31.8.2023
EN
Official Journal of the European Union
L 214/205
5.2.4.4
Whol es al e a cc es s
129.
Effective wholesale access for third parties to the funded networks is an indispensable condition of any State aid measure.
In particular, wholesale access enables third-party undertakings to compete with the selected bidder, thereby strengthening choice and competition in the areas covered by the measure.
Wholesale access also avoids the creation of regional service monopolies.
By enabling competition to develop in the target area, it also ensures the development of the market in that area in the longer term.
That access is not contingent on any prior market analysis within the meaning of Chapter III of Directive (EU) 2018/1972.
Nevertheless, the type of wholesale access obligations imposed on a State-funded network should take into account the portfolio of access obligations laid down under the sectoral rules.
However, as aid beneficiaries are not just using their own resources but public funds to deploy the network, they should provide a wider range of wholesale access products than those imposed by NRAs on the undertakings having significant market power.
Such wholesale access should be granted as early as possible before starting to provide the relevant services and, where the network operator also intends to provide retail services, at least 6 months before the launch of those retail services.
130.
The State-funded network must offer effective access under fair and non-discriminatory conditions to undertakings.
This may imply the upgrade and increased capacity of existing infrastructure, where necessary, and the deployment of sufficient new infrastructure (for instance, ducts large enough to cater for a sufficient number of networks, and different network topologies) (90).
131.
Member States must indicate the terms, conditions and prices for the wholesale access products in the documents of the competitive selection procedure and must publish that information on a comprehensive website, at national or regional level.
The general public should be allowed to access the website without any restrictions, including prior users’ registration.
132.
In order to render the wholesale access effective and to enable the access seeker to provide its services, wholesale access must also be granted to parts of the network that have not been State funded or that may not have been deployed by the aid beneficiary (91).
5.2.4.4.1
Wholesale access terms and conditions
133.
Effective wholesale access must be granted for at least 10 years for all active products except virtual unbundled local access (VULA).
134.
Access based on VULA must be granted for a period of time equal to the lifespan of the infrastructure for which VULA is a substitute (92).
(90) This may include, depending on the type of intervention: adequately sized ducts, sufficient number of dark fibres, type and upgrade of poles, masts, towers, type and size of street cabinets to provide effective unbundling etc.
See Commission Decision C(2016) 3208 final of 26 May 2016, case SA 40720 (2016/N) – United Kingdom - Broadband Delivery UK (OJ C 323, 2.9.2016, p. 2) and Commission Decision C(2019) 8069 final of 15 November 2019, case SA.54472 (2019/N) – Ireland – National Broadband Plan (OJ C 7, 10.1.2020, p. 1).
(91) For example effective access implies that adequate wholesale access to active equipment is granted even if only infrastructure is financed.
(92) As in this particular case, VULA is a substitute for the physical unbundling of a new infrastructure, the same rules as for new infrastructure apply.