Draft Decision on Operators with Significant Market Power in the Leased Lines Market for the Purposes of nº. 1 of Article 21 of the Regulations of Operation of Public Telecommunications Networks - 2001 -
1. The Regulations of Operation of Public Telecommunications Networks, approved by Decree-Law no. 290-A/99, of July 30, with the alterations introduced by Decree-Law no. 249/2001, of September 21, establish the general conditions governing the operation of public telecommunications networks in national territory aiming at the offer of an open network, including the provision of leased lines.
One of this legal diploma's key aspects is the determination and declaration of operators with significant market power in the leased lines market, that are then subject to various different obligations as described in full detail in the Regulations of Operation of Public Telecommunications Networks.
2. In accordance with no. 1 of article 21 of the Regulations of Operation of Public Telecommunications Networks, and having previously gathered the opinion of the Directorate-General for Commerce and Competition (DGCC), it is the responsibility of ICP to determine, declare and publish, on an
3. Operators with significant market power shall be presumed to be those that fulfil the first criterion expressed in no. 2 of article 21 of the Regulations of Operation of Public Telecommunications Networks, without prejudice to the terms of point 1 of the above mentioned Regulations.
ICP must assess the market power of a specific operator by taking into consideration the following criteria: (a) capacity to influence the conditions of the leased lines market; (b) market share on the basis of sales turnover; (c) control of means of access to end users; (d) capacity of access to financial resources; (e) experience in terms of the provision of products and services in the market.
In addition, in accordance with no. 6 of article 21 of the Regulations of the Operation of Public Telecommunications Networks, two or more companies may be declared to have significant market power when they act in a concerted manner within the telecommunications market or when a group of companies, although legally distinct, maintain mutual ties of inter-dependence or subordination.
4. Grounds are not considered to exist in principle to adopt a methodology substantially different from that used for the previous declaration.
5. Thus, for purposes of determining the relevant market, the various types of lines offered were considered, including those resulting from operations of satellite networks throughout national territory (including sections of international lines installed in Portugal).
6. On the basis of the information available and in agreement with the European Commission (EC) document on the "Determination of organisations with significant market power (SMP) for implementation of the ONP Directives", presented on 01/03/99, market shares of each operator were calculated on the basis of the global turnover derived from leased lines.
In order to assess market power of operators with a market share compatible with a classification as an organisation with significant market power, consideration was also made of the criteria established in no. 5 of article 21 of the Regulations of Operation of Public Telecommunications Networks.
7. Taking into account the aforementioned criteria, PT Comunicações, S.A. is declared to be an operator with significant market power in the leased lines market.
8. Given the group relationships and inter-dependence between PT Prime - Soluções Empresariais de Telecomunicações e Sistemas, S.A. and PT Comunicações, S.A., ICP is currently analysing the situation in order to issue a decision in the future.
