COMISION DEL MERCADO DE LAS TELECOMUNICACIONES

Transcription

1 Notification of Draft Measures pursuant to 7(3) of the Directive 2002/21/EC for access and call origination on public mobile telephone networks. Under the obligation in article 16 of the Directive 2002/21/EC, CMT has conducted an analysis of the market for access and call origination on public mobile telephone networks in Spain. On 21 st December 2005 the CMT has reached its preliminary conclusions in market definition, the extent of competition in that market, the designation of undertakings having significant market power and the regulatory obligations. CMT hereby notifies the Commission of its proposed remedies and obligations consistent with article 7(3) of Directive 2002/21/EC. These remedies and obligations are set out in the attached summary notification form. Under article 6 of the Directive 2002/21/EC and according to national procedures, CMT conducted a national consultation which started on 9 th August 2005 and ended on 9 th September CMT has also requested the opinion of the National Competition Authority Servicio de Defensa de la Competencia-, concerning the definition and the SMP assessment on this market. This draft measure has taken into account the comments received during the public consultation and the opinion of the National Competition Authority. Torre MAPFRE Pº Marina, Barcelona - CIF: Q D Página 1 de 6

2 Market 15: Access and call origination on public mobile telephone networks 1. Market definition Please state where applicable:- 1.1 The affected relevant product/service market. Is this market mentioned in the Recommendation on relevant markets? 1.2 The affected relevant geographic market 1.3 A brief summary of the opinion of the National Competition Authority where provided. 1.4 A brief overview of the results of the public consultation to date on the proposed market definition (for example, how many comments were received, which respondents agreed with the proposed market definition, which respondents disagreed with it) Access and call origination on public mobile telephone networks (all voice and data services provided on 2G, 2.5G and 3G networks). The defined relevant market is the same to that listed in the Recommendation. Spain SDC agrees with the market definition. TME is the only respondent which has made comments. It asks for a more clear and precise definition and propose to include only wholesale access and origination services that allow third parties for the provision of voice and SMS services. 1.5 Where the defined relevant market is different from those listed in the Recommendation on relevant markets, a summary of the main reasons which justified the proposed market definition by reference to Section 2 of the Commission s Guidelines on the definition of the relevant market and the assessment of significant market power 1, and the three main criteria mentioned in Recitals (9) to (16) of the Recommendation on relevant markets. 1 Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications and services, OJ C 165, , p.6 Torre MAPFRE Pº Marina, Barcelona - CIF: Q D Página 2 de 6

3 and Section 3.2 of the accompanying Explanatory Memorandum Designation of undertakings with SMP Please state where applicable:- 2.1 The name(s) of the undertaking(s) designated as having individually or jointly significant market power. Telefónica Móviles España, S.A.U. Vodafone España, S.A. Retevisión Móvil, S.A. Where applicable, the name(s) of the undertaking(s) which is (are) considered to no longer have significant market power. Not aplicable. 2.2 The criteria relied upon for deciding to designate or not an undertaking as having individually or jointly with others significant market power - Number of competitors and the degree of concentration. - Market transparency. - Absolute barriers to entry. - Lack of potential competition. - Stable and growing demand. - Homogeneous product. - Frequent interaction among competitors. - Empirical evidence. There are no MVNOs, neither ISP but several not 2 Commission Recommendation of on Relevant Product and Service Markets within the electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services, C (2003)497 Torre MAPFRE Pº Marina, Barcelona - CIF: Q D Página 3 de 6

4 attended access seekers. - Retaliation strategy consisting in granting access to other operators in response to deviation from that common line of action. - Existence of incentives to coordinate - Stability of joint dominance position. 2.3 The name of the main undertakings (competitors) present / active in the relevant market Not aplicable 2.4 The market shares of the undertakings mentioned above and the basis of their calculation (e.g., turnover, number of subscribers) At the retail level (subscribers, revenues) in March 2005: TME (48.2%, 52.5%) Vodafone (27.6%, 28.9%) Amena (24. 2%, 18.6%) Please provide a brief summary of:- 2.5 The opinion of the national competition authority where provided. 2.6 The results of the public consultation to date on the proposed designation(s) as undertaking(s) having significant market power (e.g., total number of comments received, numbers agreeing/disagreeing) Based on the analysis conducted by CMT, SDC considers reasonable to conclude there are aspects of the market where competition has not been effective. It considers that access regulation would stimulate a higher level of competition. It suggests CMT to include a comparison between revenues and cost, a profitability indicator and implement a more forward looking approach in order to assess the effect of the entry of Xfera. From 21 responses, only incumbent MNOs, France Telecom and CC.OO (union) do not agree with CMT because they consider retail market is effective competitive and collusion at the wholesale level is not feasible and credible. MNOs consider that absence of win-win Torre MAPFRE Pº Marina, Barcelona - CIF: Q D Página 4 de 6

5 agreements and the existence of nondiscrimination obligation explain the absence of MVNOs and ISPs. Xfera also states that its entry in the market would stimulate competition in an effective way as it has happened in Italy and UK with the 3G new operator. 3. Regulatory obligations Please state where applicable (for 3.2. and 3.3, it is sufficient to refer to the relevant section of the full notification):- 3.1 The legal basis for the obligations to be imposed, maintained, amended or withdrawn (Articles 9 to 13 of Directive 2002/19/EC (Access Directive)) The following obligations are proposed: Access obligation (Art 12 AD) that consists of obligations to meet reasonable requests for access. Reasonable access prices according to price control (Art 13 AD). 3.2 The reasons for which the imposition, maintenance or amendment of obligations on undertakings is considered proportional and justified in the light of the objectives laid down in Article 8 of Directive 2002/21/EC (Framework Directive). Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found 3.3 If the remedies proposed are other than those set out in Articles 9 to 13 of Directive 2002/19/EC (Access Directive), please indicate which are the «exceptional circumstances» within the meaning of Article 8 (3) of thereof which justify the imposition of such remedies. Alternatively, indicate the paragraphs, sections or pages of the draft measure where such information is to be found See chapters II.4.2 and chapter II Compliance with international obligations Torre MAPFRE Pº Marina, Barcelona - CIF: Q D Página 5 de 6

6 In relation to the third indent of the first subparagraph of paragraph 3 of Article 8 of Directive 2002/19/EC (Access Directive), please state where applicable:- 4.1 Whether the proposed draft measure intends to impose, amend or withdraw obligations on market players as provided for in Article 8(5) of Directive 2002/19/EC (Access Directive) 4.2 The name(s) of the undertaking(s) concerned 4.3 Which are the international commitments entered by the Community and its Member States that need to be respected Torre MAPFRE Pº Marina, Barcelona - CIF: Q D Página 6 de 6