C 36/14
5.2.2.2.
EN
Official Journal of the European Union
31.1.2023
Existence of market failure as regards mobile access networks
60.
The Commission considers that a market failure exists in areas where there is no mobile network, in place or credibly planned to be deployed within the relevant time horizon, which can address end-users’ needs (55).
61.
Present and future communications applications increasingly rely on performant mobile networks that are available on a wide geographical basis (56).
End users have a need to communicate and access information while on the move.
Over time, new economic activities are expected to develop that require seamless online access to performant mobile services.
To accompany this change, mobile networks are expected to evolve to provide increasingly better connectivity.
In certain circumstances, a lack of, or insufficient mobile connectivity may be detrimental for certain economic activities, such as industry, agriculture, tourism or connected mobility.
It may also pose a risk for the public’s safety (57).
This may particularly affect remote regions or low-population-density or unpopulated areas.
62.
In an area where there is already at least one mobile network in place or credibly planned to be deployed within the relevant time horizon, which can address end-users’ needs, State aid for the deployment of an additional mobile network could unduly distort market dynamics.
63.
State aid for the deployment of a mobile network in the areas referred to in paragraph 62 may be considered necessary when it is demonstrated that both the following conditions are fulfilled: (a) the existing or credibly planned mobile network does not provide end users with sufficient quality of services to satisfy their evolving needs; and (b) the State intervention will provide such quality of services, thus bringing about a material improvement that the market cannot deliver (58).
64.
A State intervention may be necessary in certain circumstances to address specific market failures related to identified use cases even in the presence of a 4G or a 5G mobile network, where that network does not and is not likely to provide end users with sufficient quality of services to satisfy their evolving needs.
Such use cases that relate to new economic activities and services may require: (a) seamless online access (for instance for connected and automated mobility along transport paths); (b) certain minimum speeds and capacity; (c) other specific characteristics such as lower latency, network virtualisation or the capacity to connect multiple terminals for industry or agriculture.
65.
As a matter of principle, even in the presence of a market failure, State aid cannot be granted to and cannot be used for the fulfilment of legal obligations, such as obligations linked to the rights to use spectrum.
However, State aid may be granted where and to the extent necessary to provide an additional quality of service that is required to meet end users’ demonstrated needs and that goes beyond what is already required to comply with such legal obligations.
Such aid may be granted insofar as necessary to cover only the additional costs needed to ensure the increased quality of service.
66.
Where, in a given area, there is or there will be, within the relevant time horizon, at least one mobile network that can satisfy the end users’ evolving needs (see paragraphs 61, 63 and 64), granting State aid for an additional mobile network with equivalent capabilities would, in principle, lead to an unacceptable distortion of competition, and crowd out private investments.
The Commission will likely take a negative view of such State interventions.
(55) See, for instance, Commission Decision C(2021) 3492 final of 21 May 2021, case SA.58099 (2021/N) – Germany – Mobile communications Mecklenburg-Western Pomerania (OJ C 260, 2.7.2021, p. 1).
(56) For instance, the Gigabit communication refers to certain applications for the automotive, transport, manufacturing and health sectors as well as for next generation safety and emergency services (for instance connected and automated driving, remote surgery, precision farming).
(57) For instance, Article 109 of Directive (EU) 2018/1972 provides for the obligation of electronic communications operators to make caller location information available as soon as the call reaches the authority handling the emergency call.
It is also mandatory to make network-based and the more accurate handset-derived location information available to the most appropriate public safety answering point.
(58) See, for instance, Commission Decision C(2020) 8939 final of 16 December 2020, case SA.54684 – Germany – High-capacity mobile infrastructure roll-out in Brandenburg (OJ C 60, 19.2.2021, p. 2); and Commission Decision C(2021) 1532 final of 10 March 2021, case SA.56426 – Germany – High-performance mobile infrastructure roll-out in Lower Saxony (OJ C 144, 23.4.2021, p. 2); Commission Decision C(2021) 3565 final of 25 May 2021, case SA.59574 – Germany – Deployment of high-performance mobile infrastructure in Germany (OJ C 410, 8.10.2021, p. 1).