The Dutch competition authority (‘NMa’) has decided that a proposed joint venture between (Orange-subsidiary) Dutchtone and (Deutsche Telekom-subsidiary) Ben to construct and administer shared UMTS network facilities does not appreciably restrict competition in the meaning of the Dutch equivalent of Article 81(1) EC, Article 6 Competition Act.
The competition authority specified the following reasons behind its decision: First, the co-operation is limited to non-intelligent parts of the network which do not affect the services ultimately offered on the network, and the two parties retain independent control of their frequencies and independently determine their market conduct, including their respective decisions as to whether or not to grant third parties access to the network. Second, UMTS services constitute a young market and the success of such services is still uncertain. Third, the two parties are relatively small players in the market.
The NMa recognized that the construction of a UMTS network involves considerable investment, while many telecommunications companies are burdened by large debts. Through this joint venture, Dutchtone and Ben aim to reduce the investment and operating costs involved in the construction of a network. For consumers this means quicker implementation and less of an impact on their living environment, since fewer masts will be required. NMa has taken into account the fact that this is a young market, in which the success that can be achieved and the development of UMTS services are still uncertain. The fact that Dutchtone and Ben are two smaller players in the area of telecommunications services also played a role. In addition, Dutchtone and Ben may independently determine whether they grant third parties access to the network.
The notified joint venture satisfies the criteria that have been set out in the policy document, "Joint Construction and Operation of Parts of UMTS Networks", published by NMa, OPTA and the Directorate-General for Telecommunications and Postal Services (DGTP) on 26 September 2001.
The full text of the NMa’s decision is available in English at www.nma-org.nl/besluiten/2002/bma/2816.pdf