Market analysis

(1) For the markets defined under section 10(1), the Federal Network Agency examines, as part of its market analysis, whether those markets are, under subsection (2) (three-criteria test), susceptible to regulation under this Part. Where that is the case, it examines whether the imposition of obligations may be justified on the basis of a finding that one or more undertakings hold significant market power on that market under subsection (4).
(2) Markets defined under section 10(1) are susceptible to regulation within the meaning of subsection (1), first sentence, where they 1. are characterised by high and non-transitory structural, legal, or regulatory barriers to entry, 2. have a structure that does not tend towards effective competition within the relevant time horizon, having regard to infrastructure-based and other competition, and 3. are such that competition law alone is insufficient to adequately address the identified market failure.
(3) In examining whether a market under subsection (2) requires regulation, the Federal Network Agency takes into account the developments that would be expected in the absence of regulation of the market concerned under the provisions of this Division; it takes into account, in particular, 1. market developments affecting the likelihood of the relevant market tending towards effective competition, 2. all relevant competitive constraints at the wholesale and retail level, irrespective of whether the source of such competitive constraints is deemed to be telecommunications networks and services or other types of services or applications that are comparable from the end user's perspective, and irrespective of whether such competitive constraints form part of the relevant market, 3. other types of regulation or measures imposed that affect the relevant market or related retail markets during the relevant period, and 4. regulation of other relevant markets based on a market analysis.
(4) Where a market is susceptible to regulation under this Part pursuant to the three-criteria test, the Federal Network Agency examines whether, and which, undertakings hold significant market power on that market. An undertaking is deemed to have significant market power where it enjoys, either alone or jointly with others, a position equivalent to dominance, that is, a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers, and end users.
(5) Where an undertaking has significant market power on a relevant market, it may also be designated as having significant market power on a closely related market susceptible to regulation, where the links between the two markets are such as to allow the market power held in the relevant market to be leveraged into the closely related market, thereby strengthening the undertaking's overall market power.
(6) In the case of transnational markets within the scope of Directive (EU) 2018/1972, the Federal Network Agency, together with the national regulatory authorities of the other Member States of the European Union covering those markets, examines whether significant market power within the meaning of subsection (4) exists.
(7) In conducting the market analysis, the Federal Network Agency takes the fullest possible account of the publications of the Commission referred to in section 10(2), first sentence, as amended from time to time.