Finnish Supreme Administrative Court repealed price cap for fibre loops and the whole SMP-decision concerning wholesale access provided at a fixed location at Helsinki and Tampere regions – Merilampi represented Elisa

The Finnish telecom regulator Traficom had, in its March 2018 decision, considered that the Finnish telecom company Elisa had significant market power (SMP) in the wholesale market for access provided at a fixed location in 30 geographical areas in Finland, including Helsinki metropolitan area and Tampere region. Telecom operators lease access at a fixed location to provide fixed broadband services to end customers. By the SMP-decision, Traficom imposed upon Elisa obligations to lease wholesale access, to comply with an obligation of cost-oriented pricing and a price cap set by Traficom for fibre loops.

The Supreme Administrative Court, by its decision of 12 November 2020, repealed the SMP decision as regards Helsinki metropolitan area (Helsinki, Espoo, Vantaa, Järvenpää, Kerava, Nurmijärvi, Siuntio and Vihti) and Tampere region (Tampere and Ylöjärvi) and regarding the price cap for fibre loops on all areas. The Court referred the matter back to Traficom on these points.

The Court considered that Traficom had not acted lawfully in defining the geographic markets when it had not analysed whether the conditions for competition were sufficiently homogenous within the above-mentioned geographic areas (for example in Helsinki and Vihti). As the market definition was insufficient, the Court was not able to assess whether the SMP-decision was correct as regards the SMP of Elisa and the SMP-obligations imposed upon it in Helsinki and Tampere regions. According to the Court, Traficom had also acted unlawfully as it had failed to comply with its duty to investigate carefully the so-called geotypes and costs of digging applied in the LRIC+ -model used to define the level of the price cap for fibre loops. In addition, the level of the price cap was deemed erroneous because Helsinki and Tampere regions were also included in the process of defining the price cap.

Merilampi represented Elisa in the matter. The final decision of the Supreme Administrative Court on November 12, 2020, Volume 4199 has been published on Court’s website.