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Hexagon Issue 2

Non-discrimination: Thoughts on operationalizing BEREC's high level principles on non-discrimination

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BEREC’s high level principles on issues of non-discrimination, set out in its recent consultation, seek to ensure, inter alia, that dominant firms do not have an “unfair and unmatchable advantage”. The non-discrimination obligation is, according to BEREC, a very important tool to ensure that vertically integrated firms do not use their dominant position in the upstream market to limit competition in downstream markets. We would certainly agree. In a market where competitors are dependent on the incumbent owner of an essential facility to compete with that incumbent, an effective non-discrimination regime is necessary to deliver the benefits of competition: albeit in the second best way – the best way being competitors entirely independent of each other, as in most non-utility markets.