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Methodology For Market Analysis
Methodology For Market Analysis
Methodology For Market Analysis
Version 2.0
10 June 2009
www.npt.no
Methodology for market analysis
Revision history:
2
Methodology for market analysis
Contents
1 Introduction
1.1 Background
The purpose of this document is to describe methodology, method selection and criteria for
the market analyses that the Norwegian Post and Telecommunications Authority (NPT) is to
carry out in accordance with the Norwegian Act on Electronic Communications (Electronic
Communications Act)1.
The Electronic Communications Act was enacted in 2003 and entered into force on 25 July
the same year. Regulations on electronic communications networks and electronic
communications services (Ecom Regulations) were prepared together with the Electronic
Communications Act. These regulations replaced the former Telecommunications Act and
Regulations on Public Telecommunications Networks and Public Telecommunications
Services and implement five EC directives. The directives were adopted by the EU in 2002
and comprise the EU’s regulatory framework for electronic communications networks and
electronic communications services. They are incorporated in the EEA Agreement and
became applicable to Norway from 1 November 2004. The five directives are:
The regulatory framework shall lay the foundation for the harmonization of regulation in the
EU/EEA, limit entry barriers and facilitate sustainable competition to the benefit of end users.
In its first Recommendation on relevant markets2 in 2004, the EFTA Surveillance Authority
(ESA) identified 18 markets that could be relevant for special sector-specific competition
regulation according to the rules. The Framework Directive stipulates that markets that are
predefined shall be analysed to determine whether they are characterised by effective
competition, or whether one or more undertakings have what is called significant market
power. In that case such undertakings shall have specific obligations imposed on them. By the
1
The Ecom Act is available [in Norwegian] at http://www.lovdata.no/all/hl-20030704-083.html
2
EFTA Surveillance Authority Recommendation of 14 July 2004 on relevant product and service markets.
Hereinafter the document will be referred to as the first or original Recommendation on relevant markets.
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Methodology for market analysis
spring of 2007 NPT had carried out the first round of analyses of the 18 markets that ESA had
pointed out as relevant for sector-specific regulation in its first Recommendation on relevant
markets. In November 2008 ESA issued a revised Recommendation on relevant markets.3 In
the Recommendation the number of relevant markets was reduced to seven. NPT has started
work on analysing the markets according to the new Recommendation, including assessing
whether sector-specific regulation should be withdrawn also in Norway from markets
removed from the Recommendation.
The work on market analyses and imposition of obligations may be divided naturally into
three phases:
Define relevant markets by defining relevant product markets and defining geographic
markets.
Carry out market analyses of each of the relevant markets, with a view to uncovering
whether any undertakings have significant market power.
Issue decisions on specific obligations to the undertaking(s) designated as having
significant market power.
This document describes the guidelines on which NPT will base its assessments in phases 1)
and 2).
3
EFTA Surveillance Authority Recommendation of 5 November 2008 on relevant product and service markets.
5
EFTA Surveillance Authority Guidelines 14 July 2004
5
EFTA Surveillance Authority Guidelines 14 July 2004
7
This also includes Explanatory Note (the EU document prepared in conjunction with the corresponding
Commission Recommendation of 17 December 2007). ESA states that the Recommendation should be
interpreted in light of the Explanatory Note of the Commission’s Recommendation.
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Methodology for market analysis
Links to key ESA documents are available on NPT’s website. ESA documents have the same
legal status for EEA member states as the Commission’s corresponding documents have for
EU member states.
In accordance with the Guidelines a market analysis is to provide the basis for the assessment
of relevant markets and of significant market power and the assessment is to accord with
competition law methodology. The Guidelines and the Recommendation, together with the
provisions of the Act, will therefore form the legal framework for the market analysis.
However, the Guidelines are not exhaustive and NPT will therefore elaborate on the criteria
for the market analysis on certain points. If the Guidelines and the Recommendation are
amended, NPT will update this document.
In addition to the Guidelines and the Recommendation, NPT has taken account of the so-
named EEA Supplement as the basis for the preparation of this document, which describes in
general the application of EU competition law under the EEA Agreement.8 Furthermore, NPT
has used a working document from the Independent Regulators Group (IRG)9 and referred to
corresponding guidelines for market analyses published by the regulatory authorities in
Sweden (PTS) and the United Kingdom (Ofcom).10
The European Regulators Group (ERG) and the European Commission cooperate on
harmonization of methods and guidelines for market analyses. Within the parameters of the
Electronic Communications Act, NPT will take due account of any new guidance documents
prepared at EU level. This document is not legally binding, but expresses NPT’s
understanding of the guidelines to which NPT is obliged to adhere as these are currently
framed. Should there prove to be discrepancies between this document and the Guidelines or
the Recommendation, the Guidelines or the Recommendation will take precedence.
