The European Competitive Telecommunications Association (ecta) instructed law firm Jones Day to look into the Draft Recommendation on the regulatory promotion of Gigabit connectivity released by the European Commission on 23 February 2023 and finds the analysis supports ecta’s warning that it violates the provisions and principles in the European Electronic Communications Code.
The analysis provided by Jones Day concluded that it:
restricts the discretionary powers of National Regulatory Authorities (NRAs) to impose price control obligations, in favour of wholesale price flexibility for SMP ( significant market power) operators,
restricts the discretionary powers of NRAs in deciding to impose other remedies than access to civil engineering infrastructure, in a way which provides a higher priority to access to civil engineering infrastructure over other remedies compared to what is foreseen by Art. 72 and Art. 73 of the EECC,
encourages the non-imposition of regulated wholesale price control obligations in low-populated areas, and
promotes wholesale price increases in the context of copper switch-off.
In light of the findings ecta calls on the Commission to consider repealing the 2010 NGA and 2013 NDCM Recommendations and withdrawing the Draft Recommendation.
ecta Director General Luc Hindryckx is quoted as saying “The EECC has determined the framework, and the experience of the NRAs is suitable and sufficient to address the objectively different situations existing within the different Member States. It is therefore no longer necessary to issue a Recommendation.”
The full legal analysis is available here.