Abusive conduct by an undertaking with significant market power in demanding and agreeing charges

(1) An undertaking with significant market power may not abuse that position in demanding and agreeing charges vis-à-vis end users or other undertakings. Abuse exists, in particular, where the undertaking demands charges that 1. are enforceable, vis-à-vis end users or other undertakings, only because of its significant market power on the relevant telecommunications market, or 2. materially impair the competitive opportunities of other undertakings on a telecommunications market. Conduct under the second sentence, point 2, does not constitute abuse where an objective justification for it is demonstrated.
(2) Abuse by the undertaking with significant market power within the meaning of subsection (1), second sentence, point 2, is presumed where 1. the charge for the service concerned does not cover the long-run incremental costs of the service, including a reasonable return on capital employed; 2. the undertaking, through the charge for the service concerned, grants individual customers, including itself or its subsidiaries or partner undertakings, advantages over other customers of equivalent or similar services; differentiation of charges under commercial arrangements for the deployment of very high capacity networks does not, as a general rule, constitute conduct within the meaning of this point where it serves to allocate investment risk between investors, and between investors and access seekers, and all actual and potential customers are treated equally having regard to the risk respectively assumed; 3. the margin between the charge the undertaking invoices to other undertakings for an access service and the corresponding retail charge is insufficient to enable an efficient undertaking to earn a reasonable return on capital employed in the retail market (margin squeeze); 4. the margin between the charges the undertaking invoices for access services provided at different value-chain levels does not adequately reflect the value-chain difference (cost-cost squeeze); or 5. the undertaking engages in objectively unjustified bundling in its product offering; in determining whether this is the case, the Federal Network Agency examines, in particular, whether other efficient undertakings are able to offer the bundled product on comparable terms.