The expertise completed in September 2008 was commissioned by Telekomunikacja Polska S.A. It focused on potentially discriminatory practices of vertically integrated companies.
The expertise covers the case law and decisions of competition authorities in Poland and the European Union on antitrust aspects of non-price discrimination, especially on markets for telecommunications services. Although the accumulated case law concerns mainly price discrimination, many of the resulting conclusions are relevant to non-price discrimination also. However, criteria of non-price discrimination are not as obvious as is the case with prices so there may appear some difficulties in identifying the second (applying dissimilar conditions of contracts) and the third condition (placing contractors at a competitive disadvantage) of the ‘discrimination test’.
The expertise concludes that five categories of criteria for non-price discrimination can be identified on the basis of competition law enforcement practice. These are: (1) quality, (2) time, (3) quantity, (4) information, (5) ‘para-regulatory’ competences of a dominating company. Each of these criteria may be a source of discrimination of various features (concerning the method of discrimination and its results).
The most often applied criteria of discrimination – time and quality – may be quantified. One of the expertise’s recommendations was therefore for competition authorities is a duty to present quantity-related proofs confirming non-price discrimination by a vertically integrated, dominating company. If it is possible to identify the criteria of non-price discrimination, telecommunications operators are also able to monitor many of the relevant indicators in order to fulfill an obligation of non-discrimination.
The expertise accompanied an analysis prepared by Accenture that covered selected indicators concerning service, provision of wholesale and retail services and the analysis of the possibilities of their comparison.
