[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

[pic]

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

[pic]

.

ANNEX II

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

[pic]

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 |

Carrier (Pre) Selection | Non-discrimination | Transparency | Price control / cost accounting | Accounting separation |

*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 |

Case reference | Product Market Definition | Geographic Market Definition | SMP found for | Remedies Imposed | Results of Community Consultation |

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 |

SE/2004/0112 | Similar to the Recommendation. | National | TeliaSonera | 1 - Wholesale line rental (including reference offer and price regulated on a retail minus basis) | No comments made by the Commission. |

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 |

DK/2005/0183 | Similar to the Recommendation. | National | TDC | 1 - Carrier(Pre)Selection | No comments made by the Commission. |

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. |

IT/2005/0260 | Similar to the Recommendation | National | Telecom Italia | 1 – Wholesale Line Rental | No comments made by the Commission |

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 |

BE/2006/0400 | Similar to the Recommendation. | National | Belgacom | CS/CPS | No comments made by the Commission |

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 |

CY/2006/485 | low level narrowband access including PSTN and ISDN BRA and (ii) high level narrowband access including ISDN PRA due to the differences in quality of service and speed | national | CYTA | CS/CPS and WLR | No comments made by the Commission |

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 |

Carrier (Pre) Selection | Non-discrimination | Transparency | Price control / cost accounting | Accounting separation |

* 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 |

Case reference | Product Market Definition | Geographic Market Definition | SMP found for | Remedies Imposed | Results of Community Consultation |

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 |

SE/2004/0113 | Similar to the Recommendation. | National | TeliaSonera | 1 - Wholesale line rental (including reference offer and price regulated on a retail minus basis) | No comments made by the Commission. |

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 |

DK/2005/0184 | Similar to the Recommendation | National | TDC | 1 - Carrier(Pre)Selection | No comments made by the Commission. |

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 |

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. |

IT/2005/0260 | Similar to the Recommendation | National | Telecom Italia | 1 – Wholesale Line Rental | No comments made by the Commission. |

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 |

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 |

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 |

BE/2006/0400 | refined the non-residential customers market into (i) analogue access, (ii) basic digital access (ISDN-2) and (iii) primary digital access (ISDN-30). . | National | Belgacom | CS/CPS | No comments made by the Commission |

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 |

CY/2006/486 | low level narrowband access including PSTN and ISDN BRA and (ii) high level narrowband access including ISDN PRA due to the differences in quality of service and speed | national | CYTA | CS/CPS and WLR | No comments made by the Commission |

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 |

Carrier (Pre) Selection | Non-discrimination | Transparency | Price control / cost accounting | Accounting separation |

* 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 |

Case reference | Product Market Definition | Geographic Market Definition | SMP found for | Remedies Imposed | Results of Community Consultation |

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 |

Carrier (Pre) Selection | Non-discrimination | Transparency | Price control / cost accounting | Accounting separation |

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 |

Case reference | Product Market Definition | Geographic Market Definition | SMP found for | Remedies Imposed | Results of Community Consultation |

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. |

FI/2005/0201 | Similar to the Recommendation. | National | No SMP | No remedies imposed | No comments made by the Commission. |

PT/2004/0057 and PT/2004/0091 | Similar to the Recommendation. | National | PT Group | 1 - Transparency | No comments made by the Commission. |

2 - Non-discrimination |

3 - Cost orientation and cost accounting |

4 - Accounting separation |

AT/2004/0125 AT/2007/0582 | Similar to the Recommendation. Public payphones and calling cards included. | National | No SMP: decreasing market share of the incumbent, low entry barriers | No remedies imposed | No comments made by the Commission. |

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 f