S.L. 399.48 ст. 54Market analysis procedure. Cap. 81. Cap. 418.

(1) The Authority shall determine whether a relevant market defined in accordance with regulation 52 is such as to justify the imposition of the regulatory obligations set out under the Act and these regulations. In doing so the Authority shall carry out an analysis, where appropriate, in collaboration with the national competition authorities.

(2) The Authority shall take utmost account of the SMP guidelines and shall follow the procedures referred to in article 4A of the Malta Communications Authority Act and in regulation 21 when conducting such analysis.

(3) A market may be considered to justify the imposition of regulatory obligations set out in these regulations if all of the following criteria are met:

(a) high and non-transitory structural, legal or regulatory barriers to entry are present;

(b) there is a market structure which does not tend towards effective competition within the relevant time horizon, having regard to the state of infrastructure-based competition and other sources of competition underlying the barriers to entry; and

(c) competition law alone is insufficient to adequately address any identified market failures.

(4) Where the Authority conducts an analysis of a market that is included in the Recommendation on the Relevant Product and Service Markets, it shall consider that sub-regulation (3)(a), (b) and (c) have been met, unless the Authority determines that one or more of such criteria is not met in the specific national circumstances.

(5) Where the Authority conducts the analysis required by sub-regulation (1), it shall consider developments from a forward-looking perspective in the absence of regulation imposed on the basis of this regulation in that relevant market, taking into account all of the following:

(a) market developments affecting the likelihood of the relevant market tending towards effective competition;

(b) all relevant competitive constraints, at the wholesale and retail levels, irrespective of whether the sources of such constraints are considered to be electronic communications networks, electronic communications services, or other types of services or applications which are comparable from the perspective of the end-user, and irrespective of whether such constraints are part of the relevant market;

(c) other types of regulation or measures imposed and affecting the relevant market or related retail market or markets throughout the relevant period, including, without limitation, obligations imposed in accordance with article 4A of the

Utilities and Services (Regulation of Certain Works) Act, and with regulations 47 and 48; and

(d) regulatory obligations imposed on other relevant markets on the basis of this regulation.

(6) Where the Authority concludes that a relevant market does not justify the imposition of regulatory obligations in accordance with the procedure in sub-regulations (1) to (5), or where the conditions set AND SERVICES (GENERAL)

out in sub-regulation (8) are not met, it shall not impose or maintain any specific regulatory obligations in accordance with regulation 55:

Provided that where there already are sector specific regulatory obligations imposed in accordance with regulation 55, the Authority shall withdraw such obligations placed on undertakings in that relevant market.

(7) The Authority shall ensure that parties affected by a withdrawal of obligations done in accordance with this regulation, receive an appropriate notice period, defined by balancing the need to ensure a sustainable transition for the beneficiaries of those obligations and end-users, end-user choice, and that regulation does not continue for longer than necessary:

Provided that when setting such a notice period, the Authority may determine specific conditions and notice periods in relation to existing access agreements.

(8) Where the Authority determines that, in a relevant market the imposition of regulatory obligations in accordance with sub-regulations (1) to (5) is justified, it shall identify any undertakings which individually or jointly have a significant market power on that relevant market in accordance with regulation 51. In doing so the Authority shall impose on such undertakings appropriate specific regulatory obligations in accordance with regulation 55 or maintain or amend such obligations where they already exist if it considers that the outcome for end-users would not be effectively competitive in the absence of those obligations.

(9) The Authority shall act in accordance with the procedures referred to in article 4A of the Malta Communications Authority Act and regulation 21, when taking measures in accordance with sub-regulations (6), (7) and (8). In doing so the Authority shall carry out an analysis of the relevant market and notify the corresponding draft measure in accordance with regulation 21:

(a) within five years from the adoption of a previous measure where the Authority has defined the relevant market and determined which undertakings have significant market power:

Provided that the aforesaid five year period may, on an exceptional basis, be extended for up to one year, where the Authority has notified a reasoned proposal for an extension to the European Commission no later than four months before the expiry of the five year period, and the European Commission has not objected within one month of the notified extension; or

(b) within three years from the adoption of a revised Recommendation on relevant markets, for markets not previously notified to the European Commission.

(10) Where the Authority considers that it may not complete or has not completed its analysis of a relevant market identified in the Recommendation within the time limit laid down in sub-regulation (9), the Authority may request BEREC to provide it with assistance in completing the analysis of the specific market and the specific obligations to be imposed. With this assistance, the Authority shall, within six months of the limit laid down in sub-regulation (9), notify the draft measure to the European Commission in accordance with regulation 21.