A court has overturned the TKK’s 2022 market review decision, raising questions about the procedure and analysis underpinning the deregulation of A1 Telekom
The TKK had removed wholesale access obligations previously imposed on A1 Telekom
On 12 August 2026, Austria’s Federal Administrative Court (BVwG) overturned the 2022 ruling by the Telecommunications Control Commission (TKK) to deregulate the country’s wholesale fixed access market. For many years, A1 Telekom (as the former incumbent) was required to provide access to its network to competing retail ISPs based on a charge set by the regulator. This primarily concerned local and central access points, enabling downstream operators to offer their services in locations where they did not have their own network. However, in its latest market review, the TKK determined that wholesale broadband no longer required sector-specific regulation, thereby removing regional and local access obligations previously imposed on A1 Telekom, subject to conditions. The TKK’s analysis found that A1 Telekom no longer has significant market power (SMP) in the consumer market in large parts of Austria and that the operator had signed private contracts with 19 access seekers covering the next five years at least. A1 Telekom had also agreed to offer other alternative providers access to its network on the same conditions during a transitional period, which the regulator considered would ensure functioning competition in the market.
Two operators appealed the 2022 market review decision, which was to be fundamentally flawed
Two unnamed operators appealed the ruling, which the BVwG upheld, citing deficiencies in the TKK’s investigation, and consequently referred the case back to the regulator to consider a new decision. In the proceedings before the BVwG, the “responsible panel” – the judicial panel assigned to rule on a legal appeal – found that the regulator’s market review procedure was flawed, primarily due to an incorrect legal interpretation regarding market developments as defined under Austria’s Telecommunications Act (TKG) 2021. As such, it was “incomprehensible that the TKK denied the existence of all prerequisites” of the three criteria test in assessing the state of market competition. Overall, there was a lack of sufficiently robust findings relevant to the market definition, market analysis and prior SMP obligations, which is why they should not have been revoked. According to the Austrian Regulatory Authority for Broadcasting and Telecommunications (RTR), which provides technical expertise to the TKK, the BVwG also criticised the fact that parts of the preliminary work leading to the draft contracts of A1 Telekom were carried out by the official experts within the regulator, which is again not fully in line with the procedural rules of the TKG.
The framework adopted in 2017 has come back into effect as the regulator considers its next move
By lifting the obligations imposed in the 2017 market review, the TKK’s 2022 decision thereby allowed A1 Telekom to offer access to its infrastructure on its own terms. However, the BVwG’s ruling now means that the previous 2017 regulatory framework is provisionally reinstated and that after almost four years, A1's contractual relationships with its competitors will now have to be assessed against it – although they remain in place and unaffected. In the meantime, the TKK will work to ensure that the market review launched in 2025, which is yet to be completed, continues swiftly and takes into account current competitive conditions and market circumstances. As the BVwG also relied on legal questions concerning the assessment of market developments and procedural issues, for which there is no established case law from the highest courts, the TKK is considering taking the decision to the Administrative Court of Justice for clarification. The parties to the proceedings, including the regulator, have six weeks in which to file an appeal and request suspensive effect of the BVwG’s ruling.
