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IRIS 1997-2:3/3

European Commission

A new step towards the information society. Draft notice on access in the telecommunications sector and investigation into access issues related to the Internet

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Dirk Van Liederkerke

COUDERT Attorneys at Law, Brussels

In December 1996, the Commision adopted a Draft Notice on the application of the competition rules to access agreements in the telecommunications sector. The notice forms part of the Commission's Action Plan for the Information Society and clarifies the role that the competition rules will play in resolving problems of access (the notice had been announced in the Communication by the Commission to the European Parliament and the Council on the Green Paper on the liberalization of telecommunications infrastructure and cable television networks, (COM(95)158 final of 3 May 1995).

The Commission wishes to achieve three things with the notice: (i) to set out access principles stemming from EC competition law in order to create greater market certainty and more stable conditions for investments and commercial initiative in the telecoms and multimedia sectors, (ii) to define and clarify the relationship between competition law and sector specific legislation, and (iii) to explain how competition rules will be applied in a consistent way across the converging sectors involved in in the provision of new multimedia services and gateways.

One of the basic premises underlying the notice is that what is important is not so much the manner in which the goal of fair market access is pursued, via which legal instrument and through which institution, but that the two existing legal frameworks (competition law and sector specific legislation including ONP rules) and the interventions by all national and EC authorities involved are coordinated, mutually reinforcing, coherent and efficient. Preference is however given to the decentralized application of EC law by national authorities to problems of access to facilities (which may have a physical or other nature) controlled by market operators which occupy strong positions in so called "access markets". According to the Draft Notice, such access must be ensured under fair terms and specific attention must be given in this respect to the timing, the technical configuration and the pricing of the access which are essential elements which can be manipulated by the access providers.

The publication of the Draft Notice in the Official Journal, which was scheduled for mid-february, is followed by a period for public consultation after which the Commission will adopt the final version of the notice.

It is also reported that in January 1997 the Competition Directorate of the European Commission already started an investigation at its own initiative into access for Internet providers and providers of on-line services to the facilities of telecommunication operators. The investigation would at least cover four EU Member States (namely: Belgium, France, Germany and the United Kingdom). In addition, it is understood that the Commission is also reviewing certain specific cases related to possible anti-competitive practices stemming from agreements on the use of Web browsers.

European Commission Draft Notice on the application of the competition rules to access agreements in the telecommunication sector, COM(96)649 final of 10 December 1996. EN