BEREC Opinion on Phase II investigation pursuant to Article 7 of Directive 2002/21/EC as amended by Directive 2009/140/EC Case NL/2017/1960 Wholesale high-quality access provided at a fixed location (Market 4) in Netherlands

On 10 January 2017, the European Commission registered a notification from the Dutch National Regulatory Authority, Autoriteit Consument & Markt (ACM), concerning the market for, Wholesale High-Quality Access provided at a fixed location (WHQAFL Market) in the Netherlands.

ACM defines a national WHQAFL Market which includes wholesale high-quality broadband access , wholesale terminating segments of leased lines, DWDM and dark fibre connections provided over copper and fibre infrastructure irrespective of its capacity. ACM proposes to designate KPN with significant market power (SMP), based on market shares, control over an infrastructure that is not easily replicated, scale and scope advantages, absence of potential competition and an absence of countervailing buyer power. However, the proposed access remedies only include the obligation for KPN to provide WHQAFL for services that use the copper local loop. ACM does not consider it necessary or proportionate to impose an obligation on KPN requiring it to provide access to WHQAFL using fibre-optic local loops.

On 10 February 2017 the Commission sent a serious doubts letter to ACM opening a phase II investigation pursuant to Article 7 of Directive 2002/21/EC as amended by Directive 2009/140/EC. The Commission’s serious doubts concern ACM’s market definition and SMP assessment.

On the basis of the analysis set out in this Opinion, BEREC considers that the Commission’s serious doubts are justified.