AG Mázak delivers opinion in Teliasonera

The AG delivered today the opinion in the Teliasonera case. The AG's arguments will be most probably discussed intensively amongst competition lawyers and academics as they are quite ambiguous, at least to my perception.

Some remarks and personal thoughts of mine are:

1) the AG adopts the as effcient competitor criterion which to my personal view could be inappropriate in the telecoms sector when having to deal with an incumbent and where the market has been recently been liberalised (see paras 34-37).

2) the AG equates the margin sqeeze practice with that of refusal to deal. Personally i perceive refusal to deal working as an "umbrella" to other anti-competitive practices like margin squeeze, the latter enjoying some specificities.

3) the AG reiterates several times the findings of the Orcar Bronner case which perhaps are not suitable when dealing with alleged margin squeeze cases. After stating that the indispensability of the product/service is a basic criterion for having a solid margin sqeeze case, does not even consider that margin sqeeze, has to my view, as its basis the element of discrimination.

4) I still cannot understand the tendency of the EU judges and AGs not to refer at all to the essential facilities doctine...

5) The AG is of the opinon that there should be the critierion of recuperation of losses in predatory pricing cases, but not in margin squeeze cases. Although my view is that there should be not at all this criterion (merely an indication) even in predatory pricing cases, the AG's approach is inconstent. It either neglects to consider that margin squeeze could be combined with a predatory pricing practice, or perceives predatory pricing when combined with margin squeeze as a separate type of practice from mere predatory pricing (perhaps conceives the idea that in the latter case the margin sqeeze abuse "absorbs" the predatory pricing strategy).

6) Lastly, the distinction between a market where the dominant undertaking is imposed with regulatory obligations and a market with no regulatory obligations is abstract to say the least for it to play such an important role in the analysis of a case. It could be, that there is actually one market even though for one "sub-market" there are regulatory obligations and for the other one there aren't. Also, it is broadly recognised that the relative market under ex-ante regulation could be different from that determined under the ex-post regulatory perspective.

SUMMER BREAK...

Since i am heading towards some of Greece's beautiful islands, i would like to wish to everyone, a nice summer with plenty of joyful and relaxing moments. Hopefully by the mid of September the layout of the blog will change and other writters will contribute. Lastly, i would like to personally thank you all, since the past 4 months have been quite rewarding.

EETT approves 8 out of 10 OTE's consumer offers

OTE gave out a press release (in greek) yesterday criticising EETT's decision for banning OTE's most attractive offers in the market (double play). The NRA proclaims that its decision is deemed to be necessary in order to secure a competitive market. Even though these two offers are indeed attractive to consumers, they may harm competition in the long run according to EETT.

Commenting on the issue it should be mentioned that one of OTE's arguments does not stand. The argument refers to the fact that alternative operators hold as much as 50% of the market. However, this may not affect OTE's SMP. On the other hand, it could affect the regulatory measure to be imposed. The measures could be less strict requiring OTE to provide other concessions for its offers to be approved. EETT in a strange announcement refers to predatory pricing (a strategy which is not a clear cut case for authorities...woldwide) and margin squeeze methods that are not in line with competition law. EETT is competent to rule on issues involving breach of competition law in the electronic communications sector. Nevertheless, here we have a regulatory decision. No appreciation on how can OTE's offers breach competition law is carried out. Lastly, a personal remark is that since we have reached an arguably good standard of competition in the market (referring especially to broadband access), it could be now the time for our NRA to start reconsidering its approach againts OTE. Competition in the market is simply a means whereas benefit to consumers is the end (or not?). Putting other parameters into the equation is necessary for a succesful outcome and one of those parameters should be the motive to invest.

Consultation on interconnection charging methods

Terra consulting expects comments on its draft final study report on BAK (see the press release and draft final report).

Commission opens investigations against IBM

The Commission has opened two investigations against IBM (see the press release). The first one regards tying of IBM's mainframe computing hardware to its mainframe computing software not allowing third party software applications to run on its hardware. The second one involves discrimination as against competing suppliers of mainframe maintenance services.

Austria fined for failing to transpose the Data Retention Directive

According to the CJEU, Austria failed to transpose the Data Retention Directive (decision in french).

Telecom tax in favour of Spanish and French public broadcasters

The Commission has declared telecom taxes in favour of the Spanish and French public broadcasters, as compatible with state aid rules (but not given yet a definite answer as to whether those taxes are compatible with the EU regulatory framework: see europeantelecommunicationlaw.blogspot.com).

The abovementioned taxes come as part of a state plan to change the bublic broadcasters' funding, being deprived from financing through ads. The cases have some interest for the Greek riality as well where the public broadcaster (ERT) is financed through electricity taxes as well as from ads.

Commission let's Sky Italia participate in Italy's DTT beauty contest

Mediaset suffers a second blow in just two months. The Commission has lifted the restriction imposed on Sky Italia on a previous antitrust settlement and let's Sky Italia free to participate in Italy's DTT beauty contest (see FT, Euractive). However positive this may be for Sky Italia it does not guarantee that it will be assigned with one of the five frequencies and in addition it will be let to launch its broadcasting service after 2015 (if it is assigned with the frequency).

