the forward-looking assessment independently of a SMP finding on the market concerned, must be taken into account. No convincing evidence of absence of SMP under the so-called “modified Greenfield approach”: RegTP asserts that DTAG’s buyer power limits the ability of each ANO to behave independently of its customers and competitors (at the retail level). RegTP does, however, not present concrete evidence that DTAG has effectively exercised such buyer power. In view of DTAG’s own termination rates being regulated and given that it cannot realistically threaten to stop purchasing termination services, DTAG would therefore be deprived of any bargaining tool in the form of a corresponding increase in its own tariffs when negotiating termination rates on that ANO’s network. For the above reasons, the Commission considers that also under the modified Greenfield approach, RegTP has not provided convincing evidence to support the absence of SMP of each ANO. No analysis of ANOs’ market power vis-à-vis each other and vis-à-vis MNOs: RegTP has limited its SMP analysis for ANOs mainly to an analysis of negotiation powers between DTAG and each of the ANOs. However, it appears that a number of direct interconnection agreements between ANOs exist and. An analysis of these agreements could have provided further information on the market power of ANOs. |

DE/2005/0234 (remedies) | DT AG | DT AG: | Commission made comments on: Remedies to be determined at a later stage: The Commission reminded RegTP of the need to notify remedies in accordance with Article 7(3) of the Framework Directive. Accounting separation: Given the risk of cross-subsidisation arising from the operations of a vertically- integrated company, the Commission invites BNetzA for the purposes of enhancing transparency and legal certainty to consider imposing accounting separation as a separate measure. |

1 - Access (including interconnection services, collocation) |

2 - Non-discrimination |

3 - Price control (in relation to interconnection, conveyance and collocation) |

DE/2005/0239 (market analysis, renotification following a veto in case DE/2004/0144) DE/2006/0343 (remedies on ANOs) | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | 52 ANOs | 1 - Access | The Commission made comments on: Price control mechanism: The Commission reminds BNetzA that the provisions of the TKG referring to a “double dominance” test and restricting BNetzA’s power to impose remedies are currently subject to examination in the context of infringement proceedings in accordance with Article 226 of the EC Treaty. The Commission points out that the possibility of imposing ex ante price control on a wholesale market is provided by the Access Directive independently of the SMP status of the operator in the corresponding retail market(s). Secondly, the Commission invites BNetzA to monitor whether in the absence of ex ante price regulation ANOs attempt to increase their fixed termination rates. If this is the case BNetzA should reconsider imposing ex ante price control instead of relying on multiple dispute resolutions that result in a lack of certainty in the market. |

2 – Non-discrimination |

3 – Transparency (publication of a Reference Offer) |

4 – Ex post price control |

HU/2005/0152 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Matáv Invitel Hungarotel Emitel Monortel Pantel GTS Datanet BT | Matáv, Inivitel, Hungarotel, Emitel and Monortel: | The Commission made a comment on: The obligation of cost orientation on the designated local incumbents: The Commission is not fully convinced that allowing for the four local incumbents to charge 40% higher termination charges than Matáv (and therefore, the possibility for not submitting a LRIC-based cost model) would effectively contribute to further decrease the relevant wholesale charges. |

1 - Transparency ( reference offer) |

2 - Accounting separation |

3 - Access and interconnection |

4 - Price control (4 operators are authorised to set their termination charges up to 40% higher than the level of the termination charges of Matáv) |

5 - Cost accounting |

Pantel, GTS Datanet and BT: |

1 – Transparency |

2 - Non discrimination |

DK/2005/0171 | Notification withdrawn by the NRA |

DK/2005/0207 | Operator-specific relevant markets. The market definition includes dial-up internet calls to geographic numbers on PSTN or ISDN with a speed of up to 128 Kbit/s. | Geographic coverage of each network = geographic extent of each relevant market | TDC TeliaSonera Sonofon Consorte Danmark Tele2 Colt Telecom | TDC: | The Commission made a comment on: Asymmetric application of remedies: Where it is intended to impose different remedies on different operators within similarly defined markets, the asymmetrical application of remedies should be adequately reasoned. The Commission is of the view that NITA has not duly substantiated its intended decision not to impose certain obligations on the ANOs, e.g. non-discrimination. Consequently, the Commission would invite NITA to reconsider its position on this matter. |

1- Access (requirement to provide network access at reasonable request) |

2 - Cost orientation (LRAIC) and cost accounting |

3 - Accounting separation |

4 - Non-discrimination |

5 - Publication of a reference offer |

6 - Transparency |

Others: |

Obligation to provide network access on fair and reasonable terms at reasonable request |

IE/2005/0191 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | eircom Access Telecom Budget Telecom Cable & Wireless Chorus Communications Colt Telecom Energis BT Ireland MCI NTL Swift Call Centre Talk Telecom | 1 - Transparency (all) | The Commission made a comment on: Further consultation planned by ComReg: The Commission reminds that draft measures relating to the details and implementation of accounting separation, cost accounting and wholesale price caps are required to be notified under Article 7(3) of the Framework Directive. |

2 - Non-discrimination (all) |

3 - Requirement to provide access to and use of specific network facilities on reasonable request (all) |

4 - Price control (eircom: FL-LRIC, others: benchmarking) |

5 - Cost-accounting (eircom) |

FR/2005/0228 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | FT + 20 ANOs | FT: | The Commission made comments on: The exclusion of termination to non-geographic numbers from market analysis: ARCEP should conduct, as soon as possible, a market analysis pursuant to Article 16 of the Framework Directive with regard to call termination to non-geographic numbers of non-ISP end users. Asymmetric imposition of pricing related remedies: The impositions of different remedies on different operators within similarly defined markets should be adequately reasoned. To the extent that it would be considered disproportionate to impose costly cost orientation and cost accounting obligations on a small operator, the Commission is of the view that other forms of cost control for such operators, such as benchmarking against the larger operators who are under a cost orientation obligation, could be considered. |

1 - Access and interconnection |

2 - Non-discrimination |

3 - Transparency |

4 - Prohibition of excessive pricing |

5 – Cost-orientation and cost accounting (LRAIC) |

ANOs: |

1 – Access and interconnection |

2 – Non-discrimination |

3 - Transparency |

4 – Prohibition of excessive pricing |

ES/2005/0250 | Similar to the Recommendation | Geographic coverage of each network | 28 operators | 1- Non-discrimination | The Commission made comment on: Asymmetrical application and legal certainty of remedies: The Commission reiterates that obligations imposed under the Access Directive should be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. The remedies should provide adequate transparency and legal certainty for market players. In respect of price control obligations imposed on ANOs (reasonable price) the Commission invites CMT: i) to define in detail in the adopted measure the scope of the remedies imposed, including the criteria to be used in order to assess whether the termination prices charged by ANOs are reasonable, and ii) to monitor closely the development of the cost structures of the operators on which the obligation to charge reasonable prices is imposed, and to assess whether its current assumptions will remain relevant over the period of this market review. |

2 - Transparency |

3 - Accounting separation |

4 - Cost orientation of prices |

SI/2005/0258 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Telekom Slovenije | 1 – Access to particular network facilities and the use of these facilities | The Commission made comments on: Implementation of the proposed price control obligation: The notified draft measures provide that until the application of cost-oriented wholesale call origination and call termination charges, Telekom Slovenije would be obliged to provide wholesale call origination and call termination services at a “reasonable” rate subject to APEK’s approval. The Commission however notes that the current level of these wholesale charges does not seem to be appropriate to foster competition, which is also clearly demonstrated by the current 100% market share of Telekom Slovenije in the two relevant wholesale markets. Accordingly, the application of the non-cost oriented wholesale charges (including the “reasonable” character of the wholesale charges to be applied during the transitional period) should be replaced by cost oriented wholesale charges within the shortest timeframe possible. |

2 – Non-discrimination |

3 – Transparency |

4 – Price control and cost accounting |

5 – Accounting separation |

LT/2005/0263 | Operator-specific relevant markets. | National | LTAB | 1 - Access | The Commission made comments on: Market definition and SMP assessment relating to other providers of call termination services in fixed networks The Commission notes that RRT did not define relevant markets with regard to call termination services provided by other operators of fixed networks in Lithuania. The Commission would like to urge RRT to conduct the market assessment with regard to those other operators who provide wholesale fixed termination services in Lithuania as soon as possible. If appropriate and justified, RRT could impose differentiated remedies on those operators, by taking into account (for example) the size of the undertakings. |

2 – Non-discrimination |

3 – Transparency (publication of a Reference Offer) |

4 – Price control and cost accounting |

5 – Accounting separation |

NL/2005/0284 | four distinct relevant product markets susceptible to ex ante regulation: (i) termination on geographical numbers on individual telephone networks, (ii) termination on 088-numbers (companies or institutions) on individual telephone networks, (iii) termination on 084- and 087-numbers (personal assistance services) on individual telephone networks, and (iv) termination on 112 number (emergency services) on individual telephone network | Geographic coverage of each network = geographic extent of each relevant market | KPN + ANOs | KPN+ANOs: 1 – Access in markets (i), (ii) and (iv) | No comments made by the Commission. |

KPN: 2 - Non-discrimination in markets (i), (ii), (iii) and (iv) |

KPN+ANOs: 3 – Transparency in markets (i), (ii) and (iii) |

KPN: 4 - Reference Offer in markets (i), (ii), (iii) and (iv) |

KPN: 5 – price cap in all markets |

ANOs: 6 – delayed reciprocity in markets (i), (ii) and (iii) |

KPN: 7- Accounting separation |

2 – Non-discrimination |

3 – Price control |

4 – Accounting separation |

Cesky Telecom 5 - Transparency |

LV/2006/0366 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | SIA Lattelekom + 16 ANOs | SIA Lattelekom 1 – Access to call termination services and unbundled access to local loop | The Commission made a comment on: Obligation of local loop unbundling: In principle, the Commission agrees with SPRK’s finding that the lack of access to the end customer is a significant obstacle to enter the wholesale markets for fixed origination (and termination) and an impediment to the development of competitive electronic communication markets. However, wholesale unbundled access (including shared access) to the local loops and sub-loops for the purpose of providing broadband and voice services is identified as a separate market susceptible to ex ante regulation in the Commission’s Recommendation on the relevant markets (market 11). Indeed, access to local loops is neither from the demand-side nor from the supply-side substitutable with wholesale call origination services. The Commission hence considers that LLU (including the publication of a reference offer for access to local loops) should not be imposed as a remedy in market 8 without prior proper analysis of market 11. Instead, pursuant to Article 16 of the Framework Directive, SPRK is invited carry out an analysis of the market for wholesale unbundled access to the local loops market in view of determining whether this market is effectively competitive and, if one or more undertakings are found to have SMP on this market, impose appropriate regulatory obligations. |

2 – Non-discrimination |

3 – Transparency |

4 – Cost orientation and cost accounting |

5 - Accounting separation |

ANOs 1 - Transparency |

IT/2006/0384 | - call termination on individual public telephone networks provided at a fixed location; – Internet dial-up call termination; – call termination on international networks. | Geographic coverage of each network = geographic extent of each relevant market | Telecom Italia ("TI") + 11 ANOs | TI 1 – Access 2 – Non-discrimination 3 – Transparency (publication of the Reference Offer) 4 – Price control (based on network cap) and cost accounting 5 – Accounting separation 6 – CS/CPS | The Commission made comments on: Legal certainty of regulatory obligations Obligations imposed under the Access Directive should be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. Where an NRA intends to impose different remedies on different operators within similarly defined markets, such differential treatment should be adequately reasoned. In order to increase legal certainty AGCOM should reconsider the need to specify the glide path preferably in the final measure. Moreover, in order to better safeguard the interest of consumers, the AGCOM is invited to develop a cost model as soon as possible for calculating ANOs’ termination rates that, while being based on costs takes into account the necessity for ANOs to become efficient over time. Obligations related to the wholesale market for Internet dial-up call termination After conducting the three criteria test, AGCOM concludes that this market is not susceptible to ex ante regulation. AGCOM therefore proposes to withdraw the existing regulation on this market. However, the Commission notes that AGCOM, while proposing to withdraw the cost orientation obligation on TI’s dial-up termination service, intends to maintain the transparency, non-discrimination and accounting separation obligations at least until the review of the retail market for Internet dial-up access (which is presently regulated). AGCOM considers this necessary in order to avoid cross subsidies. Without contesting the conclusion reached by AGCOM on the wholesale market for Internet dial-up call termination, the Commission invites AGCOM to analyse its retail market for internet dial-up access in the shortest delay possible and notify it in accordance with Article 7(3) of the Framework Directive, and reminds AGCOM that appropriate obligations can only be imposed upon finding of SMP in a particular market. Since the market for wholesale internet dial-up call termination has not been found susceptible to ex ante regulation, AGCOM is obliged to lift all obligations previously imposed on this market. Withdrawal of obligations on the market for call termination on international networks While confirming the intention to remove the current regulations imposed on TI, AGCOM believes that it is necessary to begin an analysis of the international termination market in order to identify whether there are currently certain specific international directions that do not pass the criteria set out in the Recommendation, due to specific, non transitory problems. The Commission reminds AGCOM to notify the results of such market analysis in accordance with Article 7(3) of the Framework Directive. |

ANOs 1 – Access 2 – Non-discrimination 3 – Transparency 4 – Price control through imposition of a maximum termination rate. |

PL/2006/0381 | Deviation to the Recommendation: inclusion of call termination to non-geographic numbers | Geographic coverage of the incumbent network = geographic extent of its relevant market | Telekomunikacja Polska S.A. ("TP") | 1 - Provision of Access on reasonable request. | The Commission made a comment on: Price control before approval of LRIC cost calculation UKE has not clearly specified in its measure on which criteria it will verify the appropriateness of call termination charges proposed by TP prior to the approval of its LRIC-based cost calculation by an independent auditor. This approach fails to provide adequate transparency and legal certainty for market players, in particular since no timing is foreseen by which the LRIC-based cost calculation of the SMP operator must be approved. The Commission therefore invites UKE to clarify in the final measure which verification method it will use to approve the call termination charges proposed by the SMP operator before the cost calculation has been conclusively approved. The verification method that UKE will use in this interim period should ensure that the SMP operator, without delay, offers wholesale termination services at prices which allow competition to develop. UKE may in particular want to consider imposing retail-minus price regulation pending the approval of LRIC based prices. |

2 - Non-discrimination |

3 – Transparency (publication of Reference Access Offer) |

Partially withdrawn by the NRA as to - call termination to access numbers for intelligent network services including audio text services (0-300, 0-400, 0-70X, 0-80X); - call termination to numbers used for special subscribers services. | 4 – Price control and cost accounting |

5 - Accounting separation. |

MT/2006/0388 | Similar to the Recommendation. | Geographic coverage of each network = geographic extent of each relevant market | Maltacom and Melita cable | Maltacom: | The Commission made comments on: Level of termination charges – implementation of cost orientation Currently, Maltacom is obliged to implement a cost-based accounting system using a fully allocated cost methodology on a historic cost base. The MCA is considering a move to a current cost regime, which would, according to the MCA, reduce the impact of legacy costs and thus reduce these charges but does not specify when such a change could be implemented. Considering that Maltacom’s interconnection charges for call termination are among the highest in the EU17 the Commission invites the MCA to revise its price control obligations as soon as possible in order to accelerate interconnection tariff reduction. As an intermediate solution, until a new price control model is implemented, the MCA could temporarily base its price control obligations on international benchmarking. |

1 - Access |

2 - Non-discrimination |

3 – Transparency |

4 – Cost orientation and cost accounting |

5 - Accounting separation |

Melita cable |

1 – Access |

2 - Non-discrimination |

3 – Transparency |

4 - Price control through imposition of a maximum termination rate. |

1 – Access and interconnection |

2 – Non-discrimination |

3 – Cost orientation and cost accounting |

4 – Accounting separation |

ANOs |

1 - Access and interconnection |

2 – Non-discrimination |

3 - Transparency |

4- Prohibition of excessive pricing |

CY/2006/0474 | Similar to the Recommendation. | Geographic coverage of each network = geographic extent of each relevant market | ATHK, Primetel and OTEnet | ATHK | The Commission made comments on: Remedies imposed on D.Y. Worldnet, Callsat and Telepassport OCECPR proposes to decide, already at this stage, on the set of obligations to be imposed on the three alternative operators once they become active in the market for wholesale call termination. OCECPR’s decision is based on the assumption that the three operators will start to provide wholesale call termination within the 12 to 18 months timeframe of the review. The Commission reminds OCECPR that remedies may only be imposed on undertakings which are considered to have SMP on the relevant market after an analysis of their position on that market, which normally presupposes that these undertakings are already active on the market (either by supplying the product internally and/or to third parties) when the SMP assessment is made. Therefore, the Commission invites OCECPR to reassess and notify the call termination markets of the three alternative operators referred to above as soon as they enter the market and not to adopt the proposed measures at this stage. |

1 - Access |

2 - Non-discrimination |

3 – Transparency including the obligation to disclose all information needed and to publish a Reference Offer (including additional facilities such as co-location) |

4 – Price control and cost accounting |

5 – Accounting separation |

Primetel and OTEnet |

1 - non-discrimination, |

2 - transparency, |

3 - accounting separation (when the operator’s annual turnover reaches 50 million €) |

4 - price control (fair and reasonable prices |

EL/2006/0494 | Similar to the Recommendation. | Geographic coverage of each network = geographic extent of each relevant market | OTE + 13 ANOs | OTE 1 – Access 2 – CS/CPS 2 - Non-discrimination 3 – Transparency (including the obligation publish a Reference Interconnection Offer) 4 – Price control and cost accounting 5 – Accounting separation and auditing | No comments made by the Commission. |

ANOs 1- provide wholesale termination to other providers of public telephone networks; 2 - transparency, (including an obligation to announce interconnection charges to other providers and EETT with a 1-month prior notice); 3 - non-discrimination; 4 - price control through the imposition of maximum termination and cost accounting. |

LU/2006/0546 | Notification withdrawn by the NRA |

PL/2006/0502 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | 29 ANOs | 1 - Access | The Commission made a comment on: Non-imposition of price regulation on the alternative operators The Commission reiterates that obligations imposed under the Access Directive should be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. The remedies should provide adequate transparency and legal certainty for market players. Furthermore, where an NRA intends to impose different remedies on different operators within similarly defined markets, such differential treatment should be adequately reasoned. The Commission takes note of the reasons why UKE does not consider it necessary to impose price regulation on the alternative operators under the given national market circumstances, in particular the limited degree of asymmetry in cases where it exists, the decreasing termination rates of alternative operators even in the absence of price regulation and their higher cost of terminating a call, as well as the significantly smaller scope of operation than that of the incumbent operator. However, the Commission invites UKE to closely monitor the development of alternative operators’ termination rates. If the expected trend of further price decreases does not materialise or if the level of asymmetry with TP’s termination rates increases, UKE should intervene and impose effective price regulation also on the alternative operators. Generally, the most appropriate means to achieve effectively regulated termination rates would be to base their calculation on a cost model that takes into account the necessity for alternative operators to become efficient over time. Given the EU-wide importance of such a model, UKE is invited to work in close co-operation with the European Regulators Group in order to arrive at a coherent approach that also takes into account the work of other NRAs. |

2- Non-discrimination |

3 - Transparency |

AT/2006/0544 | Similar to the Recommendation. | Geographic coverage of each network = geographic extent of each relevant market | Telekom Austria + 11 ANOs | Telecom Austria 1 – Access 2 - Non-discrimination 3 – Transparency (including the obligation publish a Reference Interconnection Offer) 4 – Cost orientation and cost accounting 5 – Accounting separation | The Commission made a comment on: Implementation of the proposed cost-orientation obligation According to the Recitals 5 and 6 and Article 4 of the Access Directive, undertakings should negotiate their access and interconnection agreements in good faith. Nevertheless, the Commission services would like to reiterate that the competitive problems identified should be tackled as soon and as efficiently as possible in order to guarantee transparency and legal certainty. In particular, it should be recalled that the rate for regional termination of TA serves as a benchmark for the termination of ANOs. Therefore the Commission invites the TKK to specify in the present SMP decision how the cost-orientation obligation of TA should be implemented in practice. Regarding the possibility of ANOs to request higher termination rates, the Commission recalls that such termination rates, while being based on costs, take into account the necessity for ANOs to become efficient over time. Reduction of minimum interconnection loads Minimum interconnection loads, depending on their level, might imply an unjustified refusal to supply in the markets for wholesale voice call origination and termination markets. The Commission is of the opinion that it would be more effective that the TKK decides upon minimum loads in the present SMP decision, and not in a dispute settlement procedure. Therefore the TKK is invited to address this issue in the present SMP decision, for instance through reducing the minimum number of traffic minutes to the extent that the minimum interconnection loads would exceed the level which TA is able to economically and/or technically justify. |

