Procedures pursuant to Article 85 TKG

The purpose of the Telecommunications Act (TKG) in the field of electronic communications is to ensure the provision of reliable, low-cost, high-quality and innovative communications services to the population and the economy. This should first of all be achieved by promoting competition. The aims of the TKG include to facilitate access to and use of networks, to contribute to the development of the single market and to promote the interest of the citizens of the European Union (EU).

As part of the enforcement of the TKG, the Austrian Federal Competition Authority (AFCA) was given specific powers.

What does Article 85 TKG regulate?

Article 85 TKG regulates the opportunities for providers of public mobile communications networks to enter into cooperative arrangements relating to the sharing of active network elements or relating to access to the functionality offered by active network elements. Active network elements are any elements that are operated using electrical power, and which are deployed for the generation, processing and amplification of signals, as well as for network control (e.g. active antennas, remote radio units; equipment for the radio access network).

What does this mean for planned cooperative arrangements?

Any type of cooperative arrangement must comply with the regulatory aims of promoting efficient investment and innovation and take into account the wide-ranging conditions in connection with infrastructure and competition, for example.

Additionally, they must not be in conflict with the provisions of general competition law.

The possibility of such cooperative arrangements should enable the efficient shared use of existing infrastructures, thereby accelerating 5G rollout in particular. To increase legal and investment security for the mobile service providers concerned, a specific notification procedure was implemented. Providers need to notify the Austrian Telekom-Control-Kommission (TKK) of any intended cooperative arrangements, providing all required details as well as any other relevant enclosures in due time. The regulatory authority is required to immediately give the AFCA and the Federal Cartel Prosecutor (official parties) the opportunity to issue opinions on the notified drafts within a period of four weeks.

The TKK then decides within a subsequent four-week period whether a more detailed review is required, taking the received opinions into account as far as possible. Otherwise, the notified agreement is considered to be approved and the regulatory authority will no longer be entitled to submit applications to the Cartel Court, which means that it can no longer enforce any breach of cartel provisions. The official parties must be immediately informed of any such decisions. Any more detailed review needs to be completed within four months and an administrative decision issued, again with the official parties’ opinions being considered to the greatest possible extent. The cooperative arrangement is either approved - possibly with restrictions or conditions - or prohibited. The official parties need to be informed of such decisions.

It is important to note in this context that a (positive) TKK decision does not prevent the official parties, in their capacity as the authorities responsible for general competition supervision, from looking into a cooperative arrangement again at a later point in time for reasons of cartel law or from filing applications (for example for a prohibition) to the Cartel Court. Involving the official parties in the regulatory procedure may however help to identify any cartel-related concerns against such cooperative arrangements early on and to eliminate them, where possible. This increases legal security and predictability for the companies involved, including in relation to general competition law.

Please also refer to the website of the Telekom-Control-Kommission (TKK) for further information (in German).