由歐盟電信法制與實踐談寬頻時代電信事業共享基礎設施的競爭法適用問題

EU Electronic Communications Legal Framewor k and Practices on the Issues of Applying Competition Law to Infrastructure Sharing in Broadband Era

在寬頻時代固定網路、行動網路匯流趨勢下，加以科技創新帶來的產業環境變革，電信基礎設施的布建對數位國家發展，至為關鍵，我國電信法制也必須快速修正調整，回應產業發展需求。電信管理法（電管法）師法歐盟電信架構指令的管制原理而立法，已於2019年公布，2020年開始施行。過去歐盟在電信法導入競爭法原則，使電信法的事前管制措施，符合競爭政策的價值；對於已完成自由化、充分競爭的相關電信市場，完全適用一般競爭法。為實現數位單一市場的目標，2018年「歐洲電子通訊指令」的立法政策已有所轉變，強調投資與競爭並重，並以「對稱管制」的策略促進「超高容量網路」的布建。歐盟在「歐洲電子通訊指令」之下的「電信基礎設施共享」，包括固定網路共同投資，以及行動通訊網路基礎設施共享。由於「電信基礎設施共享」涉及競爭者之間的合作，若有限制競爭的疑慮，將有歐盟運作條約第101條及「水平協議指導原則」的適用。「遠傳亞太共頻共網案」是我國電信基礎設施共享的首例，兩事業共享頻率並共用無線接取網路的主動式共享，屬於合作程度較高的主動式共享。雖依電管法及公平交易法（公平法），遠傳及亞太必須同時向通訊傳播委員會（通傳會）及公平交易委員會（公平會）提出申請，但兩會職能與處理的事實範圍不同；通傳會就兩事業是否得共用頻率一事予以准駁，公平會則應就兩事業包括共頻在內的整體合作契約，進行聯合行為事前許可的審查，始為正確，同時無公平法第46條的適用問題。

The emerging convergence of fixed lines and mobile networks, coupled with a shift in the sector’s environment brought by technological innovations, has made the roll-out of electronic communications infrastructure critical for the realization of a digitalized country. Taiwan’s telecommunications laws and regulations urgently need to be amended and upgraded to be in line with the demand of industrial development. The newest version of Taiwan’s Telecommunications Management Act, which was said to have adopted the principles of governance modeling used in the EU electronic communications frameworks, was first published in 2019 and came into force in 2020. Competition law principles had been introduced and incorporated into the current EU electronic communications legal framework and therefore any the ex-ante regulatory measure taken by the national regulatory authority should take into account the competition policy. Excepting a few markets where the level of competition is not sufficient, the rest of the electronic communications markets which have been fully liberalized shall be ruled by completion law in the EU. For the purpose of realizing a digital single market strategy for Europe, the 2018 European Electronic Communications Code (EECC) has made a shift in legislation policy from emphasizing the importance of competition to adding more weight on investment. Also, the concept of symmetric regulation, instead of imposing asymmetric obligations on undertakings with significant market power, will be applied in order to help the roll-out of “very high capacity networks, VHCNs) in Europe. The so-called “infrastructure sharing” within the EECC consists of the “fixed lines co-investment” between undertakings and the “mobile network sharing”. Infrastructure sharing agreements with competition concerns will be examined according to the Article 101 of the Treaty on the Functioning of the European Union as well as the “Horizontal Cooperation Agreement Guidelines”. In Taiwan, the frequency and network sharing between Far EasTone (FET) and Asia Pacific Telecom (APT) is the first local case for infrastructure sharing. Due to the fact that those two competing enterprises will share the financial contributions for the construction of 5G radio access network and the cost for the right to the spectrum, the cooperation agreement concerned could be classified as “active sharing” and hence is under more vigorous scrutiny by the National Communications Commission (NCC) and the Fair Trade Commission (FTC). FET and APT should apply for the permission from both the NCC and FTC, respectively. However, the nature and the purposes of those two parallel procedures are distinctive from each other according to respective authorizing laws and responsibilities these two bodies have to fulfill. There is no overlap on the functioning and enforcement between the two authorities and therefore Article 46 of Fair Trade Act, which is for the choice of applicable law between the FTA and other regulatory statutes, will not be applied.