ANOs 1 – maximum termination rates based on benchmarking |

1 – Access and interconnection |

2 – Non-discrimination |

3 – Transparency (including the obligation publish a Reference Offer) |

3 – Cost orientation and cost accounting |

4 – Accounting separation |

ANOs |

1 - Access and interconnection |

2 – Non-discrimination 3 - Transparency 4 - Price control (obligation to charge reasonable prices). |

2 – Transparency |

3 – Price control |

EE/2007/0598 | Similar to the Recommendation | Geographic coverage of each network = geographic extent of each relevant market | Elion and 11 ANOs | 1 – access (only Elion) | Non-imposition of an access obligation on the market for call termination on ANOs' networks. On the market for call termination in Estonia SIDEAMET does not intend to impose an access obligation on ANOs. In its response to the request for information SIDEAMET explains that, according to the Estonian Electronic Communications Act ("EECA"), operators providing network services are required, at the request of another operator, to negotiate the interconnection in good faith if this is necessary for the provision of communications services. Further to the obligation to negotiate, the EECA provides, according to SIDEAMET, that an operator may terminate contractual negotiations and refuse to enter into an access or interconnection agreement only if the creation of technical conditions for interconnection or access is unreasonably burdensome or the interconnection or access damages the integrity of its network, while in other cases an undertaking is obliged to provide access. SIDEAMET considers that the above provisions of the EECA are sufficient in the case of ANOs to prevent the problem of access denial. While recognising that ANOs in general have an economic interest to interconnect, the Commission is of the view that any general interconnection obligation that might stem from the Estonian legislation would not resolve swiftly eventual access problems such as delaying tactics compared to a more specific access obligation imposed as a result of a market analysis. SIDEAMET itself admits that the general legislation as such is not sufficient to guarantee access when justifying the access obligation imposed on Elion. Therefore the Commission invites SIDEAMET to impose effective access obligations also on ANOs. Asymmetry of termination rates The Commission reiterates that obligations imposed under the Access Directive should be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. The remedies should provide adequate transparency and legal certainty for market players. Where an NRA intends to impose different remedies on different operators within similarly defined markets, such differential treatment should be adequately reasoned. In the present case the Commission notes the arguments put forward by SIDEAMET- inter alia ANOs’ weaker economies of scale and scope and large differences in volumes of terminated traffic – to justify asymmetric remedies. However, the fact that an operator has a smaller market share can only justify higher termination rates for a limited transitory period. The persistence of higher termination rate would not be justified after a period long enough for the operator to adapt to market conditions and become more efficient. Consequently, in order to increase legal certainty and to better safeguard the interest of consumers, the Commission invites SIDEAMET to consider the development of a cost model for the calculation of termination rates of ANOs, which, while being based on costs, takes into account the necessity for ANOs to become more efficient over time |

2 – non discrimination |

3 - transparency |

3 – price control and cost accounting |

Market 10: Transit services in the fixed public telephone network |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Austria* | YES | No SMP found |

Denmark | Withdrawn by the NRA |

Estonia | Withdrawn by the NRA |

* On 20 October 2004, the Commission vetoed the draft measure. TKK re-notified its market analysis. |

** Refinement, broader/narrower market and/or merger of markets |

Overview of notifications assessed until 31 March 2007 |

Market 10: Transit services in the fixed public telephone network Overview of notifications assessed until 31 March 2007 |

UK/2003/0015-16 | Local tandem conveyance and transit on fixed public narrowband networks (Case UK/2003/0015) and market for transit services on fixed public narrowband networks (UK/2003/0016). | National (excluding the Hull area) | BT | 1 - Provision of network Access on reasonable request. | The Commission made a comment on: Reliance on comments from parties other than the Commission and other NRAs: Any material modification to the notified draft measure will require the draft measure to be re-notified under Article 7(3) of the Framework Directive. |

2 - Non-discrimination |

3 - Cost-orientation and cost accounting |

4 - Charge control |

5 - Transparency |

6 - Accounting separation. |

UK/2004/0045 (further amended by cases UK/2005/0217-0218) | See Cases UK/2003/0015-0016. | Financial reporting obligations (in addition to the remedies imposed in Cases UK/2003/0015-0016). | The Commission made comments on: Publication of a statement concerning compliance with the cost accounting systems: It is necessary for a statement concerning compliance with the cost accounting system to be published annually, following verification by a qualified independent body. National consultation running in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

UK/2004/0072 | See Cases UK/2003/0015-0016. | Modifications to the charge control obligation already imposed on BT in cases UK/2003/0015-0016. | No comments made by the Commission. |

UK/2005/0164-0165 | See Cases UK/2003/0015-0016 | In relation to the market for ITC/ITT services, all SMP obligations imposed previously on BT were withdrawn | No comments made by the Commission. |

In the market for LTC/LTT services previous obligations are maintained (see cases UK/2003/0015-0016). In addition, the following amendments to previous obligations were made: |

1- Revised charge control |

2 - Amendments to the requirement (i) not to unduly discriminate and (ii) to notify charges, terms and conditions. |

FI/2004/0043 | 12 separate local transit markets and one market for nationwide transit services | National transit: not analysed | 1 - Interconnection | The Commission declared the notification incomplete on the following grounds: The analysis presented by Ficora was not sufficiently reasoned for the purposes of allowing the Commission to carry out its tasks, and to evaluate the notified draft measures. The notification lacked the appropriate argumentation for excluding national transit traffic from the market analysis. |

Following SMP operators in local transit markets: | 2 - Obligation to publish delivery terms and tariff information |

3 - Non-discrimination obligations concerning pricing and other terms |

Auria Networks Oy, Elisa Oy, Kesnet Oy, KPY Verkot Oy, Kymen Puhelin Oy, Länsilinkki Oy, Mikkelin Puhelin Oy, Oulun Puhelin Oy, Satakunnan Puhelin Oy, Sonera Carrier Networks Oy, Soon Net Oy, Telepohja Oy, Tikka Networks Oy, Vaasan Läänin Puhelin Oy |

FI/2004/0075 | Similar to the Recommendation. | 12 separate local transit markets and one market for nationwide transit services | Auria Networks Oy, Elisa Oy, Kesnet Oy, KPY Verkot Oy, Kymen Puhelin Oy, Länsilinkki Oy, Mikkelin Puhelin Oy, Oulun Puhelin Oy, Satakunnan Puhelin Oy, Sonera Carrier Networks Oy, Soon Net Oy, Telepohja Oy, Tikka Networks Oy, Vaasan Läänin Puhelin Oy | 1 - Interconnection | No comments made by the Commission. |

2 - Obligation to publish delivery terms and tariff information |

3 - Non-discrimination obligations concerning pricing and other terms |

SE/2004/0051 | Similar to the Recommendation. | National | TeliaSonera Sverige AB | 1 - Obligation to meet reasonable requests for interconnection | The Commission made a comment on: National consultation run in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

2 - Cost-orientation |

3 - Non-discrimination |

4 - Accounting separation |

5 - Transparency (reference offer) |

6 - Obligation to meet reasonable requests for direct billing and cascade billing agreements |

AT/2004/0090 AT/2007/0590 (re-notification of a vetoed draft measure) | Market including self-supply through direct interconnection. | National | No SMP found | No remedies were imposed | The Commission issued a veto decision, on the following grounds: insufficient evidence for the inclusion of self-provision through direct interconnection in the market, results of the market analysis and on the importance of applying a thorough greenfield analysis. As regards re-notified market analysis (AT/2007/0590), the Commission made the following comment: Tendency towards effective competition Considering the specific features and developments as set out below of the Austrian wholesale market of transit services (low barriers to entry in view of the relatively limited number of local switches in TA's network and the existing collocation of various alternative operators in those switches, the existing degree of duplication of the TA's network, the presence of alternative operators supplying nation-wide transit services in competition with the incumbent and the existence of countervailing buying power) the Commission agrees with TKK’s proposal to withdraw ex ante regulation from that market. On the basis of the information provided by TKK, it would seem that there are no high and non-transitory barriers to enter the transit market in Austria and that the market, in the absence of regulation, would tend towards effective competition within the meaning of the three criteria test set out in the Recommendation. The Commission services are therefore of the opinion, on the basis of the up-to-date market information provided, that the market for transit service in Austria does not meet the three criteria that render a market susceptible to ex ante regulation. In view thereof, the precise scope of the relevant market and the question whether TA has SMP on the relevant market can be left open. |

DE/2005/0145, DE/2005/0235 (remedies) | Five separate markets for transit services: i) transit services in the fixed public telephone network plus call origination for carrier (pre-) selection services; ii) transit services in the fixed public telephone network plus origination of calls to value-added services; iii) transit services in the fixed public telephone network plus call origination for dial-up internet services; iv) transit services in the fixed public telephone network plus call termination in national networks excepting calls originating and terminating in national mobile networks and v) transit services in the fixed public telephone network for calls originating and terminating in national mobile networks. | National | Deutsche Telekom AG | 1 - Access (including interconnection services, collocation) | In case DE/2005/0145, the Commission made a comment with regard to the determination of remedies at a later stage. |

No SMP was found in the market for transit services in the fixed public telephone network for calls originating and terminating in national mobile networks, i.e., market 5. | 2 - Non-discrimination | In case DE/2005/0235, the Commission made a comment on: |

3 - Price control (in relation to interconnection, conveyance and collocation) | Accounting separation: Given the risk of cross-subsidisation arising from the operations of a vertically- integrated company, the Commission invites BNetzA for the purposes of enhancing transparency and legal certainty to consider imposing accounting separation as a separate measure. |

IE/2005/0192 | Similar to the Recommendation. | National (international transit services are distinguished from the market for national transit services) | Eircom | 1 - Transparency | The Commission made a comment on: Further consultations planned by ComReg: The draft measures relating to the details and implementation of the obligations of cost accounting, accounting separation and wholesale price caps are required to be notified under Article 7(3) of the Framework Directive. |

2 - Non-discrimination |

3 - Access to and use of specific network facilities on reasonable request |

4 - Price control and cost accounting |

5 - Accounting separation |

PT/2005/0154 | Similar to the Recommendation. | National | No SMP found | No remedies were imposed | The Commission commented that the elements provided by Anacom to find that the relevant market would not meet the three criteria test should be further developed. Irrespective of whether, as a result of the three criteria test, the Portuguese market for transit services in the fixed public networks could be found to be susceptible to ex ante regulation, the market analysis in this particular case would still not have led to a finding of SMP. |

2 - Non discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Price control and cost accounting obligations |

DE/2005/0255 (remedies related to case DE/2005/0145) | See cases DE/2005/0145 and DE/2005/0235 | 1 - Non-discrimination | No comments made by the Commission. |

2 - Transparency |

3 – Price control |

4 - obligation to make internal transfer prices transparent and to make them accessible to BNetzA upon request |

SI/2006/0274 | Similar to the Recommendation, except for the exclusion of transit services provided via direct interconnection since routed through the mobile network without using switches. | National | Telecom Slovenije | 1 - Access to and use of specific network facilities on reasonable request | The Commission made a comment on: Appropriateness of remedies As regards APEK’s justification for not imposing any price regulation, the Commission would like to point out that the mere fact that no complaints have been made concerning pricing does not necessarily mean that a problem of excessive pricing could not exist in the relevant market, in particular taking into account that Telekom Slovenije is currently in practice the only provider of transit services. The Commission notes the limited competition in the retail markets for telephony services in Slovenia. For a potential new entrant in retail markets which has not yet rolled out its own infrastructure, the reliance on direct interconnection is not likely to be feasible in the short term. Furthermore, full and effective enforcement of the wholesale obligations imposed in related wholesale markets have impact on the competitive conditions of supply at the downstream retail level. Therefore, the Commission would like to invite APEK to closely monitor the wholesale transit market, in particular with a view to potential pricing problems and to intervene if any such problems occur. |

2 - Non-discrimination |

3 - Transparency |

NL/2006/0285 | three distinct product markets: (i) wholesale local conveyance services, defined as conveyance between a local and a regional switch, (ii) wholesale regional conveyance services, defined as conveyance between regional switches, and (iii) wholesale transit services, defined as the transmission of traffic from one network to another network by a third party | National | KPN | in the market for local conveyance services: 1- provision of access, 2 - non-discrimination, 3 - provision of reference offer, 4 - cost orientation, 5 - accounting separation | No comments made by the Commission. |

in the market for regional conveyance services: 1 - acceptation of reasonable requests for access under similar conditions as KPN has provided in the past, 2 - cost orientation and report to OPTA of new or changed wholesale interregional services, including bundles containing such services |

in the market for transit services: 1 - access, 2 - non-discrimination, 3 - provision of a reference offer, 4 - no price discrimination |

2 - Non discrimination |

3 - Transparency |

4 - Price control and cost accounting |

5 - Accounting separation |

2 - Non discrimination |

3 - Transparency |

4 - Price control and cost accounting |

5 - Accounting separation |

2 - Non-discrimination |

3 – Transparency (publication of the Reference Offer) |

4 – Price control (based on the network cap) and cost accounting |

5 - Accounting separation |

6 – CS/CPS |

2 - Non-discrimination |

3 – Transparency |

4 – Cost orientation and cost accounting |

ES/2006/0404 | Similar to the Recommendation. | National | TESAU | 1 - Access | The Commission made comments on: Consideration of differentiated remedies The ability to provide geographically ubiquitous transit services in Spain still depends on the transit services provided by TESAU. Due to inter alia low traffic volumes, there are routes and services which are exclusively or almost exclusively provided by TESAU. However, at the same time alternative operators appear to have gained a substantial share of the market in some part of the overall transit market, most likely corresponding to certain thick routes (seemingly without constraining TESAU’s behaviour on the thin routes). Therefore, the Commission would like to invite CMT to explore the possibility to take these different competitive conditions into account in designing the final remedies in the notified market, in particular as regards the scope of the cost orientation obligation. |

2 - Non-discrimination |

3 – Transparency (publication of a Reference Offer) |

4 – Cost orientation and cost accounting |

5 - Accounting separation |

2 - Non-discrimination |

3 – Transparency (publication of a Reference Offer) |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

CZ/2006/0448 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | The Commission made a comment on: Additional information provided: The Commission would like to invite CTU, in order to motivate its findings, to include in its final measure the additional information provided in the course of this procedure, relating to, inter alia, market shares excluding captive sales, tariffs, and provision by alternative operators of transit services to third parties. |

2 - Non-discrimination |

3 – Transparency |

4 – price control and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 – Transparency including the obligation to disclose all information needed and to publish a Reference Offer (including additional facilities such as co-location) |

4 – price control and cost accounting |

5 – Accounting separation |

2 – CS/CPS |

2 - Non-discrimination |

3 – Transparency (including the obligation publish a Reference Interconnection Offer) |

4 – Price control and cost accounting 5 – Accounting separation and auditing |

LU/2006/0542 | Not susceptible to ex ante regulation | No comments made by the Commission. |

DK/2006/0525 | Notification withdrawn by the NRA |

EE/2007/0599 | Notification withdrawn by the NRA |

Market 11: Wholesale unbundled access (including shared access) |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

* Includes cable connections. |

** Differentiated or no remedy imposed on certain SMP operators *** Second review |

Overview of notifications assessed until 31 March 2007 |

Market 11: Wholesale unbundled access (including shared access) to metallic loops and sub-loops for the purpose of providing broadband and voice services Overview of notifications assessed until 31 March 2007 |

FI/2003/0030 | Similar to the Recommendation. | 44 local markets | 44 former local monopolies | 1 - Obligation to lease part of a local loop and equipment facilities (on all SMP operators) | The Commission made comments on: Imposition of remedies: Where Ficora intends to impose different remedies on different operators within similarly defined markets the reasons for such differential treatment should be adequately reasoned. Further, Ficora should monitor market developments. Cost orientation and cost accounting obligations: The Commission expresses concerns on the approach not to specify the method on which cost orientation will be assessed, which it believes will limit the measure’s contribution to consumer benefit, the enhancement of competition and the development of the internal market. |

2 - Obligation to publish delivery terms and tariff information (on all SMP operators) |

3 - Obligation concerning pricing and other terms (cost orientation and non-discrimination) (on certain SMP operators) |

4 - Cost accounting procedures (on certain SMP operators) |

5 - Accounting separation (on certain SMP operators) |

IE/2004/0046 | Similar to the Recommendation. | National | eircom | 1 - Access obligations | The Commission made comments on: Costing methodology for the implementation of the cost orientation obligation: In view of the relatively high prices and low penetration rate of LLU in Ireland, ComReg was invited to monitor market developments carefully, and especially (i) how the implementation of the proposed forward-looking long run incremental cost methodology would be more effective at addressing the lack of effective competition in the provision of fully unbundled lines, shared lines, collocation and associated facilities, than the current obligation of fully distributed costs and (ii) how and to what extent these would positively impact on the level of prices and the numbers of fully unbundled and shared access lines in Ireland. National consultation running in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

2 - Non discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Price control and cost accounting |

2 - Cost orientation (LRIC) and cost accounting |

3 - Non-discrimination |

4 - Transparency (reference offer) |

UK/2003/0094 | The wholesale local access market, in addition to traditional copper local loops also including cable connections. | 2 separate markets (the UK excluding the Hull area and respectively the Hull area) | BT (UK excluding the Hull area) and Kingston (the Hull area) | 1 - Provision of access on reasonable request | The Commission made a comment on: Product market definition, including both copper loop-based and cable-based wholesale local accesses: When including cable-based wholesale services in the relevant market, consideration should be given to the technical, practical and economic feasibility for cable operators to offer facilities equivalent to unbundled local loops. The indirect pricing constraint stemming from the substitutability at the retail level and the potential competition of cable-based wholesale local access could have been taken into account at the stage of assessment of SMP. Notwithstanding, while this approach may have led to a narrower market definition and there remain doubts as to whether cable-based wholesale products (whether currently or prospectively) form part of the market, the exclusion of cable-based wholesale services from the market definition in this particular case would not have led to a different result in the SMP analysis. Consequently, a conclusion on the exact scope of the market was not relevant for the SMP assessment. |

2 - Non-discrimination |

3 - Cost orientation and cost accounting |

4 - Transparency |

5 - Collocation |

6 - Accounting separation (on BT only |

UK/2004/0123 | See Case UK/2003/0094. | Slight modification of the remedies already notified because of the establishment of the Telecommunications Adjudicator. | No comments made by the Commission. |

2 - Publication of a Reference Unbundling Offer within one month of issue of TKK’s decision |

3 - Cost-oriented prices according to the cost of efficient service provision |

4 - Non-discrimination |

5 - Accounting separation |

6 - Cost accounting providing for the cost of efficient service provision |

SK/2004/0107 | Similar to the Recommendation. | National | Slovak Telecom | 1 - Transparency (including the publication of technical specifications) | The Commission made comments on: Implementation of the proposed cost orientation obligation: As TÚSR failed to provide adequate transparency and legal certainty for market players by specifying the details of the proposed cost orientation obligation, the Commission had concerns as to whether the proposed price control obligation will be effective at addressing the lack of effective competition in the relevant market, and requested that once adopted, TÚSR will notify the relevant implementing measures. National public consultation: NRAs must conduct a national consultation on each draft measure taken in accordance with the Framework Directive or the Specific Directives which have a significant impact on the relevant market. |

2 - Non-discrimination |

3 - Accounting separation |

4 - Access to, and use of, specific network facilities |

5 - Price control, including the obligation of cost-orientation |

PT/2004/0117 | Similar to the Recommendation. | National | PT Comunicações | 1 - Provide access to and use of specific network facilities | The Commission made a comment on: Costing methodology for the implementation of the price control obligation: Anacom was invited to follow market developments carefully and to assess whether a forward looking approach long-run incremental cost model would not be more appropriate than the fully distributed historic costs model, originally proposed by ANACOM. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Price control and cost accounting |

