Slovenian Competition Protection Agency (CPA) has concluded with the assessment of abuse of dominant position by Telekom Slovenije (Telekom) and determined that the incumbent operator abused its dominant position on the wholesale markets for broadband bit-stream access and for access to physical network infrastructure.
During the proceedings, the dawn raid at Telekom premises was carried out; CPA has established the infringements for 5 out of 15 charges. Given the lack of evidence, the remaining part of proceedings was brought to an end without establishing an infringement.
Telekom is a vertically integrated telecommunication operator. Its network enables internet service providers to provide customers with broadband services on the whole territory of the Republic of Slovenia. Other existing networks are not capable of exercising effective competitive pressure on the incumbent; therefore the access for alternative operators on the market needs to be regulated.
Access to its network is possible over two wholesale services where Telekom is the sole service provider. Moreover, since Telekom is active on the retail market for fixed broadband services with its own “SIOL” brand, it is not acceptable to provide worse conditions for the alternative operators. Apart from measures imposed by the regulator, Telekom has a special responsibility not to allow his conduct to impair undistorted competition on the market.
Evidence showed that since 2005 Telekom was, by various individual conducts that jointly represent a single continuous infringement of Article 102 TFEU and its equivalent in the Slovenian Competition Protection Act, raising the entry costs and risks of the alternative operators that would enter the retail market using one or both wholesale services, which resulted in less favorable conditions for alternative operators in comparison to Telekom’s own downstream business. Formally, Telekom was not in breach of obligations deriving from regulatory decisions; nevertheless the exploitation of regulatory deficiencies for weakening the position of alternative operators is prohibited due to essentiality of access to Telekom’s network.
As concerns bitstream access, Telekom abused its dominance by refusing (in the period from January 1, 2005 to October 24, 2005) alternative operators’ access to the service access nodes (DSLAMs), which it has previously sold to its wholly owned subsidiary, and by (from July 1, 2005 to September 22, 2008) not providing the wholesale “naked xDSL” service to alternative operators, thereby disabling them to provide the xDSL service without the underlying telephone subscription to final costumers. From April 2007, however, Telekom has offered “naked xDSL” downstream to its final costumers.
On the market for access to the physical network infrastructure Telekom provided less favorable conditions to alternative operators with regard to establishing collocations (delays, formalistic barriers, refusing access to general information, etc.). It also refused access to the optical local loop even in locations where copper loops were not available. Furthermore, Telekom did not allow alternative operators to offer broadband bitstream access services to third party operators on its unbundled local loops.
The single and continuous infringement lasted at least until March 2014.
With these actions Telekom is found to have restricted competition in Slovenia, and thereby on a substantial part of the EU internal market, which may have affected trade between Member States.
The decision is not yet final since Telekom as also Amis, Tušmobil and T-2 as intervenients have the right to appeal to the Administrative Court. The fines will be set in a separate minor offences procedure.
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