This document does not purport to guide the Norwegian Competition Authority’s assessments
in accordance with the Competition Act. Although NPT’s assessments in accordance with this
document will be based mainly on competition law methodology, and will be closely aligned
with general competition law, the Post and Telecommunications Authority’s assessments will
be motivated by the requirement for general ex ante regulation, while the competition
authorities’ assessments are as a rule ex post in connection with actual cases. The Competition
Authority’s and the Post and Telecommunications Authority’s assessments in accordance
with the two sets of rules may therefore differ even within the same or overlapping markets.
7
This also includes Explanatory Note (the EU document prepared in conjunction with the corresponding
Commission Recommendation of 17 December 2007). ESA states that the Recommendation should be
interpreted in light of the Explanatory Note of the Commission’s Recommendation.
8
Supplement to Official Journal of the European Union No. 28, 16.07.1998
9
Independent Regulators Group: Common interpretation of the SMP concept for the new regulatory framework,
10
Post- och telestyrelsens almänna råd om bedömning av vilka företag som har inflytande på den svenska
marknaden and Oftel’s (now Ofcom’s) market review guidelines: criteria for the assessment of significant
market power, 5 August 2002
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Methodology for market analysis
Through the market analysis, NPT is to assess the need to define diverging or new national
product markets (section 2.2) and carry out the geographic definition of the relevant product
markets (section 2.3).
The following markets have been removed from the list of relevant markets:
Retail market
Publicly available local and/or national telephone services provided at a fixed location for
residential customers (former market 3)
Publicly available international telephone services provided at a fixed location for
residential customers (former market 4)
11
The numbering of the markets corresponds to that of the list in the new Recommendation. The translation into
Norwegian is unofficial and the English version applies in the event of any discrepancies. The ESA
Recommendation on relevant markets (the old Recommendation) is in parentheses.
14
See the Guidelines, paragraph 39, and Explanatory Memorandum, section 2.1. The practice of the Norwegian
Competition Authority is as a rule to postpone the assessment of supply-side substitution until the assessment of
potential competition during the market power assessment.
14
See the Guidelines, paragraph 39, and Explanatory Memorandum, section 2.1. The practice of the Norwegian
Competition Authority is as a rule to postpone the assessment of supply-side substitution until the assessment of
potential competition during the market power assessment.
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Methodology for market analysis
Publicly available local and/or national telephone services provided at a fixed location for
non-residential customers (former market 5)
Publicly available international telephone services provided at a fixed location for non-
residential customers (former market 6).
The minimum set of leased lines (former market 7)
Wholesale market
Transit services in the fixed public telephone network (former market 10)
Wholesale trunk segments of leased lines (former market 14)
Access and call origination on public mobile telephone networks (former market 15)
The wholesale national market for international roaming on public mobile networks
(former market 17) (1)
Broadcasting transmission services, to deliver broadcast content to end user (former
market 18)
14
See the Guidelines, paragraph 39, and Explanatory Memorandum, section 2.1. The practice of the Norwegian
Competition Authority is as a rule to postpone the assessment of supply-side substitution until the assessment of
potential competition during the market power assessment.
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Methodology for market analysis
15
Also known as “SSNIP” (“Small but Significant Non-transitory Increase in Price”). See paragraph 41 of the
Guidelines, where the use of the method is explained in more detail.
16
See Section 6 of the Recommendation, and Sections 2.2 and 2.3 of the Explanatory Memorandum.
17
Here the Recommendation uses the term “effective competition”, which may best be translated into
Norwegian as “virksom konkurranse”. The Guidelines define this as a market in which operators with significant
market power are absent, cf. paragraph 19. Page 99 of Proposition no. 58 (2002-2003) to the Odelsting states: “If
none of the providers has significant market power then there is assumed to be sustainable competition in the
market.” NPT therefore assumes that the terms will coincide for this purpose.
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Methodology for market analysis
significant market power may result from the leading operator having the benefit of being
quick to introduce new services or new technology, known as “first mover advantages”.18
18
See page 99 of Proposition No. 58 (2002-2003) to the Odelsting, paragraph 33 of the Guidelines and
paragraph 8 of the Recommendation.