6 - Provide accounting information |

DE/2004/0119, DE/2005/0150 (remedies) | The wholesale market for unbundled access (including shared access) to metallic loops and sub-loops for the purpose of providing broadband and voice services, also including unbundled access to local loops on the basis of OPAL and ISIS2 at the main distribution frame or subloops. | National | Deutsche Telekom | 1 - Fully unbundled access to the local loop in the form of a copper pair and shared access | In case DE/2004/0119, the Commission made comments on: Consideration of fibre glass connections to end-users: Relying on the Recommendation and the SMP Guidelines, RegTP excluded fibre glass connections from the scope of the relevant market (and thus from the market analysis). However, to the extent that fibre glass connections can be used to offer wholesale unbundled access to local loops and sub-loops for the purposes of providing broadband and voice services, like metallic loops and sub-loops, they may thus, on the basis of specific national circumstances, form part of market 11. Fibre glass connections or part of them may also be found to belong to a separate market which is not in the Recommendation, subject to the three criteria test. In any event, since fibre lines are currently regulated in Germany, it needed to be emphasised that the possible maintenance, withdrawal or modification of current regulation needs to be based on a new market analysis in accordance with Article 16 of the Framework Directive. Remedies to be determined at a later stage: The Commission highlighted that RegTP will have to notify the remedies it intends to impose in the markets concerned under Article 7(3) of the Framework Directive. In case DE/2005/0150, the Commission made comments on: Scope of the proposed remedies: As glass fibre connections in Germany may form part of market 11, the Commission questions whether the remedies notified on 25 February 2005 in relation to that market should not also extend to glass fibre connections. Withdrawal by RegTP of DT’s obligation to provide access to its glass fibre connections: Despite the Commission’s comment in case DE/2004/0119, RegTP intends to withdraw DT’s existing obligation to provide access to its glass fibre connections without a market analysis as required by Article 27 in conjunction with Article 16 of the Framework Directive. In the absence of such a market analysis notified to it, the Commission is not in a position to assess the proposed withdrawal of existing regulation. Commission considers that the proposed withdrawal of the existing regulation for access to pure glass fibres is not made pursuant to a market analysis based on a market definition that has been duly notified to the Commission. |

2 - Bundled access to the local loop in the form of a copper pair at the main distribution frame, including to the OPAL/ISIS variant |

3 - Collocation |

4 - Non-discrimination |

5 - Transparency (reference unbundling offer) |

6 - Price control, based on the costs of the efficient provision of services |

7 - Communication of the location of local loops and of collocation spaces to interested parties on request |

SI/2005/0142 | Similar to the Recommendation. | National | Telekom Slovenije | 1 - Access on reasonable request | The Commission made a comment on: Choice of an appropriate cost accounting methodology to prevent margin squeeze: APEK indicated that the price for fully unbundled access to the local loop in Slovenia is substantially higher than retail access price and gives rise to a likely margin squeeze creating thus an obstacle for operators to enter the market and preventing the existence of effective competition at the retail level. APEK considered the forward looking LRIC cost accounting method to be the most appropriate for the evaluation of cost oriented prices for unbundled access to the local loops, but concluded, however, that this model would represent an excessive burden on Telekom Slovenije and is therefore not proportionate in the current conditions. However, the Commission had concerns as to whether the cost accounting methodology proposed will be effective at addressing the lack of effective competition in the relevant market, at least in the medium term. |

2 - Non-discrimination |

3 - Transparency |

4 - Cost accounting (fully distributed common costs) |

5 - Price control |

6 - Accounting separation |

SI/2005/0181 | See Case SI/2005/0142. | 1 - Price control and cost accounting obligations (prolongation by 6 months of the period for implementing the cost orientation obligation) | The Commission made a comment on: Choice of an appropriate cost accounting methodology to prevent margin squeeze: In its revised notification APEK indicated that a possibility of price squeezes between the wholesale and retail prices of local loops cannot be fully excluded in Slovenia. APEK considered the forward looking LRIC cost accounting method to be the most appropriate for the evaluation of cost oriented prices for unbundled access to the local loops, but concluded, however, that this model would represent an excessive burden on Telekom Slovenije and is therefore not proportionate in the current conditions. However, the Commission had concerns as to whether the cost accounting methodology proposed will be effective at addressing the lack of effective competition in the relevant market, at least in the medium term. |

2 – Accounting separation obligation (requirement on Telekom Slovenije to render transparent its wholesale prices instead of both wholesale prices and internal transfer prices) |

2 - Non-discrimination |

3 - Transparency (publication of a reference offer) |

4 - Accounting separation |

5 - Cost orientation and cost accounting |

DK/2005/0176 | Similar to the Recommendation. The market comprises additionally the services provided in those cases where a retail end-user stops using the narrowband service (voice) provided over the local loop, but still keeps his broadband connection provided by his broadband operator. | National | TDC | 1 - Requirement to provide wholesale unbundled access at reasonable request | No comments made by the Commission. |

2 - Price control and cost accounting (LRAIC) |

3 - Accounting separation |

4 - Non-discrimination |

5 - Requirement to publish a reference offer |

HU/2005/0185 | Similar to the Recommendation. | 5 markets corresponding to the former concession areas of the former concession operators | Matáv Rt., Invitel Távközlési Szolgáltató Rt., Hungarotel Távközlési Rt., Emitel Távközlési Rt. Monor Telefon Társaság Rt. | 1 - Transparency | The Commission made comments on: Non-imposition of ex ante regulatory obligations concerning “out of use local loops”: Unless it is technically not possible or economically not viable to unbundle a particular local loop that has been out of use, “out of use” loops should be included in the relevant market, and made subject to the remedies proposed for local loops in use. Choice of an appropriate cost accounting methodology: NHH should follow market developments carefully and assess whether a forward looking approach long-run incremental cost model would not be more appropriate in addressing the lack of effective competition than the fully distributed cost model, originally proposed by NHH. |

2 - Non-discrimination |

3 - Accounting separation |

4 - Obligation to provide access and interconnection |

5 - Particular obligations concerning facility sharing and co-location |

6 - Price control and accounting separation |

2 - Non-discrimination |

3 - Transparency (publication of a LLU reference offer including a service level agreement (“SLA”)) |

4 - Accounting separation |

5 - Cost orientation (based on a network cap) and cost accounting |

NL/2005/0280 | Similar to the Recommendation. | National | KPN | 1 - Access on reasonable request | The Commission made comments on: Determination of the price cap: OPTA has devised four scenarios which are intended to reflect varying degrees of infrastructure competition. OPTA considers that the higher the degree of infrastructure competition, the greater should be the freedom of KPN to determine its own access prices. OPTA declares that the 2nd scenario – prospect of development of infrastructure competition that should lead to durable competition after the time of revision” – is the most relevant scenario in this case. However, OPTA does not justify in concrete terms why it considers the 2nd scenario to be the most pertinent. In particular, OPTA states that wholesale access to cable networks, mobile networks, wireless networks or fibre-optic networks currently do not constitute substitutes to the local loop of KPN. In the light thereof, OPTA does not indicate why it believes that these infrastructures should lead to durable competition in the future. The Commission considers that OPTA should elaborate in its final measure its reasons for choosing the 2nd scenario. Scope of accounting separation obligation: In order to facilitate the monitoring market for low quality wholesale broadband access (“WBA”) (case NL/2005/0281)and the application of competition law, OPTA should consider extending the scope of the accounting separation obligation proposed for the LLU-market to cover also the provision of low quality WBA. |

2 - Non-discrimination |

3 – Transparency (publication of a reference offer) |

4 - Cost orientation and cost accounting |

5 – Accounting separation |

CY/2006/0331 | Similar to the Recommendation. | National | CYTA | 1 – Access on reasonable request including supplementary services such as co-location, and provision of updated information on the availability of network resources | No comments made by the Commission. |

2 - Non-discrimination |

3 - Transparency (publication of a LLU reference offer) |

4 - Accounting separation |

5 - Cost orientation |

CZ/2006/0340 | Similar to the Recommendation. | National | Český Telecom | 1 – Access on reasonable request including supplementary services such as co-location, and provision of updated information on the availability of network resources | No comments made by the Commission. |

2 - Non-discrimination |

3 - Transparency (publication of a reference offer) |

4 – Price control |

2 - Non-discrimination |

3 - Transparency (publication of a LLU reference offer including a Service Level Agreement ("SLA")) |

4 – Price control and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 - Transparency (publication of a LLU reference offer) |

4 – Price control and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 - Transparency (publication of a LLU reference offer) |

4 – Price control and cost accounting |

5 – Accounting separation |

PL/2006/0418 | Similar to the Recommendation. | National | Telekomunikacja Polska SA ("TP") | 1 - Access on reasonable request | The Commission made a comment on: Price control before approval of LRIC cost calculation UKE has not clearly specified in its measure the basis of the verification of the appropriateness of local loop unbundling charges proposed by TP prior to the approval of its FL LRIC-based cost calculation by an independent auditor. This approach might affect the transparency and legal certainty for market players, in particular since no timing is foreseen for the FL LRIC-based cost calculation and approval thereof by the auditor. Therefore, UKE is invited to precisely clarify in the final measure which verification method it will use to approve the charges proposed by the SMP operator before the cost calculation has been conclusively approved. |

2 - Non-discrimination |

3 – Transparency (publication of a reference access offer) |

4 – Price control |

5 – Accounting separation |

LU/2006/0509 | Similar to the Recommendation. | National | EPT | 1 - Access on reasonable request | The Commission made a comment on: Details of the proposed price control obligation The cost-orientation obligation should be based on the costs of an efficient operator. However, the notification does not specify how the costs of an efficient operator will be calculated and which cost model will be used. In order to enhance the effectiveness of the price control obligation imposed and to ensure legal certainty and transparency, the Commission invites ILR to clarify without delay the details and the timing of the implementation of the cost orientation obligation. |

2 - Non-discrimination |

3 – Transparency (publication of a reference access offer) |

4 – Price control and cost accounting |

2 - Non-discrimination |

3 - Transparency |

4 – Price control and cost accounting |

5 – Accounting separation |

2 – Transparency (Publication of a Reference Unbundling Offer) |

3 – Price control |

4 - Non-discrimination |

5 - Accounting separation |

2 - Non-discrimination |

3 – Transparency (including the publication of a Reference Unbundling Offer) |

4 – Price control and cost accounting |

5 – Accounting separation |

2 - Non-discrimination |

3 – Transparency (including the publication of a Reference Offer) |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

FI/2006/0547 | Similar to the Recommendation. | Regional | 39 operators | All 39 SMP operators: 1 - Access on reasonable request | The Commission made comments on: Cost-orientation and cost accounting obligations The Commission recalls the comment made in the first round notification with regard to the fact that FICORA did not specify the method on which cost orientation would be assessed. In the context of the adoption of the final measure, FICORA justified it by explaining that since the Finnish Communication Market Act leaves each operator free to select the cost-accounting procedures, it cannot decide on the cost-accounting methodology. The Commission continues to believe that this limits the measure’s contribution to consumer benefit, the enhancement of competition and the development of the internal market. |

2 - Non-discrimination |

3 – Transparency (publication of delivery terms and tariff information) |

4 – Cost orientation and cost accounting |

Only 15 SMP operators: 5 – Accounting separation |

2 - Non-discrimination |

3 – Transparency (including the publication of a Reference Offer) |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

Market 12: Wholesale broadband access |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

* Refinement, broader/narrower market and/or merger of markets |

** Differentiated or no remedy imposed on certain SMP operators. |

***Including the notification concerning the market for "Wholesale broadband access delivered at national level in France." |

**** This remedy was not imposed in the market for "Wholesale broadband access delivered at national level in France." *****Second review of the market |

Overview of notifications assessed until 31 March 2007 |

Market 12: Wholesale broadband access Overview of notifications assessed until 31 March 2007 |

3 - Transparency (reference offer) (both for BT and Kingston) |

4 - Transparency (requirement to notify terms and conditions) (both for BT and Kingston) |

5 - Requirement to notify technical information (both for BT and Kingston) |

6 - Accounting separation (both for BT and Kingston) |

7 - Retail minus pricing approach for network access (for BT only) |

8 - Requirement to provide quality of service information (for BT only) |

9 - Obligations relating to new network access (for BT only) |

UK/20040064 | See Cases UK/2003/0032-0034. | Details of transparency obligations (publication of Quality of Service and information in the form of Key Performance Indicators) | No comments made by the Commission. |

3 - Non-discrimination |

4 - Transparency (reference offer) |

3 - Transparency |

4- Accounting separation |

5 - Price control and cost orientation (pending a further decision on wholesale price control, retail minus pricing is applied) |

3 - Transparency and reference offer |

4 - Accounting separation |

5 - Price control (retail minus) and cost accounting |

6 - Information requirements |

3 - Transparency - obligation to make public information regarding access |

4 - Quality of service |

5 - Price control (prices should be cost-oriented reflecting “the long-run costs of an efficient operator") |

6 - Accounting separation |

3 - Accounting separation |

4 - Obligation to formalise and transmit to ARCEP the tariffs and technical conditions of internal transactions between the wholesale “network” branch and the retail “ISP” branch. |

3 - Accounting separation |

4 - Access and interconnection |

5 - Price control and cost-orientation (local bitstream access to be provided on cost-oriented prices, based on FDC methodology; national bitstream access to be provided on retail minus basis) |

3 - Cost accounting and accounting separation |

4 - Transparency |

5 - Price control in the form of uniform national pricing based on modified historic costs for the access products |

3 – non discrimination |

4 – price control and cost accounting 5 – accounting separation |

3 – accounting separation |

4 – obligation to issue a reference offer |

5 – ex post price control |

3 – accounting separation |

4 – non discrimination |

5 – transparency |

3 – obligation to publish a reference offer |

3 – price control |

4 – reference offer |

5 – cost accounting |

6 – accounting separation |

3 – non discrimination |

4 – accounting separation |

5 – price control |

3 - transparency, including a requirement to publish a reference offer; |

4 – price control and cost accounting |

5 – accounting separation |

3 – price control |

4 – non-discrimination |

3 - transparency |

4 – accounting separation |

5 – price control and cost accounting |

3 – non-discrimination |

4 –accounting separation |

3 – non-discrimination |

4 – accounting separation 5 – ex ante price control |

3 - transparency |

4 – accounting separation |

5 – price control |

3 - transparency |

4 – accounting separation 5 – price control |

3 – non discrimination |

4 – accounting separation |

5 – price control |

3 – non-discrimination |

4 – accounting separation |

5 – price control |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

** Refinement, broader/narrower market and/or merger of markets |

*** Second round |

Overview of notifications assessed until 31 March 2007 |

Market 13: Terminating segments of leased lines Overview of notifications assessed until 31 March 2007 |

UK/2003/0037-0038 | Refinement of the market definition in the Recommendation, four wholesale markets in the UK excluding the Hull area and in the Hull area: – wholesale low bandwidth traditional interface symmetric broadband origination (up to and including 8Mbit/s); – wholesale high bandwidth traditional interface symmetric broadband origination (above 8Mbit/s up to and including 155Mbit/s); – wholesale very high bandwidth traditional interface symmetric broadband origination (above 155Mbit/s) in the UK excluding the Hull area; – wholesale alternative interface symmetric broadband origination. | National market with local characteristics (UK excluding the Hull area and the Hull area) | BT (with the exception of the very high capacity segment, where no SMP was found) and Kingston (with the exception of the very high capacity segment | 1 - Provision of network access on reasonable request | The Commission made comments on: Market definition: On the basis of the existence of different competitive conditions, Oftel has refined the leased line product markets as defined in the Recommendation, allowing proposing the removal of existing regulation on the market for very high bandwidth circuits. Oftel has defined a national market with local characteristics taking account of certain variations in the level of competition in different areas. Oftel's analysis is consistent with the methodology set out in the Recommendation and in the Commission's Guidelines on market analysis and the assessment of significant market power. Ofcom is invited to monitor closely the market developments and examine whether the proposed wholesale obligations (and in particular the ability for tariffs for wholesale trunk segments to be geographically de-averaged) change the geographic variations to such a degree as to make the definition of an alternative geographic market more appropriate in the future. National consultation run in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

2 - Non-discrimination |

3 - Basis of charges obligation (cost orientation and a cost accounting system ) |

4 -Transparency (reference offer and technical information) |

5 - Price control (BT only) |

6 - Accounting separation (BT only) |

7 - Requirement to provide advance notification of changes to (or introduction of) prices, terms and conditions (BT only) |

8 - Requirement to provide quality of service information (BT only) |

9 - Obligations relating to requests for new network access (BT only) |

UK/2004/0077 | See Cases UK/2003/0037-0038. | Amendments to the interim charge control obligations imposed on BT | No comments made by the Commission. |

UK/2004/0123 | See Cases UK/2003/0037-0038. | Slight modification of the remedies already notified because of the establishment of the Telecommunications Adjudicator. | No comments made by the Commission. |

2 - Obligation to publish delivery terms and tariff information |

3 - Non-discrimination |

AT/2004/00100 | Similar to the Recommendation. | National | Telekom Austria | 1 - Provision of access to terminating segments on reasonable request | The Commission made a comment encouraging TKK to make clear that the proposed remedies would apply to all products within the relevant market and that the specific obligations set down in national legislation relating to leased lines used for the purpose of network interconnection are above and beyond those proposed for this market. |

2 - Cost orientation and cost accounting |

3 - Non-discrimination |

4 - Transparency (reference offer) |

5 - Accounting separation |

2 - Non-discrimination |

3 - Accounting separation |

4 - Access obligation |

5 - Price control (retail minus) |

IE/2005/0139 | Similar to the Recommendation. | National | eircom | 1 - Access obligation | The Commission made a comment on: The further consultation planned by ComReg: The draft measures relating to the details and implementation of the accounting separation and cost accounting obligations are required to be notified under Article 7(3) of the Framework Directive. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Price control and cost accounting |

PT/2005/0156 | Similar to the Recommendation (in addition to traditional terminating leased lines, the market definition covers also symmetric xDSL technologies with capacity up to and including 2 Mbps). | National | PT Comunicaçõnes | 1 - Access obligation | No comments made by the Commission. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Price control (cost orientation and retail minus) and cost accounting |

SE/2005/0200 | Facilities providing for transparent symmetric transmission capacity between network termination points which do not include on-demand switching (similar to the Recommendation). | National | TeliaSonera | 1 - Provision of terminating segments on reasonable request | The Commission made a comment on: Market share data: The market share data collected by PTS indicate an aggregated market share with regard to all types of wholesale leased lines i.e. terminating and trunk segments considered jointly. When notifying the market for trunk segments, PTS is encouraged to provide more specific figures or estimations for that market, excluding terminating segments. |

2 - Price regulation of certain terminating segments (cost-orientation based on fully distributed costs) |

3 - Obligation to interconnect networks on reasonable request |

4 - Notification of price changes and submission of accounts statements |

5 - Non-discrimination |

6 - Publication of important terms and conditions |

7 - Accounting separation |

SI/2005/0219 | Withdrawn by the National Regulatory Authority |

DK/2005/0245 | Similar to the Recommendation | National | TDC A/S | 1 - Requirement to provide wholesale access to terminating segments of leased lines regardless of transmission capacity and underlying technology and co-location on reasonable request; 2 - Price control (based on modified historic costs); 3 - Cost accounting; 4 - Non-discrimination; 5 - Requirement to publish a reference offer; 6 - Accounting separation | The Commission made a comment on: Conditions of competition in low and high bandwidth terminating segments, and scope of remedies: Since NITA indicates that there are different competitive conditions for high and low capacity terminating segments of leased lines, the Commission invited NITA to consider whether such different conditions would justify a differentiation of the remedies imposed on the operator designated as having SMP. |

NL/2005/0282 | Three separate markets: (i) wholesale terminating segments of leased lines of <2Mbit/s; (ii) wholesale terminating segments of leased lines of 2Mbit/s; (iii) wholesale terminating segments of leased lines of >2Mbit/s | National | KPN | wholesale terminating segments of leased lines of <2Mbit/s 1- Access, 2 - Non-discrimination, 3 - Obligation not to unreasonably bundle services, 4 – Transparency (publication of a reference offer) 5 - Price regulation 6 - Accounting separation | No comments made by the Commission. |

wholesale terminating segments of leased lines of 2Mbit/s 1- Access, 2 - Non-discrimination, 3 - Transparency (publication of a reference offer) 4 - Price regulation 5 – Accounting separation |

wholesale terminating segments of leased lines of >2Mbit/s 1 – Access obligation |

