Robots de tipo Uniciclo

3.7.4 Extraterritorial associated facilities provider

As is discussed further in Annex A.4.3, it is quite possible that associated facilities will be located either partly or wholly outside the country in which the service is offered and indeed outside the EU (‘partly’ because the databases may have a distributed structure).

This is potentially important because in such a case, regulators may not be able to apply their national law to the providers of the associated facility unless they have some local presence (e.g. as a local service provider).

3.8 Potential remedies to anti-competitive behaviour

In this section we examine the potential remedies available to regulators. We do this not because we have concluded that regulation is necessary, but because the same types of issues are likely to occur relating to many new or emerging services, and we can understand regulatory issues for all sorts of convergent services which might arise in future by looking at IM as a hypothetical case.

There are a number of regulatory regimes which apply, in order of increasing intrusiveness:

• general conditions on providers of ECNs, associated facilities, public ECS, or PATS

• using Article 5 of the Access Directive

• ex-ante regulation of players with SMP in a relevant market (e.g. via Article 12 of the Access Directive)

• other measures, including standardisation and ex-post competition law.

3.8.1 General conditions

If both IM and PM were considered to be ECS (or associated facilities), then they would be subject to general conditions of authorisation. Most of these are (in effect) concerned with consumer protection, and are not onerous. The conditions are discussed in slightly more detail in Annex 5.1.

3.8.2 Article 5 of the Access Directive

Article 5.1 of the Access Directive could be used to impose obligations on certain players even if they are not dominant (i.e. potentially all players), if they control access to end users. The question is whether associated convergent service providers are undertakings that control access to end-users.

Within the Access Directive, (Recital 19):

Control of means of access to end users may entail ownership or control of the physical link to the end-user (either fixed or mobile) and/or the ability to change or withdraw the national number or numbers needed to access an end-users network termination point.

It is unclear whether this might, for example, include ownership or control of an IP address, a URI (which identifies a resource on the Internet e.g. www.analysys.com or [email protected]) or an IM user ID, as once an IP address exists there is no obligation to use another means, such as a SIP address, to find it. Accordingly, providers of associated convergent services, such as IM and presence management services, may not be

“undertakings that control access to end users”.

It is therefore worthwhile to clarify whether in the definition of control of access to end users the phrase “the national number or numbers needed to access an end-users network termination point” goes beyond an E.164 number and whether it includes, for example, IP addresses, SIP URI, email addresses, IM user IDs, etc.

Although this seems a narrow point, it is extremely important, because regulation under Article 5 of the Access Directive could extend to include undertakings without SMP offering a wide variety of services (i.e. the impact of this point is much wider than just IM and PM).

3.8.3 Remedies that apply to players with SMP in a relevant market

If associated convergent services (such as IM and PM) were considered to be ECS (or

were dominant (or several were jointly dominant), then there are potential ex-ante remedies available within the NRF, specifically via Article 12 of the Access Directive.

Under Article 12, operators may be required inter alia:

“…to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services” and “to provide specified services needed to ensure interoperability of end to end services to users, including facilities for intelligent network services or roaming on mobile networks.”

This is discussed in more detail in Annex A.5.

3.8.4 Other measures including standardisation and ex-post competition law

There are alternative ways of intervening in such a market as this.

• If PM or a similar associated facility was considered to be an information society service, then national law, as long as it abides by the Information Society Services Directive, is a possible means of regulation.

• the Commission could (in some circumstances) mandate a particular standard in order to improve interoperability.

• Article 6 of the Software Directive (Directive 91/250/EC of 14 May 1991) might, in effect, solve the problem of a closed protocol for associated convergent services, similar to presence management, because it would be legal to reverse engineer the protocol.

• Recently, (24/9/03) the European Parliament voted for amendments to the proposed EU Directive on the Patentability of Computer-Implemented Inventions. These amendments would stop the use of patents to prevent competitors from becoming interoperable.

• As always, ex-post competition law remedies could be used.

Annex A.5 discusses some of these potential remedies in slightly more detail.

3.9 Conclusions

In this section we draw conclusions regarding IM and PM, and more general points arising from this discussion.

3.9.1 Conclusions regarding IM and PM

IM and PM is a relatively new market and is still undergoing rapid growth. However, it could be argued that there are already a large number of users and that, therefore, this service is not so new or so rapidly growing that regulatory forbearance is necessarily required.

The alleged harm to consumers arising from the behaviour of dominant players is, as yet, a relatively minor inconvenience – consumers need multiple instances of client software (in cases where the third party clients are unable to interoperate). This is an example of

“multiple IM products taking up valuable real estate on the desktop”, as previously mentioned.

Nevertheless, if we draw an analogy into the traditional voice telecoms market, users would need multiple telephones (clients) on their desk (PC desktop), one per competing telephone service provider (IM service). Regulators would probably consider such a situation unacceptable. So we should not simply assume that needing multiple clients, or having closed protocols (which creates this need) is not an issue of concern.

We emphasise that the above statements form a discussion aimed at finding the potential areas of this service and similar services within the NRF, and the remedies which might be used in these cases, and that this discussion contains many hypothetical statements. We are not recommending ex-ante regulation of IM and PM services at this time.

3.9.2 More general conclusions

In this section we have looked at IM and PM as an example of an associated convergent

• Free services: There is existing European case law that suggests that IM services (and similar services) are “services normally provided for remuneration”.

• Associated facilities: If regulators wished to intervene either in similar markets or indeed in this specific case, then it would be essential to clarify whether PM (or a similar service) is an ‘associated facility’. The procedures for determining whether a particular network or service element is to be considered an associated facility are rather unclear. Some kind of harmonised position on this issue may be worthwhile.

• Control of access to end users: It is important to clarify whether in the definition of control of access to end users “the national number or numbers needed to access an end-users network termination point” goes beyond an E.164 number and whether it includes, for example, an IP address, SIP addresses, email addresses, IM user identities, etc. If so, then Article 5 of the Access Directive could be used.

• Relevant markets: If PM (or a similar service) is an associated facility, and there is a relevant market defined, and any of the existing players were found to be dominant or jointly dominant, Article 12 of the Access Directive could be used.

• Extraterritoriality: Certain network facilities, for example, presence management databases, can be provided from a different country. This country may even be outside the EU. Regulators do have tools with which to regulate the provision of associated facilities within the NRF. Nevertheless, it may be difficult to apply these remedies to companies that are in another jurisdiction.