The European Commission recently proposed a revision to its existing regulatory framework for telecommunications, the details of which have been amply discussed and are currently being negotiated. A pivotal theme of the revision is a stronger emphasis on stimulating investments into broadband networks capable of delivering high-speed (100+ Mbps) internet services. This brief highlights and briefly discusses some key changes in that regard.
High-speed broadband networks are the backbone of the fast-growing digital economy. Promoting citizens’ access to such networks has been one of the European Commission’s stated policy priorities at least since 2010, when it launched its “Digital Agenda for Europe” (EC, 2014). Its policy mix of choice involves measures and funds facilitating deployment of so-called next-generation access networks on the one hand (commonly taken to mean access networks capable of delivering speeds exceeding 100 Mbps), while on the other hand regulating access to such networks to the extent perceived necessary to deal with potential problems resulting from incumbent network operators’ degree of market power. As regulation may harm incentives to invest in network infrastructure in the first place, a balance between investment promotion and competitive safeguards needs to be struck.
Motivated by what it considers to be a sub-optimally low speed of network upgrading in at least some of the EU’s member states, the Commission has sought to adjust its policy balance in favor of investments by proposing a revision (EC, 2016) of its regulatory framework for electronic communications, called the European Electronic Communications Code (EECC), which defines a standard approach to regulating fixed broadband network operators deemed to possess significant market power. That revision has been commented upon and discussed by the European Parliament and the European Council as well as various private and public stakeholders (Szczepański, 2017). Several amendments have been proposed and further discussion is ongoing to reach a compromise between the European institutions.
Telecommunications networks were until more recently typically owned by vertically integrated, often formerly state-run, national incumbents who even after their privatization and the elimination of most legal barriers to entry were considered to possess significant market power. The EECC’s key remedy to such market power is so-called network unbundling at the wholesale level: considering the retail market for internet service provision potentially competitive, unbundling means granting competing internet service providers regulated access to the incumbent operator’s physical local-area access network, which is commonly regarded as the key bottleneck in internet service provision. Choosing the intrusiveness of the access obligation is up to the national regulatory authority (NRA), ranging from merely demanding that the incumbent publicly post a reference offer, to stricter measures such as non-discrimination, “fair and reasonable” pricing, and ultimately, full-on access price regulation, typically implemented with price caps derived from regulatory costing models. A recommendation from 2013 (EC, 2013) outlines methodological guidelines to national authorities.
The proposed EECC revision makes the abovementioned recommendation binding, which may partly be an attempt to further harmonize regulatory practice between member states, with a view to encouraging cross-border investments by operators and service providers. It also encourages NRAs to, where possible, abandon more rigid price regulation in favor of margin squeeze tests. Margin squeeze occurs when a vertically integrated firm with market power in the wholesale segment of a production chain “squeezes” retail competitors by setting high wholesale and low retail prices, to the extent that even equally efficient, or at least reasonably efficient, retail competitors cannot survive if they are dependent on the dominant firm’s wholesale product. Moreover, and more importantly in terms of boosting deployment, the proposal encourages lighter-touch regulation for operators deploying new network infrastructure (Art. 72), and specifically relaxes regulation for deployment projects open to co-investments between operators (Art. 74). It also extends the market review period, i.e. the frequency at which NRAs are expected to update their market analysis and regulatory policy, from three to five years, giving operators a longer planning horizon, and encourages NRAs to consider any existing commercial wholesale offers in their market analysis, which can be interpreted to mean that anything short of full market foreclosure should be looked upon benevolently (Articles 61 and 65). In line with this latter development, which suggests a focus on wholesale access per se, is Article 77. This article exempts so-called wholesale-only networks – non-integrated networks whose very business model is selling access to interested internet service providers – from strict access price regulation, at least ex-ante. Typically, a presumption of consumer harm absent regulation is sufficient for intervention. Article 77 turns the tables on regulatory authorities by requiring evidence of actual consumer harm.
A counterpoint to these deregulatory elements is Article 59.2, which under certain conditions not only allows but obliges NRAs to impose access obligations on owners of existing physical infrastructure “up to the first concentration point”, in practice affecting mostly in-building wiring and cables, even when these owners have not been identified as dominant in any relevant market. In countries such as Sweden, where in-house wiring is often not owned by any operator but rather by the respective building’s owner(s), implementing such obligations may pose a regulatory challenge.
Finally, Article 22 requires NRAs to chart existing infrastructure as well as deployment plans across the country and enables them to define “digital exclusion areas” where no high-speed broadband infrastructure exists or is planned. In such areas, they may organize calls for interest to deploy networks, also with a view to resolving potential coordination problems between operators resulting from so-called “overbuild risk”: deployment in some lower-density areas may only be profitable if most of the customer base in that area can be captured, leading to a standoff between operators who cannot, do not want to, or are not allowed to communicate and coordinate their deployment strategies. As a result, investment is delayed.
