The main development since our last update of the ex ante regulation of the telecom sector in the Netherlands is the imposition of obligations in the Market Analysis Decision on Wholesale Fixed Access (“WFA”). In that decision, the Netherlands Authority for Consumers and Markets (“ACM”) identified a risk of joint Significant Market Power of KPN and VodafoneZiggo on the WFA market (previously known as Unbundled Local Loop and Wholesale Broadband Access). For that reason, ACM considered it appropriate to impose access obligations not only on KPN but also on VodafoneZiggo. The cable network is therefore regulated once again (since the annulment of the 2009 Broadcasting Decision).
The Trade and Industry Appeals Tribunal (“CBb”) furthermore ruled in 2018 on the appeals filed against the market analysis decisions (“MAD”) regarding ODF-Access Fibre to the Office (“FttO”), fixed and mobile terminating access (“FTA-MTA V”) and fixed telephony (“FT”).
A summary of the previous regulation period is provided in the table below.
| PREVIOUS REGULATION PERIOD | ||||
| Market | Obligations imposed | CBb ruling | Comments | |
|
(17.12.2015) |
MDF and VULA access: - Access - Non-discrimination - Transparency and reference offer - Tariff regulation |
ODF access (FttH): - Access - Non-discrimination - Transparency - Tariff regulation |
CBb ruling of 17 July 2017: ACM decision upheld |
Not applicable |
|
(29.12.2011) |
- Access - Non-discrimination - Transparency - Tariff (DCF) |
CBb ruling of 18 December 2013: (entirely) annulled | Not applicable | |
|
(27.04.2012) |
No regulation |
CBb ruling of 15 January 2014: ACM decision upheld |
Not applicable | |
|
(01.05.2012) |
Single: - Access - ND - Transparency |
Dual and multiple: - Access - ND - Transparency - Tariff regulation (Safety Cap/EDC) |
CBb ruling of 18 September 2014: partially annulled |
Not applicable |
| (18.03.2015) | Not applicable | Not applicable | Not applicable | |
| (05.08.2013) |
- Tariff regulation |
CBb ruling of 13 January 2015: preliminary questions ECJ judgment in response to preliminary questions CBb final ruling of 10 July 2017: ACM was entitled to base tariff regulation on Pure BULRIC method |
||
Outlook
Partly due to CBb’s decision not to regulate FttO and to annul the Market Analysis Decision on FT, the scope of ex ante regulation in the Dutch telecom sector has decreased further. Only FTA-MTA, WFA and high-quality wholesale broadband are currently subject to ex ante regulation.
In 2019, the new draft decision on Wholesale High Quality Access (“WHQA”) at a fixed location will have to be awaited. ACM recently started consulting market parties. ACM withdrew its earlier draft market analysis from 2017 after objections from the European Commission.
The CBb’s ruling in the appeal proceedings against the Market Analysis Decision on WFA is expected later this year..
| CURRENT REGULATION PERIOD | ||||||
| Market | Obligations imposed | CBb ruling | Comments | |||
|
(27.09.2018) |
|
|
Appeal pending | Not applicable | ||
| (23.02.2017) |
Single: no wholesale or retail regulation Multiple: no regulation No retail regulation |
|
CBb ruling of 6 November 2018: ACM decision entirely annulled |
Legal implications in effect up to and until 31 March 2019 | ||
| (01.09.2016) | Non-regulated | CBb ruling of 19 June 2018: ACM decision upheld | Not applicable | |||
| (28.12.2012) |
|
|
Not applicable | |||
| (withdrawn) |
Copper regulated: - Access - Non-discrimination en ND5 - Transparency obligation and publication of reference offer -Tariff regulation |
Not applicable | Market survey pending after Commission misgivings | |||
| (01.06.2017) |
- Access - Tariff (Pure BULRIC) - Transparency and obligation for KPN to disclose reference offer |
CBb ruling in preliminary proceedings: preliminary relief disallowed CBb ruling of 11 September 2018: (apart for change in text) ACM decision upheld |
Not applicable | |||
This blog has been co-written by Mr B. Braeken (who, as of 15 July 2019, no longer works at Maverick Advocaten).
