In its previous Recommendation on relevant markets, the EC considered that the relevant retail market includes the minimum set of leased lines which "comprises the specified types of leased lines up to and including 2Mb/sec as referenced in Article 18 and Annex VII of the Universal Service Directive". This "minimum set of leased lines" refers to specific leased lines with harmonized features which should be available under certain conditions throughout the national territory 1.
Under current legislation, ICP-ANACOM is charged with imposing obligations to provide the minimum set of leased lines (and associated conditions) on undertakings with SMP with respect to the provision of specific elements or provision of the entire minimum set, throughout the entire national territory or part thereof. Indeed, the ECL expressly addresses the minimum set of leased lines in the context of the controls in the retail markets - see Article 82 and 83 2.
Following the market analysis conducted in 2005, it was found that the leased lines retail market in Portugal consisted of analogue and digital lines of up to 2 Mbps, covering the entire national territory, whereas obligations were imposed on the provider with SMP as set out in Table 1 (see section 1.1). Having examined the digital leased lines of a capacity equal to or exceeding 34 Mbps, ICP-ANACOM did not identify a relevant retail market covering these products, also considering that market regulation at wholesale level would be sufficient to meet the regulatory objectives in this respect, in view especially of the extremely low volume and revenues from higher-capacity retail lines (up to 2004).
This market of analogue circuits and digital lines up to 2 Mbps coincided with the retail market for leased lines covered by the minimum set, as previously defined by the EC.
However, in the current Recommendation, , the EC does not identify the retail market for leased lines as a relevant market susceptible to ex ante regulation and proposed from the outset to "reduce the minimum set of leased lines to zero" 3. Indeed, on 21/12/2007, the EC adopted "Commission Decision amending Decision 2003/548/EC 4 as regards the deletion of specific types of leased line from the Minimum Set of Leased Lines", specifically article one - "The list entitled 'Identification of the minimum set of leased lines with harmonised characteristics and associated standards' is hereby deleted from the Annex to Decision 2003/548/EC" 5.
According to the EC, analogue leased lines are no longer technically relevant, given the widespread migration to new network architectures supported over digital technologies. Additionally, the EC deems that demand for digital circuits is being met by the market and is also growing for high-speed connections, over 2 Mbps.
However, this in itself does not exclude the possibility of the retail market for leased lines being identified as a relevant market for the purposes of ex ante regulation at a national level. On the other hand, because some time has elapsed since the completion of the previous analysis of the leased lines market, ICP-ANACOM deems it necessary to confirm that the factors considered at that time have not changed at retail level.
Therefore, and in light of indication given by the EC in the Recommendation in question, it is necessary to analyse in any case if the retail market for leased line meets the "three criteria" test - see section 1.4 above- and if it should remain as a relevant market subject to ex ante regulation.
In order to apply this test to the retail market for leased lines, it is first necessary to proceed with the definition of the product market and of the geographic market at retail level - this is done in the following sections.
Finally, according to the European Regulators Group (ERG) 6, if, in its analysis of a given market, the NRA concludes that the "three criteria" which might justify the imposition of ex ante regulatory obligations are not cumulatively satisfied, the NRA must also conclude that no operator has SMP in this market and, accordingly, it should remove the previously imposed obligations within a reasonable period, following notification to interested parties. In such cases a further in-depth analysis of SMP is not deemed necessary.
1 Guaranteeing, in particular: open access to leased lines, according to conditions of equality, transparency and non-discrimination; the provision and publication of information on conditions of supply; the observation, with respect to the prices charged and the discounts made, of the basic principles of cost orientation, transparency and non-discrimination; and the observation of goals which may be defined by ICP-ANACOM for the established conditions of supply (especially regarding levels of quality of service).
2 The ECL (article 121, paragraph 3) further sets out that the obligations comprised in the bases for the concession of the telecommunications public service approved by Decree-Law no. 31/2003 of 17 February shall remain in force, whereby the concessionaire company shall remains subject to the obligation to provide the leased lines required for the provision of telecommunications services of public use in the entire national territory.
3 See "Explanatory Note", page 39.
4 Decision of 24 July 2003 on the minimum set of leased lines with harmonised characteristics and associated standards referred to in Article 18 of the Universal Service Directive (Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002).
5 Paragraph 3 of article 18 of the Universal Service Directive provides that the EC may delete certain types of leased lines from the minimum set. The EC public consultation "revealed broad support from Member States, industry associations and stakeholders for the deletion of the five types of leased lines from the current minimum set".
6 See "ERG Report on Guidance on the application of the three criteria test".