The telecoms sector is regulated by a network of EU laws which seek to ensure and promote free and fair competition within this industry in Europe. Within each member state, competition in this sector is safeguarded by the two national watchdogs, namely, the national competition authority and the national telecoms regulatory authority. The two authorities together, by fulfilling different roles, seek to ensure that there is in place a competitive telecoms market.

It certainly gives an interesting interpretation of the MCA’s role and the powers that it enjoys under EU and national law

In Malta, the Malta Competition and Consumer Affairs Authority is the authority entrusted with ensuring a level playing field in all the sectors including the telecoms one as well as with curtailing any type of abuse or collusion which seeks to eradicate competition. The main focus of the MCCAA is to conduct an ex-post analysis of the market whenever a complaint alleging a breach of the competition rules is filed as well as to undertake an ex officio investigation whenever it suspects that there is a breach of the competition rules in any particular sector.

The national telecoms regulator in Malta is the Malta Communications Authority whose main role is to act as an ex-ante regulator of the telecoms sector. This means that the role of this authority, as enshrined in EU laws and transposed into national law, is that of promoting competition in the sector by facilitating entry into the telecoms market of those operators who are efficient enough to do so. The decisions that it takes are geared at identifying those operators who enjoy significant market power on the market in question and imposing on the so-identified operator, if deemed necessary, the necessary measures and obligations in order to ensure a free and fair competitive environment.

Though the objective of two different authorities may be said to be one and the same, namely that of safeguarding competition, each authority must necessarily reach its own independent conclusion on the matter being investigated. Indeed, though both authorities may cooperate, they must conduct a varied analysis of the market, one being an ex-post one and the other an ex-ante one. This varied analysis may very well lead at times to a different conclusion on the same matter.

Interesting to note that the decisions arrived at by the MCA in regulating a particular telecoms market are, in terms of EU law, subject to the scrutiny of the European Commission. Indeed, the said authority must notify the European Commission, other national regulatory authorities as well as the body of European regulators for electronic communications with any decision that it intends to adopt in order to regulate a particular sector of the telecoms market. The European Commission may well request the authority to revisit the proposed decision if it is has serious doubts as to whether it is compatible with EU law or whether it would create a barrier to the single market.

A recent local judgment delivered by the Administrative Review Tribunal gave a very interesting interpretation of the functions of the MCA when conducting a market analysis. In this particular case, Melita claimed that, in arriving at its decision relating to the extent to which Go can bundle its products, the MCA had failed to conduct the required tests to determine those measures to be imposed in order to counter the “unreasonable bundling of services” by Go. The tribunal noted that bundling could easily be used by an operator with significant market power like Go as a means to stifle competition to the detriment of other operators and to the end-user. One of the submissions made by the MCA in seeking to rebut this allegation related precisely to the fact that the Commission had not objected to the decision arrived at by the MCA. The presiding magistrate refused to accept such a submission and highlighted the fact that the acceptance of such a claim would mean that operators no longer enjoy a realistic right to appeal from a decision of the MCA.

To this end, the tribunal requested the MCA to revisit the methodology it used in arriving at its decision and in so doing to ensure that it actually fulfills its role of promoting competition by imposing measures which ensure that competition in the relevant market is not stifled by unreasonable bundling practices by a dominant player in the relevant market.

Though this decision is not yet final, in that the MCA enjoys a right to appeal to the Court of Appeal, it certainly gives an interesting interpretation of the MCA’s role and the powers that it enjoys under EU and national law.

mariosa@vellacardona.com

Mariosa Vella Cardona is a freelance legal consultant specialising in European law, competition law, consumer law and intellectual property law. She is also the deputy chairperson of the Malta Competition and Consumer Affairs Authority.

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