What are market analyses? And why does the BIPT conduct them?
One of the BIPT’s missions is to promote healthy competition in the Belgian telecommunications landscape. To that end, we at the BIPT regularly analyse (every 3 to 5 years) the telecommunications markets. If there is a dominant operator, we will impose a series of obligations upon it aimed at ensuring greater competition on the market. The competitive situation is analysed and described in detail in a market analysis decision. The BIPT in only competent for the ex ante regulation regarding telecommunications and media. We are not involved in the ex post regulation which falls within the competence of the Belgian Competition Authority. For more information regarding the difference between ex ante and ex post, and the consequences on the division of competences, click here.
How do we draft a market analysis decision?
When drafting a market analysis decision, we follow a set of steps. The market analysis is generally based on the list of relevant markets established by the European Commission. The latter periodically identifies a series of telecom markets where the degree of competition seems generally insufficient throughout Europe. Each national regulator conducts then its own analysis for its country and determines whether the level of competition of each of the relevant markets is sufficient or not and if remedies must be applied at the national level. The first list of relevant markets was published in 2003. It was then reviewed in 2007 and 2014, and the European Commission should publish an update by the end of 2020 (click here to see the evolution of the list of relevant markets).
However, it should be noted that the list of markets the BIPT may analyse is not limited to the list of relevant markets set by the European Commission. The fact that the European Commission considers that a market is sufficiently competitive throughout Europe in general does not automatically mean that it is competitive in Belgium.
Market analysis process
1°) Market definition and analysis
We start with the definition of the market, i.e. we identify and examine the services provided and competing on the market concerned. This market delimitation also happens on a geographic level. Then, we examine if there is a dominant undertaking. After that, we determine the obligations we wish to impose on that dominant undertaking in order to improve the competitive situation on the market. The final result is an official document known as a “draft decision”.
In same cases (the broadband access market among others), a draft decision will not be drafted by the BIPT but by the Conference of regulators of the electronic communications sector (“Conférence des régulateurs du secteur des communications électroniques” or CRC), which gathers the different competent regulators. This is a cooperation between the BIPT, the federal regulator for telecommunications, and the media regulator for the Brussels-Capital Region and the other media regulators responsible for the other Communities (the VRM, the CSA and the Medienrat).
2°) Public and institutional consultations
Once the draft decision is prepared, the stakeholders (i.e. the telecom operators among others) have the opportunity to react to it. The deadline for consultation is generally between 1 and 2 months. The BIPT then carries out an in-depth analysis of the responses and amends the draft decision if deemed necessary.
Subsequently, the Belgian Competition Authority (BCA) and the media regulators have the opportunity to react to the draft decision. The BIPT has a cooperation agreement with the media regulators since 2006, whereas the BCA checks if the draft decision is compliant with the objectives of competition law.
Finally, the draft decision is sent to the European Commission (EC), which has one month to provide comments if deemed necessary.
3°) Adoption of the final decision or not
If the European Commission gives the green light, the final decision is adopted, taking account of its possible observations/recommendations. If the EC has too many objections, it can initiate an investigation and the European regulators, gathered within BEREC (Board of European Regulators for Electronic communications), give an opinion. The EC can also block our decision. We must then remake the market analysis.
4°) Release of the final decision
The final version of the decision is published on our website. The entry into force of the decision is also indicated in the decision itself. A market analysis remains valid as long as no new market analysis decision has been adopted. You will find an overview of all the market analyses here.
5°) Complementary decisions
Obligations imposed in a market analyses are often further developed in one or several subsequent implementing decisions (for instance to set new tariffs or approve a reference offer of a dominant undertaking). A procedure similar to the one described for market analyses (draft decision; public and institutional consultations, adoption of the decision) is then conducted by the BIPT.
6°) Possible appeals
If operators do not agree with a market analysis decision, they may submit an appeal before the Market Court. The appeal is in principle not suspensive in effect. The Market Court may annul a market analysis decision and also has unlimited jurisdiction (see the Act of 17 January 2003 on the appeals and the settling of lawsuits following the Act of 17 January 2003 on the status of the regulator of the Belgian postal and telecommunications sectors).