On 26 September, 2022, the Spanish Competition Authority (the "CNMC") opened a public consultation procedure aiming to remove all the regulatory obligations imposed on operators active in the mobile termination market.
The CNMC considers that regulation applying at national level is no longer necessary given that - after the adoption of the Regulation (EU) 2021/654 in 2020 (the "Eurotariff Regulation") - the mobile termination service is provided in the framework of fair competition.
The public consultation period will be open for one month, so contributions from any operator active in the sector will only be accepted until 26 October 2022.
Context and background
The mobile termination market has been conventionally subject to strict regulation, both at the national and European levels.
The CNMC last analysed this market in 2018 when, in its Resolution of 18 January, they established that the market for voice call termination on individual mobile networks was not sufficiently competitive and was susceptible to be regulated ex ante.
As a solution, the CNMC decided to establish certain obligations on the operators providing mobile termination services on their respective networks regarding network access, price control, transparency, and non-discrimination, in accordance with the Directive (EU) 2018/1972 of 11 December 2018, establishing the European Electronic Communications Code.
Nowadays, the context that motivated the regulation of this market has considerably changed, and the CNMC now considers the possibility of eliminating such obligations. In the opinion of the Authority, the Eurotariff Regulation provides sufficient guarantee of effective competition in this market, by setting a single maximum Union-wide mobile voice termination rate and a single maximum Union-wide fixed voice termination rate.
In fact, the progressive reduction of regulated wholesale mobile termination rates has been crucial in fostering competition in the mobile voice market, allowing for price reductions at the end-user level and the progressive implementation of flat rates.
CNMC 's analysis
The CNMC focuses its consultation on the mobile network market and analyses the three main requirements to assess the need of an ex-ante regulation, which must be cumulatively satisfied:
- The existence of significant and non-transitory barriers to entry (structural, legal or regulatory)
The CNMC considers that there is indeed a clear structural barrier, since only the operator owning the mobile network can provide the termination service for the calls received by its customers. Therefore, this requirement would be fulfilled.
- A structure of the market that prevents effective competition
Despite the existence of high barriers to entry, the CNMC considers that the number of competitors active in the relevant market is enough to ensure competition. Even considering that certain operators enjoy monopoly status, the regulation adopted at an EU level on the mobile termination market prevents the provision of the service at excessive prices or of poor quality.
- Competition rules insufficient to address the market failures
The CNMC does not consider it necessary to analyse in detail whether national competition legislation is effective since the second requirement is not met anymore. Further, the CNMC could intervene immediately in the event that anti-competitive practices were detected in the market.
The mobile termination rates implemented across Europe because of the adoption of the Eurotariff Regulation allow the mobile termination market to operate under competitive conditions.
On that basis, the CNMC suggests that current obligations applicable to the operators providing this service should be eliminated within a period of six months. Based on the opinions received from the different players of the market, the CNMC will submit a draft measure to the European Commission before issuing its final decision.
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