BEREC Opinion on Phase II case SE/2024/2555-2556
On 18 November 2024, the Commission registered two notifications from the Swedish Regulatory Authority, Post- och telestyrelsen (PTS), concerning the markets for wholesale call termination on individual public telephone networks provided at a fixed location (fixed call termination market) and wholesale voice call termination on individual mobile networks (mobile call termination market) in Sweden.
Since the termination markets have been removed from the 2020 Recommendation on relevant markets (RRM), PTS has conducted the three-criteria test and established that continued regulation is still necessary for these markets.
On 18 December 2024, the Commission sent a serious doubts letter to PTS opening a phase II investigation pursuant to Article 32(4) of Directive (EU) 2018/1972 establishing the European Electronic Communications Code (EECC). The Commission considers that the measure is not compatible with EU law for the following main reasons:
- Lack of sufficient evidence: The Commission considers that PTS has not provided sufficient evidence to demonstrate that the three criteria test is met and that continued regulation of wholesale call termination markets in Sweden is justified. The Commission notes that PTS's analysis is based on hypothetical anticompetitive behaviour by operators, rather than specific evidence of market failure.
- Failure to consider alternative mechanisms: The Commission is also concerned that PTS has not adequately considered alternative mechanisms provided under the EU's electronic communications framework, such as Article 61(2) of the European Electronic Communication Code, which provides for the possibility to impose ex-ante obligations on access, interconnection, and interoperability of services. The Commission believes that these mechanisms could be used to address potential competition concerns in the market, making the proposed regulation unnecessary.
Based on the analysis set out in this Opinion, BEREC considers that the Commission’s serious doubts are justified, namely with regard to the application of the three criteria test and lack of sufficient evidence that the markets for wholesale call termination, as notified, meet the three criteria test, justifying the imposition of ex ante regulation, as well as to the failure to adequately consider alternative mechanisms.