2 - Non-discrimination, |

3 - Transparency (publication of a reference offer) |

4 – Price control (based on a network cap mechanism) and cost accounting |

5 – Accounting separation |

2 - Non-discrimination, |

3 – Transparency, |

4 – Price control |

2 - Non-discrimination, |

3 – Transparency, |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

FR/2006/0416 | Similar to the Recommendation. | National | France Telecom | 1 - Access, including the obligation to maintain the wholesale offers currently in place | The Commission made a comment on: Remedies for terminating segments of leased lines ARCEP proposed to differentiate remedies relating to price control for terminating segments of leased lines, depending on bandwidths. Although the Commission does not object to the imposition of a differentiated set of remedies in the market for terminating segments of leased lines, such differential treatment should be adequately reasoned. Further, Article 8.2 (c) of the Framework Directive states that NRAs shall encourage efficient investment in infrastructure. Nevertheless, the roll-out of new infrastructure for all terminating segments which require a bandwidth of more than 10 Mbit/s might not be economically viable in all geographic areas, in particular in rural areas. Therefore the Commission invited ARCEP to consider extending the obligation not to charge excessive prices imposed on the market for trunk segments also to terminating segments of leased lines above 10 Mbit/s. |

2 - Non-discrimination |

3 - Transparency (including the publication of service quality indicators and a reference offer) |

4 - Price control |

5 - Accounting separation |

SK/2006/0386 | The market definition includes loops provided via metallic, optical as well as wireless networks (such as fixed wireless access networks (“FWA””) and microwave networks) | National | Slovak Telekom | 1 - Access obligation | The Commission made comments on: Inclusion of optical and wireless networks in the market for wholesale terminating segments of leased lines Despite the absence of the demand- and supply-side substitutability analysis based on competition law that would justify the inclusion of these technologies in a single market for wholesale terminating segments of leased lines, the exclusion of these technologies from the market definition would not have affected the finding of SMP or the scope of regulation. Parallel imposition of cost orientation obligation and price cap In accordance with Article 13 of the Access Directive, where an operator has an obligation regarding the cost orientation of its prices, the burden of proof that prices are based on costs, including a reasonable rate of return on investment, shall lie with the operator concerned. TÚSR may require Slovak Telekom to provide full justification for its prices, and may, where appropriate, require prices to be adjusted. However, this is without prejudice to the possibility for Slovak Telekom to adopt prices that are higher than currently valid prices, provided of course, that the adopted prices are derived from fully justified and relevant costs. This may be the case, in particular, if there is reliable evidence from cost accounting analysis as approved by TÚSR that the price cap would result in a price level below the efficient costs of the underlying network elements and the services being requested including a reasonable rate of return. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation |

5 – Price cap and cost orientation: prices cannot exceed a maximum level and shall be oriented to costs on the basis of the fully allocated historical costs method) |

2 - Non discrimination |

3 - Transparency (publication of a reference offer, including Service Level Agreements) |

4 – Cost orientation and cost accounting |

5 – Accounting separation |

2 - Non discrimination |

3 - Transparency |

4 – Price control (based on cost orientation) and cost accounting |

5 – Accounting separation |

LT/2006/0430 | Similar to Recommendation. Two separate markets: (i) low speed terminating segments of leased lines (leased lines below 2048 kbps including 2048 kbps), and (ii) high speed terminating segments of leased lines (leased lines above 2048 kbps). | National | TEO LT AB | 1 - Access | No comments made by the Commission. |

2 - Non discrimination |

3 - Transparency |

4 – Price control and cost accounting |

5 – Accounting separation |

2 - Non discrimination |

3 - Transparency |

4 – Price control (based on cost orientation) and accounting separation |

ES/2006/0458 | Similar to the Recommendation | National | TESAU | 1 - Access | The Commission made comments on: Limitation of the scope of the remedies in the market of terminating leased lines to services based on traditional interfaces Although CMT includes both traditional interfaces and Ethernet technologies in the market for wholesale terminating leased lines, it proposes to limit the scope of the remedies to the services based on traditional interfaces. The Commission notes that some alternative operators raised concerns during the national consultation regarding their inability to compete with TESAU’s retail offers based on Ethernet technology on the basis of the already existing wholesale products of TESAU. In accordance with Article 8(4) of the Access Directive, the obligations imposed on SMP operators shall be based on the nature of the problem identified, proportionate and justified in the light of the regulatory objectives laid down in Article 8 of the Framework Directive. In the light hereof, the Commission invites CMT to assess, before adopting the final measure, whether alternative operators can compete efficiently with TESAU in the retail market – both from a technical and an economic point of view considering the high prices for terminating segments in Spain and the lack of wholesale offers with speeds corresponding to those Ethernet services offered by TESAU at retail level – on the basis of the wholesale products actually offered by TESAU. In the case such analysis would show that alternative operators are not able to efficiently compete at retail level on the basis of the existing wholesale offers, the Commission invites CMT to reconsider the scope of the remedies. |

2 - Non discrimination |

3 - Transparency (publication of a Reference offer) |

4 – Price control (based on cost orientation) and accounting separation |

5 - Obligation to report the quality parameters for the supply of the relevant services. |

DE/2006/0480 | Withdrawn by the National Regulatory Authority |

AT/2006/0508 | Similar to the Recommendation | National | Telekom Austria | Terminating segments of leased lines with bandwidth up to 155 Mbit/s and with a bandwidth < 34 Mbit/s only in the 9 capital cities of the Austrian Länder 1 - Access 2 - Non discrimination 3 - Transparency (publication of a Reference offer) 4 – Price control (based on cost orientation) and cost accounting 5 - Accounting separation | No comments made by the Commission. |

PL/2006/0516 | Leased lines connecting the end customer with the Point of Presence (PoP) of the requesting operator in the network of an operator providing leased lines. | National | Telekomunikacja Polska S.A. ("TP SA") | 1 - Access | The Commission made a comment on: Market definition As a consequence of the market definition the exact boundaries of the market for trunk and terminating segments are not stable, as they will depend (in each case) on the location of the PoP of an alternative operator within the network of TP SA. Assuming that different alternative operators interconnect at different points and at different levels in TP SA’s network, the same network components of TP SA’s network may be characterised as trunk or terminating segments depending on the customer. Such market definition does not have an impact on the SMP assessment in this market, but it may have some undesirable side-effects if UKE would find it appropriate to impose less stringent regulation in the market for trunk segments of leased lines or would find that market to be competitive. In such circumstances, alternative operators may be discouraged from interconnecting with TP SA at a lower (i.e. local) level in the network, as interconnection at higher (i.e. regional or national) level would enable them to benefit more from the (stricter) regulated terminating segments. Most other Member States have defined terminating segments of leased lines as leased lines between the end customer and the nearest point of interconnection offered in the incumbent’s network, independently of whether the alternative operator effectively makes use of that offer. |

2 - Non discrimination |

3 - Transparency (publication of a Reference offer) |

4 – Price control and cost accounting |

5 - Accounting separation |

BE/2006/0552 | Similar to the Recommendation. | National | Belgacom | 1 - Access obligation | The Commission made a comment on: Cost accounting for wholesale terminating segments of leased lines: The Commission notes that currently IBPT does not apply a cost accounting system for all products included in market 1316 as defined by IBTP and that a consultation on the cost modelling methodology is planned to take place six months after adoption of the final measures in market 13. Given the relevance of a cost accounting system in relation to all products included in market 13 and in particular alternative interfaces, the Commission invites IBPT to shorten the timeframe for elaborating the details of the cost accounting model and its implementing measures. |

2 - Non-discrimination |

3 - Transparency |

4 - Price control and cost accounting |

LU/2006/0561 | One product market including terminating and trunk segments of leased lines | National | EPT | 1 - Access obligation | The Commission made a comment on: Lack of sufficient evidence for not separating the markets for terminating and trunk segments of leased lines ILR proposes to define one single wholesale market for terminating segments and trunk segments. ILR justifies this approach in particular with the absence of the emergence of a trunk leased lines market given that the tarification system of EPT does not provide incentives to alternative operators to duplicate the infrastructure between the points of presence of EPT (five points of interconnection). The Commission however takes the view that the market delineation should be based on a thorough assessment of demand and supply side substitutability. In this respect the inclusion of the trunk segment into the terminating segment of the leased lines market is not well justified. In particular, the Commission is not convinced about ILR's argument to define one market on the basis of supply side substitutability given that operators offering the trunk segment would still need to duplicate relevant infrastructure if they wanted to offer terminating segments as well. Notwithstanding that further evidence should have been provided by ILR that trunk and terminating segments of leased lines are (currently or prospectively) in the same market, the SMP analysis of the trunk segment of the leased lines market would not have led to a different result. Consequently, the Commission considers that in the present case a conclusion on the exact scope of the market is not critical for the designation of SMP. Furthermore, the Commission notes that ILR intends to modify the tariff structure of EPT such as to allow for the emergence of a trunk leased line market. If, as a consequence of the modification of the tariff structure, ILR observes the development of a product offer in the trunk part of the wholesale leased line market, the Commission invites ILR to reassess the market boundaries and to analyse the competition conditions for the market(s) identified without delay. |

2 - Non-discrimination |

3 - Transparency (publication of a reference offer) |

4 - Price control (based on cost orientation) and cost accounting |

5 – Accounting separation |

2 - Non discrimination |

3 - Transparency (publication of a Reference offer) |

4 – Price control (based on cost orientation) and cost accounting |

5 - Accounting separation |

Market 14: Wholesale trunk segments of leased lines |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Austria | YES | No SMP found |

Finland | YES | No SMP found |

Hungary | YES | No SMP found |

Belgium | YES | No SMP found |

Denmark | YES | No SMP found |

Slovenia | YES | No SMP found |

*Differentiated or no remedy imposed on certain SMP operators |

** Refinement, broader/narrower market and/or merger of markets |

Overview of notifications assessed until 31 March 2007 |

Market 14: Wholesale trunk segments of leased lines - notifications assessed until 30 September 2005 Overview of notifications assessed until 31 March 2007 |

UK/2003/0039 | Similar to the Recommendation. | National | BT | 1 - Obligation to provide network access on reasonable request | The Commission made comments on: Market definition: The Commission invites Ofcom to monitor closely the market developments and examine whether the proposed wholesale obligations (and in particular the ability for tariffs for wholesale trunk segments to be geographically de-averaged) change the geographic variations to such a degree as to make the definition of an alternative geographic market more appropriate in the future. National consultation run in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified under Article 7(3) of the Framework Directive. |

2 - Requirement not to discriminate unduly |

3 - Basis of charges obligation (cost orientation and a cost accounting system ) |

4 -Transparency (reference offer and technical information) |

5 - Price control |

6 - Accounting separation |

7 - Requirement to provide advance notification of changes to (or introduction of) prices, terms and conditions; |

8 - Requirement to provide quality of service information |

9 - Obligations relating to requests for new network access |

IE/2005/0140 | Similar to the Recommendation. | National | eircom | 1 - Access obligation | The Commission made a comment on: Further consultation planned by ComReg: ComReg states in its draft measures that a further consultation will be held on the details and implementation of accounting separation and cost accounting obligations. The Commission services would like to remind ComReg that draft measures relating to these regulatory obligations are required to be notified under Article 7(3) of the Framework Directive. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Price control and cost accounting |

2 – Non-discrimination |

3 – Transparency |

4 – Accounting separation |

5 – Price control |

SI/2005/0220 | Withdrawn by the National Regulatory Authority |

IT/2005/0273 | Analogue and digital circuits from 2 Mbps to 2,5 Gbps | National | Telecom Italia ("TI") | 1- Access and use of specific network resources, | The Commission made a comment on: Exclusion of trunk segments below 2 Mbps from the definition of market for trunk segments of leased lines AGCOM hereafter concludes that circuits with transmission capacities below 2 Mbps only constitutes a marginal part of the market, and that consequently the wholesale market for trunk segments of leased lines should not include circuits below such capacities. AGCOM does not provide any further argumentation as to why trunk segments below 2 Mbps, from a demand-side or a supply-side perspective, should be excluded from the relevant market. The Commission considers that the fact that trunk segments with transmission capacities below 2 Mbps only constitute a marginal part of the whole offer in the trunk market does not seem sufficient to exclude such segments from the market definition. Therefore, the Commission would like to invite AGCOM to reconsider its conclusion and include circuits with transmission capacities below 2 Mbps in the definition of the relevant market in its final measure. In any event, as the Commission has previously pointed out in other cases, it does not consider that in these particular circumstances the exclusion of such marginal segment from the definition of the relevant market would affect trade between Member States within the meaning of Article 7 (4) and recital 38 of the Framework Directive. Such measure is not likely to have an influence on the pattern of trade between Member States in a manner which might create a barrier to the single market. Therefore, the Commission has limited its reaction to the above comment. |

2 – Non-discrimination |

3 – Transparency (publication of a reference offer) |

4 - Price control (based on a network cap mechanism and cost accounting |

5- Accounting separation |

SE/2005/0341 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | The Commission made a comment on: Additional information provided: The Commission would like to encourage PTS to consider strengthening the motivation of its final decision by including the additional information provided to the Commission in the course of this procedure, mainly relating to the availability of alternative supply at the regional exchanges and the absence of significant switching costs. Susceptibility to ex ante regulation: On the basis of the information provided by PTS, the Commission considers that the market under consideration does not meet the three criteria test and hence is not susceptible to ex ante regulation. In particular, the market seems to exhibit relatively low barriers to entry, due inter alia to the widespread existence of dark fibre infrastructure which can be utilized by alternative operators as a wholesale input to provide trunk segments of leased lines. Alternative operators have moreover entered the market and are capturing customers from TeliaSonera, which is reflected in decreasing market shares of TeliaSonera and a competitive constraint being exercised on the pricing behaviour of TeliaSonera. Under those circumstances, it might be concluded that the market tends towards effective competition. Non-SMP finding: The factual data provided by PTS are insufficient for the Commission to reach a definitive view on whether TeliaSonera has SMP on the relevant market or not (in particular the market share information, market share trends and pricing data are too vague). However, the Commission is of the view that a detailed SMP analysis with more factual evidence would not have led to a different regulatory outcome in this particular case since in any event the market for trunk segments of leased lines in Sweden does not exhibit the features that make it susceptible to ex ante regulation. |

SK/2006/0414 | Withdrawn by the National Regulatory Authority |

FR/2006/0417 | Two markets for trunk segments of leased lines: (i) intra-territory trunk segments and (ii) inter-territory trunk segments. | in and between: mainland France, the French overseas departments and Mayotte | France Telecom | 1 - Access, including the obligation to maintain the wholesale offers currently in place | No comments made by the Commission. |

2 - Non-discrimination |

3 - Transparency (including the publication of service quality indicators and a reference offer) |

4 - Price control - the prohibition of predatory prices for all services in the wholesale markets; - a cost orientation obligation for (i) terminal segments of leased lines below 10 Mbit/s, (ii) the connecting links between cable landing points and the first node of leased lines, and (iii) the inter-territory trunk segments linking mainland France and Réunion; - the prohibition to charge excessive prices for all intra-territory and inter-territory trunk segments (with the exception of the segments linking mainland France and Réunion); |

5 - Accounting separation |

MT/2006/0375 | International segments included | National | Maltacom | 1- Access, | The Commission made a comment on: The inclusion of international lines in the wholesale and retail market definitions: By including international lines in the retail markets for the provision of leased lines and wholesale trunk segments of leased lines respectively, the MCA deviates from the Recommendation. In its notification, the MCA did not conduct the three criteria test considering this unnecessary as in its view the two markets as defined in the Recommendation include international leased lines. Without contesting the MCA’s conclusions, the Commission invited the MCA to clarify in its final measure (i) that two new markets have been defined by including international lines, thereby deviating from the Recommendation, (ii) that the three criteria test has been carried out for these markets and (iii) that the cumulative criteria of this test are fulfilled. Remedies imposed in the market of the international segments of leased lines MCA considered that prices would inevitably rise if not regulated. Accordingly it proposed to maintain the current price regulation on the retail market of the international leased lines (cost-oriented prices approved by the MCA). The Commission invited the MCA to consider whether imposing a less stringent type of price regulation rather than maintaining the current cost-oriented prices would be more justified and proportionate in relation to the achievement of the regulatory objectives - taking into account both the short term objective to protect consumers and the longer term objective to induce effective competition. |

2 - Non-discrimination, |

3 – Transparency, |

4 – Cost orientation, |

5 – Cost accounting and accounting separation |

2 - Non discrimination |

3 - Transparency (publication of a reference offer, including Service Level Agreements) |

4 –Cost orientation and cost accounting |

5 – Accounting separation |

LT/2006/0431 | Two markets for trunk segments of leased lines: (i) national trunk segments and (ii) international trunk segments. | National | TEO LT AB | 1 - Access | The Commission made a comment on: The wholesale market for international leased lines RRT defines and analyses a separate wholesale market for international trunk segments of leased lines (i.e. trunk leased lines with one point in Lithuania and the other point abroad), which deviates from the Recommendation. NRAs may identify markets that differ from those of the Recommendation, but they should carry out the three criteria test, i.e that: (1) there are high and non-transitory entry barriers, (2) the structure of the market does not tend towards effective competition within the relevant time horizon and (3) the application of competition law alone would not adequately address the market failure(s) concerned. In its notification, RRT does not conduct the three criteria test for the international trunk leased lines market taking the specific national circumstances into account. However, since RRT does not find any undertaking to have SMP on this market, the possible exclusion of the relevant market from market analysis on the basis of the three criteria test would not have led to a different regulatory outcome in this particular case. |

2 - Non discrimination |

3 - Transparency |

4 – Price control and cost accounting |

5 – Accounting separation |

CY/2006/0483 | Similar to the Recommendation (including trunk segments of partial leased lines and backhaul services connecting with the international submarine cable systems reaching Cyprus) | National | CYTA | 1 - Access (as well as co-location and use of special facilities) | No comments made by the Commission. |

2 - Non discrimination |

3 - Transparency |

4 – Price control (based on cost orientation) and cost accounting |

5 – Accounting separation |

2 - Transparency (publication of a Reference offer) |

DE/2006/0481 | Withdrawn by the National Regulatory Authority |

LU/2006/0562 | One product market including terminating and trunk segments of leased lines | National | EPT | 1 - Access obligation | The Commission made a comment on: Lack of sufficient evidence for not separating the markets for terminating and trunk segments of leased lines ILR proposes to define one single wholesale market for terminating segments and trunk segments. ILR justifies this approach in particular with the absence of the emergence of a trunk leased lines market given that the tarification system of EPT does not provide incentives to alternative operators to duplicate the infrastructure between the points of presence of EPT (five points of interconnection). The Commission however takes the view that the market delineation should be based on a thorough assessment of demand and supply side substitutability. In this respect the inclusion of the trunk segment into the terminating segment of the leased lines market is not well justified. In particular, the Commission is not convinced about ILR's argument to define one market on the basis of supply side substitutability given that operators offering the trunk segment would still need to duplicate relevant infrastructure if they wanted to offer terminating segments as well. Notwithstanding that further evidence should have been provided by ILR that trunk and terminating segments of leased lines are (currently or prospectively) in the same market, the SMP analysis of the trunk segment of the leased lines market would not have led to a different result. Consequently, the Commission considers that in the present case a conclusion on the exact scope of the market is not critical for the designation of SMP. Furthermore, the Commission notes that ILR intends to modify the tariff structure of EPT such as to allow for the emergence of a trunk leased line market. If, as a consequence of the modification of the tariff structure, ILR observes the development of a product offer in the trunk part of the wholesale leased line market, the Commission invites ILR to reassess the market boundaries and to analyse the competition conditions for the market(s) identified without delay. |

2 - Non-discrimination |

3 - Transparency (publication of a reference offer) |

4 - Price control (based on cost orientation) and cost accounting |

5 – Accounting separation |

DK/2007/0586 | Withdrawn by the National Regulatory Authority |

Market 15: Access and call origination on public mobile telephone networks |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Austria | YES | No SMP found |

