# C_2009138EN.01000801.xml

| 18.6.2009 | EN | Official Journal of the European Union | C 138/8 |
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18.6.2009

EN

Official Journal of the European Union

C 138/8

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Summary of the EFTA Surveillance Authority Decision No 605/08/COL

of 17 September 2008

relating to a proceeding pursuant to Article 53 of the EEA Agreement

(Case 61291 Liechtensteinische Kraftwerke Anstalt and Telecom Liechtenstein AG)

(Only the English and German texts are authentic)

(Text with EEA relevance)

(2009/0000/)

On 17 September 2008, the EFTA Surveillance Authority (the Authority) adopted a decision pursuant to Article 9, Chapter II of Protocol 4 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice in a case concerning Liechtensteinische Kraftwerke Anstalt (LKW) and Telecom Liechtenstein AG (Telecom Liechtenstein). A non-confidential version of the full text of the decision in the authentic languages is available on the Authority’s website at the following address:

On 17 September 2008, the EFTA Surveillance Authority (the Authority) adopted a decision pursuant to Article 9, Chapter II of Protocol 4 to the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice in a case concerning Liechtensteinische Kraftwerke Anstalt (LKW) and Telecom Liechtenstein AG (Telecom Liechtenstein). A non-confidential version of the full text of the decision in the authentic languages is available on the Authority’s website at the following address:

http://www.eftasurv.int/fieldsofwork/fieldcompetition/activities/dbaFile15670.html

http://www.eftasurv.int/fieldsofwork/fieldcompetition/activities/dbaFile15670.html

| (1) | The case concerns LKW and Telecom Liechtenstein (the Parties) and the restructuring of the telecommunications markets in the Principality of Liechtenstein. In its preliminary assessment, the Authority expressed its concerns to the Parties that two elements of the restructuring pursuant to which the parties (i) committed not to compete with each other for an unlimited duration and (ii) coordinated network infrastructure development, appeared to infringe Article 53(1) of the EEA Agreement and would be unlikely to qualify for individual exemption. |
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(1)

The case concerns LKW and Telecom Liechtenstein (the Parties) and the restructuring of the telecommunications markets in the Principality of Liechtenstein. In its preliminary assessment, the Authority expressed its concerns to the Parties that two elements of the restructuring pursuant to which the parties (i) committed not to compete with each other for an unlimited duration and (ii) coordinated network infrastructure development, appeared to infringe Article 53(1) of the EEA Agreement and would be unlikely to qualify for individual exemption.

| (2) | Following the preliminary assessment, LKW and Telecom Liechtenstein submitted commitment proposals to the Authority. The Authority received observations on the proposed commitments by interested third parties. However, the comments received were not such as to make the Authority require amendment to the commitments or reconsider its concerns expressed in its preliminary assessment. |
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(2)

Following the preliminary assessment, LKW and Telecom Liechtenstein submitted commitment proposals to the Authority. The Authority received observations on the proposed commitments by interested third parties. However, the comments received were not such as to make the Authority require amendment to the commitments or reconsider its concerns expressed in its preliminary assessment.

| (3) | The Authority considers that the commitments offered by the LKW and Telecom Liechtenstein to meet the Authority’s concerns expressed in its preliminary assessment are sufficient to address the identified competition concerns. In their commitments, the Parties have undertaken to remove the non-compete clause. The Parties have also substantially redrafted the provisions in the Consolidated Contract relating to the strategic alignment. The new provisions clarify that LKW alone is responsible for network infrastructure development planning. The commitments to regularly ascertain the requirements of all service providers as regards network infrastructure with the aim of providing non-discriminatory access to all market participants will ensure that new entrants and existing smaller market participants have the opportunity to be heard in relation to access and the development of the telecommunications infrastructure in Liechtenstein. |
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(3)

The Authority considers that the commitments offered by the LKW and Telecom Liechtenstein to meet the Authority’s concerns expressed in its preliminary assessment are sufficient to address the identified competition concerns. In their commitments, the Parties have undertaken to remove the non-compete clause. The Parties have also substantially redrafted the provisions in the Consolidated Contract relating to the strategic alignment. The new provisions clarify that LKW alone is responsible for network infrastructure development planning. The commitments to regularly ascertain the requirements of all service providers as regards network infrastructure with the aim of providing non-discriminatory access to all market participants will ensure that new entrants and existing smaller market participants have the opportunity to be heard in relation to access and the development of the telecommunications infrastructure in Liechtenstein.

| (4) | The decision finds that, in view of the commitments, there are no longer grounds for action by the Authority. |
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(4)

The decision finds that, in view of the commitments, there are no longer grounds for action by the Authority.

| (5) | The commitments shall be binding on LKW and Telecom Liechtenstein. The decision shall apply to LKW and Telecom Liechtenstein from the date on which it is notified to the Parties. |
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(5)

The commitments shall be binding on LKW and Telecom Liechtenstein. The decision shall apply to LKW and Telecom Liechtenstein from the date on which it is notified to the Parties.

| (6) | The Advisory Committee on restrictive practices and dominant positions issued a favourable opinion in a written procedure initiated by letter dated 22 August 2008. |
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(6)

The Advisory Committee on restrictive practices and dominant positions issued a favourable opinion in a written procedure initiated by letter dated 22 August 2008.

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