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Draft BEREC Common Position on Mobile Infrastructure Sharing
0 days left (ends 18 Jan)
Public Consultation for the Common Position on Mobile Infrastructure Sharing
In June 2018, BEREC adopted a report on infrastructure sharing which depicts a picture of different regulation and legal frameworks applicable in European countries, of the existing sharing arrangements, of the benefits and challenges related to such arrangements and of possible evolutions with regards to 5G.
BEREC expended its work on identifying common positions on the subject. The common position consists of:
1) a background section which describes the applicable legal framework and the benefits and drawbacks related to sharing agreements ;
2) a common position section which provides:
a) common definitions for some types of sharing agreement;
b) the main objectives to be pursued when considering network sharing agreements;
c) the parameters to consider when assessing network sharing agreements;
3) an indicative analysis of different types of network sharing, according to the objectives and parameters.
The response to the public consultation will serve as inputs for the finalization of a BEREC common position on mobile infrastructure sharing.
This public consultation will run from 12 December 2018 to 18 January 2019, 17:00 CET.
Enquiries about the consultation, including registration problems with the online platform, should be sent to the following email address: Mobileinfrastructure-Consultation@berec.europa.eu
LEVEL OF AGREEMENT
MOST DISCUSSED PARAGRAPHS
MOST ACTIVE USERS
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.
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.
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.
Appendix 2 - Acronyms
The 3rd Generation Partnership Project
Active Antenna Systems
Body of European Regulators for Electronic Communications
General Packet Radio Service
Global System for Mobile communications
Home Location Register
Mobile Network Operator
Multi Operator Core Network
Multi-Operator Radio Access Network sharing
Mobile Virtual Network Operator
National Competition Authority
National Regulatory Authority
Organisation for Economic Co-operation and Development
A radio access network
Radio Spectrum Policy Group
Treaty on the Functioning of the European Union
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
BoR (18) 116 https://berec.europa.eu/eng/document_register/subject_matter/berec/reports/8164-berec-report-on-infrastructure-sharing
Depending on national law, the competences could be on the NRA or on another authorities.
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)
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
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)
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
Article 11 of the framework directive
Article 5.6 Authorisation Directive
Article 52 and – if applicable – Article 51
See Article 26 for the relevant procedure
 Additionally, competition authorities are responsible for ex-ante monitoring within the framework of merger control
 See: 3GPP TS 23.251 version 14.1.0 Release 14
 Short-term competition also includes MVNOs
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
See para 168-173 or 186 of the Horizontal Guidelines, 2011
National competition law might be applicable in parallel
Guidelines on the application of Article 101(3) TFEU