Notification of a draft measure ("order") underArticle7(3)ofDirective 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive)
The outcome of market definition and market analysis carried out by the President's Chamber of the Federal Network Agency for Electricity, Gas, Telecommunications, Post and Railway (Federal Network Agency) for market12 of the Markets Recommendation shows Deutsche TelekomAG to have significant market power in the national"Market for IP bitstream access with handover at IP level (layer3) atdifferent places in the network hierarchy,including HFC broadband access with handover at IP level". This outcome was notified to the European Commission on 11October and 14December 2005.
The Federal Network Agency is hereby making a draft measure (so-called "order", cfsection13(1) sentence1 TKG) available to the European Commission and the national regulatory authorities of every other member state in accordance with sections13(1) sentence1 and 12(2) para1 TKG, transposing Article7(3) of the Framework Directive, by means of which obligations are imposed on Deutsche TelekomAG in the IP bitstream market in accordance with Part2 of the TKG.
Reference made in the draft to an attachment is the market definition and market analysis determination by the President's Chamber, the final draft of which is also communicated by the Federal Network Agency to the Commission today, parallel to the draft, after completion of the consolidation procedure and after having taken the utmost account of the Commission's representations in accordance with section12(2) para2 TKG.
The legal basis for the measures set out in the draft is as follows:
- section 9(2)TKG in conjunction withsections 13(1), 21(2) para1 TKG, as far asDeutsche TelekomAG has been obliged in 1.1 to grant IP bitstream access – see3.1, page10ff for the explanatory statement;
- section 9(2) TKG in conjunction withsections 13(1), 21(3) para4 TKG,as far as it has been obliged in 1.2 to provide colocation for the purpose of grantingIP bitstream access and as part of this, to give users and their agents access to these facilities at all times–see 3.2, page17f for the explanatory statement;
- section 9(2) TKG in conjunction withsections 13(1), 19 TKG, as far as it has been obliged in 1.3to provide agreements on access pursuant to 1 that are based on objective criteria, are transparent, grant equally good access and meet the requirements of fairness and reasonableness –see 3.3, page18f for the explanatory statement;
- section 9(2) TKG in conjunction withsections 13(1), 24TKG, as far as it has been obliged in 1.4 to make its wholesale prices for access services in the market that is the subject of the proceedings and its internal transfer prices transparent and to submit to the Federal Network Agency, upon request, information on its volume of sales of the externally offered and internally used wholesale products and the corresponding revenues –see 3.4, page19ff for the explanatory statement, and
- section 9(2) TKG in conjunction withsections 13(1), 30(1) sentence1TKG,as far as under 2, the rates for granting IP bitstream access and colocation are subject to regulation in accordance with section 31 TKG –see 3.5, page21ff for the explanatory statement.
Reference is made to the comments on page23 with regard to the explanatory statement for not imposing a transparency obligation.
The legal basis for the obligation imposed on the Party Concerned in II. of the Operative Provisions to publish a reference offer issection23(1) TKG –see II., page 24f for the explanatory statement.
The draft order was published in Official Gazette No8/2006 on 26April 2006 as Communication No118/2006 and posted on the Agency's website. Comments were invited from interested parties within a period of one month of publication.
The responses from competitors and industry associations were published on 21June 2006 as the outcome of the consultation procedure in Official Gazette No12/2006 as Communication No202/2006 and on19July 2006 in Official Gazette No14/2006 as Communication No256/2006. Under the public consultation, the Party Concerned and all interested parties also had the opportunity to comment during the oral proceedings held on 10May 2006.
The Federal Cartel Office was given the opportunity in a letter dated 17July 2006 to give its views on the draft.
Comments can be made on the draft within a period of one month of being thus advised.