Charge regulation

(1) The Federal Network Agency may require an undertaking with significant market power to submit charges for access services for approval under the procedure of section 40, or to notify them under the procedure of section 45, where the development of a sustainably competitive retail market would otherwise be impeded by abusive charge-related conduct of the undertaking, and the interests of end users would be adversely affected. The ex post abuse review of charges under section 46 remains unaffected.
(2) For very high capacity networks, the Federal Network Agency examines, in particular, whether to refrain from requiring the undertaking under subsection (1) to submit charges for approval under the procedure of section 40 or to notify them under the procedure of section 45, where, for such networks, 1. demonstrable price pressure on retail prices exists, and 2. effective and non-discriminatory access is ensured, guaranteeing the technical and economic replicability of the retail products of the undertaking with significant market power by efficient access seekers. The Federal Network Agency may examine the charges for economic replicability under the procedure of section 46, or, where objectively justified, proceed under section 40 or section 45. Proceeding under the second sentence is also possible where, owing to low population density in a specific region, the incentives for the deployment of very high capacity networks are low and access under the first sentence, point 2, is ensured.
(3) Charges that an undertaking demands under obligations imposed under section 21 or 22 are subject to an ex post abuse review under section 46. By way of derogation from the first sentence, the Federal Network Agency may require the undertaking to submit charges for approval under the procedure of section 40 or to notify them under the procedure of section 45, where this is necessary to achieve the objectives of section 2.
(4) The Federal Network Agency may impose on an undertaking with significant market power obligations relating to cost accounting methods, including the application of a specific form of cost accounting. In that case it may require the undertaking with significant market power to publish a description of the cost accounting method corresponding to the requirements imposed, setting out the main cost categories and the rules for cost allocation. The Federal Network Agency, or an independent body engaged by it, examines the application of the obligations imposed under this subsection and publishes the results of the examination once a year. The undertaking transmits the data necessary for this purpose to the Federal Network Agency regularly by electronic means.
(5) The Federal Network Agency takes into account 1. in examining whether, and which, charge-related measures are justified, and whether they are proportionate to the objectives of section 2, in particular the need to promote a sustainably competitive market and the long-term interests of end users in the deployment of new and enhanced telecommunications networks, in particular very high capacity networks; 2. in the case of the regulation of charges, in particular, that the measures are, as a whole, coordinated with one another in terms of timing and content (consistency requirement), as well as incentives for the deployment of new and enhanced telecommunications networks that promote economic efficiency and sustainable competition and serve the long-term interests of end users; for this purpose, it takes into account the underlying investments and allows a reasonable return on capital employed, having regard to any specific investment risks while taking the fullest possible account of agreed commercial access arrangements; 3. in the case of the regulation of charges for access to civil engineering facilities under section 26(3), point 10, in particular also the consequences of granting access for the business plan of the undertaking with significant market power.
(6) Where the regulation of charges for access services under subsection (1) concerns termination services of undertakings with significant market power, the Federal Network Agency takes the fullest possible account of the principles, criteria, and parameters of Annex III to Directive (EU) 2018/1972, unless EU-wide charges for termination services have been set by a Commission delegated act under Article 75(1) of Directive (EU) 2018/1972. Where the Commission sets EU-wide charges for termination services, the Federal Network Agency ensures compliance with them. Section 44(1) and (2) applies correspondingly.