BEREC Opinion on Phase II investigation pursuant to Article 7a of Directive 2002/21/EC as amended by Directive 2009/140/EC: Case PT/2016/1888 and 1889

On 1 July 2016, the Commission registered a notification by the Portuguese Regulatory Authority, ANACOM, concerning the markets for wholesale local access (market 3a - WLA, case PT/2016/1888) and wholesale central access (market 3b - WCA, case PT/2016/1889) in Portugal.
ANACOM proposes to continue to regulate access to the copper loops, ducts and poles of the incumbent MEO in the WLA market on a nationwide basis. Moreover, ANACOM imposes access to dark fibre on a subsidiary basis, in areas where there is no additional space available in ducts and on poles. As to the WCA market, ANACOM proposes to maintain regulated access to the specific bitstream services via copper in the non-competitive areas.
However, ANACOM intends not to impose an obligation on MEO to provide any form of access to its fibre network in either the WLA market or WCA market.
On 29 July 2016, the Commission sent a serious doubts letter opening a phase II investigation pursuant to Article 7a of Directive 2002/21/EC as amended by Directive 2009/140/EC. The Commission’s doubts concern failure to impose regulatory remedies with regard to fibre networks on either local or central access markets in Portugal.
On the basis of the economic analysis set out in this Opinion, BEREC considers that the Commission’s serious doubts are justified.
BEREC suggests that, in order to deliver a sufficiently convincing argument for not including a fibre access obligation on market 3a and (secondary) on market 3b in the NC areas, ANACOM should include in its forward looking assessment a more thorough analysis regarding how future investments may influence future market shares, assess the future demand for access to MEO’s fibre network, and analyse whether MEO’s commercial fibre offer has the characteristics that could make a fibre access obligation in the non-competitive areas unnecessary.