Following public consultation, market research, and a BEREC opinion on the matter, on 26 April 2018 the European Commission announced the adoption of new guidelines for SMP assessment, to update those that have been in place since 2002. Key updates include a new section on joint dominance, and specific points regarding OTT services.
With regards to OTT services, the new guidelines highlight that national regulators should be alive to the issues of convergence and the rise of OTT services, which could challenge traditional, copper-based dominance in telecoms. This is in respect of both product market definition and SMP assessment (paragraphs 36, and 64).
The guidelines include a new section on “joint SNP” which expands the guidelines in light of recent case law; reflecting concerns that some national telecoms markets have transitioned from monopolistic to oligopolistic structures since the implementation of the EU legislative framework in 2002. The BEREC opinion notes that these changes are a “positive development in line with BEREC thinking on this topic.” Paragraph 69 of the guidelines outline that national regulators “must conduct an analysis of likely developments during the next review period” to assess whether market conditions “would be conducive to a mechanism of tacit coordination”.
Anyone with questions regarding telecoms regulation or market definition, please contact Tim Cowen.