Notification

of a Draft Measure Pursuant to Article 7, para. 3, of the Framework Directive 2002/21/EC for

Call Termination on Individual Public Telephone Networks of Alternative Network Operators Provided at a Fixed Location (Market 9)

Pursuant to Articles 9 to 11 of the German Telecommunications Act, transposing Articles 14 to 16 of the Framework Directive 2002/21/EC, the Bundesnetzagentur (BNetzA) – Federal Network Agency has conducted a market definition and SMP-designation of call termination on individual public telephone networks of alternative network operators (ANOs) provided at a fixed location.

Originally the then Regulierungsbehörde für Telekommunikation und Post (Reg TP) had undertaken a market review spanning the markets for call origination on, call termination on and transit services in the fixed public network (markets 8 – 10). After carrying out a national consultation pursuant to Article 12, para. 1, of the German Telecommunications Act which transposes Article 6 of the Framework Directive 2002/21/EC, and after reaching agreement with the German Federal Cartel Office as prescribed by Article 123, para. 1, of the German Telecommunications Act, on 15 February 2005 Reg TP notified the European Commission and the regulatory authorities of the other Member States of the European Union of its proposed market definitions and SMP-designations in accordance with Article 12, para. 2, of the German Telecommunications Act which transposes Article 7, para. 3, of the Framework Directive 2002/21/EC. The reviews were registered under the case references DE/2005/0143 (market 8), DE/2005/0144 (market 9) and DE/2005/0145 (market 10).

Whereas the Commission had no comments related to the notifications on markets 8 and 10 (cf. the no comments letter from 14 March 2005) and to the notification on market 9 as far as the market of Deutsche Telekom AG was concerned (cf. Commission decision C(2005)1442 final of 17 May 2005, Article 2 para. 2), Reg TP was obliged to withdraw the notified measures as far as the call termination markets of the ANOs were concerned (cf. Commission decision C(2005)1442 final of 17 May 2005, Article 2 para. 1).

On 1 June 2005 RegTP published the above-mentioned Commission decision according to Article 12 para. 2 nr. 3 sent. 3 in conjunction with para 1 of the German Telecommunications Act. The consultation ended on 22 June 2005. The results, published on 10 August 2005, have been taken into account.

Following that consultation the now BNetzA decided to accept the amendments proposed by the Commission. It amended the draft in accordance with the Commission decision of 17 May 2005.

On 17 August 2005 the BNetzA reached agreement with the German Federal Cartel Office as prescribed by Article 123, para. 1, of the German Telecommunications Act.

The BNetzA hereby notifies the European Commission and the regulatory authorities of the other Member States of the European Union of its proposed market definitions and SMP-designations in accordance with Article 12, para. 2, of the German Telecommunications Act which transposes Article 7, para. 3, of the Framework Directive 2002/21/EC. At the same time it formally withdraws the draft measures concerning these markets notified on 15 February 2005.

The main results are set out in this summary notification form.

