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Draft BEREC Common Position on Mobile Infrastructure Sharing

Starting: 11 Dec Ending

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Public Consultation for the Common Position on Mobile Infrastructure Sharing

BoR(18) 236

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

 

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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.

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Appendix 2 - Acronyms

P31

Acronym

Definition

3GPP

The 3rd Generation Partnership Project

AAS

Active Antenna Systems

BEREC

Body of European Regulators for Electronic Communications

EU

European Union

GPRS

General Packet Radio Service

GSM

Global System for Mobile communications

GSMA

GSM Association

HLR

Home Location Register

MNO

Mobile Network Operator

MOCN

Multi Operator Core Network

MORAN

Multi-Operator Radio Access Network sharing

MVNO

Mobile Virtual Network Operator

NCA

National Competition Authority

NRA

National Regulatory Authority

OECD

Organisation for Economic Co-operation and Development

RAN

A radio access network

RSPG

Radio Spectrum Policy Group

TFEU

Treaty on the Functioning of the European Union

VAS

Value-Added Service

P32

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