The EC’s fourth review of the Recommendation on relevant markets could herald the end of a more than 20-year sectoral framework
The EC is considering whether the Recommendation needs to evolve in line with market and technological developments
On 17 June 2025, the EC launched a three-month consultation on the revision of the Recommendation on relevant markets in the telecoms sector susceptible to ex-ante regulation. The EC is considering reviewing the Recommendation to take into account major market and technological developments in EU Member States, such as 5G and fibre deployments, and the convergence of different networks and services. The aim of the consultation is to collect evidence on the state of play and developments of wholesale markets, as well as the positions of various stakeholders (e.g. BEREC, national regulators, operators, industry associations and end users) to enable the EC to assess whether – and, if so, to what extent – the current list of relevant markets should be revised.
It is necessary to periodically assess whether markets should be subject to upfront regulatory intervention
According to the EC, one of the objectives of the EU’s regulatory framework is to progressively reduce ex-ante sector-specific rules as competition in the market develops and, ultimately, to rely on ex-post competition law. As such, it is necessary – and mandated under the European Electronic Communications Code (EECC) – to periodically assess if the recommended markets continue to justify upfront regulatory obligations or if there are other markets that should be added to the list. The current set of markets that may warrant ex-ante regulatory intervention includes:
Market 1: Wholesale local access provided at a fixed location; and
Market 2: Wholesale dedicated capacity.
This list has been reviewed three times before, steadily reducing the number of markets from 18 in 2003 to just two in 2020, which Robert Mourik (Commissioner, ComReg and Chair, BEREC) has considered reflects regulators’ successful enabling of competition. However, access seekers are concerned about a potential further reduction, with the EC’s White Paper envisaging a scenario where there are no wholesale markets warranting ex-ante regulation or where only physical infrastructure access is seen as susceptible (as this represents “the most persistent bottleneck”).
The consultation does not include proposals but instead poses a wide range of questions, including on the three criteria test
As with the recent launch of the review of EU-wide fixed and mobile call termination rates, the EC’s consultation does not make any specific proposals at this stage. Instead, it asks several questions, such as:
How legal and regulatory developments should be reflected in the next iteration of the Recommendation;
The state of competition in the consumer and business broadband markets;
Whether ex-ante obligations negatively impacted investment in, and take-up of, very high capacity networks and services;
The criteria and thresholds that should be used for geographic market analysis purposes; and
Whether the three criteria test is sufficient to identify the markets still in need of ex-ante regulation.
The EC adds that the review of the Recommendation is being conducted in parallel to the preparation of the Digital Networks Act (DNA) proposal, for which a separate and dedicated call for evidence was launched on 6 June 2025. Nevertheless, the evidence and data gathered in this process may also be used for grounding the DNA proposal, which is expected by the end of the year.
