Access obligations

(1) The Federal Network Agency may require an undertaking with significant market power to grant access to other undertakings, where the development of a sustainably competitive retail market would otherwise be impeded and the interests of end users would be adversely affected.
(2) In examining whether, and which, access obligations under subsection (1) are justified, and whether they are proportionate to the objectives of section 2, the Federal Network Agency examines whether
1. obligations already imposed or foreseeably to be imposed under this Part, or commercial access agreements already concluded or offered, in the relevant or a related wholesale market, and
2. the mere imposition of obligations under subsection (3), point 10, are sufficient to secure the objectives referred to in section 2. In doing so, the Federal Network Agency takes into account, in particular:
1. the technical and economic viability of using or installing competing facilities, having regard to the rate of market development, taking into account the nature and type of interconnection and access involved, including the viability of other upstream access products;
2. the feasibility of providing the access proposed, in relation to the capacity available;
3. the initial investment made by the facility owner, taking into account any public investment made and the risks involved in making the investment, in particular risks associated with investment in very high capacity networks;
4. the need to safeguard competition in the long term, with particular regard to economically efficient infrastructure-based competition and innovative business models;
5. any relevant intellectual property rights;
6. the provision of pan-European services; and
7. the expected technical development of network design and network management.
(3) Subject to subsection (1), the Federal Network Agency may impose on undertakings with significant market power, among other things, the following obligations:
1. to grant access to specified physical network components and associated facilities, including physically unbundled access to the subscriber line;
2. not to withdraw access to facilities already granted;
3. to grant access to specified active or virtual network components and services, including virtually unbundled broadband access;
4. to create specific conditions necessary for the interoperability of end-to-end user services or for roaming on mobile networks;
5. to grant access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services, while ensuring the efficiency of existing facilities;
6. to grant access to associated services such as an identity, location, and presence service;
7. to permit the interconnection of public telecommunications networks;
8. to grant open access to technical interfaces, protocols, or other key technologies that are indispensable for the interoperability of services or for virtual network services;
9. to permit collocation or other forms of shared use of associated facilities, and to grant access seekers or their agents access to such facilities at any time; and
10. to grant access to civil engineering facilities, including, among other things, buildings or building entries, in-building wiring, antennas, towers and other supporting structures, poles, masts, ducts, pipes, manholes, and distribution cabinets, including where these do not form part of the relevant market under section 10, provided that the access obligation is necessary and proportionate having regard to the problem identified in the market analysis under section 11.
(4) Where an undertaking demonstrates that taking up the service would jeopardise the maintenance of network integrity or the security of network operation, the Federal Network Agency does not impose the access obligation concerned, or imposes it in a different form. The maintenance of network integrity and the security of network operation are to be assessed by objective criteria.
(5) Where the Federal Network Agency imposes an access obligation on an undertaking, it may set technical or operational conditions to be satisfied by the operator or by the users of that access, insofar as this is necessary to ensure the normal operation of the telecommunications network. Obligations to apply specific technical standards or specifications must be consistent with the standards and specifications established under Article 39 of Directive (EU) 2018/1972.
(6) In fulfilling access obligations, opportunities for the use of access services and opportunities for cooperation between the undertakings entitled to access are to be permitted, unless an undertaking demonstrates, in an individual case, that an opportunity for use or for cooperation is not possible, or is possible only to a limited extent, for technical reasons.