Council concludes Agreement on classified information with Liechtenstein

The Council has concluded the Agreement between the European Union and the Principality of Liechtenstein on security procedures for exchanging classified information.

Commission approves state aid for high speed internet in Estonia

The Commission has approved Estonia's state aid plan setting out the builing of the necessary infrastructure to connect rural areas with the main national optical fibre lines. The approval came as a result of setting the same conditions to all operators and owing to the lack of economic viability for operators to set up such an infrastructure (see the Commission's press release).

This case is important in view of the upcoming Greek FTTH plan. It should be mentioned that from the existing case law and the abovementioned Commission's decision, the lawyers to advise on the Greek plan (see the Ministry of Infrastructure's consulation on the tender for the legal counsel to expire on the 23rd of July, in greek)should probably be really careful when reviewing the conditions under which access will be granted to operators. Also, it seems that a homogenuous plan for the whole of the Greek territory may not pass through and therefore different models ought to be adopted depending on the particularity of each area.

Art. 29 WP findings on data retention

Art. 29 Working Party, in its 76th Meeting which was attended by Commissioner Reding has found that Member States have incorrectly implemented the Data Retention Directive (see the press release of the Meeting and the Communication to Commissioner Reding). The data retention period envisaged in each Member State varies from 6 months to 10 years where the Directive provides for a maximum of 24 months. Also, the specific list of data allowed to be retained is not followed and various other data may be retained. The WP therefore, calls for correct implementation of the Data Retention Directive, for more harmonisation, clarification of the concept of "serious crime", reduced period for data retention and strengthening of the national authorities' powers. It mentions lastly, that this incoherence should be taken into account when the Commission decides to propose the amendment or withdrawal of the Data Retention Directive.

Swedish ban on internet gambling permitted

The ban imposed on internet gumbling by the Swedish State is permissible according to the CJEU's ruling in the Sjöberg case as long as the penalties foreseen for the internet gubling operators are not any stricter than those provided for Swedish operators (see also outlaw.com).

SWIFT Agreement adopted

The Parliament accepted the Council's decision on the conclusion of the Agreement. However, it is proposed by some members of the EP recourse to the CJEU, viewing the deal as unconstitutional (see for example GUE/NGL party's press release). In essence, transfer of bulk data, the main reason why the EP rejected the agreement in February, will be allowed under the supervision of Europol which is going to be the authority that the US authorities will submit any request for data transfer and until an appropriate body is being set up. In addition, a group of specialists will have their seat in the US, supervising the process of the data.

Google as a dominat search engine operator

The European Commission has been investigating from February, Googgle's behaviour with regard to the operation of its search engine (see press release). Almunia, in a lecture before the UCL Jevons Institute (always glad to see UCL's commitment to organise such events...) did not refer to this case individually, but mentioned the potential problems when dominant search engine operators engage in anti-competitive conduct (see press release). It remains to be seen how this case will end-up although it is insinuated in the Press that this case may lead to litigation (see euractiv and the wsj).

Portugal Telecom's golden shares case

The CJEU delivered its judgement by which the Portuguese state's holding of Portugal Telecom's golden shares, restricts the free movement of capital. It ought to be mentioned that several states engage in the same tactic, engulfing public utility companies to deter loss of control (see The European Telecommunications Law Blog), and the Greek state has to some extent endorsed this method in relation to OTE.

Greek Data Protection Authority on the census of the state's public servants

The Greek government issued a ministerial order setting out the conditions and method for the census of the state's public servants, given their excessive number and financial burden on the country's public finances. The order was issued after the IMF-EU MOU became part of the country's internal order. The Greek Data Protection Authority delivered a decision yesterday (see here in greek and laso an rticle of imerisia in greek), prescribing that the Greek state should not include in the electronic system on which the details of the public servants will be gathered, any details not related to the servans' salary, like decree gardes and others. The Authority moreover, demanded that the Greek state uses various methods (encyrption etc.) so that the servants' data will be safely enclosed in the database.

A preliminary examination of the decision, raises some issues. First, decree grades do sometimes relate to the servants' salary. Various servants join committees based on their qualifications. Their participation in the committees is payed (although the Greek government has announced its intention to refrain from paying servants that are part of the committees). And this participation is based on the servants' qualifications. Secondly, the part of the decision providing that the state should use specific methods to deter disclosure of the data, should perhaps had been given through a recommendations as a more suitable instrument if no detailed examination on the state's electronic system and its safeguards is undertaken.

Greek frequency map

The Ministry of infrastructure is purported (source: naftemporiki, in greek) to be instigating a consultation in order to reach to a final version of the country's frequency map as far as radio broadcasting is concerned. This is one of the many steps the Greek State has to take in order to clarify the frequency map that will enable an efficient distibution of the digital dividend bringing new services to the Greek market.