A rather piquant detail here is that the proposed code allows NRAs to take action against operators it suspects of “deliberately” providing “misleading, erroneous or incomplete” information about their deployment plans. Included to prevent gaming, this provision carries the risk of suppressing investors’ appetite for the designated exclusion areas lest they be punished in case they change their mind. A minimum of mutual trust between the national regulator and market participants seems crucial for this mechanism to succeed.
The Commission’s proposed new regulatory framework emphasizes investment in, and take-up of, high-speed (100+ Mbps) broadband networks, explicitly defining such enhanced connectivity as a new regulatory objective on equal footing with the existing ones, most notably the promotion of competition. The present brief points out some key regulatory changes aimed at the fulfilment of these respective objectives. In terms of the revision’s impact on high-speed broadband deployment in the EU’s member states, it is difficult to make a general prediction since Europe is somewhat heterogeneous with respect to high-speed broadband penetration. For example, the 2016 EU overall NGA coverage was 75.9 % of households, but coverage rates of individual countries ranged from 99.95 % and 99.86 % in Malta and Belgium respectively to 47.0 % in France and a mere 44.2 % in Greece (EC, 2017). To the extent that the new code encourages investment relative to the old regime, regions with lower current coverage stand to benefit more. To the extent that the lower pace of deployment in those areas is the result of other factors orthogonal to regulation (one example being demand uncertainty), it will have a limited effect.
- European Commission, 2013. “Commission Recommendation on consistent non-discrimination obligations and costing methodologies to promote competition and enhance the broadband investment environment.”
- European Commission, 2014. “The European Union Explained: Digital agenda for Europe.”
- European Commission, 2016. “Proposal for a Directive of the European Parliament and the European Council establishing the European Electronic Communications Code (Recast).”
- European Commission, 2017. “Broadband Coverage in Europe (2016): Mapping progress towards the coverage objectives of the Digital Agenda.”
- Szczepański, M., 2017. “The new European electronic communications code”, EU Legislation in Progress briefing, European Parliamentary Research Service.
This policy brief discusses EC’s claim that Gazprom abuses its dominant position. I argue that parts of the claim, like denying Third Party Access, are warranted but others related to the contracts offered by Gazprom to different Member States need not be. In fact, major market players in Europe offer similar contracting forms. In this case, the literature on the competitive effect of long-term supply contracts have stressed that such effect depends on the exact contract arrangement. For example, offering multi-years contract may indeed increase the competition on one part of the market. Having a gas supply contract with a price fully linked to the price of a gas hub may on the other hand reduce the competition among big gas suppliers. Hence, the assessment of Gazprom’s abuse of dominant position should be based on a careful analysis of the many contracting forms that have been agreed between Gazprom and customers in the Member States.
On the 4th of September 2012, the European Commission (EC) opened a proceeding against Gazprom, investigating whether Gazprom has abused its dominant market position in Central and Eastern Europe’s gas supply (see http://europa.eu/rapid/press-release_IP-12-937_en.htm?locale=en). The allegation relies on two different points. First, Gazprom has been accused of denying access to its network pipeline when requested by competing gas supplier. Second, the contractual arrangement offered by Gazprom itself has been under scrutiny. A Gazprom contract usually includes a “destination clause”, that forbids any gas reselling by the buyer. Moreover, the typical Gazprom contract usually specifies a fixed quantity (with a take or pay clause) at a price indexed to the oil price (see Sartori, 2013 for a more extensive description of the EC’s proceeding.)
The objective of this policy brief is to discuss the EC’s claim of Gazprom’s abuse of dominant position. I argue that while the denial of Third Party Access appears as an obvious case of abuse of dominant position, the contractual arrangements offered by Gazprom need not be.
Characterization of Gazprom’s Abuse of Dominant Position
Denying access to Gazprom’s pipelines limits competition and thereby benefits Gazprom as controlling a pipeline constitutes a natural monopoly. This fact has been recognized for a long time with the requirement for a third party access to gas networks in the EU Gas Directive (Directive 2009/73/EC). The first part of the proceeding thus seems to be justified.
The EC proceeding also found that the contractual arrangements offered by Gazprom reflected an abuse of dominant position. The claim is that Gazprom locked in its customers. When signing a contract with Gazprom, buyers agreed on a fixed quantity irrespective of their “real” consumption (“take or pay” clause) and are not allowed to resale ex post excess quantity on the market (“destination clause”). Given that gas contracts usually are signed for many years, the lock-in period can be long. Moreover, the price of the gas contract is usually pegged to the oil price so that it reflects current supply and demand conditions for oil rather than for gas. One implication is that the contracted gas prices did not reflect the severe drop in the gas market price in 2008 (BP report, 2012).
The EC’s allegation that Gazprom has abused its dominant position is thus based not only on the fact that Gazprom is denying third party access to its pipelines but also on the long term contracts with a fixed quantity and an oil indexed price.
