[Axon Research]: Untangling the wires

Implementation of Art. 61(3) EECC and wholesale access obligations beyond SMP determination

In this article, we discuss the main features of Article 61(3) EECC and provide a critical assessment of how the BEREC’s Draft Guidelines are expected to assist NRAs implementing the new provisions.

The Draft Guidelines, although generally helpful, provide NRAs with a challenging list of options, criteria,The Draft Guidelines, although generally helpful, provide NRAs with a challenging list of options, criteria and conditions which, despite best intentions, will require significant follow up work by NRAs, especially if the access requests covered by Article 61(3) EECC turn out to be of real interest to telcos as an alternative to other remedies (e.g., bitstream access) and/or are actively encouraged by regulators as a matter of policy. NRAs may also have to take decisions through the seemingly endless menu of the Draft Guidelines, in time before the kitchen closes.
Let’s not forget that the Draft Guidelines are not a strict set of rules – neither do they pretend to be so. NRAs are simply required to “take utmost account” of BEREC’s guidelines, and the EU Court of Justice’s case law allows them to discard them, if they think this is appropriate, as long as they give reasons for their position3. Be that as it may, untangling the wires of Article 61(3) will require extra care to avoid sparks. and conditions which, despite best intentions, will require significant follow-up work by NRAs, especially if the access requests covered by Article 61(3) EECC turn out to be of real interest to telcos as an alternative to other remedies (e.g., bitstream access) and/or are actively encouraged by regulators as a matter of policy. NRAs may also have to take decisions through the seemingly endless menu of the Draft Guidelines, in time before the kitchen closes.
Let’s not forget that the Draft Guidelines are not a strict set of rules – neither do they pretend to be so. NRAs are simply required to “take utmost account” of BEREC’s guidelines, and the EU Court of Justice’s case law allows them to discard them, if they think this is appropriate, as long as they give reasons for their position3. Be that as it may, untangling the wires of Article 61(3) will require extra care to avoid sparks.

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