Finland | YES | No SMP found* |

Hungary** | YES | No SMP found |

United Kingdom | YES | No SMP found |

Luxembourg | YES | No SMP found |

Denmark | YES | No SMP found |

Netherlands | YES | No SMP found |

Czech Republic | YES | No SMP found |

Lithuania | YES | No SMP found |

Greece | YES | No SMP found |

Latvia | YES | No SMP found |

* In its notification FI/2004/0082, Ficora proposed to designate one operator with SMP. The notified draft measure was vetoed by the Commission on 5 October 2004. On 13 October 2004, following the veto decision, Ficora adopted a final measure taking into account the Commission veto decision and concluded that the market is effectively competitive. Therefore, there is no operator with SMP in the market. ** second round of a market review |

Overview of notifications assessed until 31 March 2007 |

Market 15: Access and call origination on public mobile telephone networks Overview of notifications assessed until 28 February 2007 |

3 - Non-discrimination (pricing and other terms) |

4 - Obligation to negotiate on national roaming with a network operator that has a license for a third generation mobile network |

*) On 13 October 2004, following the veto decision, Ficora adopted a final measure taking into account the Commission veto decision of 5 October 2004 and concluded that the market is effectively competitive. Therefore, there is no operator with SMP in the market. |

3 - Price control - cost orientation and cost accounting |

4 - Accounting separation |

FR/2005/0179 | Withdrawn by the National Regulatory Authority |

LU/2005/0320 | Withdrawn by the National Regulatory Authority |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Overview of notifications assessed until 31March 2007 |

Market 16: Voice call termination on individual mobile networks Overview of notifications assessed until 31 March 2007 |

FI/2003/0031 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Sonera Mobile Networks Oy Radiolinja Origo Oy Finnet Verkot Oy Ålands Mobiltelefon Ab | 1 - Interconnection | The Commission made comments on: The limitation of the remedies to the termination of calls originating on mobile networks in Finland or originating abroad: The remedies imposed should not be limited on the basis of the originating network. By limiting the remedies as is proposed, Ficora does not base the remedy on the nature of the problem identified. It is recognized that the basis for excluding calls originating on a fixed network in Finland from the proposed remedies is the Finnish Communications Act. The primacy of Community law requires any provision of national law which contravenes a Community rule to be disapplied. The asymmetrical application of certain remedies, which are imposed on three SMP operators but not on Ålands Mobiltelefon Ab: In circumstances where it is likely that the market failure identified will be the same in all markets, where a NRA intends to impose different remedies on different operators within similarly defined markets, such differential treatment should be adequately reasoned. Cost-orientation and cost accounting obligations: Where each operator is to select the cost-accounting procedures it wishes to use, this limits the measures’ contribution to consumer benefit, the enhancement of competition and the development of the internal market. |

2 - Transparency - publish delivery terms and tariff information |

3 - Obligations concerning pricing and other terms - Non-discrimination |

4 - Use of cost accounting procedure |

5 - Accounting separation |

Ålands Mobiltelefon Ab: only the first 2 remedies and non-discrimination |

UK/2003/0040 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Hutchison 3G UK Ltd O2 Ltd Orange plc T Mobile Ltd Vodafone Ltd Inquam Telecom Holdings Ltd | 1 - Provision of network access | The Commission made comments on: The appropriateness of the proposed set of obligations: Termination of voice calls on 3G networks is not as such to be considered as a novel service or a newly emerging market. It might be appropriate for Ofcom to impose in certain transparency obligations on “3”, O2, Orange, T-Mobile and Vodafone regarding 3G termination. Designation of Inquam as an operator having SMP: As Inquam’s subscribers are predominantly small- and medium-sized enterprises sensitive to the cost of customers calling them, this could limit Inquam’s freedom to set termination charges at an excessive level. National consultation run in parallel with Article 7 consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

2 - Non-discrimination |

3 - Control of charges |

4 - Transparency - to publish access contracts |

5 -Transparency - to publish charges and an advanced notice of changes to charges |

Hutchinson 3G UK and Inquam Telecom Holdings Ltd.: only the obligation to publish charges and an advanced notice of changes to charges. |

UK/2004/0087 (Remedies related to case UK/2003/0040) | See case UK/2004/0040. | Amendment of the charge controls set for 2G voice call termination. | No comments made by the Commission |

UK/2005/0199 (Remedies related to case UK/2003/0040) | See case UK/2004/0041. | Prolongation of the charge control imposed on Vodafone, O2, Orange and T-Mobile, foreseen to expire on 31 March 2006, until 31 March 2007. | No comments made by the Commission |

SE/2004/0052 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | TeliaSonera Sverige AB Tele2 Vodafone Sverige AB Hi3G Access AB Telenor Mobile Sweden AB | 1 - Provision of network access and interconnection on reasonable request | The Commission made comments on: Asymmetrical application of remedies: PTS is invited to monitor closely the development of the cost structures of the operators on which the obligation to charge ‘fair and reasonable prices’ is imposed and to assess whether its current assumptions on ‘fair and reasonable prices’ will remain relevant over the period of the market review. Parallel consultation: Any material modification to the draft measure as a consequence of comments made by interested parties in the framework of the national consultation will require the draft measure to be re-notified. |

2 - Transparency |

3- Non-discrimination |

4 - Accounting separation |

5 - Control of charges and cost orientation obligation (LRIC Model) |

6 - Accounting separation obligation (provide PTS with specified cost and revenues for interconnection services, including internal prices) |

7 - Obligation to apply a fair and reasonable price |

Asymmetrical application of remedies: remedies 1 - 3 for all five operators, 4 & 5 to TeliaSonera, Tele2 & Vodafone and 6 & 7 to Hi3G/3 and Djuice |

IE/2004/0073, IE/2005/0216 (remedies) | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Vodafone Ireland Ltd O2 Ireland Ltd Meteor Mobile Communications Ltd Hutchison 3G Ireland Ltd | 1- Access (all operators) | The Commission made a comment on: The further consultation planned by ComReg: The draft measures relating to the details and implementation of the accounting separation and cost accounting obligations are required to be notified under Article 7(3) of the Framework Directive. |

2 - Non-discrimination (all operators) |

3 - Cost orientation (all operators) |

4 - Cost accounting (Vodafone and O2) |

5 - Accounting separation (Vodafone and O2) |

EL/2004/0078 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Cosmote SA Info-Quest AEBE Stet Hellas SA Vodafone-Panafon SA | 1 - Price control: cost orientation for the first 3 operators but only an obligation of fair and reasonable price for Q-Telecom | The Commission made comments on: Formal notification ahead of transposition: EETT is entitled to carry out any market analysis prior to transposition of the EU regulatory framework into national law. The validity of the outcome of the present assessment is based on the assumption of a correct transposition of the EU regulatory framework into national law to the extent that the provisions concerned by this assessment are relevant. Asymmetrical application of remedies: EETT is invited to monitor closely the development of the cost structures of the operators on which the obligation to charge “fair and reasonable prices” is imposed and to assess whether its current assumptions on “fair and reasonable prices” will remain relevant over the period of the market review. Obligation of non-discrimination in respect of GSM gateways: EETT is invited to demonstrate that the non-discrimination obligation in respect of GSM gateways either pertains to the finding of SMP in the relevant product market or is sufficiently justified as an essential element without which the proposed obligation of cost-orientation imposed on the relevant market would be ineffective. National consultation on details of generic remedies: When an NRA intends to provide details linked to a generic ex-ante regulatory obligation, interested parties should be given the opportunity to comment on the draft measure within a reasonable period. |

EL/2005/0178 (renotification of case EL/2004/0078 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Cosmote SA Info-Quest AEBE Stet Hellas SA Vodafone-Panafon SA | 1 - Price control obligations: obligation of cost orientation for the first 3 operators but only an obligation of fair and reasonable price for Q-Telecom | The Commission made a comment on: Formal notification ahead of transposition: The validity of the outcome of the present assessment is based on the assumption of a correct transposition of the EU regulatory framework into national law to the extent that the provisions concerned by this assessment are relevant to the current infringement proceedings pending against Greece. The time period between the market reviews, the national and Community consultations and the adoption of the resulting final measure should be kept as short as possible. |

2 - Obligation of non-discrimination |

3 - Obligation of access to, and use of, specific network facilities |

4 - Obligation of transparency |

5 - Obligation to publish a reference interconnection offer |

AT/2004/0099 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Mobilkom Austria AG & Co KG T-Mobile Austria GmbH One GmbH tele.ring Telekom Service GmbH Hutchison 3G Austria GmbH | 1 - Obligation to interconnect on reasonable request | The Commission made a comment on: Implementation of the proposed cost-orientation obligation: Leaving the setting of cost oriented termination charges to commercial negotiations between operators does not seem the most effective way of dealing with the identified competition problem. By not specifying the LRAIC model and the costs which can be taken into account in advance, there is no guarantee that termination rates will be oriented on efficient costs only. |

2 - Non discrimination concerning quality & external non discrimination obligation concerning prices |

3 - Transparency - publication of reference offer |

4 - Price control: cost orientation (on the basis of LRAIC) |

2 - Non discrimination concerning quality & external non discrimination obligation concerning prices |

3 - Transparency - publication of reference offer |

4 - Price control: cost orientation (on the basis of LRAIC) |

HU/2004/0101 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | T-Mobile Magyarország Távközlési Rt Pannon GSM Távközlési Rt Vodafone Magyarország Mobil Távközlési Rt. | 1 - Provision of access and interconnection | The Commission made a comment on: Implementation of the proposed cost-orientation obligation: In order to be able to assess the compatibility of the implementing measures with the requirements of Article 8(4) of the Access Directive, NHH is invited to notify, once adopted, the implementing measures setting out the timeframe and stages applicable for the reduction of termination charges. |

2 - Transparency |

3 - Non-discrimination |

4 - Accounting separation |

5 - Cost orientation and “controllability” of charges |

FR/2004/0104 FR/2007/0592 (details of remedies) | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Bouygues Télécom s.a. Orange France s.a SFR s.a. . | 1 - Access to, and use of, specific network facilities | The Commission made comments on: Formal notification ahead of full transposition and of adoption of secondary legislation: The resulting measure will need to be re-notified as a draft measure, should any material/substantial elements of ART’s analysis be altered due to further delays in the transposition process, given that data and market structure may still change by a later date of transposition. Market analyses in overseas territories: The compatibility with Community law of the analysis of the relevant markets in the overseas territories will be assessed when ART notifies the corresponding SMP analyses pursuant to Article 7(3) of the Framework Directive. Market definition and GSM gateways: While there remain doubts as to the inclusion of termination of fixed-to-mobile calls through GSM gateways in the relevant market, its exclusion from the market definition in this particular case would not have led to a different result in the SMP analysis. Accounting separation and price control obligations: Decisions setting (i) the modalities of the accounting separation obligation and the costing methodologies, and (ii) the price ceiling for the year 2007 in respect of SMP undertakings are required to be notified. |

2 - Transparency |

3 - Non-discrimination |

4 - Accounting separation (modalities of which and costing methodologies to be notified) |

5 - Price control |

6 - Cost accounting obligation |

FR/2004/0120 (French Overseas Territories) FR/2007/0592 (details of remedies) FR/2007/0596 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Bouygues Télécom Caraïbe s.a., Dauphin Télécom s.u., Orange Caraïbe s.a. and Saint-Martin Mobile s.u. in Guadeloupe, Martinique and Guyane; Société Réunionnaise du Radiotéléphone s.a. in Mayotte; Orange Réunion s.a. and SRR in Réunion; Saint-Pierre-et-Miquelon Télécom s.a.s. in Saint-Pierre-et-Miquelon, Outremer | 1 - Provision of access to, and use of, specific network facilities | The Commission made comments on: Market definition and GSM gateways: While there remain doubts as to the inclusion of termination of fixed-to-mobile calls through GSM gateways in the relevant market, its exclusion from the market definition in this particular case would not have led to a different result in the SMP analysis. Accounting separation and price control obligations: Decisions setting (i) the modalities of the accounting separation obligation and the costing methodologies, and (ii) the price ceiling for the year 2007 in respect of SMP undertakings are required to be notified. |

2 - Transparency |

3 - Non-discrimination |

4 - Price control |

PT/2004/0129 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Telecomunicações Móveis Nacionais, S.A. Vodafone Portugal - Comunicações Pessoais, S.A. Optimus -Telecomunicações, S.A. | 1 - Access obligation | The Commission made a comment on: Further consultation planned by Anacom: Draft measures relating to implementation of the final cost orientation and cost accounting obligations are required to be notified. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation |

5 - Price control and cost accounting. Pending adoption: progressive set of price reductions based on an international benchmark |

SK/2005/0136 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | Orange EuroTel | 1 - Access obligation | The Commission made comments on: Implementation of the proposed cost orientation obligation: It is necessary to specify a cost model and the level of wholesale charges as soon as possible. By doing so, TÚSR will provide adequate transparency and legal certainty for market players, without causing further delays in bringing termination rates to the cost oriented level. Scope of access remedies: TÚSR should make clear that the proposed access obligations aim exclusively at remedying the lack of competition in the wholesale markets for voice call termination on individual mobile networks and would apply only to these relevant markets. National public consultation: NRAs must conduct a national consultation on each draft measure which have a significant impact on the relevant market, i.e. including the market definitions, and to give all interested parties the opportunity to comment the draft measures. |

2 - Non-discrimination |

3 - Transparency |

4 - Accounting separation and cost accounting |

5 - Price control, including cost orientation |

2 - Non-discrimination |

3 - Access to, and use of, specific network facilities |

4 - Transparency |

DK/2005/0204 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | TDC SONOFON TeliaSonera “3” Tele 2 (MVNO) | 1 - Price control obligations based on benchmarking for TDC, Sonofon and TeliaSonera, and an obligation to charge fair and reasonable prices for "3" and Tele 2 | The Commission made comments on: Price control based on comparison with other countries: If a NRA decides to impose price regulation on the basis of a comparison with other countries, it should carefully select the objective criteria and clearly justify the reasons for which it believes that the relevant market(s) in these countries are, on the background of those criteria, most suited as the basis for the comparison taking into account differences between conditions prevailing on the relevant market(s) in the countries compared and its home market. Asymmetric regulation of Tele 2 (MVNO) and “3”: In circumstances where it is likely that the market failure identified will be the same in all markets and where a NRA intends to impose different remedies on different operators within similarly defined markets, the asymmetrical application of remedies should be adequately reasoned. NITA has not duly substantiated its intended decision not to impose price-control on Tele 2 and “3”. |

2 - Non-discrimination |

3 - Accounting separation |

4 - Transparency |

5 - Access |

NL/2005/0215 NL/2006/0420 | Operator-specific relevant markets. | Geographic coverage of each network = geographic extent of each relevant market | KPN Mobile Vodafone T-Mobile Orange Telfort Tele2 Mobiel | 1 - Price control on the basis of cost orientation (FL-LRIC for all operators except for Tele2 Mobiel) | No comments made by the Commission. |

2 - Provision of access upon reasonable request |

3 - Non-discrimination |

4 - Transparency |

DE/2005/0249 DE/2006/0421 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | T-Mobile Deutschland GmbH (“D1-Netz”), Vodafone D2 GmbH (“D2-Netz”), E-Plus Mobilfunk GmbH Co. KG (“E1-Netz”) and O2 (Germany) GmbH & Co. OHG (“E2-Netz”) | 1 – interconnection obligation | Implementation of the proposed cost-orientation obligation In view of this finding and in view of the fact that mobile termination rates in Germany are at present, three years after the entry into force of the EU regulatory framework on electronic communications, still not regulated BNetzA should without further delay ensure effective (price) regulation in these markets. The approach chosen by BNetzA, namely to let mobile network operators propose termination charges that are then subject to authorisation by BNetzA fails to provide legal certainty and transparency to operators and consumers over a longer period of time. Therefore, BNetzA is invited to decide in an expedient manner on the requests for authorisation of their termination charges made by the various operators. In addition, in order to better safeguard the interest of consumers, BNetzA should further develop a cost model for calculating the termination rates of the mobile operators as soon as possible. This costing model should reflect the fact that operators may have different cost structures which can inherently be linked to different technical conditions of their network or can be a result of different economies of scale due to different market shares. Operators should, however, become more efficient over time, especially if they gain market shares. Finally, the Commission invites BNetzA to take into account any specific characteristics of products such as T-Mobile@home, Genion and Vodafone Zuhause when calculating the costs and to examine whether the underlying costs for termination as part of those products would justify the setting of specific tariffs for those mobile termination services. Non-imposition of accounting separation Although tariff authorisation together with the annual reporting obligation might allow BNetzA to implement non-discrimination and to prevent cross subsidisation, the imposition of an obligation of separate cost accounting might nevertheless be necessary and proportionate to achieve further regulatory objectives such as rendering the tariff authorisation more efficient and making financial transactions more transparent. The Commission considers that in order to effectively remedy the market failures identified on the mobile termination markets, BNetzA should impose an obligation of accounting separation on the respective mobile operators. Without such an obligation, it seems more difficult for BNetzA to exercise effectively price control. Therefore, such an accounting separation obligation seems necessary to implement effectively the price control obligation it intends to impose. |

2 - Obligation to terminate incoming calls on their relevant network |

3 - Obligation to provide co-location |

4 – non discrimination |

4 - Ex ante price control for access and co-location |

5 – transparency |

6 - Indication of sites for the access and the co-location to interested undertakings at their request. |

SI/2005/0276 SI/2007/0591 (second round of market review) | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Mobitel, Si.Mobile | 1 – access | In case SI/2005/0276 the Commission made the comment on: Proposed wholesale price control mechanism on Mobitel: APEK intends to address the problems for Mobitel’s competitors to effectively compete with Mobitel’s retail prices, in part, by proposing a remedy which links Mobitel’s termination rate to its retail on-net prices. This approach might nevertheless result in indirectly regulating retail prices through a remedy imposed at the wholesale level. The Commission reminds APEK that problems identified by APEK in this wholesale market at first stage should be remedied by the implementation of an effective price control mechanism ensuring cost-oriented level of Mobitel’s termination rate at wholesale level. If APEK comes to the conclusion that the remedies available at wholesale level are not sufficient to solve the competitive problems identified at retail level but that there is also a need for price control of the retail prices, it may be appropriate to consider whether an intervention is required at that level. The Commission would like to emphasise that the retail prices of Mobitel may not be price regulated on the basis of the finding of SMP at the wholesale market. Implementation of the unique fixed to mobile termination rates: The Commission notes that in respect of Mobitel and Si.Mobil APEK proposes that the operators should gradually apply the same level of termination tariffs for both calls originated from other mobile networks and fixed networks by 1 January 2008. The Commission considers, on the basis of the information supplied, that allowing further delays in bringing termination rates for mobile and fixed calls to a unique rate would not be in line with the aforementioned provisions of the Framework and the Access Directives and that delaying the implementation of this obligation until 1 January 2008 would not allow consumers to derive the maximum benefit in terms of price. The Commission would like to emphasise that a unique termination rate for calls from mobile and fixed networks should be achieved without any excessive delay in order to ensure that the obligations imposed are effective and appropriate to address the competitive problems identified. Asymmetric application of remedies on Si.Mobil and WWI: The Commission invites APEK to monitor in the context of the annual market review provided for by national law, whether the remedies imposed on Si.Mobil and WWI will, in the longer term, be sufficient in the light of the competitive problems identified. Taking into account the bilateral nature of the termination agreements, the Commission in particular invites APEK to ensure a coherent and non-discriminatory development of the termination rates in Slovenia. In case SI/2005/0276 the Commission made the comment on: Proposed retail price control mechanism on Mobitel and Si.mobil: APEK intends to address the issue of asymmetric on net/off net tariffs in the Slovenian retail mobile market by proposing a remedy which links the MNOs' termination rate to their retail on-net prices. This approach would nevertheless result in retail regulation through a remedy imposed pursuant to market analysis on a wholesale market. In accordance with Article 8(4) of the Access Directive, the obligations imposed on SMP operators shall be based on the nature of the problem identified, proportionate and justified in the light of the regulatory objectives laid down in Article 8 of the Framework Directive. In the present case APEK does not demonstrate as to how the linkage of MNOs' termination rates and their retail on-net prices would resolve the lack of competition in the termination market nor does it show how the imposition of such a remedy would render other proposed obligations in the termination market effective. Therefore the Commission asks APEK not to impose the proposed internal non-discrimination obligation. The Commission reminds APEK that problems identified by APEK in this wholesale market should be remedied by the implementation of an effective price control mechanism ensuring cost-oriented level of Mobitel’s and Si.mobil's termination rate at wholesale level. |

