Commitments

(1) Undertakings with significant market power may submit commitments to the Federal Network Agency concerning the access or co-investment conditions applicable to their telecommunications networks, so that the Federal Network Agency may decide on a declaration of bindingness under section 19; the commitments may relate, in particular, to: 1. commercial arrangements relevant to the assessment of suitable and proportionate obligations under section 13; 2. co-investment offers concerning the deployment of very high capacity networks consisting of optical fibre components up to the end user's premises or the base station; or 3. third-party access under section 32, both during the implementation period and after full implementation of voluntary functional separation by a vertically integrated undertaking. The undertaking simultaneously publishes the commitments submitted under the first sentence on its website.
(2) Commitments must be fair, reasonable, non-discriminatory, and open to all market participants. The Federal Network Agency examines the commitments submitted in the market review procedure under section 19, unless the commitments submitted manifestly fail to satisfy one or more relevant conditions. In its examination, the Federal Network Agency takes into account, in particular, whether the commitments submitted include conditions ensuring the equivalence of access under section 24(2).
(3) Commitments for co-investment offers under subsection (1), first sentence, point 2, must satisfy the following requirements: 1. the co-investment offer remains open to operators of public telecommunications networks or providers of publicly available telecommunications services at any time during the lifetime of the telecommunications network; 2. the terms of the co-investment offer enable other co-investors that are operators of public telecommunications networks or providers of publicly available telecommunications services to compete effectively and sustainably, in the long term, in the downstream markets in which the undertaking with significant market power is active; this includes a) fair, reasonable, and non-discriminatory terms ensuring access to the full capacity of the network, or at least to capacity corresponding to the co-investment; b) flexibility as to the value and timing of the participation of individual co-investors, including the possibility of increasing the extent of their participation in the future and of transferring the rights and obligations assumed under the co-investment to third parties; c) the grant of equal mutual rights by the co-investors after completion of the deployment of the infrastructure covered by the co-investment, including the grant of reciprocal access; 3. the co-investment offer is transparent, and is made publicly available on the website of the undertaking with significant market power in good time, but no later than six months before the start of deployment of the telecommunications network covered by the co-investment; 4. the terms of access for undertakings not participating in the co-investment enable access seekers in the downstream markets in which the undertaking with significant market power is active to compete effectively and sustainably, in the long term; this includes fair, reasonable, and non-discriminatory access terms that are at least equal in quality, speed, and end-user reach to those existing before deployment of the infrastructure covered by the co-investment, together with an adjustment mechanism that safeguards such terms in the long term having regard to developments in the retail markets. In this regard, the Federal Network Agency takes the fullest possible account of the guidelines published by BEREC under Article 76(4) of Directive (EU) 2018/1972.
(4) Commitments under subsection (1), first sentence, point 3, must ensure effective and non-discriminatory third-party access both during the implementation period and after full implementation of voluntary functional separation by a vertically integrated undertaking.