“I have serious doubts that Tim’s offer can essentially be counted among the forms of co-investment provided for by art. 76 of the European Code of Electronic Communications“: After the majority approval on January 3 of thelaunch of the public consultation by the Agcom Board, onTim’s co-investment offer, through Fibercop, for the construction of a new fiber optic network, the Commissioner Elisa Giomi comes out explaining the reason for her vote against. “I voted against for reasons of merit and for reasons of method, that I believe it is important to make public to promote reflection in the interest of the institution, its independence and effectiveness “, declares the Commissioner who calls into question article 76 of the Communications Code” which aims on the one hand to favor, in an environment of infrastructural competition, investments in very high capacity networks and, on the other, provides for a limitation of corrective measures to be borne by the monopolist operator “. According to Giomi, “Tim’s co-investment consists of a sort of long-term lease of large quantities of lines to co-investing operators, who at the end of the co-investment period will not be owners of even a line. The network, also built thanks to their contribution, will remain the exclusive property of the monopolist Tim ”.
And this is not the only aspect challenged by Commissioner Giomi who in recalling that “the deregulation of the monopolist in the face of a co-investment offer capable of attracting investments in the network from other operators is an incentive mechanism that also aims to ensure the public interest “and that” this interest here consists in the creation of a technologically neutral and open network, distributed throughout the national territory “evidences that”instead, Tim’s co-investment offer does not go in this direction, it does not contribute to the coverage of gray areas, nor to the development of 5G networks, certainly strategic objectives for the country “.
The Commissioner also points her finger on questions of method: “The most important resolutions on the co-investment were taken by the Board on the basis of partial documentation and yet often amounting to hundreds of pages, made available only a few days before the Board meeting. The postponements I requested in order to be able to examine all the preliminary documentation in a reasonable time and make proposals for improvements to the co-investment offer have, in essence, never been granted and the proposals were rejected without motivation on the merits, as occurred in the meeting on 3 last January “.
From the start of the investigation on March 31, 2021 to now – the Giomi dose increases – “athe operators were never disclosed the procedural process nor were they allowed to express their views on the proposed changes to Agcom under Tim’s co-investment conditions. The same public consultation just launched submits to the market a single generic question instead of questions focused on the most important issues, such as conditions and forms of access to co-investment by operators with a differentiated degree of infrastructure. Yet, it is precisely these issues that have the greatest influence on the coverage of gray areas, on the development of 5G networks and on the related public funding. The launch of the public consultation, however, took place without the Board having been informed of the request for an opinion from the Antitrust regarding the commitments presented by Tim itself in the context of the procedure for an agreement to restrict competition, commitments strongly overlapping the dossier under examination at Agcom “.
Furthermore, the Board only learned on January 3 – Giomi continues – “of the recent determination with which the Offices approved the offer of services on the primary section of the optical access network, of which Tim is almost a monopolist, and which therefore has a potentially significant impact on the co-investment “.
Last but not least, another element that according to the Commissioner deserves further study “is the affirmation that the evaluations of the co-investment offer concerned the version sent by Tim on December 22, 2021. In reality – underlines Giomi – the Authority’s Council in the meeting of 3 January had available a text version consolidated by Tim dated 3 December 2021, which would seem to have been fully replaced by a latest version sent by Tim on 10 December 2021, although the latter version does not carry that date. No.It is therefore not clear which consolidated version of Tim’s co-investment offer was subject to approval by the Authority on 3 January last”.
“I hope – concludes the Commissioner – that the public consultation can be an opportunity to constructively rethink Tim’s co-investment offer in the interest of the market, users and the public good”.
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