Next, I argue that the second part of the claim is questionable. Forcing Gazprom to propose contracts with flexible quantities, shorter contract lengths and no indexation to the oil price may not limit the abuse of Gazprom’s dominance. Depending on the exact contract arrangement (quantity, duration, and indexation), the abuse of dominant position could be more or less severe.
Contract Arrangement and Market Competition
It is important to stress that the major gas suppliers of Europe, like Sonatrach or Statoil, offer similar contract arrangements. So, are long-term supply contract arrangements pro or anticompetitive given that all major competitors use such contracts? The answer to this question typically depends on the contractual details. In what follows, I discuss briefly when contracts provided by major market players could alleviate the abuse of dominant position.
It has been shown that firms may have less incentive to exercise market power, if they have large contract positions (e.g. Allaz and Vila, 1993). Intuitively, a firm obtains a leadership position by selling contracts before going on the spot market. Motivated by this opportunity, all players participate in the contract market and as a consequence compete more aggressively overall. Offering long-term supply contracts may therefore enhance competition among gas suppliers.
The competitive effect of long-term supply contract may not always be present when suppliers and buyers repeatedly sign contracts. In a dynamic setup, it has been shown that allowing contracting for major players may reduce competition. Contracting could be used to reduce demand elasticity by increasing spot market exposure (e.g. Mahenc and Salanié, 2004). Contracting could also increase the likelihood and severity of collusion (Ferreira, 2003; Le Coq, 2004; Liski and Montero, 2006). The reason is that a collusive agreement is easier to sustain in a dynamic setup if firms offer contracts. A collusive strategy is sustainable provided that firms have no incentives to cheat, i.e. the repeated collusive profits exceed the immediate profit from the deviation and the price war following defection. The short run gains from cheating are reduced if all firms have signed contracts as the defecting firm will not capture the demand already covered by competitors’ contract sales. Compared to the case with no contracts, this reduces the gains from defection without changing the punishment path, and therefore makes collusion easier to sustain. In a dynamic setup, offering contracts may therefore increase the likelihood of collusion.
Green and Le Coq (2010) have shown, however, that the anti-competitive effect of contracts depends on their duration. The longer the contracts last, the more difficult it is to sustain collusion. Intuitively, a deviation from the collusive agreement will trigger punishments, which depend on the contract duration. The longer the contract lasts, the smaller would be the punishment profit, which would increase the incentive to deviate.
The contract price’s format also matters when estimating the anti-competitive effect of any contract arrangement. The stronger the degree of indexation to the spot price the easier it is to sustain collusion (Le Coq, 2013). In particular, if a contract price would be fully indexed on a gas spot (hub) price, irrespective of the contract’s duration, it is always easier to collude. The intuition underlying this result is two-fold.
First, given that the contracted quantities are not traded in the spot market, contracts reduce the size of the market that a deviator can serve when undercutting the rival’s price. Second, given that the contract’s price equals the spot price, the contract does not affect profit levels in the punishment phase. Consequently, profits in the punishment phase can be driven down to zero just as in the case when there is no contract market. Moreover, contracts with others forms of indexation have the same qualitative effects, provided that the indexation to the spot price is sufficiently strong. Interestingly, with full indexation, the anti-competitive effect of supply contract holds even if contracted quantities are flexible (can be renegotiated).
To conclude, changing the contract arrangement between Gazprom and European customers may not alleviate the abuse of Gazprom’s dominant position. A detailed analysis of the (many) contract arrangements offered by Gazprom needs to be conduct first to be able to make such claim.
- Allaz, B., Vila, J.-L., 1993. Cournot competition, forward markets and efficiency. Journal of Economic Theory 59 (1), 1–16.
- BP Statistical Review of World Energy June 2012
- Directive 2009/73/EC of the European Parliament and of the Council concerning common rules for the internal market in natural gas and repealing Directive 2003/55/EC, OJ L 211.
- Ferreira, J.L., 2003. Strategic interaction between futures and spot markets. Journal of Economic Theory 108 (1), 141–151.
- Liski, M., Montero, J.-P., 2006. Forward trading and collusion in oligopoly. Journal of Economic Theory 131 (1), 212–230.
- Le Coq, C., 2004. Long-term supply contracts and collusion in the electricity market. Stockholm, SSE/EFI Working Paper Series in Economics and Finance 552.
- Le Coq, C., 2013 Supply Contracts and Competition on the Spot: How indexation and duration matter? Mimeo.
- Le Coq, C., R. Green, 2010 The Length of Contracts and Collusion International Journal of Industrial Organization 28(1), 21-29, 2010.
- Mahenc, P., Salanié, F., 2004. Softening competition through forward trading. Journal of Economic Theory 116 (2), 282–293.
- Sartori N., 2013. The European Commission vs. Gazprom: An Issue of Fair Competition or a Foreign Policy Quarrel? IAI working paper 13103