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Rules and Regulation of Wholesale Access to Subsidized Networks

Introduction

In the previous financial perspective 2014-2021, projects were implemented in Poland to build broadband networks in white areas. Granting funding for this purpose was and is associated with the obligation to ensure open access for other servis providers interested in using these networks to provide retail services. The basic principles of ensuring open access to funded networks are defined in the GBER regulation. According to Article 52, paragraph 9 of GBER, in fine: „Without prejudice to the competences of the national regulatory authority under the regulatory framework, the national regulatory authority shall be consulted on wholesale access products, the terms and conditions for access, including on prices, and on disputes related to the application of this Article.” The competencies of the regulatory authority in this regard were defined in the competition documentation, including the funding agreement. Based on this, the regulatory authority issued detailed recommendations specifying the terms of wholesale access. Additionally, the operator of the funded network is obliged to obtain prior approval for the content of the wholesale offer (including any changes). The obligation to ensure wholesale access to funded networks also arises from national law provisions, which, however, do not provide for the obligation to obtain approval of the wholesale offer by the regulatory authority on an ex ante basis and do not specify the procedure for how this should take place. These provisions only provide for the resolution of interoperator disputes regarding wholesale access to funded networks and the regulator's intervention ex officio, on an ex post basis, in strictly defined cases. In summary, it should be stated that the regulation of funded networks is carried out on principles that do not arise directly from the provisions of generally applicable law. The mode of proceedings, deadlines, formal and material bases for the resolution are imposed by the regulator arbitrarily, in the recommendations of the regulator defining the conditions for wholesale access. For this reason, the procedure can be burdensome, and even oppressive, and is entirely arbitrary and devoid of any appeal control. This prompted us to conduct a survey on the solutions applied in this area in other European countries. We kindly ask you to respond to the questions contained in the survey. We would be grateful for your responses by the end of March 2025.

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Organization info

1

Organization name:

2

Type of organization

choose one or more
3

Country:

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Legal grounds

4

In your Member State, was the funding for the construction of broadband networks based on the provisions of GBER?

choose your answer
5

Does the NRA actively participate in:

choose one or more
6

What is the legal basis (source of competence) for the NRA to take actions referred to in question 5. above?

please explain legal grounds of the regulation if applicable
7

Does the NRA take actions referred to in point 5 above on principles that are not directly specified in the provisions of generally applicable law?

choose your answer
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Procedures

Please provide in the answers below brief description of the procedure by which the NRA takes actions.

(please provide a description of the procedure even if it is not regulated by law)

8

Defining detailed conditions for wholesale access (key terms, key criteria, legal nature of the document – binding/non-binding/soft law)

please explain if applicable
9

Approving wholesale access conditions proposed by operators (key terms, key criteria, legal nature of the decision – binding/non-binding/soft law, possibility of appeal)

please explain if applicable
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Wholesale prices

Please explain in the answers below how did the regulatory authority approach the determination of wholesale access prices to subsidised networks

10

How did the NRA define other comparable and more competitive areas of the Member State? (Article 58, paragraph 8(a) GBER)

please explain if applicable
11

What avarage did the NRA apply?

choose one or more
12

In case of applying the method of already established or approved regulated prices, does the NRA consider fees established based on Article 58, paragraph 8(b) GBER?

please explain if applicable
13

What cost approach is used in the cost orientation method?

please explain if applicable
14

Does the NRA foresee the possibility of indexing an already established fee, or must it be approved again by the authority in situations of high inflation and rising costs?

please explain if applicable
15

Does the NRA take into account any other factors when determining wholesale fees (e.g., construction technology, geographic specifics of the area (e.g., low population density)?

please explain if applicable
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Summary

16

Please provide your assessment of the effectiveness of the adopted regulatory solution with justification

please explain if applicable
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