Abstrakt
Mobile network sharing brings specific challenges to competition law analysis. This article focuses on counterfactual analysis as an analytical tool used in competition law cases to evaluate the effects of potentially anticompetitive conduct under Article 101(1) TFEU.
Pursuant to the case law of the EU courts, in determining whether an agreement has a restrictive effect on competition, it is necessary to consider what the situation would have been in the absence of that agreement. Such "but for" analysis will allow the competition authority to establish a causal link between the agreement and the alleged restriction of competition and assess the "appreciability" of the potential restriction.
To accomplish that role, a counterfactual analysis needs to be in-depth and cognisant of the specific market and business realities of the case at hand and a counterfactual scenario needs to be realistic and legal in the sense it does not itself constitute an infringement of competition. The technological and commercial complexity of network sharing arrangements may lead the competition authority into identifying more alternative scenarios.
In those cases, a separate comprehensive counterfactual analysis needs to be conducted in relation to each of those counterfactuals. In addition, the competition authority needs to make sure that the multiple counterfactuals are compatible with each other, in that one does not constitute an infringement under the other(s).
The possibility of identifying more counterfactuals runs the risk of considering as a counterfactual a situation that is not realistic and likely given the specific realities of the case at hand. Hence, increased attention needs to be paid to the technological, commercial, or market considerations that may influence the conduct of the (potential) parties to a network sharing as regards the arrangement of their networks.
A useful input into the evaluation of such considerations that may prompt the parties into entering into network sharing agreements may be also derived from the Commission's merger precedents in the mobile telecommunications sector which highlight the benefits of network sharing as compared to economic concentrations.