Network Sharing and EU Competition Law in the 5G Era: A Case of Policy Mismatch

The deployment of 5G networks represents a key EU policy objective. 5G deployment, however, creates significant challenges for mobile network operators (“MNOs”). They need to pay for access to available spectrum and to undertake massive investments in infrastructure, as the complexity of 5G and the required denser coverage of base stations entail higher deployment costs than previous technologies. In this context, the conclusion of network sharing agreements (“NSAs”), whereby MNOs share some components of their infrastructure to deliver their services to end users, is an effective way to speed up the rollout of 5G networks and reduce the costs of such a rollout. It seems even fair to say that, because of the large investments required, 5G networks will not be rolled out in most Member States within the ambitious timeframe set by the EU absent the conclusion of NSAs, as few operators will be able to undertake the required investments on their own. The European Commission threw some confusion as to the compatibility of NSAs with EU competition law when it issued a Statement of Objections (“SO”) in August 2019 against T-Mobile, CETIN and O2 to challenge their NSAs involving 2G/3G/4G technologies in the Czech Republic. The most remarkable statement in the Commission’s press release announcing the SO is that its analysis “is without any prejudice to any future assessment of network agreements involving emerging technologies such as 5G, which may have very different characteristics.” This is troubling for the following reasons. First, one may wonder why the Commission investigates NSAs involving legacy technologies without prejudice to the emerging technology (5G) at a time where MNOs are investing heavily in 5G and are adopting 5G NSAs. Second, the Commission fails to realise that any decision it would adopt on the Czech NSAs investigation would necessarily impact 5G deployment and the attainment of the EU 5G targets, as 5G will initially be developed on top of 4G networks. Finally, the advent of 5G has a direct impact on the Commission’s analysis of the 2G/3G/4G NSAs, since the Commission’s preliminary concerns (e.g. with regards to investments in these legacy or soon-to-be legacy networks) will become irrelevant with the advent of 5G. Against this background, this paper argues that the Commission’s investigation of the Czech NSAs is an example of “policy mismatch”. While the EU has made the fast rollout of 5G networks a priority, due to the significant benefits this technology may unlock in terms of competitiveness and innovation, the Commission – instead of providing necessary guidance on the compatibility of (5G) NSAs with EU competition law in a timely manner – has spent the last few years investigating NSAs involving legacy technologies without prejudice to 5G. Because of this lack of guidance, combined with the uncertainty created by the Commission’s investigation of the Czech NSAs, there is a significant risk that MNOs willing to conclude NSAs as a way to accelerate the rollout of 5G networks (or simply to make such rollout possible given its high costs) will either be worried to do so or will sub-optimally pare down these NSAs to limit antitrust risks. DG COMP’s ignorance of the potential adverse consequences of the approach it pursues in this case on the deployment of 5G is both astonishing and preoccupying. Moreover, this paper shows that because of the approach pursued by the Commission in its assessment of the Czech NSAs, the decision that it may adopt will not even provide helpful guidance for NSAs involving legacy technologies.