WRITTEN QUESTION E-0280/03 by Sérgio Sousa Pinto (PSE) to the Commission. Liquidation of the operator OniWay in Portugal.
Date: 2003-02-07
Institutions: European Parliament, Provisional data
Subjects: Portugal, application of EU law, competition law, inter-company agreement, liquidation, telecommunications industry, transmission network, unlawful agreement

C 51 E/16

Official Journal of the European Union

EN

26.2.2004

As to the statement that Community products have no competitive advantage over Hungarian ones, this is
not relevant under international safeguard rules. The fact that
imports have been made under fair
competitive conditions and that their prices have been fair does not preclude the application of safeguard
measures.

Regarding Hungary’s impending accession to the Union, it should be noted that the case in question is a
safeguard investigation. Unlike anti-dumping and countervailing measures, safeguard measures apply on an
erga omnes basis, i.e. irrespective of the origin of the imported goods. Hungary can thus not be prevented
from applying protective measures on the grounds of its forthcoming accession to the Union, because this
would prevent it from applying protective measures as a whole (i.e. even on imports of non-Union origin).

However, notwithstanding the above, it goes without saying that the Commission is closely monitoring
and will continue to monitor the developments in this case, and will take action wherever appropriate to
defend the interests of Community exporters and to ensure the respect of relevant international rules.

(2004/C 51 E/017)

WRITTEN QUESTION E-0280/03

by Sérgio Sousa Pinto (PSE) to the Commission

(7 February 2003)

Subject: Liquidation of the operator OniWay in Portugal

Can the Commission provide information on a possible breach of Community legislation governing
competition in the telecommunications sector in connection with the liquidation of the operator OniWay?

The liquidation of the fourth operator (cid:1) OniWay (cid:1) will clearly harm the interests of consumers and have
an adverse effect on diversity, competitive emulation and innovation. OniWay held a UMTS licence but
played no part in the GSM generation, and it was hoped that the operator would have a lever effect with
regard to the new UMTS generation technology, breaking with the approach geared to maximising profits
which tended to prevail among established operators.

The third generation was affected by delays caused by factors which affected the whole of Europe and were
aggravated by the lack of interest shown by the three established operators. The regulator then authorised
OniWay to provide GPRS services on the basis of a roaming agreement with another established operator,
TMN, thereby preventing an early closure of the company. The remaining operators launched a boycott,
resisting the interconnection rights granted by the regulator.

With the change of government, the new minister decided to block an administrative order from the
regulator ordering physical
the
company’s fate was sealed and it was decided to sell off its assets to the remaining operators. Now that
OniWay has been killed off to the benefit of its competitors, the government intends to share out the
spectrum assigned to OniWay, which paid around EUR 100 million for the rights, among the remaining
operators.

interconnection among the networks. The operator was paralysed,

A further interesting detail
that news of the sale of OniWay’s assets led to a marked
improvement in the stock market position of the companies holding a share in the firm, particularly
Electricidade de Portugal (EDP).

is the fact

The operation will have a negative impact on consumers and conditions of competition in the sector, and
clearly favours the established operators. A study should therefore be made of whether there has been a
breach of Community rules applying to the telecommunications sector.

Given that the radiophonic spectrum is a public good which is in scarce supply, the above situation could
represent a closing of the market. Moreover, the possibility that one of the operators (TMN) might end up
holding significant market power also needs to be investigated.

26.2.2004

EN

Official Journal of the European Union

C 51 E/17

Answer given by Mr Monti on behalf of the Commission

(20 March 2003)

The Commission is aware of the allegedly abusive refusals by the mobile operators Vodafone and
In July 2002 OniWay
to conclude interconnection agreements with OniWay.
SonaeCom (Optimus)
submitted two complaints to the Commission against those two operators, in parallel with its proceedings
pending before the Portuguese regulator (Anacom).

Contrary to the three GSM mobile operators in Portugal, OniWay had only third generation (3G)
frequencies and had not yet deployed its network. It was, therefore, seeking an agreement with the existing
operators to provide services making use of their networks. OniWay reached a commercial agreement with
TMN, the mobile subsidiary of Portugal Telecom. On 20 June 2002 Anacom determined that the two
other mobile operators, Vodafone and Optimus, should conclude interconnection agreements with
OniWay. However, they refused to comply with this decision arguing that they were under Portuguese
law not obliged to interconnect to OniWay as long as the latter did not operate its 3G service.

For this reason, OniWay subsequently filed the above complaints with the Commission under Article 82 of
the EC Treaty at the end of July 2002.

However, on 24 September 2002 Anacom required Vodafone and Optimus by decision to provide
interconnection to OniWay within 15 calendar days.

The decision of Anacom seemed to guarantee interconnection and the related termination access which
was the subject of OniWay’s complaints to the Commission, and OniWay was therefore asked whether it
still maintained its complaints. The Commission, however, never received an answer to this question.

In November 2002 the Commission learned informally about the liquidation of OniWay.

The Commission does not have any indication to conclude that such liquidation constitutes a possible
breach of Community Competition Law.

(2004/C 51 E/018)

WRITTEN QUESTION E-0284/03

by Bill Miller (PSE) to the Commission

(7 February 2003)

Subject: Abuse of a dominant position

Under Article 82, one or more undertakings cannot abuse a dominant position within the common
market. Would the Commission comment on the abuse of a dominant position by two undertakings in
Scotland, i.e. Glasgow Rangers and Glasgow Celtic, to the detriment of all other football teams in the
country?

Answer given by Mr Monti on behalf of the Commission

(4 March 2003)

It is true that one or more undertakings are prohibited from abusing a dominant position within the
common market, where that abuse has an appreciable effect on trade between Member States.

However, such a finding in a particular case requires detailed factual and legal assessment. The
Commission must examine the markets on which the undertakings operate,
the
undertakings on that market, the behaviour which is alleged to be abusive, and the effect on trade of
that behaviour. The question provides no information that could allow the Commission to identify the
subject matter of the alleged abuse.

the position of

In the absence of more detailed information, the Commission cannot comment on the alleged behaviour of
Glasgow Rangers and Glasgow Celtic.