S.L. 399.48 Art. 63Regulatory treatment of new very high capacity network elements. Cap. 418.

(1) Undertakings which have been designated as having significant market power in one or several relevant markets in accordance with regulation 54, may offer commitments, in accordance with the procedure set out in regulation 66 and without prejudice to sub-regulation (2), to open the deployment of a new very high capacity network that consists of optical fibre elements up to the end-user premises or base station to co-investment, for example by offering co-ownership or long-term risk sharing through co-financing or through purchase agreements giving rise to specific rights of a structural character by other providers of electronic communications networks or services.

(2) When the Authority assesses commitments made in accordance with sub-regulation (1), the Authority shall determine, in particular, whether the offer to co-invest complies with all of the following conditions:

(a) that the offer is open at any moment during the lifetime of the network to any provider of electronic communications networks or services;

(b) that the offer would allow other co-investors which are providers of electronic communications networks or services to compete effectively and sustainably in the long term in downstream markets in which the undertaking designated as having significant market power is active, on terms which include:

(i) fair, reasonable and non-discriminatory terms allowing access to the full capacity of the network to the extent that it is subject to co-investment;

(ii) flexibility in terms of the value and timing of the participation of each co-investor;

(iii) the possibility to increase such participation in the future; and

(iv) reciprocal rights awarded by the co-investors after the deployment of the co-invested infrastructure;

(c) it is made public by the undertaking in a timely manner and, if the undertaking does not have the characteristics listed in regulation 67(1), at least six months before the start of the deployment of the new network, then that period may be prolonged by the Authority at its discretion for such reasonable period as it may consider appropriate. In so doing, the Authority shall take due account of national circumstances;

(d) access seekers not participating in the co-AND SERVICES (GENERAL)

investment can benefit from the outset from the same quality, speed, conditions and end-user reach as were available before the deployment, accompanied by a mechanism of adaptation over time confirmed by the Authority in light of developments on the related retail markets, that maintains the incentives to participate in the co-investment:

Provided that such mechanism shall ensure that access seekers have access to the very high capacity elements of the network at a time, and on the basis of transparent and non-discriminatory terms, which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the deployment and take into account the competitive situation in retail markets;

(e) it complies at a minimum with the criteria set out in the Fourth Schedule and is made in good faith.

(3) If the Authority concludes, taking into account the results of the market test conducted in accordance with regulation 66(2) and (3), that the co-investment commitment offered complies with the conditions set out in sub-regulation (2), then the Authority shall make that commitment binding pursuant to regulation 66(5) to (8) and shall not impose any additional obligations pursuant to regulation 55 as regards the elements of the new very high capacity network that are subject to the commitments, if at least one potential co-investor has entered into a co-investment agreement with the undertaking designated as having significant market power:

Provided that the provisions of this sub-regulation shall be without prejudice to the regulatory treatment of circumstances that do not comply with the conditions set out in sub-regulation (2), taking into account the results of any market test conducted in accordance with regulation 66(2) and (3), but that have an impact on competition and are taken into account for the purposes of regulations 54 and 55:

Provided further that by way of derogation from this sub-regulation the Authority may, in duly justified circumstances, impose, maintain or adapt remedies in accordance with regulations 55 to 61 as regards new very high capacity networks in order to address significant competition problems on specific markets, where the Authority establishes that, given the specific characteristics of these markets, those competition problems would not otherwise be addressed.

(4) The Authority shall, on an ongoing basis, monitor compliance with the conditions set out in sub-regulation (1) and may require the undertaking designated as having significant market power to provide it with annual compliance statements:

Provided that this regulation shall be without prejudice to the power of the Authority to take decisions pursuant to article 43 of the Malta Communications Authority Act in the event of a dispute arising between undertakings in connection with a co-investment agreement considered by the Authority to comply with the conditions set out in sub-regulation (2).