2 - transparency |

3 – non-discrimination |

4 – price control |

5 – accounting separation |

IT/2005/0316 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | TIM, Vodafone, WIND, H3G | 1- access | Cost orientation and cost accounting obligations The Commission encourages AGCOM’s intention to monitor the consistency of the imposed annual reduction of MTRs with the costs and, in the event that there will be differences between the actual cost evolution and the price cap, to consider such differences with the view to ensuring the cost orientation of MTRs. |

2 - transparency |

3 – non discrimination |

4 – price control and cost accounting (except for H3G) |

LU/2005/0321 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | EPT, Tango and Voxmobile | 1- access and interconnectin | The Commission made comments on: Timely implementation of the price control obligation ILR intends to implement the price control obligation on the basis of an international benchmarking no sooner than end of 2007 or 2008 following a separate national consultation. In the meantime, ILR will apply a 6% price reduction every six months for a period of at least two years and possibly three years. The implementation period envisaged by ILR appears disproportionate in light of these requirements, considering in particular that a price control model based on international benchmarking should not require that much time to implement. Consequently, the Commission invites ILR to implement by the end of 2006 its price control obligations based on an international benchmarking. Price control based on comparison with other countries: Regarding the use of an international benchmarking to implement price control, the Commission considers that if an NRA decides to impose price regulation on the basis of comparison with other countries, it should carefully select on the basis of objective criteria the most appropriate countries of reference.Therefore, the Commission invites ILR to consider the development of a cost accounting model applicable to each SMP operator. Level of reductions The Commission urges ILR to further reduce the MTRs in Luxemburg already in the course of 2006, in order to achieve a cost oriented level as quickly as possible. |

2 - transparency |

3 – non-discrimination |

4 – price control |

CY/2006/0334 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | CYTA, Areeba | 1 - access | Effectiveness of remedies in the mobile access and call origination market The retail mobile market in Cyprus has been opened for competition only in September 2004. It still is in the early stage of transition from a monopoly situation to a competitive situation, with the incumbent operator having a market share well above 90%. The new entrant, Areeba, has entered the market relatively recently and is still rolling out its network. Under such circumstances OCECPR argues that it would be ineffective at this stage to oblige CYTA to provide MVNOs access to its network, since this would undermine Areeba’s chances to develop into a sustainable competing MNO on the market. Indeed, in a market which is more or less mature, the arrival of MVNOs would make it more difficult for Areeba to acquire the necessary customer base to support the further roll out of its network. In absence of mandatory MVNO access, however, OCECPR should ensure through stringent and effective wholesale regulation that the two MNOs currently on the market in Cyprus are able to compete at arms length. In particular, the Commission would like to invite OCECPR to impose price regulation with regard to the roaming services which CYTA is obliged to offer to Areeba16. Such price regulation should, in the opinion of the Commission, ensure cost-orientation and an appropriate margin between CYTA’s retail tariffs and its wholesale national roaming tariffs. Exclusion of 3G termination from the voice call termination markets OCECPR justifies the exclusion of 3G termination from the voice call termination markets by the fact that at the time of the analysis both MNOs terminated calls to their respective networks using a 2G interface only. The Commission would like to remind OCECPR in this context that market definition should be technology-neutral, i.e. based on the nature of the products or services provided, not on the technological platform used to provide them. To the extent that a MNO operates both a 2G and a 3G network, there seems to be substitution from the supply-side between 2G and 3G termination services (at least for calls to customers with a dual mode handset). In such a case, both services would also from the demand-side appear to be substitutable. Therefore, the Commission would like to invite OCECPR to reconsider whether on a forward-looking basis 3G termination services do not already at this stage belong to the same market as 2G services, or at least to monitor closely the market and to analyse 3G termination services as soon as these services become available in Cyprus. An additional market analysis and/or separate remedies imposed for 3G termination services should be notified to the Commission under Article 7(3) of the Framework Directive. |

2 - transparency |

3 – non discrimination |

4 – price control |

5 – accounting separation |

UK/2005/0348 | See case UK/2004/0040 | Extension of remedies imposed in previous measures | No comments made by the Commission. |

CZ/2006/0359 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Eurotel Praha, spol. s.r.o., T–Mobile Czech Republic, a.s. Oskar Mobil, a.s. | 1 - access | No comments made by the Commission. |

2 - transparency |

3 – non discrimination |

4 – price control |

5 – accounting separation |

PL/2006/0379 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Polkomtel SA, Polska Telefinia Cyfrowa Sp. z o.o., Polska telefonia Komorkowa Centertel Sp. z o.o. | 1 - access | Price control obligation The Commission considers that the price regulation proposed by UKE is not sufficiently precise to address the identified concerns effectively. In particular, the draft measures do not specify the method on the basis of which the cost-orientation obligation will be implemented. The Commission invites UKE to impose a cost-calculation obligation, and to assess whether a forward looking long-run incremental cost (FL-LRIC) model would not be the most appropriate model (notably in terms of tariffs, and potential excessive costs and inefficiencies of the mobile operators), and to identify such model in the adopted measures. If cost orientation will only be achieved over time, the delay must not be unreasonably long. In such a case, moreover, UKE should foresee how mobile termination rates will already be reduced in the interim period so as to effectively remedy the market failures identified. If for this interim period UKE decides to impose price regulation on the basis of comparison with other countries, it should carefully select the objective criteria and justify the reasons for which it believes that relevant market(s) in these countries are, on the background of those criteria, most suited as the basis for the comparison, taking into account differences between conditions prevailing on the relevant market(s) in the countries compared and its home market. Furthermore, under the current circumstances of the provision of mobile call termination, only where the prices for those services have been set on the basis of an appropriate cost accounting model and relevant cost accounting data to reflect cost orientation, the prices can be considered as appropriate to serve as a basis for comparison. Transparency The Commission invites UKE to include in the transparency obligation an obligation to publish a reference offer. In the absence of such a reference offer, interconnection negotiations may be unduly prolonged and multiple disputes may arise rendering the access obligation imposed on this market less effective. Non-imposition of an obligation of accounting separation: The Commission considers that further imposition of an accounting separation obligation is necessary as an appropriate complement to the other proposed obligations. Only an accounting separation obligation allows internal transfers to be rendered visible, and permits UKE to check compliance with obligations of non-discrimination. Entrance of new market players The Commission invites UKE to analyse the market of wholesale call termination in the networks of new MNOs when they commence operations, and to notify the results of that analysis in accordance with Article 7(3) of the Framework Directive. |

2 – non discrimination |

3 – transparency |

4 – price control |

EL/2006/0392 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Cosmote SA (“Cosmote”), TIM/Q-Telecom SA (“TIM”), and Vodafone-Panafon SA (“Vodafone”) | 1 - access | Timeframe for reduction of the MTRs and non-imposition of accounting separation Taking into account the recent voluntary reductions of the MTRs which already ensure a significant part of the reduction towards EETT’s target, the Commission invites EETT to implement a shorter glide-path period for the remaining decreases in order to reach EETT’s target levels before June 2007. In addition, the Commission invites EETT to reconsider the need for keeping the minimum period of 30 seconds charged by mobile operators for terminating a call. Such a minimum charging period is generally passed-through at the retail level creating confusion and lack of transparency for end-users (in particular residential consumers), since the nominal retail tariff announced is not reflected in the final bill. Moreover, in view of the proposed cost-orientation obligation, the Commission reiterates that further imposition of an accounting separation obligation would seem justified as an appropriate complement to the other proposed obligations. An accounting separation obligation would permit EETT to easily obtain updated cost data from the operators based on an enforceable obligation and thus to ensure the cost-orientation obligation efficiently. |

2 - transparency |

3 – non discrimination |

4 - requirement to publish a reference interconnection offer, service level agreements and performance indicators |

5 – price control and cost accounting |

FI/2006/0403 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Finnet, Elisa, Sonera | 1 - interconnection | The exclusion from remedies of voice call termination in mobile networks when a call is originated in a fixed telephone network in Finland not using carrier selection or carrier pre-selection: a significant proportion of traffic from fixed to mobile networks – i.e. calls originated in a fixed telephone network in Finland not using carrier selection or carrier pre-selection – can still not be subject to any form of price regulation. The Commission points out that the Finnish law in this respect, in spite of the amendment of the CMA, continues to be in breach of Community law as set out in detail in case FI/2003/0031 and in the reasoned opinion issued by the Commission in the ongoing infringement case. The Commission also reminds Ficora of the comment made in case FI/2003/0031 regarding the primacy of Community law in line with the settled case law of the Court of Justice. Implementation of the proposed cost-orientation obligation: Despite the imposed cost-orientation obligation, Ficora does not intend to propose to control the level of termination rates ex ante. In practice the termination rates are negotiated between undertakings and Ficora controls the cost-orientation and non discrimination of termination rates ex post on a case-by-case basis. The Commission acknowledges that the current, commercially negotiated, termination rates applied by MNOs in Finland are well below the EU average. Nevertheless, the Commission invites Ficora to monitor the evolution of termination rates and in case the commercial negotiations in future fail to yield cost-oriented termination rates and would not resolve the current asymmetries in termination rates, Ficora should consider imposing a proper ex ante price control obligation supported by an appropriate cost-accounting methodology |

2 - transparency |

3 – non discrimination |

4 – accounting separation |

5 – price control |

BE/2006/0433 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Belgacom Mobile, Mobistar and Base | 1 – access and interconnection (all operators) | The Commission made comments on: Price control obligation The Commission considers that termination rates should normally be symmetric and that asymmetry, acceptable in number of cases, requires an adequate justification. It recognizes that, in certain exceptional cases, an asymmetry might be justified by objective cost differences which are outside the control of the operators concerned. |

2 – external non discrimination (all operators); internal non discrimination imposed on Belgacom Mobile and Mobistar) |

3 – transparency (all operators) |

4 – price control and cost accounting (all operators) |

5 – accounting separation (Belgacom Mobile and Mobistar) |

LV/2006/0464 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Latvia Mobilais Telefons, Tele2, Telecom Baltija and BITE Latvija | 1 - access | Market analysis relating to mobile call termination services provided by BITE Latvija : The Commission notes that SPRK did not analyse the relevant market with regard to call termination services provided by BITE Latvija. Therefore it urges SPRK to conduct the market analysis with regard to this particular undertaking as soon as possible. Effective cost accounting methodology: In order to ensure effective price regulation, the Commission invites SPRK to develop as quickly as possible its own cost model. In this context, the Commission would like to stress that termination rates should normally be symmetric and that asymmetry, acceptable in number of cases, requires an adequate justification. Therefore, in order to ensure the fulfilment of this principle in Latvia in the future, the cost model (for example based on the FL-LRIC methodology) should take into account costs of an efficient operator. |

2 - transparency |

3 – non discrimination |

4 – price control |

2 – non discrimination |

3 – accounting separation |

4 – access and interconnection |

5 – price control and cost accounting |

ES/2005/0251 ES/2006/0471 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Telefonica Mobile SAU, Vodafone SA, Amena | 1 - access | Imposition of remedies to the termination of calls originating on fixed networks only The Commission considers that CMT’s approach to regulate only the wholesale voice termination of fixed-to-mobile calls may not allow consumers to derive the maximum benefit in terms of price. Accordingly, the Commission invites CMT to consider regulating the provision of mobile voice call termination services regardless of the origination of the call (M2M or F2M). Finally, the Commission invites CMT to specify as soon as possible all necessary details concerning the implementation of the cost-orientation obligation (cost accounting methodology, glide paths, if necessary, objectives and time-table. Minimum charging period of one minute for Amena The Commission invites CMT to reconsider the flexibility allowed to Amena to charge a minimum period of one minute for terminating a call. Such a minimum charging period is generally passed-through at the retail level creating confusion and lack of transparency for end-users (in particular residential consumers), since the nominal retail tariff announced is not reflected in the final bill. Consequently, such a tariff scheme may not be fully in line with the regulatory objectives laid down in Article 8 of the Framework Directive as well as Article 13(2) of the Access Directive, while not ensuring that the end-users derive the maximum benefit of the proposed regulatory obligations. |

2 – price control 3 – accounting separation |

UK/2006/0498 UK/2006/0499 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Hutchison 3G UK Ltd O2 Ltd Orange plc T Mobile Ltd Vodafone Ltd Inquam Telecom Holdings Ltd | access | 3G spectrum costs The value of 3G licences should be calculated at current value on a forward looking basis and not on the basis of spectrum values which approximate year 2000 levels. Termination rates should be set at the cost which would be faced by an efficient operator to provide the relevant service. What should be considered in the LRIC model, from today's perspective, are all the cost elements that are not sunk today. It is important that LRIC models use current costs and not historical costs which risks overestimating the appropriate costs considerably. This consideration is particularly relevant for spectrum fees which have been written off by operators since the relevant frequencies were auctioned and for which Ofcom considers that they may be an overstatement of the opportunity cost of 3G spectrum. In light of the above and with a view to fulfilling the objectives of the framework and allowing end-users, in particular retail fixed customers to obtain the benefits of the wholesale regulation proposed, the Commission invites Ofcom to reconsider the valuation of 3G licences. |

Non-discrimination |

transparency |

Price control and cost accounting |

AT/2006/0538 | Operator-specific relevant markets | Geographic coverage of each network = geographic extent of each relevant market | Mobilkom Austria AG & Co KG (“Mobilkom”), T-Mobile Austria GmbH (“T-Mobile”), One GmbH (“One”) and Hutchison 3G Austria GmbH (“Hutchison 3G”), Tele2UTA. | interconnection | Implementation of the proposed cost-orientation obligation While in principle the undertakings should themselves negotiate in good faith their access and interconnection agreements, the Commission would like to reiterate that the competitive problems identified should be tackled as soon and as efficiently as possible. In view of the monopoly power of MNOs over termination on their network, the absence of countervailing buying power and, in particular, in view of the number of dispute settlements procedures regarding mobile termination tariffs that the TKK continuously has to face, the Commission is of the opinion that it would be more effective for the TKK to specify already in this SMP decision rather than in the context of a dispute resolution how the cost-orientation obligation is to be implemented. |

Non-discrimination |

Internal non-discrimination concerning prices for those convergent services allowing to terminate a call made to a geographical number onto a mobile network, |

Obligation to publish RIO |

Obligation to allow interconnection partners to contract out of an agreement within a period of maximum two months at any time |

Price control |

Market 17: The wholesale national market for international roaming on public mobile networks |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Slovenia | YES | No SMP found |

Czech Republic | YES | No SMP found |

Finland | YES | No SMP found |

Austria | YES | No SMP found |

Italy | YES | No SMP found |

Spain | YES | No SMP found |

Denmark | YES | No SMP found |

Poland | YES | No SMP found |

Ireland | YES | No SMP found |

Sweden | YES | No SMP found |

* Differentiated or no remedy imposed on certain SMP operators |

Overview of notifications assessed until 31 March 2007 |

SI/2006/0477 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | Addressing high prices in the international roaming market The Commission notes that APEK has not found SMP in the market and therefore has not been in the position to regulate it despite concerns related to high prices. To deal with such difficulties, the Commission adopted on 12 July 2006 a proposal for a regulation of roaming on public mobile networks within the European Union |

FI/2005/0304 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | Development of effective IOTs net of discounts: Ficora concludes in its analysis of the wholesale national market for international roaming services that foreign MNO’s ability to direct traffic onto preferred partner networks in Finland has not led to price competition at the wholesale level. Ficora expects, however, that traffic direction will lead to price competition in the future and considers the market to be effectively competitive. The factual evidence about the developments of average IOTs expressed in revenue per minute as well as a basket of wholesale prices does not seem to lend support to Ficora’s assertion that prices will soon start to decline. Over the period of implementation of traffic direction techniques (2002-2005) prices have risen by 7% on average. Over the period of the first quarter 2003 until the third quarter 2005 prices (expressed as a basket of prices) of the two smaller of the three nationwide operators have risen disproportionately by […]% and […]% respectively. Operators with higher shares of directable traffic on their network should according to Ficora also face a greater competitive constraint. Contrary to these expectations, operators with higher shares of directable traffic on their networks appear to have raised prices to a greater extent. Further to that average wholesale prices (as expressed as revenue per minute) have over the period 2004 until June 2005 been aligned and are now within a narrower range and at a higher average level. The Commission acknowledges that discounts are yet to be included in the calculation of effective IOTs and that price baskets and average revenues may be overstating the true level of prices at least for the year 2004/2005. The Commission therefore asks Ficora to monitor the development of Finnish operators’ effective IOTs net of all discounts and analyse very closely these findings. Should effective IOTs net of discounts continue to rise or remain at their present level despite the ongoing implementation of traffic direction techniques, then Ficora is invited to review the effectiveness of competition without any undue delay in close co-operation with the National Competition Authority (“NCA”). |

AT/2006/0466 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | Addressing high prices in the international roaming market The Commission notes that TKK has not found SMP in the market and therefore has not been in the position to regulate it despite concerns related to high prices. To deal with such difficulties, the Commission adopted on 12 July 2006 a proposal for a regulation of roaming on public mobile networks within the European Union. Calculation of market shares According to the practice of the Commission11 and the case law of the Court of First Instance12, the inclusion of captive sales into the relevant market may depend on whether the traffic generated by the foreign subsidiary would be made available in the open (noncaptive) market in case of an increase or decrease of market prices, or in other words, whether captive sales would be switched to the open market as a response to a change in competitive conditions. In the absence of such an analysis, the analysis of SMP should also be based on market shares excluding intra-group sales. In the present case, as changes in the market shares of operators depending on the inclusion or exclusion of intra-group sales would not materially alter the analysis provided by TKK, the exclusion of intra-group sales would not lead to a different outcome in terms of single or joint SMP findings. |

IT/2006/0393 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | Addressing high prices in the international roaming market AGCOM recognises the high level of international roaming prices for end-users which may limit the use of mobile communication services outside national boundaries and which may constitute an obstacle to the development of the single European electronic communications market. The Commission notes in this respect that it has not so far been possible, for a national regulator alone, also because of the cross-border nature of international roaming services, to act effectively to address the high level of wholesale international roaming charges. The Commission is therefore considering the adoption of EU measures to address the high international roaming prices. The inclusion of captive sales When calculating the total size of the market as well as the market shares of the MNOs, AGCOM includes not only merchant sales (i.e. sales to third independent parties) but also (captive) intra-group sales. The Commission notes firstly that the traffic direction techniques available today allow the MNOs to direct a large majority of their traffic and secondly that contrary to TIM and WIND, Vodafone has a pan-European footprint and exchanges inbound roaming traffic within its own group. In this respect, a clear distinction is to be drawn between an alliance of different undertakings, such as the Freemove alliance, and a group subject to sole control, which forms a single undertaking. Indeed, in an undertaking such as Vodafone, retail and wholesale prices are coordinated with the sole objective of coordinating the undertaking’s overall profit. Partially owned subsidiaries may also subscribe, depending on circumstances such as, the degree of influence or control and/or commercial agreements, to the common strategy. In an alliance only mutually advantageous agreements can be reached. The alliance capability to coordinate in a similar manner as a sole undertaking like Vodafone and to apply prices independent of market conditions is therefore more limited and the sales between the alliance members are therefore in general not considered as captive. According to the Commission’s practice and the case law of the Court of First Instance, the inclusion of captive sales into the relevant market may depend on whether the traffic generated by the foreign subsidiary of the group would be made available in the merchant market in case of an increase or decrease of market prices (i.e. whether the captive sales would be sufficiently quickly switched to the merchant market in response to a change in the competitive conditions). Therefore, the analysis of SMP should cover also the development of market shares of the MNOs excluding captive sales. Depending on whether captive sales are included or not in the market, TIM’s market share would be in a range between 38.8% and 51.2%. In this particular case the Commission notes that the market share of TIM based on a market excluding captive sales would amount to slightly above 50% both in volume (voice) and revenues (voice and SMS)11. This market share is slightly declining from 2003 to 2005. Furthermore, for both SMS and voice, TIM’s market share is higher in volume than in revenues indicating that TIM has not been able to maintain higher IOT than its competitors. Consequently, the exclusion of captive sales from the market definition would not have led to a different result in the SMP analysis in this case. |

