c Mobile Telecommunications Services
With a view art 2 para 1 of the EC-Directive of mobile communication and personal communications (96/2/EC), a license has been recently granted to the operator of DCS 1800 mobile system (in addition, there are two GMS-operators, one is Mobilcom, a subsidiary of the Austrian PTT and STET International, on the one hand and MAX.Mobil, a private consortium, on the other), license award pre-conditions and proceedings, first enacted in 1993 have been subject to the various modifications; the once currently in force under the TA reflect the experience ..... on the occasion of previous license award. The license must be awarded in an open, fair and non-discriminal tory proceeding in the cause of a public tender. A frequency allocation fee has to be paid in order to insure economically oriented frequency allocation (sec 21 TA). The license is to be awarded to the applicant who bestwarrants efficient use of the frequency spectrum to be allocated.
2. Universal Service
The provision of universal service shall be based on periodic public tenders; the financing will be effected by means of a Universal Service Funds.
3. Regulation of Competition
Like the German Telecommunications Act, the TA contains a set of specific competition rules aiming at the control of the market behavior of dominant telecom enterprises. An enterprise offering or consuming (!) telecommunications services is considered dominant if it is subject to no or only insignificant competition on the product and territorial market in question or if it has an overriding market position compared to its competitors due to its capability to influence market conditions, its access to customers and its experience, turnover and financial strength (section 33 para 1). A market share in excess of 25% gives rise to the rebuttable assumption that the enterprise in question is dominant. It is the competence of the regulatory authority to decide whether an enterprise is dominant and to annually publish a list of dominant enteprises.
Dominant enterprises in terms of the TA are subject to certain obligations which do not apply to others, only to specify the most important:
The mentioned special competition provisions of the TA basically proceed from the principle of free competition and provide for regulation only to the extent necessary to ensure workable competition. Thus, the competition rules are designed to prevent the abuse of a dominant position in the specific context of the telecommunications environment. As a general rule, in case of a violation of the above-mentioned competition rules by a dominant enterprise, the regulatory authority is competent to take measures in order to effectively terminate the abuse. In particular, the authority is authorized to impose on or interdict to a dominant enterprise a certain way of acting, it may even declare contracts void to the extent the enterprise abuses its dominant posititon by means of such contract (sec 34 para 3 TA). Under certain circumstances, an abuse is even presumed with the effect that the dominant enterprise has to provide evidence to rebut such assumption (sec 34 para 4 TA).
The TA specifically states that its competition law provisions are without prejudice to the competences of the Austrian Cartel Court (under the Austrian Cartel Act). Thus, beyond the competition rules under the TA - which in this respect constitutes a lex specialis to the Cartel Act - the Cartel Court is in theory free to apply the provisions of the Cartel Act on the abuse of a dominant provision. In Germany, the German Bundeskartellamt criticised the two-thronged approach to the control of dominant positions reflected in the German Telecommunications Act, on the one hand and the German Cartel Act (GWB), on the other, because it feared an inhomogeneous legal development. Since, unlike the German Telecommunications Act, the TA does not define the notion of a dominant enterprise with reference to the term "dominant position" in the Austrian Cartel Act, this concern holds even more true in Austria.
The institution of the regulatory authority under the Telecommunications Act of 1993 as a division within the Ministry of Transport was criticized for its lack of independence. In reaction to the general demand for an independent regulatory authority, the TA has taken a radically different approach to this sensitive issue:
Section 108 of the TA provides for the constitution of a special limited liability company with the firm name "Telekom-Control Österreichische Gesellschaft für Telekommunikationsregulierung mbH" (Telekom-Control GmbH) whose purpose is to fulfill all tasks conferred by the TA upon the regulatory authority (with certain exceptions; see below). The company has a stated capital of ATS 50 million, is 100% state-owned and is in principle governed by the Austrian Act on Limited Liability Companies. Thus, the regulatory "authority" is situated outside the traditional Federal administration (a concept also used for the purpose of air traffic control) and is a legal entity of the same legal form as the majority of the Austrian incorporated private business entities ("GmbH"). According to the Explanatory Remarks to the TA, the legislator´s decision to convey regulatory functions upon a company is based on the idea that the tasks of surveillance and control of competition cannot be adequately handled with the instruments of a "classic" administrative authority; in addition, the legal form of a GmbH allows for more flexibility and the employment of sufficient personnel (private employees instead of civil servants).
Sec 111 TA specifies a number of regulatory decisions capable of affecting "civil rights" which are reserved to a special "Telecom-Control-Commission" established at Telekom-Control GmbH (e.g., the award and withdrawal of licenses, the approval of General Terms and Conditions and tariffs, the determination of contributions to the Universal Service Funds, the classification of an offeror of telecommunications services as dominant in terms of sec 33, the determination of the conditions of interconnection in case of dispute). This Commission is composed of three members, is chaired by a judge and is independent; its decisions are not subject to review by any administrative authority; it is thus considered as a tribunal in terms of article 6 of the European Human Rights Convention.
It should be noted that the taxative list of decisions reserved to the Commission in section 111 TA does not make reference to the sanctions the regulatory authority may impose in case a dominant enterprise abuses its dominant position; consequently, e.g. the competence to declare contracts void (sec 34 para 3 TA; see above) lies with Telekom-Control GmbH. While the TA generally submits the company to the supervison of the Minister of Transport, the TA is silent with regard to rights of appeal against (potentially far-reaching) decisions of Telekom-Control GmbH as the regulatory authority. Furthermore, as an instrument of this supervision, sec 117 para 2 TA grants to the Minister of Transport the right to render to Telekom-Control GmbH written instructions. The TA does not specify the nature and contents of instructions which the Minister may render when exercising his right of supervision. Yet, it is a basic principle under the Austrian law of limited liability companies that the managing directors of a GmbH are bound by lawful instructions of the shareholders. Consequently, the independence of the regulatory authority is only assured in the - rather limited - area of decisions to be rendered by the Telecom-Control-Commission.
It is an open question whether the TA will serve as a satisfactory instrument to implement the transgression from a market still characterized by monopolistic features in many aspects to a more competitive environment. Not all share the view that especially with respect to its competition rules and the treatment of the regulatory authority, the TA can live up to the general expectations. At any rate, the legislator´s desire to implement the current EU telecommunications law standards in the TA as well as progress achieved in the past (e.g. the introduction of competition in the market for mobile telecommunication) show that Austria is on the right way towards full telecom liberalization.
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