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Next to these comments on the type of markets to be included in the list of relevant markets, Belgacom wants to underline two crucial points when considering the inclusion of relevant markets in the new list.
1) First, the Commission should motivate each inclusion of a market based on the so-called “three criteria test”. It should also provide additional guidance on how the Commission applies these three criteria. The Commission should also explain how NRAs should, within their Member State have to apply these criteria. Indeed, also each individual NRA would need to concretely justify regulatory intervention by applying the “three criteria test” in its own Member States.
2) Second, it is not because there would be a need for regulation in the majority of Member States, that a specific relevant market would need to be included in the list of relevant markets, as this would hamper the development of “more advanced” markets. Indeed, NRAs will always be able to apply ex-ante regulation on markets no longer in the list if they can prove the 3 criteria are still fulfilled.
I. General Introductory Remarks
Before actually commenting on the list of relevant markets, Belgacom would like to draw the attention to three general introductory remarks.
1) First, Belgacom considers the present Review as the occasion to approach the list of markets from a true long-term forward-looking perspective and based on true competition-law inspired methodology, as, this time, contrary to the first Recommendation, the Commission is not bound to Annex 1 of the Framework Directive.
2) Also, this the occasion for the Commission to firmly base its Review of the Recommendation on the underlying de-regulatory philosophy of the e-communications framework and ensure that the threshold for ex ante regulatory intervention is set at the appropriate level. Indeed, the Commission should clearly justify to what extent ex ante regulation is still warranted, in view of the ultimate aim of durable competition in the e-communications sector.
In particular, the list of relevant markets should be consistent with a crucial principle of a reliable and durable regulatory framework, i.e. an investment-friendly approach. Indeed, the regulatory framework on e-communications should clearly incentivise investments, as these are necessary to obtain sustainability of competition in e-communications networks and services in the long term.
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