RD236 - ETNO Reflection Document in reply to the European Commission call for input - Recommendation on relevant markets

The Recommendation is a key instrument of the EU Regulatory Framework for enabling the Commission to guide the transition of the e-communications sector towards the increasing application of general competition law. As the Commission was largely bound by an Annex to the EU Framework Directive in the choice of market areas to be included in the first list of relevant markets, the current review provides the first objective assessment of the remaining need for ex-ante intervention in the European e-communications sector.

• The 3 criteria for identifying markets susceptible to sector-specific regulation are a main pillar of the current regulatory framework and should as such not be called into question in the present review.
  
• The Recommendation should contain additional guidance on the first criterion (high and non-transitory entry barriers) to make it more operational and link it to the possibility of replication of assets.
• The revised Recommendation should instruct NRAs to apply the 3 criteria test on their national markets and contain clear guidance in this respect.
• Different geographical market conditions have to be reflected in regulatory practice – the Commission should encourage the correct application of competition law methodology in the definition of sub-national markets to better focus regulation.
• The Recommendation should clarify that ex-ante regulation will not apply to new and emerging markets and that such markets will not be included in the list of relevant markets.