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Of the Framework Directive – NON-CONFIDENTIAL Standard Form Notification of Draft Measures under Article 7(3) of the Framework Directive – NON-CONFIDENTIAL Notification to the European Commission (EC), the Body of European Regulators for Electronic Communications (BEREC) and other National Regulatory Authorities (NRAs) in other Member States of draft measures under Article 7 of Directive 2002/21/EC Fixed Voice Call Termination (Market 1, 2014 Recommendation) and Mobile Voice Call Termination (Market 2, 2014 Recommendation) Status NON- CONFIDENTIAL Version: FINAL Date: 11 March 2019 For queries or questions regarding this notification please contact each of the following: Eric Tomkins, email [email protected], Ph: +353 1 8049719 Keith Weeks, email [email protected], Ph: +353 1 6338581 Máire Fitzgerald, email maire.fitzgerald@comreg,ie, Ph: +353 1 8049631 An Coimisiún um Rialáil Cumarsáide Commission for Communications Regulation 1 Lárcheantar na nDugaí, Sráid na nGildeanna, BÁC 1, Éire, D01 E4X0. One Dockland Central, Guild Street, Dublin 1, Ireland, D01 E4X0. Teil | Tel +353 1 804 9600 Suíomh | Web www.comreg.ie Notification of FVCT and WVCT Draft Measures under Article 7(3) of the Framework Directive – NON-CONFIDENTIAL Content Section Page Introduction and Background ................................................................................ 3 Section 1 - Market Definition ............................................................................ 9 1.1 Relevant Product and Services Market .............................................................. 9 1.2 Relevant Geographic Markets .......................................................................... 11 1.3 Results of the Public Consultation .................................................................... 11 1.4 Consistency with the Recommendation on Relevant Markets.......................... 12 Section 2 - Designation of Undertakings with Significant Market Power ....... 13 2.1 Name of Undertakings Designated with SMP .................................................. 13 2.2 Criteria Used to Designate Undertakings with SMP ......................................... 14 2.3 Name of Main Undertakings Active in Relevant Markets ................................. 16 2.4 Market Shares of Undertakings Active in Relevant Markets ............................ 16 2.5 Opinion of the National Competition Authority.................................................. 17 2.6 Results of the Public Consultation .................................................................... 17 Section 3 - Regulatory Obligations ................................................................ 18 3.1 Legal Basis for Obligations............................................................................... 18 3.2 Rationale for Obligations .................................................................................. 22 3.3 Remedies outside of those in Articles 9 to 13 of Directive 2002/19/EC ............ 22 Section 4 - Compliance with International Obligations .................................. 23 4.1 Compliance with International Obligations ....................................................... 23 Appendix A Draft Decision .............................................................................. 24 Appendix B Consultation ................................................................................. 25 Appendix C Non-confidential Respondents’ Submissions to the Consultation ................................................................................. 26 Appendix D Opinion of the Irish Competition and Consumer Protection Commission ................................................................................. 27 Page 2 of 27 Notification of FVCT and WVCT Draft Measures under Article 7(3) of the Framework Directive – NON-CONFIDENTIAL Introduction and Background Overview 1. In accordance with its obligations under Articles 15 and 16 of the Framework Directive,1 the Commission for Communications Regulation (‘ComReg’) has carried out an analysis of and intends to impose measures in respect of: (a) the wholesale markets for fixed voice call termination (‘FVCT’), being Market 1 of the European Commission’s 2014 Recommendation;2 and (b) the wholesale markets for mobile voice call termination (‘MVCT’), being Market 2 of the European Commission’s 2014 Recommendation. 2. In accordance with Article 7(3) of the Framework Directive, ComReg is now making the corresponding draft measures accessible to the European Commission (‘EC’), the Body of European Regulators for Electronic Communications (‘BEREC’) and National Regulatory Authorities (‘NRAs’) in other Member States (the ‘European Article 7 Notification’). 