Access obligation in the case of impediments to replicability

(1) The Federal Network Agency may require undertakings to grant other undertakings access to their network at a point beyond the first concentration or distribution point, located as close as possible to the end user, where 1. the obligation is necessary to remove significant and persistent economic or physical impediments to the replicability of network elements underlying an existing or emerging market situation involving significant restrictions on competitive outcomes for end users, and 2. obligations under section 149(6) concerning access within buildings or up to the first concentration or distribution point, and obligations under section 13(1), are not sufficient. The Federal Network Agency may require undertakings to grant access to, in particular, active or virtually unbundled products. The Federal Network Agency determines the point of access on the basis that it enables an efficient access seeker to take up an economically viable number of end-user connections.
(2) The Federal Network Agency does not impose access obligations on an undertaking under subsection (1) in the following cases: 1. for a very high capacity network, where the undertaking a) is a wholesale-only undertaking within the meaning of section 33, and b) offers viable access alternatives on fair, non-discriminatory, and reasonable terms; 2. where the economic or financial viability of the deployment of new telecommunications networks, in particular in the context of small local projects, would be jeopardised by the access obligation. By way of derogation from the first sentence, point 1, the Federal Network Agency may impose obligations under subsection (1) where the undertaking finances the deployment of the very high capacity network with public funds. The Federal Network Agency may refrain from imposing access obligations on undertakings other than those referred to in the first sentence, point 1(a), where they grant access to a very high capacity network on fair, non-discriminatory, and reasonable terms.
(3) The measures under subsection (1) must be fair, objective, transparent, proportionate, and non-discriminatory.
(4) The procedures of section 14 apply correspondingly to measures imposed under subsections (1) and (2), second sentence. The time limits of section 14(1) apply correspondingly to the Federal Network Agency's examination, under subsection (1), first sentence, point 1, of whether significant and persistent economic or physical impediments to the replicability of network elements exist. In imposing the measures, the Federal Network Agency takes the fullest possible account of the guidelines of BEREC under Article 61(3), fifth subparagraph, point (b), of Directive (EU) 2018/1972. It reviews the measures adopted within five years of their imposition, as to their effectiveness and as to whether their amendment or withdrawal would be appropriate.