Intellectual property/ telecommunications: Commission adopts notice on the application of the competition rules to access agreements in the telecommunications sector

The European Commission has adopted a notice on access agreements in the telecoms sector. Following the 1st January 1998 liberalisation of telecoms across most of the European Union, this notice provides guidance to telecommunications companies and national regulatory and competition authorities on the Commission's approach in some important areas.

The notice is intended to demonstrate how the principles existing in the current case law of the Commission and the Court of Justice will be applied and further developed with respect to the new types of problems occurring in the context of the liberalisation of the telecoms sector.

The purpose of the notice is threefold:

• to set out access principles stemming from EU competition law as shown in past Commission decisions in order to create greater market certainty and more stable conditions for investment and commercial initiative in the telecoms and multimedia sectors;
• to define and clarify the relationship between competition law and sector-specific harmonisation legislation, such as the relationship between competition rules and open network provision legislation;
• to explain how competition rules will be applied in a consistent way across the sectors involved in the provision of new services, and in particular to access issues and gateways in this context.

The first part of the notice deals with the relationship between the application of the competition rules and sector-specific regulation as well as procedural issues relating to access agreements. It says that priority should be given to sector-specific regulation, where practicable and subject to the rights of companies to complain under the competition rules. The second part defines in general terms the relevant markets in the context of access agreements. The third part examines some principles regarding the application of the competition rules contained in Articles 85 and 86 of the Treaty to access agreements. The notice also states that where comparable problems arise in other areas such as access issues in digital communications the principles set out in the notice would apply equally to these other areas.

The notice is the product of an extensive consultation exercise. However, the Commission has been unable to provide clarification of some of the relevant issues in the notice - notably, what would constitute an essential facility, or what will constitute an excessive or predatory price. Ultimate clarification can only be given in the context of an individual competition case. Nevertheless, the notice provides a useful clarification of the regulatory framework for telecommunications.