Section 1: Market Definition

1.1 / The relevant product/service market(s) concerned. Is this market mentioned in Commission Recommendation 2003/311/EC on relevant markets? / Commission Recommendation market number 9:
Call termination on individual public telephone networks of alternative network operators provided at a fixed location including local call conveyance.
The following companies are active on such markets:
  • accom Gesellschaft für Telekommunikationsnetze u. -dienstleistungen mbH & Co. KG
  • Arcor AG & Co.
  • AugustaKom Telekommunikation GmbH & Co. KG
  • BITel Gesellschaft für kommunale Telekommunikation mbH
  • BreisNet Telekommunikations- und Carrier-Dienste GmbH
  • BT (Germany) GmbH & Co. oHG
  • ChemTel Telekommunikations GmbH Chemnitz
  • Citykom Münster GmbH Telekommunikationsservice
  • CNE Gesellschaft für Telekommunikation mbH
  • COLT Telecom GmbH
  • DATEL Daten- und Telekommunikations- GmbH Dessau
  • DOKOM Gesellschaft für Telekommunikation mbH
  • envia.tel GmbH
  • EWE TEL GmbH
  • freenet Cityline GmbH
  • GöTel GmbH
  • HanseNet Telekommunikation GmbH
  • HEAG MediaNet GmbH
  • HeLi NET Telekommunikation GmbH & Co. KG
  • HL komm Telekommunikations GmbH
  • htp - Hannovers Telefon Partner GmbH
  • IN-telegence GmbH & Co. KG
  • ISH GmbH & Co. KG
  • ISIS Multimedia Net GmbH & Co. KG
  • jetz! Kommunikation GmbH & Co. KG
  • Kabel Baden-Württemberg GmbH & Co. KG
  • KielNET GmbH
  • LeuCom Telekommunikationsgesellschaft mbH
  • M"net Telekommunikations GmbH
  • MCI WorldCom Deutschland GmbH
  • MDCC Magdeburg-City-Com GmbH
  • meocom Telekommunikation GmbH
  • NetCologne Gesellschaft für Telekommunikation mbH
  • Netcom Kassel Gesellschaft für Telekommunikation mbH
  • osnatel GmbH
  • PfalzKom Gesellschaft für Telekommunikation mbH
  • QSC AG
  • SDTelecom Telekommunikations GmbH
  • TeleBeL Gesellschaft für Telekommunikation Bergisches Land mbH
  • telelev Telekommunikation GmbH
  • Téleos GmbH & Co. KG
  • tnp telenet Potsdam Kommunikationsgesellschaft mbH
  • TROPOLYS Netz GmbH
  • Ventelo Deutschland GmbH
  • Versatel Berlin GmbH
  • Versatel Germany GmbH
  • Versatel Nord-Deutschland GmbH
  • Versatel Süd-Deutschland GmbH
  • Versatel West-Deutschland GmbH & Co. KG
  • VSE NET GmbH
  • wilhelm.tel GmbH
  • WOBCOM GmbH
As far as alternative network operators not listed here offer now or in the future call terminiation on their public telephone networks provided at a fixed location including local call conveyance, they are establishing a relevant product market in terms of this market review. / Chapter D. I.
1.2 / The relevant geographic market(s) concerned / The markets for call termination follow the area covered by the operator’s fixed telephone network. / Chapter D. II.
1.3 / A brief summary of the opinion of the national competition authority / The German Federal Cartel Office agrees with the approach and the results of this market definition. / Chapter B. II.
1.4 / A brief overview of the results of the public consultation to date on the proposed market definition / Apart from the responses received during the consultation in September and October 2004 (cf. the original notification from 15 February 2005), two further comments were received during the consultation from 1 till 22 June 2005. Both comments support in the end the proposed market definitions. / Chapter
C.
1.5 / Where the relevant market defined is different from those listed in the annex to the Commission Recommendation on relevant markets, a summary of the main reasons justifying the proposed market definition / The proposed market definitions correspond to those recommended by the Commission.
The markets defined have passed the “three criteria test” as explained in Recitals 9 to 16 of the Commission Recommendation 2003/311/EC on relevant markets. / Chapter E.

Section 2: Designation of undertakings with significant market power

2.1 / The name(s) of the undertaking(s) designated as having individually or jointly significant market power. Where applicable, the name(s) of the undertaking(s) which is/are considered to no longer have significant market power. / Cf. point 1.1; each ANO has significant market power on its own market. / Chapter F.
2.2 / The criteria used for deciding whether or not to designate an undertaking as having individually or jointly with others significant market power. / The main criteria used are the following
  • Market share;
  • Factual and potential competition;
  • Absence of or low countervailing buyer power;
  • Easy or privileged access to capital markets/financial resources;
  • Market barriers; Control of infrastructure not easily duplicated;
/ Chapter F.
2.3 / The name of the main undertakings (competitors) present/active in the relevant market. / Cf. point 2.1. / Chapter F.
2.4 / The market share of the undertaking(s) mentioned above and the basis of its calculation / 100 per cent each / Chapter F.
2.5 / A brief summary of the opinion of the national competition authority / The German Federal Cartel Office has doubts as to the SMP-designation. However with respect to the Commission decision it agrees with the draft. / Chapter B.II.
2.6 / A brief overview of the results of the public consultation to date on the proposed designation(s) of undertaking(s) having significant market power. / Apart from the responses received during the consultation in September and October 2004 (cf. the original notification from 15 February 2005), two further comments were received during the consultation from 1 till 22 June 2005. Both comments support the results of the original market analysis conducted by Reg TP. / Chapter
C.

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