If an agreement includes a restriction of competition according to Article 101 (1) TFEU, an exemption according to Article 101 (3) TFEU may apply. To qualify for an exemption the cooperation agreement must fulfil the following four criteria set out in Article 101 (3) TFEU:

a) efficiency gains;

b) fair share for consumers;

c) indispensability of the restrictions;

d) no elimination of competition.

The derogation in Article 101 (3) TFEU applies only if these four conditions are cumulatively fulfilled.[23]

Under the Guidelines on the application of Article 101 (3) TFEU an agreement which is restrictive of competition must, in order to benefit from the exemption, generate benefits for the production or distribution of goods or the promotion of technical or economic progress which are of such a character as to compensate for the agreement's disadvantages for competition. All efficiency claims must be substantiated to allow verification of: a) the nature of the claimed likelihood and magnitude of each claimed efficiency; b) the link between the agreement and the efficiencies; c) the likelihood and magnitude of each claimed efficiency; and (d) how and when each claimed efficiency would be achieved.[24]

The burden of proof under the provision of Article 101 (3) TFEU rests on the undertaking(s) invoking this provision. BEREC does not provide any guidance on whether the cumulative criteria of Article 101(3) TFEU are fulfilled.

References

[1]BoR (11) 26: https://berec.europa.eu/eng/document_register/subject_matter/berec/reports/224-berec-rspg-report-on-infrastructure-and-spectrum-sharing-in-mobilewireless-networks

[2]BoR (18) 116 https://berec.europa.eu/eng/document_register/subject_matter/berec/reports/8164-berec-report-on-infrastructure-sharing

[3]Depending on national law, the competences could be on the NRA or on another authorities.

[4]Article 8, Directive 2002/21/EC on a common regulatory framework for electronic communications networks and services as amended by Directive 2009/140/EC and Regulation 544/2009 (known as the Framework Directive)
[5]Article 3

[6]Broadband Cost Reduction Directive – Directive 2014/61/EU of the European Parliament and of the Council of 15 may 2014 on measures to reduce the cost of deploying high-speed electronic communications networks

[7]See Annex B of the Directive 2002/20/EC on the authorisation of electronic communications networks and services as amended by Directive 2009/140/EC (known as the Authorisation Directive)

[8]See Article 6.1 Authorisation Directive and Article 5, Decision No 243/2012/EU of the European Parliament and the Council of 14 March 2012 establishing a multiannual radio spectrum policy programme

[9]Article 11 of the framework directive
.
[10]Article 5.6 Authorisation Directive

[11]Article 47.

[12]Article 52 and – if applicable – Article 51

[13]Article 44

[14]Article 61.4

[15]See Article 26 for the relevant procedure

[16] Additionally, competition authorities are responsible for ex-ante monitoring within the framework of merger control
[17] See: 3GPP TS 23.251 version 14.1.0 Release 14

[18]https://www.gsma.com/publicpolicy/wp-content/uploads/2012/09/Mobile-Infrastructure-sharing.pdf

[19]https://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DSTI/ICCP/CISP(2014)2/FINAL&docLanguage=En

[20] Short-term competition also includes MVNOs

[21]Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the European Union to horizontal co-operation agreements (2011/C 11/01), “Horizontal Guidelines, 2011”; See also: Communication from the Commission — Notice — Guidelines on the application of Article 81(3) of the Treaty (Text with EEA relevance), Official Journal C 101 , 27/04/2004 P. 0097 – 0118

[22]See para 168-173 or 186 of the Horizontal Guidelines, 2011

[23]National competition law might be applicable in parallel

[24]Guidelines on the application of Article 101(3) TFEU