On September 2017, Oxera published a discussion paper, commissioned by Liberty Global, as a contribution to the current policy debate in the EU on whether and how to regulate oligopolies in electronic communications markets (the ‘First Oxera Report’).
Since publishing that report, there have been several policy developments, including the European Parliament and Council’s presentations of their respective amendments to the European Electronic Communications Code (EECC) proposals, as well as BEREC’s response to the European Commission’s SMP Guidelines review.
While these developments do not change the conclusions of the First Oxera Report, they raise some specific issues that policymakers continue to debate.
In this supplementary paper, Oxera addresses these issues, and reaches the following conclusions:
· price is just one of many dimensions of competition and consumer outcomes. Therefore, in SMP assessments, it is not enough to show the possibility of a higher static price and conclude from this that there is a market failure because of joint SMP;
· proposals suggesting that refusal to supply access could be a leading indicator of tacit collusion, or might be enough to show consumer harm at the retail level, are incorrect. Such proposals would result in an undue lowering of the threshold for intervention;
· structural market features on their own cannot provide strong evidence on whether competition between oligopolists will be effective. It is therefore essential to take into account behavioural factors when determining joint SMP, as part of an integrated economic approach;
· the existing high standards for intervention should be maintained and it is appropriate that the burden of proof to intervene in an alleged case of joint dominance is higher than that for single dominance.