DK/2006/0419 | Similar to the Recommendation. | National | No SMP found | No remedies imposed | Addressing high prices in the international roaming market The Commission notes that NITA has not found SMP in the market and therefore has not been in the position to regulate it despite the concerns related to high prices. To deal with such difficulties, the Commission has adopted on 12 July 2006 a proposal for a regulation of roaming on public mobile networks within the Community. Calculation of market shares According to the practice of the Commission18 and the case law of the Court of First Instance19, the inclusion of captive sales into the relevant market may depend on whether the traffic generated by the foreign subsidiary would be made available in the open (non-captive) market in case of an increase or decrease of market prices, or in other words, whether captive sales would be switched to the open market as a response to a change in competitive conditions. In the absence of such an analysis, the analysis of SMP should also be based on market shares excluding intra-group sales and both methods of calculation (i.e. including and excluding intra-group sales) should be included in the final measure. In the present case, market shares vary between […]% and […]% for the largest operator, between […]% and […]% for the second largest operator and between […]% and […]% for the third largest operator, depending on the calculation method used. The relative sizes of the operators change depending on the inclusion or exclusion of intra-group sales. Most notably, the difference in market share between the first and the second largest operator increases from […] to […] percentage points when intra-group sales are excluded. However, the Commission agrees with NITA that these relative changes do not alter its analysis, i.e. the absence of a single company having SMP and the unlikelihood of the three large operators jointly dominating the market (“collective SMP”). Consequently, the exclusion of intra-group sales would not lead to a different outcome of the SMP analysis in this case. |

Market 18: Broadcasting transmission services, to deliver broadcast content to end users |

Member State | Market definition similar to Recommendation | SMP found for | Remedies imposed |

Cyprus | NO* | No SMP | Remedies not imposed |

*Refinement, broader/narrower market and/or merger of markets ** only on certain operators |

Overview of notifications assessed until 31 March 2007 |

Market 18: Broadcasting transmission services, to deliver broadcast content to end users Overview of notifications assessed until 31 March 2007 |

AT/2003/0002 (notification limited to market definition) | Terrestrial television broadcasting. | National | No SMP analysis | Not included in the notification | The Commission declared the notification incomplete on the following grounds: No information was provided on essential information such as the number of undertakings in the market, market shares and price levels. No information was provided on the degree of competition at retail level. No information was provided to support the conclusion on the geographic scope of the markets. |

Terrestrial FM radio broadcasting. |

AT/2003/0018 (notification limited to market definition) | Terrestrial television broadcasting. | National | No SMP analysis | Remedies not yet notified | The Commission made a comment on: Exclusion of the market for satellite television broadcasting transmission services from market analysis: Should a decision identifying trans-national market(s) under Article 15(4) of the Framework Directive be taken in the future, and/or should such decision provide guidance on how to treat the market for satellite broadcasting transmission services, NRAs concerned will be required to conduct the market analysis of these markets accordingly. |

IE/2004/0042 | Radio broadcasting transmission services on analogue terrestrial networks. | National | RTE Transmission Network Limited | 1 - Transparency | The Commission made a comment on: Market definition: The lack of competitive pressure exerted by cable transmission services on satellite transmission services and vice versa raises doubts as to whether transmission services provided over these platforms constitute a single market. |

2 - Non-discrimination |

IE/2004/0114 (additional remedies related to case IE/2004/0042) | See case IE/2004/0042. | 1 - Accounting separation | No comments made by the Commission. |

FI/2004/0076 | Digital television transmission services in terrestrial digital television network in multiplexes A, B and C in compliance with the network licenses. | National, except for the autonomous area of Åland | Digita Oy | 1 - Obligation to relinquish capacity in a terrestrial mass communication network | The Commission made comments on: Monitoring the appropriateness of proposed remedies: In light of the review by the Finnish authorities of the market for television activities in the course of 2007, the Finnish authorities are invited to monitor the appropriateness of the remedies imposed on Digita. Exclusion of satellite broadcasting transmission services from market analysis: The Finnish authorities are invited to have regard to any future Commission decision on trans-national satellite broadcasting transmission services under Article 15(4) of the Framework Directive and, to the extent that such decision may affect the Finnish authorities’ current approach, the Commission invites them to revisit their current analysis with regard to wholesale satellite transmission. |

2 - Transparency - publication of delivery terms and tariff information |

3 - Cost-orientation cost accounting |

National analogue television transmission services in the terrestrial analogue television network. | 4 - Non-discrimination |

National digital radio transmission services in the terrestrial digital network. | 5 - Accounting separation |

National analogue radio transmission services in the terrestrial analogue radio network. |

UK/2004/0111 | 1/ Access to masts and sites operated by ntl. | Market 1: Coverage area of ntl | Market 1/ ntl | 1 - Provision of network access on fair and reasonable terms (markets 1, 2 & 4) | Draft measures concerning managed transmission services withdrawn by NRA |

2 - Non-discrimination (markets 1, 2 & 4) |

2/ Access to masts and sites operated by Crown Castle. | Market 2: Coverage area of Crown Castle | 3 - Cost-orientation (markets 1, 2 & 4) | The Commission made a comment on: Exclusion of satellite broadcasting transmission services from market analysis: Ofcom is invited to have regard to any future Commission decision on trans-national satellite broadcasting transmission services under Article 15(4) of the Framework Directive. Should such a decision be taken, and should Ofcom be an NRA concerned by such a decision, it is required to conduct the market analysis with regard to wholesale satellite transmission services with other NRAs identified in such a decision in line with Article 16(5) of the Framework Directive. |

3/ Access to other masts and sites used for the provision of broadcasting services. | Market 3: National | Market 2/ Crown Castle | 4 - Transparency (reference offer) (markets 1 & 2) |

4/ National managed transmission services. | Market 4: National | Market 4/ ntl and Crown Castle (joint SMP) |

5/ Regional/metropolitan/local managed transmission services. | Market 5: National |

SE/2005/0188 (notification limited to market definition and SMP analysis) | Analogue terrestrial television. Digital terrestrial television. Analogue terrestrial radio. | National | Teracom AB | access | The Commission made comments on: Broadcasting transmission services via satellite: Assuming that the market is trans-national as stated by PTS, the Commission invites PTS to take into account any future decision by the Commission concerning the trans-national nature of the market for satellite broadcasting services under Article 15(4) of the Framework Directive. Should such a decision be taken and should PTS be concerned by it, PTS would – in accordance with Article 16(5) of the Framework Directive - be required to conduct the market analysis jointly with other NRAs concerned by the same decision. The exclusion from ex ante regulation of broadcasting transmission services via cable television networks: PTS considers that the barriers to enter the cable transmission market may not be sufficiently high and permanent (the first criterion) that this market would warrant ex ante regulation. The evidence provided by PTS does not enable the Commission to fully concur with such a conclusion. However, PTS has demonstrated to a sufficient extent that the structure of this market in Sweden is such that it tends towards effective competition (the second criterion) and therefore that no ex ante regulation is warranted. |

Price regulation |

Non discrimination |

Accounting separation |

CZ/2006/0453 | National analogue terrestrial radio and television broadcasting services. | national | RADIOKOMUNIKACE as | 1 - Access | The Commission made a comment on: Exclusion of other than nationwide analogue terrestrial broadcasting transmission services from market analysis In the current notification, CTU has defined and analysed only the wholesale market for nationwide analogue terrestrial radio and television broadcasting transmission services, which can be considered as part of the wider market 18, as defined in the Recommendation. Concerning other broadcasting transmission services, CTU declares that these do not belong to the same market as nationwide analogue terrestrial broadcasting transmission services but CTU does not carry out any further analysis as to whether these separate markets are susceptible to ex ante regulation. The Commission does not contest the market definition proposed by CTU (i.e. the division into various separate markets) but it would like to recall that each of these markets is part of market 18 as defined in the Recommendation. Whereas NRAs have the possibility, after having taken due account of particular national circumstances, to subdivide market 18 into a number of separate markets, whenever they do so, they have to determine which of the individual markets fulfil the three-criteria test and, thus, are susceptible to ex ante regulation and they have to carry out a market analysis of all markets they have determined as susceptible to ex ante regulation. With regard to the above, the Commission would like to invite CTU to analyse those broadcasting transmission services that have been excluded from the current notification, to determine which markets are susceptible to ex ante regulation and notify their analysis to the Commission. This concerns in particular nationwide digital terrestrial television broadcasting transmission services, where it follows from the notification that these services have started to develop in the Czech Republic while the geographical coverage will further develop in the coming years. The Commission points out that despite the fact that digital terrestrial broadcasting transmission services are still developing in the Czech Republic, CTU may want to ensure that certain market failures resulting from RADIOKOMUNIKACE’s control over the analogue market (including the control over a nationwide network of masts and sites) do not jeopardise the development of effective competition in the digital market. Non-imposition of transparency, non-discrimination and price regulation obligations The Commission would like to invite CTU to consider the imposition of transparency and non-discrimination obligations in order to make the access obligation more effective. Further, the Commission notes that the reasons put forward by CTU to justify its intention not to impose any price regulation are not convincing. Whereas CTU refers to the fact that the market analysis has not produced any evidence of application by RADIOKOMUNIKACE of excessive prices in the past, it seems to be difficult to make predictions as to its future pricing policy based on its past pricing behaviour given that RADIOKOMUNIKACE was subject to price regulation so far. Concerning CTU’s argument that RADIOKOMUNIKACE’s market power will erode due to the planned switch-off of analogue terrestrial television broadcasting, this may only be relevant for a part of the market given that the relevant market, as defined by CTU in the current notification, includes both radio and television broadcasting transmission services. Therefore, the Commission would like to invite CTU to impose on RADIOKOMUNIKACE an obligation to charge fair and reasonable prices for the purpose of the implementation of the access obligation. |

2 – Accounting separation |

NL/2005/0246 NL/2005/0270 NL/2005/0277 | 1. broadcast cable transmission services of free radio and television packages 2. broadcast cable transmission services of pay radio and television packages | National | UPC, Essent, Casema | access | Exclusion of satellite broadcasting transmission services from market analysis The Commission invites OPTA to have regard to any future Commission decision on trans-national satellite broadcasting transmission services under Article 15(4) of the Framework Directive. Should such a decision be taken, and should OPTA be an NRA concerned by such a decision, it is required to conduct the market analysis with regard to wholesale satellite transmission services with other NRAs identified in such a decision in line with Article 16(5) of the Framework Directive. |

Cost orientation |

Non-discrimination |

transparency |

Multikabel, Delta | access |

Non-discrimination |

transparency |

ES/2005/0252 | Terrestrial analogue and digital television broadcasting transmission services | national | Abertis | 1 - access | The Commission made comment on: Inappropriateness of the proposed price control obligation: In accordance with Article 8(4) of the Access Directive8, the obligations imposed on SMP operators shall be based on the nature of the problem identified, proportionate and justified in the light of the regulatory objectives laid down in Article 8 of the Framework Directive, in particular the promotion of sustainable competition and efficient investment in infrastructure. The Commission considers that the requirement to charge reasonable prices, would not be effective without setting out the relevant details on the methodology and use of benchmarking. The Commission also invites CMT to set a clear framework for the commercial negotiations between operators and for the resolution of any dispute resulting there from. Non-imposition of a transparency obligation: CMT should also consider the imposition of a transparency obligation in order to make the overall access remedy more effective. Moreover, where an SMP operator has to comply with the non-discrimination obligation, the NRA may also require the publication of a reference offer (Article 9(2) Access Directive). |

2 – obligation to charge reasonable prices |

3 – non-discrimination |

NL/2006/0410 | 1 - Delivering transmission services of analogue AM radio signals (high power) to broadcasters (i.e. radio stations) | national | no SMP | No remedies imposed | The Commission made comment on: Although OPTA has not explicitly applied the three criteria test as regards the infrastructure markets, it appears from OPTA’s argumentation that competition law (including the structural separation imposed as a remedy in a merger control context) together with other legislative provisions can be deemed sufficient to address market failures that may arise on these markets. Hence, the Commission, in view of the elements set out above, agrees with OPTA’s conclusion that the infrastructure markets are not susceptible to ex ante regulation. However, the Commission invites OPTA to monitor the development of competition in the transmission services market in order to ensure that the alternative mechanisms to redress possible market failures on the infrastructures markets are effective. |

2 - Delivering transmission services of analogue FM radio signals (high power) to broadcasters (i.e. radio stations) |

AT/2006/0360 | 1 - The market for terrestrial television broadcasting; | national | SMP found for Österreichische Rundfunksender GmbH & Co KG5 (“ORS”) in markets 1 and 4 | access | Time lag between market definition and market analysis: The Commission draws attention to the fact that the present market analysis on wholesale broadcasting transmission services is notified more than two years after the notification of market definitions. Therefore, the Commission invites KommAustria to consider in the future to conduct and notify all stages of a market review (market definition, market analysis and the imposition of regulatory obligations) as close to each other as possible. |

2 - The market for television broadcasting via cable networks; | Non doscrimination |

3 - The market for satellite television broadcasting; | Accounting separation |

4 - The market for terrestrial FM radio broadcasting; | Price control |

5 - The market for terrestrial AM radio broadcasting; | Obligation to provide a reference offer |

FR/2006/0335 | Downstream wholesale market for TV broadcasting transmission services offered to broadcasters or multiplex operator Upstream wholesale market for radio and TV broadcasting transmission services | Metropolitan France and its overseas territories. | TDF | 1 - access | Lack of analysis of the market for broadcasting transmission services offered to broadcasters or multiplex operators: Market 18 of the Recommendation is the wholesale market for broadcasting transmission services, to deliver broadcast content to end users. This market comprises commercial relationships where providers of broadcasting transmission services offer the delivery of broadcasting content to broadcasters (individual channels, multiplex operators or other content providers). ARCEP excludes these commercial relationships from its market analysis mainly on the ground that it claims not to be competent under French law to carry out such an analysis. Pursuant to Article 16(1) of the Framework Directive, national regulatory authorities shall carry out an analysis of the relevant markets identified in the Recommendation. Pursuant to Article 3(1) of the Framework Directive, Member States shall ensure that each of the tasks assigned to national regulatory authorities in the Framework Directive is undertaken by a competent body. The Commission therefore notes that the market or markets for radio and TV broadcasting transmission services provided to broadcasters still need(s) to be analysed by a competent body and that the results of that analysis must be notified to the Commission, in accordance with the provisions of Article 3(1), 7(3) and 16(1) of the Framework Directive. In assessing the level of competition in the market(s) for broadcasting transmission services provided to broadcasters, the competent body should take into account the effect of i) any must carry, must offer or must deliver obligation imposed under national law and ii) the regulatory remedies proposed in the draft measure notified by ARCEP under case FR/2006/0335. Competitive conditions in the wholesale market for terrestrial FM radio broadcasting transmission services offered to other broadcasting transmission service providers: ARCEP defines the wholesale FM radio transmission market as being national and considers this market to be effectively competitive due to the easy replicability of TDF’s sites (where the infrastructure such as masts with antennae are installed). ARCEP concludes that barriers are neither high nor transitory and considers that competition law is capable of tackling market failures should these occur, ruling out as such the pertinence of ex ante regulation on this market. The Commission, however, points to concerns raised by third parties during the national consultation relating to what potentially could be a number of nonreplicable TDF sites. The Commission invites ARCEP to closely monitor the evolution of the competitive conditions in this market, especially as regards these potentially non replicable sites, and to do so notably in the context of the forthcoming call for tenders for broadcasting transmission services organised by Radio France. ARCEP is further reminded that Article 12 of the Framework Directive allows Member States to impose the sharing of facilities or property on operators where undertakings are deprived of access to viable alternatives to a certain infrastructure because of the need to protect the environment, public health, public security or to meet town and country planning objectives without the need to find SMP. |

2 – non discrimination |

3 - transparency |

4 – price control Obligation to provide tariffs and conditions to ARCEP |

LT/2006/0376 LT/2006/0468 | 1 - terrestrial analogue radio broadcasting transmission services where the radio frequency is allocated to the broadcaster; 2 - terrestrial analogue radio broadcasting transmission services where the radio frequency is allocated to the broadcasting transmission service provider; 3 - terrestrial analogue television (TV) broadcasting transmission services where the radio frequency is allocated to the broadcaster; 4 - terrestrial analogue TV broadcasting transmission services where the radio frequency is allocated to the broadcasting transmission service provider; 5) wire radio broadcasting transmission services; 6) radio broadcasting transmission services via cable TV networks; 7) cable TV broadcasting transmission services; 8) satellite radio broadcasting transmission services; 9) satellite TV broadcasting transmission services. | National except markets for satellite TV and radio broadcasting | Lietuvos radijo ir televizijos centras AB („LRTC“) | Accounting separation | Exclusion of digital terrestrial radio and TV broadcasting transmission services from market review According to the Decision No 1492 (25 November 2004) of the Government of Lithuania on the approval of the model concerning the implementation of digital TV in the Republic of Lithuania, it is planned that by 2009 95% of the territory of Lithuania should be covered by at least one terrestrial digital television network. TEO LT AB (formerly Lietuvos Telekomas AB) and LRTC have undertaken to install digital terrestrial transmission networks in Vilnius no later than 30 June 2006 and to transmit eight digital TV programmes each in other major cities no later than 31 December 2007. Therefore, the Commission would like to invite RRT to assess digital terrestrial radio and TV broadcasting transmission services, as has been done by other NRAs, and notify such an assessment to the Commission as soon as these services are provided based on the above timeframe. Remedies in the markets for terrestrial analogue radio and TV broadcasting transmission services where the radio frequency is allocated to the broadcaster In its notification, RRT assumes that the access to masts and sites (“broadcasting transmission facility services”) is a part of the markets for terrestrial analogue radio and TV broadcasting transmission services where the radio frequency is allocated to the broadcaster. It should be taken into account that as much as 93% of radio hours broadcast and 69% of TV hours broadcast are not transmitted through the broadcasting transmission services provided by LRTC, whereas most broadcasters do use the broadcasting transmission facility services of LRTC. Without contesting the delineation of these markets, the Commission however invites RRT to reconsider whether the imposition of the same set of remedies for both transmission services and transmission facility services would be proportionate and justified in the light of the objectives in Article 8 of Framework Directive. In particular, RRT is encouraged to consider lighter regulation for the broadcasting transmission services. Implementation of the cost accounting obligation and price control In accordance with Article 8(4) of the Access Directive7, the obligations imposed on SMP operators shall be based on the nature of the problem identified, proportionate and justified in the light of the regulatory objectives laid down in Article 8 of the Framework Directive, in particular the promotion of sustainable competition and efficient investment in infrastructure. The Commission considers that the period LRTC is allowed for introducing FDC based cost accounting is overly long, specifically in the light of the time normally required for an undertaking of the size of LRTC to develop such a cost accounting model (i.e. from six to twelve months). Further, the Commission is of opinion that the glide path of four years is too long because the switch-off of the analogue transmission will start from 2012, which means that analogue transmission will be of limited interest for broadcasters by then. Therefore the Commission invites RRT to impose a considerably shorter period both for i) LRTC to introduce FDC based cost accounting and ii) the glide path. |

