In December 2020, the AdC completed its study on the sharing of electronic communications networks.
Given the growing number of network sharing initiatives by operators and providers of electronic communications services, including in Portugal, the AdC seeks with the study to frame these partnerships in the applicable competition framework, anticipating possible notifications to the AdC. The study identifies as main categories of infrastructure sharing; describes competitive assessment methodologies, including a summary of the main benefits and potential effects; and typifies the main forms of network sharing. The document also presents the most relevant European case law on this matter.
Regardless of the underlying motivations, network sharing initiatives are likely to have restrictive effects on competition. Regarding partnerships in the electronic communications sector, the main anti-competitive effects relate to (i) the reduction of competition for the infrastructure, traditionally considered as the one that generates the greatest benefits for consumers; (ii) increasing incentives to coordinate behaviour, in particular, due to the existence of shared costs and the exchange of information between the parties; (iii) the foreclosure of the market and discrimination in the treatment of third parties, as a result, for example, of the adoption of exclusivity clauses; and (iv) the effects arising from the presence of compensation mechanisms.
The AdC has identified, in a non-exhaustive way, a set of elements whose analysis is essential in the context of the competitive assessment of partnerships, including cooperation agreements and joint ventures, in the electronic communications sector. The AdC noted that analyzes of this nature must take into account the specificities of each sharing agreement and of the companies that are part of it, as well as framing the sharing initiatives in the context of the relevant markets affected, including measurement of market power.