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1 Summary notification form relating to a draft decision of the commission of the Inde pendent Post and Telecommunications Authority (OPTA) in the Netherlands with respect to the relevant market for wholesale broadband access (market 12).

This summary notification form relates to a draft decision of the commission of the Independent Post and Telecommunications Authority in the Netherlands (hereafter: the commission) with respect to the relevant market for wholesale broadband access (market 12).

In accordance with article 6b.2 of the Telecommunications Act the commission notifies draft measures which would affect trade between Member States to the Commission of the European Communities and to the national regulatory authorities. The commission gives both to the Commission of the European

Communities and to the national regulatory authorities the opportunity to make comments to the draft measure.

Comments to this draft measure are due to be sent to Ms. M.C. Kracht at Breedband-MA@opta.nl by 4 December 2005.

The Hague, 4 November 2005

PO Box 90420 2509 LK The Hague Telephone +31 70 315 35 00 Telefax +31 70 315 35 01

Visiting address:

Zurichtoren Muzenstraat 41 2511 WB The Hague The Netherlands

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2 Section 1

Market definition

1.1 The affected relevant product/service market.

The relevant product market consists of the markets for

1. Low quality wholesale broadband access (products with overbooking ratio > 1:20) 2. High qualiy wholesale broadband access (products with overbooking ratio 1:1 until 1:20) (See chapter 5)

1.2 The affected relevant geographic market.

The relevant geographic market for wholesale broadband access is the Netherlands.

(See paragraph 5.6)

1.3 Summary of the opinion of the Netherlands Competition Authority

The Netherlands Competition Authority (NMa) agrees with the conclusions drawn by the commission, as confirmed in a letter to the commission dated 8 June 2005 (included in ‘Bijlage 6’).

1.4 Overview of the results of the public consultation to date on the proposed market definition

See chapter 8, ‘Consultatie ontwerpbesluit’. The public consultation has not given the commission cause to make material changes in the proposed market definition.

1.5 Differences with the Commission Recommendation on relevant markets

None, both markets fall into the market for wholesale broadband access as identified in the Commission Recommendation.

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3 Section 2

Designation of undertakings with significant market power

2.1 Name(s) of the undertaking(s) designated as having individually or jointly significant market power or where applicable, the name(s) of the undertaking(s) which is (are) considered to no longer have significant market power.

No undertaking is considered to have significant market power on the relevant market for low quality wholesale broadband access.

(See paragraph 6.2)

Koninklijke KPN N.V. and its group entities (hereafter: KPN) is considered to have significant market power on the relevant market for high quality wholesale broadband access.

(See paragraph 6.3)

2.2 Criteria relied upon for deciding to designate or not an undertaking as having individually or jointly with others significant market power.

The criteria relied upon are (both low quality wholesale broadband access and high quality wholesale broadband access):

- market share;

- control of infrastructure not easily duplicated;

- lack of countervailing buying power;

- bundling;

- economies of scale;

- economies of scope;

- vertical integration.

(See paragraph 6.2 and 6.3)

2.3 Name of the main undertakings (competitors) present / active in the relevant market.

Market for low quality wholesale broadband access:

KPN, BBned, Versatel, Tiscali, UPC, Essent, Casema (See paragraph 6.2)

Market for high quality wholesale broadband access:

KPN, BBned, Versatel, Novaxess, MCI (See paragraph 6.3)

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4 2.4 Market shares of the undertakings mentioned above and the basis of their calculation (e.g.,

turnover, number of subscribers).

Market for low quality wholesale broadband access:

KPN [30-40%], BBned [1-5%], Versatel [1-5%], Tiscali [1-5%], UPC [10 -20%], Essent [10-20%], Casema [5-10%], other cable [5-10%], other DSL [5-10%]

(See paragraph 6.2)

Market for high quality wholesale broadband access:

- KPN [60-70%], BBned [20-30%], Versatel [5-10%], Novaxess [5-10%], MCI [0-1%]

(See paragraph 6.3)

2.5 Summary of the opinion of the national competition authority where provided.

The Netherlands Competition Authority (NMa) agrees with the conclusions drawn by the commission, as confirmed in a letter to the commission dated 8 June 2005 (included in ‘Bijlage 6’).

2.6 Summary of the results of the public consultation to date on the proposed designation(s) as undertaking(s) having significant market power (e.g., total number of comments received, numbers agreeing/disagreeing).

See separate chapter 8, ‘Consultatie ontwerpbesluit’. In this chapter the results of the public consultations are described. The public consultation has not given the commission cause to make material changes in the conclusions regarding undertakings with significant market power.

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5 Section 3

Regulatory obligations

3.1 Legal basis for the obligations to be imposed, maintained, amended or withdrawn

The commission imposes the following obligations on the market for high quality broadband access:

- Access, based on article 6a.6 of the Telecommunications Act;

- Non discrimination, based on article 6a.8 of the Telecommunications Act;

- Reference offer, based on article 6a.9 (2) of the Telecommunications Act;

(See chapter 7)

3.2 Reasons for the imposition, maintenance or amendment of the obligations

The obligations are imposed to prevent/counteract potential competitive problems:

refusal to deal/denial of access;

pricing issues:

- price discrimination - excessive pricing - cross-subsidisation

non-price issues:

- discriminatory use or withholding of information - delaying tactics

- undue requirements - quality discrimination

- undue use of information about competitors - bundling/tying

- strategic design of product (See chapter 7)

3.3 Exceptional measures

Not applicable.

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6 Section 4

Compliance with International obligations

4.1 Imposition, amendment or withdrawal of obligations provided for in Article 8(5) of Directive 2002/19/EC (Access Directive)

Not applicable.

4.2 Name(s) of the undertaking(s) concerned

Not applicable.

4.3 International commitments entered by the Community and its Member States that need to be respected.

Not applicable.

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