Some critical reflections about access obligations under the European communications framework

Communications & Strategies, Oct, 2007 by Natali Helberger

(2) Council Directive 90/387/EEC of 28th June 1990 on the establishment of the Internal Market for telecommunications services through the implementation of Open Network Provision, 24 July 1990, OJ L192, 24.7.90; Council Directive 92/22/EEC of 5th June 1992 on the Application of Open Network Provision to Leased Lines, 19 June 1992, OJ L165; Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP) , 26 July 1997, OJ L 199, p. 32; Directive 97/51/EC of the European Parliament and of the Council of the 6 October 1997 amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications, 29 October 1997, OJ L 295, p 23; Directive 98/10/EC of the European Parliament and of the Council of 26 February 1998 on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment, 1 April 1998, OJ L101, p. 24.

(3) Council Directive 95/47 of 24 October 1995 on the use of standards for the transmission of television signals, Brussels, 23 November 1995, OJ L 281, p. 23 [hereinafter 'Directive on Television Standards'].

(4) Note that even if a facility in digital broadcasting is an essential facility that does not imply automatically that its controller will also refuse access to it. It would exceed the scope of this article to explain under which conditions leverage of market power through bottleneck control would be a likely scenario, see instead the different arguments brought forward in Speta 2000, Lemley & Lessig 2001, and also Leveque 2006 (for online music markets and Digital Rights Management systems).

(5) The larger the number of services carried via a particular technical platform, the more attractive the platform will be in the eyes of consumers and, finally, of other service providers. Access to the first pay-TV platform and its embedded facilities will become even more important for market entry, with the result that its controller will have even more influence on market developments.

(6) See European Commission, Commission Decision of 29 July 1987 relating to a proceeding under Article 86 of the EEC Treaty (Case IV/32.279--BBI/Boosey & Hawkes), 9 October 1987, OJ L 286, p. 36 [hereinafter 'BBI/Boosey & Hawkes'], paragraph 19. The judgements of the European Court of Justice in, for example, the cases Bronner and Magill support this view, European Court of Justice, Judgment of the Court of 6 April 1995, Radio Telefis Eireann (RTE) and Independent Television Publications Ltd (ITP) v Commission of the European Communities, Joined cases C-241/91 P and C-242/91 P, European Court reports 1995, p. I-743 [hereinafter 'Magill']. European Court of Justice, Judgment of the Court of 26 November 1998, Oscar Bronner GmbH & Co. KG v Mediaprint Zeitungs--und Zeitschriftenverlag GmbH & Co. KG, Mediaprint Zeitungsvertriebsgesellschaft mbH & Co. KG en Mediaprint Anzeigengesellschaft mbH & Co. KG, Referentie voor een voorafgaande uitspraak: Oberlandesgericht Wien--Austria, Case C-7/97, European Court reports 1998, p. I-7791 [hereinafter 'Bronner'].