19
See paragraphs 56-61 of the Guidelines.
20
If the European Commission/ESA decides that there are transnational markets, the regulatory authorities
involved should cooperate on the market analysis of this market in accordance with detailed guidelines that the
European Commission/ESA will prepare.
21
See paragraph 79 of the Guidelines.
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Methodology for market analysis
criteria which, each on its own, is not necessarily enough to provide significant market
power.22
If the market analysis does not provide grounds to designate providers with significant market
power, the market will not qualify, in accordance with the Act, for sector-specific ex ante
regulation. In the event that NPT’s market analysis does not find operators with significant
market power in a market, this is without prejudice to the competition authorities’
assessments in accordance with the Competition Act.
Below is a short description of the criteria that NPT considers relevant to the market analyses.
For ease of reference the criteria are described in the sequence in which they are mentioned in
the Guidelines.23 Even though all of the criteria mentioned should be assessed in each market
analysis, the individual analysis will not necessarily follow the structure in this document.
22
See paragraph 80 of the Guidelines.
23
A similar structure is used in IRG’s Working Document as well as by PTS and OFCOM.
24
Paragraph 76 of the Guidelines
25
Examples of generally used concentration indices are HHI (Herfindahl-Hirschman Index) and concentration
ratio figures.
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Methodology for market analysis
strength and access to capital (see also section 3.2.6), distribution and marketing. These
advantages may appear outside the relevant market being analysed, but nevertheless have
significance.
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Methodology for market analysis
Economies of scale and scope may work both as an entry barrier to new operators and as a
competitive advantage in a market with several competitors.
26
See paragraph 12 of the Guidelines.
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Methodology for market analysis
Entry barriers may be divided broadly into three groups: structural, strategic and regulatory. 27
Several of the criteria discussed above may be characterised as structural entry barriers, inter
alia technological leads, economies of scale and large sunk costs, common production gains
and well-developed sales and distribution networks.
Strategic entry barriers exist where existing operators in the market arrange matters or
probably will arrange matters through competition-restricting pricing (for example bargain
pricing or cross-subsidising) or some other competition-restricting behaviour in order to keep
new operators out of the market.
Regulatory entry barriers exist when market access is restricted by regulatory conditions, for
example official permissions, resource restrictions or restrictions in regard to health,
environment and safety. Regulatory entry barriers will often be of an absolute nature. To the
degree the relevant market is already subject to regulation, the assessment must make
allowance for this.
In assessing significant market power a combined assessment of market access and the
presence of lasting entry barriers significant to the relevant market should be carried out.
27
The Recommendation operates with two groups of entry barriers: structural and regulatory, cf. paragraphs 9-
11.
28
These and other criteria are discussed in table 3 of Oftel’s market review and Chapter 4 of IRG’s Common
interpretation of the SMP concept.
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Methodology for market analysis
confidence in existing and well-established operators rather than new operators and will not
take the risk of switching.
29
See Chapter 3 of Oftel’s (now Ofcom’s) market review guidelines.
30
Case C-333/94 P, Tetra Pak v Commission [1996] ECR I-5951.
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Methodology for market analysis
resolved by use of measures in the market in which the operator has significant market
power.31
In addition, a general assessment of criteria must be carried out, in the same way as in the
case of a single operator’s market power. The Guidelines set up a range of criteria, of which
several should be met if more than one provider in conjunction are to be considered to have
significant market power. It is however uncertain how the above-mentioned Airtours case will
affect the content of the Guidelines. For the moment therefore, NPT has chosen not to go into
detail in regard to the content of the individual criteria. However, NPT will routinely publish
any amendments to the Guidelines.
31
See paragraphs 85-86 of the Guidelines.
32
Case T-342/99, Airtours
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Methodology for market analysis
The Guidelines list a range of criteria as relevant to the assessment of joint dominance. Some
of these criteria are explained above in section 3.2, but the criteria’s significance will not
necessarily be the same as with single dominance:33
1. mature market
2. stagnant or moderate growth on the demand side
3. low elasticity of demand
4. homogeneous products
5. similar cost structures
6. similar market shares
7. lack of technological innovation, mature technology
8. absence of excess capacity
9. high barriers to entry
10. lack of countervailing power
11. lack of potential competition
12. various kind of informal or other links between the undertakings concerned
13. retaliatory mechanisms that prevent competition between the undertakings
14. lack or reduced scope of price competition
*****
33
See paragraph 98 of the Guidelines.
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