Price control |

SK/2006/0456 | The market limited to transmission over analogue terrestrial networks (including both transmission of radio and TV). | national | Slovak Telecom | transparency | Exclusion of other services than analogue terrestrial broadcasting transmission services from the market analysis In the current notification, TÚSR has defined and analysed only the wholesale market for nationwide analogue terrestrial radio and television broadcasting transmission services, which may be considered as part of the wider market 18 as defined in the Recommendation. Concerning other broadcasting transmission services, TÚSR declares that these are not part of the analysed market but does not carry out any further analysis as to whether these separate markets are susceptible to ex ante regulation. The Commission recalls that market 18, as defined in the Recommendation, covers all types of broadcasting transmission services. NRAs have the possibility, after having taken due account of particular national circumstances, to subdivide market 18 into a number of separate relevant markets. However, whenever they do so and exclude some of these markets from the analysis, they have to demonstrate that individual markets excluded from the analysis do not fulfil the so called three-criteria test and, thus, are not susceptible to ex ante regulation. NRAs have to carry out a market analysis of all markets they have determined as susceptible to ex ante regulation. With regard to the above, the Commission invites TÚSR to analyse those broadcasting transmission services that have been excluded from the current notification, to determine which markets are susceptible to ex ante regulation and notify their analysis to the Commission. This concerns: (i) cable transmission services, which are, according to information provided by TÚSR, provided by cable network operators that broadcast content to end users, thus in principle falling under the scope of market 18 as defined in the Recommendation, and in particular (ii) nationwide digital terrestrial television broadcasting transmission services, where it follows from the notification that these services have already started to develop in the Slovak Republic even if the geographical coverage will further develop in the coming years. The Commission points out that despite the fact that digital terrestrial broadcasting transmission services are still in a pilot stage in the Slovak Republic, TÚSR may want already at this stage to ensure that certain market failures resulting from Slovak Telekom’s control over the analogue market (including the control over a nationwide network of masts and sites) do not jeopardise the development of effective competition in the digital market. |

Non discrimination |

Accounting separation Access |

Price control |

DE/2006/0469 | 1) cable operators feeding broadcast signals into their networks; 2) cable operators delivering broadcast signals to network level 4 (“L4”) clusters, with a further refinement on the basis of the importance of the cluster; 3) provision of satellite transponder capacity for the transmission of broadcast signals to content providers; 4) provision of terrestrial transmission facilities for broadcasting analogue television signals to content providers; 5) provision of terrestrial transmission facilities for broadcasting digital television signals to content providers; 6) provision of terrestrial transmission facilities for broadcasting analogue VHF radio signals to content providers; 7) provision of terrestrial transmission facilities for broadcasting digital radio signals to content and telecommunication service providers; | national | KDG, KBW and UM, | Remedies will be imposed in a separate decision. | No comments made by the Commission |

PL/2006/0455 | (1)the provision of analogue transmission of television and radio programmes services, (2) the provision of digital television and radio programmes transmissions | national | TP Emitel | access | Scope of the remedies Market 18 of the Recommendation is the wholesale market for broadcasting transmission services (for radio and TV) to deliver broadcast content to end users. This market comprises commercial relationships where providers of broadcasting transmission services offer the delivery of the content to broadcasters (individual channels, multiplex operators or other content providers). UKE, after analysing the market, identified a number of competition problems present in the relationship between TP Emitel and the broadcasters, inter alia excessive pricing for those services which are not provided by alternative operators, while offering low prices on those segments of the market where there is competition, as well as discrimination of certain broadcasters. UKE indicates, however, that in accordance with Polish law it does not have the power to intervene in the relationship between transmission operators and broadcasters, as the latter are no electronic communications operators. In addition, UKE states that the competition problems identified as regards the provision of transmission services to broadcasters will be solved over time by the measures taken to foster the development of effective competition on the transmission services market, in particular by the obligation imposed on TP Emitel to offer alternative transmission operators access to its infrastructure at regulated conditions which should generate more competition between alternative suppliers of transmission services to broadcasters. The Commission shares UKE’s view that, where possible, competition law problems such as excessive pricing should be regulated by fostering more competition rather than by imposing price regulation. However, where the development of effective competition on the transmission services market may take some time (which could be the case in view of the investment required), it may be necessary to impose for a transitory period of time, until the proposed regulatory obligations as regards access to infrastructure prove to be sufficient to remedy the identified competition problem, some form of price regulation which immediately prohibits TP Emitel from continuing its excessive pricing policy. For such excessive pricing, if continued, may lead to TP Emitel cross-subsidising those services for which it faces competition, which could undo the effectiveness of the access regulation imposed. The Commission therefore, in view of the concrete competition problems identified on the Polish market, invites UKE to reconsider the possibility to impose price regulation on TP Emitel for the provision of transmission services to broadcasters. On the basis of the EU regulatory framework, UKE (or another competent body assigned for this purpose) must have the legal power to do so. Exclusion of cable broadcasting transmission services from the market analysis In the current notification, UKE has identified the market for cable broadcasting transmission services as a market separate from terrestrial broadcasting transmission services. UKE concludes that it is not appropriate to impose remedies on the cable transmission market, however, without carrying out any analysis as to whether that separate market meets the three criteria test. The Commission does not contest the market definition proposed by UKE (i.e. that cable broadcasting transmission services belong to a market separate from terrestrial broadcasting transmission services) but it would like to recall that market 18, as defined in the Recommendation, covers all types of broadcasting transmission services. While NRAs have the possibility, after having taken due account of particular national circumstances, to subdivide market 18 into a number of separate markets, whenever they do so, they have to determine which of the individual markets fulfil the three criteria test, and they have to carry out a market analysis of all markets susceptible to ex ante regulation. The Commission takes note of the limited coverage, the limited penetration and the fragmentation of the cable networks in Poland. It understands that the limited group of consumers who receive broadcasting via the cable also have access to terrestrial broadcasting (but not vice versa), which seems to limit the market power of the cable network operators vis à vis the broadcasters. Under these circumstances it appears that, at present, the market for cable broadcasting transmission services in Poland does not meet the three criteria test (as it seems to tend towards effective competition) and therefore is not susceptible to ex ante regulation. Nevertheless, the Commission invites UKE to clarify its views on this issue in the final measure. Possible differentiation of remedies as regards local terrestrial radio and television transmission services UKE identifies a single market for terrestrial radio and television transmission services, without distinguishing between local and national transmission services. The absence of a distinction between local and national services is in line with the Recommendation and the Commission does not have any indication that specific Polish circumstances should have led UKE to a different conclusion. However, in view of their experiences with notifications from other Member States, the Commission invites UKE to consider carefully whether it may be appropriate to differentiate the remedies imposed on this market so as to provide for more lenient access regulation regarding local broadcasting transmission infrastructure which may potentially be more easily duplicated than national broadcasting transmission infrastructure. Price control before approval of the cost calculation The Commission notes that UKE has not specified in its measure the basis of the verification of the appropriateness of charges for broadcasting transmission services proposed by TP Emitel prior to the approval of its FL LRIC-based cost calculation by an independent auditor, enumerating various possible methods it may decide to use. This approach affects the transparency and legal certainty for market players, in particular since TP Emitel has not prepared cost calculation in the past, which may make swift implementation of this obligation difficult, and no timing is foreseen for the FL LRIC-based cost calculation and approval. The Commission therefore invites UKE to precisely clarify in the final measure which verification method it will use to approve the charges proposed by the SMP operator before the cost calculation has been conclusively approved. |

Non discrimination |

Accounting separation |

transparency |

Price control |

SI/2006/0476 | 1) Transmission of content through terrestrial broadcast transmitters; 2) Transmission of content through cable networks; 3) Transmission of content through MMDS4 systems; 4) Transmission of content through satellite; 5) Transmission of content through Internet (IP) networks. | national | RTV Slovenija | access | No comments made by the Commission |

Non discrimination |

transparency |

IT/2006/0424 | a) National market for analogue terrestrial television broadcasting services, b) National market for digital terrestrial television broadcasting services, c) National market for terrestrial radio broadcasting services, d) Local market for terrestrial television broadcasting services, e) Local market for terrestrial radio broadcasting services, f) National market for cable television broadcasting services, g) National market for satellite television broadcasting services. | national | RAI and RTI in the market for national analogue terrestrial television | Remedies will be imposed at the later stage. | Demand for analogue TV broadcasting transmission services In the absence of any past or current demand for analogue TV broadcasting transmission services, the Commission understands that any claimed tacit coordination can in principle be exercised vis-à-vis potential demand. However, AGCOM has not assessed the existence of such demand, in particular taking into account the forthcoming switch off of the analogue transmission. Therefore, the Commission invites AGCOM to make an assessment of the potential demand of analogue TV broadcasting transmission services. Basis for the calculation of the market shares AGCOM bases its estimation of market shares in the relevant market mainly on the number of installations/transmitters combined with the number of frequencies used in various transmission areas held by RAI and RTI18. According to the notification, however, a transmitter can cover between below 15.000 and above 500.000 viewers. The Commission therefore considers that the absolute number of transmitters is not in itself the most appropriate indicator of market power in the relevant transmission market. AGCOM also uses the share of advertising revenue as an indicator of market power. Parties seeking access to transmission networks are exclusively interested in reaching a maximum coverage of the population and the audience (and hence advertising revenues) might differ significantly depending on the content of the TV programmes broadcasted. In the light hereof AGCOM should therefore strengthen its reasoning as to why the revenues from the advertising market should be an appropriate indication of market power on the upstream market. Programmes of vertically integrated operators with the same position/coverage in the broadcasting transmission market may achieve completely different shares of audiences (and hence advertising revenues) due to the attractiveness of the programme. Since coverage provided by transmission facilities is one of the most appropriate indicators of the position of each transmission provider, and considering that AGCOM does not today have fully reliable figures on this parameter, AGCOM is invited to continue monitoring the development of coverage in the market and to re-notify this market in case the coverage of RAI and RTI as opposed to alternative networks do not any longer lead to the presumption of joint SMP. Ownership of facilities (masts and sites and antennas) The Commission understands that not all transmission facilities used by transmission service providers are owned by them, but are also rented from third parties. Therefore, the Commission invites AGCOM: (1) to clarify in its final measure to what extent the transmission service providers designated with SMP rely on facilities rented from third parties and to assess the duration and conditions of these contracts and their impact on the possible new entry (for example the presence of exclusivity clauses). (2) to assess to what extent new entrants would also have the possibility to rent facilities. Objective of collusion Considering the vertical integration of RAI and RTI, revenues from third parties are at present collected in the downstream advertising market. Rents to be protected by the colluding parties are at present only situated in that market. However, in its notification AGCOM does not give any indication of the level of rents achieved in the advertising market. Therefore, the Commission invites AGCOM, in its final measure to define the boundaries of the advertising market (digital vs. analogue TV advertising, terrestrial vs. satellite vs. Internet-TV advertising) and to assess the level of rents and the development of price levels in that market, also in comparison to other EU Member States. Remedies to be notified The current notification does not contain remedies, which AGCOM intends to notify at a later stage. If, taking into account the comments above, AGCOM adopts the proposed measure, the Commission invites AGCOM to notify as soon as possible the appropriate remedies concerning the national analogue terrestrial television market. |

CY/2006/0497 | 1) local analogue terrestrial radio broadcasting services; 2) nation-wide analogue terrestrial radio broadcasting services; 3) local analogue terrestrial television broadcasting services; 4) nation-wide analogue terrestrial television broadcasting services; 5) digital broadcasting services | national | As all defined markets are considered as non susceptible for ex ante regulation, no SMP had been found | No remedies imposed | No comments made by the Commission |

New Markets |

Member State | Market | SMP found for | Remedies imposed |

Ireland | Retail international leased lines | No SMP found |

Ireland | Retail leased lines above 2 Mbps | No SMP found |

Overview of notifications assessed until 31 March 2007 |

New Markets Overview of notifications assessed until 31 March 2007 |

IE/2005/0194 | Wholesale Market for call termination services to service providers at a fixed location. | Notification withdrawn by the National Regulatory Authority. |

IE/2004/0128 | Retail international leased lines. | National | No SMP found | NONE, withdrawal of regulation | The Commission made a comment on: NRA's finding is based on wholesale national leased lines. The Commission notes that the NRA will analyse possible leverage from wholesale markets when analysing this wholesale market and proposing remedies for these markets. |

FR/2006/0413 FR/2007/0592 (details of remedies) | SMS termination | Operator-specific relevant markets | Bouygues Télécom (“Bouygues”), Orange France (“Orange”) and SFR | 1-access | Accounting system and price control Obligations imposed under the Access Directive should be based on the nature of the problem identified, proportionate and justified in the light of the objectives laid down in Article 8 of the Framework Directive. The remedies should provide adequate transparency and legal certainty for market players. In order to increase legal certainty the Commission invites ARCEP to specify the way towards a symmetric price cap in the final measure. Moreover, the Commission invites ARCEP to specify the accounting system to be imposed on the SMP operators as well as the cost model for calculating the MNOs’ SMS termination rates, giving an incentive for all MNOs to become efficient as soon as possible |

2-transparency |

3-non discrimination |

4-accounting separation |

5-price control |

AT/2006/0432 | Call termination on individual public telephone networks provided at a fixed location in Austria/convergent services | National | T-Mobile and One | an obligation to charge prices based on benchmarking, the reference price being the fixed termination rate charged by Telekom Austria at the regional level | No comments made by the Commission |

[1] The Estonian NRA has not yet notified markets 1 and 2. The Commission requested the Polish NRA to withdraw its measure on 10 January 2007.

[2] The Czech NRA (CTU), however, decided that the imposition of a price control obligation was not necessary. Given the strong position of the incumbent on the market, the Commission invited CTU to verify whether the remedies imposed at the wholesale and retail level are effective at addressing the market failures in the retail access markets.

[3] Customers may be allowed to opt for calls to be carried by another operator than the one providing the access line. Such an alternative operator can be selected either in advance without having to dial a routing prefix for each call (carrier pre-selection) or on the basis of a routing prefix for each call (carrier selection). Wholesale line rental makes it possible for alternative operators to offer retail access services together with calls services to end customers in a way that the customer only receives one single bill from the alternative operator. The alternative operator resells to the end customer the access line that it rents from the incumbent at the wholesale level.

[4] Commission Decision 2003/548/EC of 24 July 2003 on the minimum set of leased lines with harmonised characteristics and associated standards referred to in Article 18 of the Universal Service Directive, OJ L 186, 25.7.2003, p. 43.

[5] The Maltese NRA proposed to include broadband wireless access in ist draft measure, albeit without a full substitution analysis. The Commission noted that although such inclusion was questionable, it would not have any effect on the finding of SMP.

[6] See the notification from the German NRA in case DE/2005/0239.

[7] For example in the case of a notification from the Slovenian NRA. The Commission stressed that a price control based on cost oriented wholesale charges should be introduced as fast as possible.

[8] For example in the case of a notification from the Finnish NRA.

[9] See case DE/2005/0234.

[10] For example in the case of notifications by the Italian, Swedish and Portuguese NRAs.

[11] See case PL/2006/0502. The Commission therefore invited UKE to monitor the market closely and to impose a cost orientation obligation on ANOs, if appropriate.

[12] See the case IT/2006/0384.

[13] The French NRA distinguished between intra-territorial and interterritorial transit markets and defined 10 separate markets for the latter, on a territory-by-territory basis.

[14] The Austrian regulator has challenged the validity of that decision before the European Court of Justice (“ECJ”) via a preliminary ruling request. (See case C-256/05, Telekom Austria). On 6 October 2005, the ECJ ruled that the regulator’s request for preliminary ruling was inadmissible. The Austrian NRA has re-notifed the market in January 2007.

[15] The Estonian and Danish NRAs withdrew their notifications.

[16] In Finland 14 operators were found to have SMP.

[17] Local loops were already subject to ex ante regulation prior to the entry into force of the New Regulatory Framework. Council Regulation 2887/2000 on unbundled access to the local loop sets harmonised conditions for unbundled access to the local loop.

[18] There are three types of wholesale services that a new entrant can build on to offer retail broadband services: (i) a pure resale service, where the new entrant resells the incumbent’s broadband connection to the end user and does not invest in own infrastructure, (ii) bitstream, where the new entrant builds its own backbone but relies on the incumbent’s infrastructure for the lower and middle parts of the network, and (iii) local loop unbundling where the new entrant relies on the incumbent’s infrastructure only for the so-called “last mile”. The ladder of investment theory implies that new entrants pass gradually from relying on (i), via (ii) to (iii). In order to undertake investments in network development, they first need to be able to develop a sufficiently large retail customer basis relying on the network infrastructure of the incumbent.

[19] In the Dutch case the market that encompassed cable was declared competititve.

[20] Belgium's notification is still missing, whereas the Maltese NRA has withdrawn its notification. In Luxemburg those markets were not analysed separately de spite the lack of sufficient evidence demonstrating that trunk and terminating segments of leased lines belong to the same market.

[21] In particular, the Commission stated that (i) ex post price control is not appropriate to remedy the competition problems identified in the wholesale market,and that (ii) price control should be based on cost orientation.

[22] The Commission therefore invited the Slovak NRA to consider imposing IP and ATM access and possibly also access at the DSLAM.

[23] Concerning a notification from the Greek NRA, the Commissio[24].8ABEIJLOPqs?’) * , _ a b c i j k v y € ? ‚ Š ¢ ¿ Ê Ë Ì Ò þ [25]01ùõñæßØÔÍÉØÉØÅØ¾º¾ºõ¶õ¶®¶ª¶É¦ž™ž’ºˆ„}y}„}„}„}„h

h…lçhß..hß..h®0Thß..5?>*[pic]n recalled that a margin squeeze analysis should not depend on unrealistic assumptions about the ability of new entrants to benefit from increased margins over time.

[26] In particular, the Commission reminded the Polish NRA of the importance of defining the scope of obligations imposed in an exact way.

[27] In the Czech Republic, the NRA proposed to impose an access obligation only at the IP level, but no ATM access.

[28] For example in the case of a notification from the Dutch NRA.

[29] The Commission commented on the lack of a clear defintion of the boundary between the two markets in Poland.

[30] Additionally, the Italian NRA excluded trunk segments below 2 Mbit/s from regulation because in its view that market was marginal. Although the Commission disagreed with this approach, it did not believe that such exclusion would affect trade between Member States.

[31] The German NRA withdrew its notification.

[32] The German and Slovak NRA withdrew their notification.

[33] It should be recalled, however, that the French and Polish NRAs withdrew their notification.

[34] The decision of the Irish NRA was annulled by an appeals body.

[35] Judgment of 06.06.2002 of the Court of First Instance, case T-342/49, Airtours vs Commission . The Court considered that for collective dominance to be tenable in the long run, the market must be conducive to tacit coordination (in particular because of a high level of transparency), there must be a credible and enforceable retaliation mechanism and it must not be possible for competitors or customers to undermine the co-ordinated behaviour.

[36] The inclusion of retail broadband lines in the access markets in the present case is different from the notifications by the Polish regulator, UKE, on which the Commission recently issued decision requiring UKE to withdraw its draft measures (cases PL/2006/0518 and PL/2006/0524), since in the present case not all retail broadband lines are included in the market definition but only those actually used for accessing telephony services.

[37] See Commission Notice on the definition of relevant markets for the purposes of Community competition law (97/C 372/03), par. 36.

[38] On the basis of such criteria, the Lithuanian regulator found that broadband fixed wireless access lines in Lithuania were to be included in the relevant markets (see case LT/2006/0512-0513). By contrast, pricing evidence in Poland rather indicated that broadband access and narrowband access in Poland currently are not substitutable products (see the Commission's veto decision in cases PL/2006/0518, 0524). In its notification TKK recognises that the alternative technologies can only gradually establish themselves as substitutable products to PSTN access lines.

[39] Therefore, the inclusion of broadband access lines in the present notification yields a different result from the Polish case where the inclusion of broadband access implied that Telekomunikacja Polska's retail broadband access services would be regulated. This will not be the case in Austria according to the notified measures.

[40] In cases AT/2006/0543-544, the Commission stressed the importance of efficient implementation of cost-orientation obligations and invited TKK to address the issue of minimum interconnection loads as applied by TA.

[41] In cases AT/2006/0543-544, the Commission stressed the importance of efficient implementation of cost-orientation obligations and invited TKK to address the issue of minimum interconnection loads as applied by TA.

[42] Imposed as one of the obligations in the measure concerning market 8 (case PL/2006/0380).

[43] Imposed as one of the obligations in the measure concerning market 8 (case PL/2006/0380).

[44] In cases AT/2006/0543-544, the Commission stressed the importance of efficient implementation of cost-orientation obligations and invited TKK to address the issue of minimum interconnection loads as applied by TA.

[45] Imposed as one of the obligations in the measure concerning market 8 (case PL/2006/0380).

[46] Imposed as one of the obligations in the measure concerning market 8 (case PL/2006/0380).

relevant NRA

Closing of Phase II

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52007SC0962

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