3. The European Article 7 Notification is being made by ComReg on the basis of: (a) this document, being the NON-CONFIDENTIAL standard form notification of draft measures to the EC under Article 7(3) of the Framework Directive (‘EC Notification’) and other documents referred to throughout this EC Notification; and (b) the draft measures set out in the NON-CONFIDENTIAL version of ComReg’s draft Response to Consultation and Decision (‘Draft Decision’) attached at Appendix A of this EC Notification. 4. The EC Notification should be read together with the Draft Decision and the Consultation.3 5. It should be noted that the Draft Decision is not publicly available. Having completed the European Article 7 Notification, ComReg will take utmost account of any views expressed by the EC, BEREC and NRAs in other Member States before adopting its final decision and making it publicly available. 6. It should also be noted that this Non-confidential EC Notification and the Non-confidential Draft Decision may contain redacted information (marked with the symbol ) that is confidential and/or commercially sensitive and is not therefore placed in the public domain. Confidential versions of documents referred to in this EC Notification are also separately provided. 1 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services, as amended by Directive 2009/140/EC (the ‘Framework Directive’). 2 European Commission Recommendation of 9 October 2014 on relevant product and service markets within the electronic communications sector susceptible to ex ante regulation (hereafter, the ‘2014 Recommendation’). 3 See paragraph 9 below of this EC Notification. Page 3 of 27 Notification of FVCT and WVCT Draft Measures under Article 7(3) of the Framework Directive – NON-CONFIDENTIAL 7. In the Draft Decision and, as discussed further at Section 1 - of this EC Notification, ComReg has proposed to define several individual markets for the provision of wholesale call termination on individual public telephone networks provided at a fixed location (the ‘Relevant FVCT Market(s)’) and, separately, several individual markets for the provision of wholesale voice call termination on individual mobile networks (the ‘Relevant MVCT Market(s)’), together the ‘Relevant Termination Markets’. ComReg’s position as set out in this EC Notification and the Draft Decision is that ex ante regulation of the Relevant Termination Markets is warranted. 8. In parallel with this EC Notification, pursuant to Article 7(3) of the Framework Directive, ComReg is also separately notifying the EC with draft measures concerning the further detailed specification of certain cost orientation price control obligations set out in the Draft Decision (‘Separate Pricing Notification’). Background 9. In accordance with Article 6 of the Framework Directive, ComReg carried out a national public consultation4 (‘Consultation’) on its analysis of the Relevant Termination Markets in Ireland over the period 2 October 2017 to 10 January 2018. A non-confidential copy of the Consultation is set out in Appendix B of this EC Notification and is publicly available on ComReg’s website.5 10. In the Consultation, for each of the Relevant Termination Markets, ComReg set out proposals on market definition and its associated preliminary assessment of whether any undertaking(s) has significant market power (‘SMP’), as well as proposed obligations or remedies (as appropriate) that were to be imposed on any operator(s) identified as having SMP, with a view to addressing potential competition problems identified in the Consultation to the ultimate benefit of end-users. 11. Eleven responses (‘Submission(s)’) to the Consultation were received from a range of industry stakeholders (together referred to as the ‘Respondent(s)), namely: (a) Alternative Operators in the Communications Market; (b) AT&T Global Network Services Ireland Limited; (c) BT Communications Ireland Limited; (d) Eircom Limited (“Eircom”); (e) Carphone Warehouse Ireland Mobile Limited (trading as ‘iD’); (f) Three Ireland (Hutchison) Limited; (g) Virgin Media Ireland Limited; 4 In October 2017 ComReg issued a consultation document entitled “Market Review, Fixed Voice Call Termination and Mobile Voice Call Termination, Consultation and Draft Decision, ComReg Document 17/90r, October 2017” (‘Consultation’) which set out ComReg’s then preliminary views based on an analysis of the Relevant Termination Markets. 5 See https://www.comreg.ie/publication/market-review-fixed-voice-call-termination-mobile-voice-call- termination/. Page 4 of 27 Notification of FVCT and WVCT Draft Measures under Article 7(3) of the Framework Directive – NON-CONFIDENTIAL (h) Vodafone Ireland Limited; (i) Lycamobile Ireland Limited; (j) Verizon Enterprise Solution; and (k)
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