Berlin/Brussels, 13.09.2023 In its current version, the Gigabit Infrastructure Act (GIA) would promote the strategic double expansion of fiber optic networks and jeopardize the expansion targets of the German government. To prevent the GIA from becoming a brake on expansion, BREKO appeals to the members of the European Parliament to reject the current draft in the committee meeting on September 19 and to make improvements to key points. BREKO also expects the German Federal Government, together with other states, to take a clear position in the European Council and demand changes.

The aim of the GIA is to accelerate the expansion of fiber optics and 5G in the EU. However, the draft agreed on 7 September 2023 among the shadow rapporteurs in the European Parliament’s Committee on Industry, Research and Energy (ITRE) provides incentives for a strategic double roll-out of fiber optic networks, exacerbates the biggest challenge currently facing fiber optic roll-out in Germany and thus achieves the opposite of its actual objective. BREKO therefore calls on the MEPs in the ITRE and the German Federal Government to reject the current draft and improve four crucial points:

The availability of virtual bitstream access must be accepted as a viable alternative to the shared use of physical infrastructure (empty conduit access), as it has proven to be the central open access product on the German market. According to the current draft, however, it should only be possible to avoid overbuilding through the shared use of existing empty fiber optic ducts if individual fiber optic lines (“dark fiber”) are provided. BREKO Managing Director Dr. Stephan Albers: “The current GIA draft favors the economically senseless creation of duplicate fiber optic infrastructures, which would make many expansion projects unprofitable. If these regulations are implemented unchanged, the ambitious expansion targets in Germany and Europe would hardly be achievable.”

New in the current draft and absolutely unacceptable from BREKO’s point of view is the GIA’s approach of shifting the discussion about access to physical infrastructures to the price level. The criteria established for this are vague, hardly manageable and are unlikely to enable profitable business models for providers. The result would be years of legal disputes to determine appropriate prices and corresponding uncertainties for investors. In order to take advantage of an exemption from this regulation, network operators that both build their own infrastructure and offer their own services to end customers would, as the draft currently stands, effectively be forced to structurally separate their wholesale business from their end customer business – a disproportionate consequence for companies that do not have market power.

The far-reaching transparency obligations for network operators provided for in the current draft of the GIA do not ensure the sharing of civil engineering costs between expanding companies, as assumed by the EU Commission and Parliament. Rather, they favor strategic fiber optic dual expansion: Albers: “If the details of planned fiber optic construction work have to be made public three months in advance, this is virtually an invitation to competitors to submit purely tactically motivated applications for the coordination of construction measures – so-called co-laying – in order to undermine the economic viability of the original project. This obligation must be removed in order to maintain the good investment conditions in the fiber optic market.”

In addition, the legal form of the GIA will also determine whether it accelerates network expansion throughout Europe or even hinders it in some Member States. In view of the very different development of fiber optic expansion in the individual EU member states, there can be no “one size fits all” regulation. However, the currently planned design of the GIA as a directly effective regulation deprives the Member States of any scope to adapt the regulations to their different needs. The German Federal Government should work with the governments of other EU Member States in Brussels to ensure that the GIA is designed as a directive so that the specific regulations can be adapted to the particularities of the Member States.