András Tóth

European Networks Law & Regulation Quarterly, Volume 4 (2016), Issue 1, Page 36 - 42

Two years after the Polish regulatory authority required the termination of the contested practice, the Commission found that the former Telekomunikacja Polska has abused its dominant position in the Polish wholesale broadband access market. Although the Commission’s Decision addressed a number of interesting sectoral issues (e.g. relevance of the essential facilities doctrines, maintaining incentives to invest and innovate, relationship between the ex-ante regulation and ex-post review) the GC’s judgement particularly reflects on technical aspects of the competition law raised by the applicant (e.g. interpretation of Article 7(1) of Regulation No 1/2003, calculation of fine taking into account the single continuous infringement, the gravity of the infringement and the investment made by TP). However, the most interesting sector-specific question of the case which is the parallel application of the ex-ante and ex-post regulation has not been addressed. The Orange Polska case suggests that the firepower of the European Competition Law is much greater than the national sector-specific regulation, which can be useful if the powers of regulatory authorities lack effectiveness.

András Tóth

European Networks Law & Regulation Quarterly, Volume 3 (2015), Issue 1, Page 25 - 36

The European Commission published its third Recommendation on the markets within electronic communications sector susceptible to ex-ante regulation in October 2014 (the new ‘Recommendation’) after the adoption of the current regulatory framework in 2002. The Recommendation lists relevant markets susceptible to ex-ante regulation throughout the EU, which provides a common starting point for the national regulatory authorities’ market analysis. Since national regulatory authorities enforce electronic communication market regulation through remedies imposed as a result of their market analysis, the New Recommendation is a significant source for EU electronic communications law. In this Recommendation, the Commission’s method for the identification of relevant markets remains unchanged, but the list of markets is modified. Since the adoption of the second Recommendation on the same subject in 2007, several technological developments occurred that had to be considered in the review process, including spread of the over-the-top (OTT) services, roll-out of 4G mobile networks (ie long-term evolution, ‘LTE’), the upgrade of cable infrastructures and deployment of fibre networks. This article presents the New Recommendation including the Commission’s method on market identification and the modified list of identified markets.

András Tóth

European Networks Law & Regulation Quarterly, Volume 3 (2015), Issue 4, Page 266 - 273

On 6th October 2015, the Court of Justice of the European Union (‘CJEU’) delivered in Case C-23/14 Post Danmark A/S v Konkurrenceråd the first preliminary ruling related to the interpretation of Article 82 EC (now Article 102 TFEU) on rebate scheme applied by an undertaking enjoying dominant position. The most important issue raised by the case and referred to the CJEU concerns the role of the economic evidences in the competition cases. The CJEU did not indeed share AG Kokott’s scepticism about the role of the economic evidences in the competition cases and maintained its general approach on the relevance of the ‘as-efficient competitor’ (‘AEC’) test in competition cases. Accordingly, the AEC test can be applied unless the structure of the market makes the emergence of an as-efficient competitor practically impossible. The CJEU re-confirmed the ‘safe harbour’ for volume rebates contrary to the proposals of the Advocate-General. The CJEU – in consistency with the General Court’s position in its Intel judgement – recalled that all relevant circumstances should be considered when determining whether a company has abused its dominant position by applying the third type of rebate, i.e. when grant of a financial incentive is not directly linked to a condition of exclusive or quasi-exclusive supply but where the mechanism for granting the rebate may also have a fidelity-building effect.

András Tóth

European Networks Law & Regulation Quarterly, Volume 1 (2013), Issue 1, Page 65 - 79

Despite the fact that the telecommunication sector is heavily regulated in the EU, several important telecommunication-specific competition law issues have emerged over the past two years. In its recent enforcement practice, the Commission gave important competition law guidance to the national regulatory authorities as to how to define the relevant markets in the telecommunication sector. In specific competition cases, the Commission and the European Courts issued various important statements on the relationship between ex-ante regulation and ex-post review. Apparently, the consideration of the incentives to invest is the main focus of the recent competition law enforcement in telecommunications. The spread of network-sharing agreements in the sector is increasing due to the higher requirements for investment into communication infrastructure (e. g. 4G and FTTx). The Commission resists being more lenient with the concentration of national telecommunication markets by not allowing the consolidation efforts to overcome anticompetitive effects in merger control, as it was expressed in the Hutchison/Orange Austria merger and it is reflected by the ‘Connected Continent’ legislative package as well.