Following a Nov. 21 agreement on a joint approach to antimonopoly...

document from the EC and the European Regulators Group (ERG) -- composed of national regulatory authorities (NRAs) -- aims to ensure that remedies are applied consistently across the European Union, guiding NRAs and reducing uncertainty for market players, ERG said. Under the new directives, NRAs can’t impose remedies until they conduct a market analysis and identify a significant market power (SMP) operator in a defined market. Markets eligible for prospective (ex ante) regulation must be characterized by high and nontransitory entry barriers, the paper said. It said the emergence of effective competition couldn’t be foreseeable and the application of retroactive controls must be insufficient to address specific market failures. Before imposing a remedy, the paper said, NRAs must: (1) Choose one based on the nature of the problem as identified via a market analysis approach. (2) Ensure sufficient access to wholesale inputs to provide maximum benefits to consumers in situations where infrastructure competition isn’t likely to be feasible. (3) Assist in the transition process to sustainable competition where replication of the infrastructure of the SMP entity is possible. (4) Produce reasoned, proportionate decisions in a transparent manner. (5) Design remedies to be “incentive compatible,” making it easier for regulated entities to comply than to evade. “Special considerations have to be given to regulation in emerging markets,” the ERG and EC said. As a general rule, they said, such markets shouldn’t be subject to prospective rules but should be allowed to develop according to the normal dynamics of market forces. The consultation paper also guides NRAs in matching remedies to competition problems. The ERG and EC also published an interim paper setting out a common position on bitstream access services (defined in the paper as the “provision of transmission capacity (upward/downward channels may be asymmetric) between an end-user connected to a telephone connection and the point of interconnection available to” a new market entrant. There’s a ‘clear role for direct intervention” by NRAs in bitstream access, they said, but NRAs must take account of varying national circumstances resulting from different network architectures as well as the different market situations around Europe. Because bitstream access is critical for the development of competition in the wholesale broadband access market, the paper said, “NRAs should mandate a bitstream access product according to national needs.” Comments on the regulatory remedies consultation are due Jan. 19 and the ERG has set a public hearing for Jan. 26 -- erg-secretariat@cec.eu.int.