The court annulled the ACM’s analysis of Markets 3a and 3b, which means KPN and Vodafone Ziggo are now exempt from access obligations.
Background: The Dutch Authority for Consumers and Markets (ACM) completed its latest review of the wholesale fixed access market in September 2018. The decision regulated networks other than KPN for the first time, imposing obligations on cable operator Vodafone Ziggo. The operator was required to provide bitstream access over its network at regulated rates, to allow access seekers to offer retail customers at least a bundle of internet with television and/or telephony. KPN was also confirmed to have SMP, as in previous reviews. The ACM believed the two operators were in a position to potentially collude and distort the market to their advantage, or raise prices for consumers.
The court overturns the decision: Ziggo decided to appeal the ACM’s decision. On 17 March 2020, the Dutch Trade and Industry Appeals Tribunal (CBb), which is the highest administrative law court in the Netherlands, published its ruling which reverses the ACM’s decision. The tribunal disagreed with the ACM in its assessment that the two operators could collude in denying access to other operators. It believes that KPN has a stronger incentive to keep granting such access, and that the operator would do so in some form even in the absence of ex-ante regulation. The tribunal also rejected the view of a ‘natural duopoly’ in broadband infrastructure, and noted that fibre deployment is evolving in a way that strengthens competition in higher-quality segments of the market.
Next steps: As a result of the ruling, KPN and Vodafone Ziggo are now free from access obligations. In a statement, the regulator said it is disappointed with it, and will “study the effects thereof”. It also notes that its concerns about competition on telecommunication markets that are crucial to society have not subsided.
