Brussels/Bonn, 05.12.2023 – The Council of the European Union today approved a negotiating mandate (“general approach”) for the upcoming trilogue negotiations with the European Parliament and the European Commission on the proposed Gigabit Infrastructure Act (GIA). BREKO welcomes the overarching goal of the GIA to accelerate the roll-out of fiber optics and reduce roll-out costs. While some of the measures proposed by the Council offer sufficient flexibility to take into account specific requirements of Member States, other amendments seem less suitable to accelerate the roll-out of fiber networks.

BREKO welcomes the flexibility introduced by the Council’s “general approach”. It enables the individual Member States to take into account their specific concerns with regard to investments in ducting infrastructure and strategic overbuilding scenarios. This creates the possibility for telecom network operators that invest heavily in civil engineering as “first movers” and build passive infrastructure for fiber networks to protect their investments. To this end, first movers have the right to refuse requests from second mover telecoms network operators to deploy their own fiber in the newly built passive infrastructure, as long as they offer a suitable active wholesale bitstream access product on a non-discriminatory basis (subject to a number of conditions). Earlier drafts of the GIA proposed by the Commission and approved by the Parliament did not provide for this possibility.

BREKO boss Albers: “We must protect ourselves from aggressive overbuilding strategies”

“In contrast to most other EU member states, there is no nationwide availability of empty ducts in Germany. Our member companies have invested heavily in fiber optic infrastructure in recent years, building 65% of the fiber optic networks that exist in Germany today. Today and tomorrow, future investments must be protected from the aggressive overbuilding strategies of second movers. Their sole aim is to use the investments of our members as free riders,” says BREKO Managing Director Dr. Stephan Albers.

Without the solution proposed in the Council’s “general approach”, “second movers” could request access to newly built infrastructure at minimal cost to build their own fiber networks, undermining the investment and business prospects of “first movers” and delaying investment decisions. Conversely, at the wholesale level, the high investments in civil engineering can only be recouped through products at a higher level of the value chain, i.e. through an active bitstream access product that gives competitors direct access to end customers.

Dr. Stephan Albers: “Our members are pleased to be able to offer suitable open access products at the wholesale level at fair and reasonable conditions and welcome the competition for end customers. The solution proposed today by the Council in Article 3 of its version of the GIA is an important step in the right direction to stimulate further investment in fiber optic network infrastructure – even if a number of improvements will still be necessary in the upcoming legislative process.”

Removal of the authorization fictions not beneficial

However, the Council’s general approach to the “GIA” contains a number of provisions that are not particularly conducive to the expansion of fiber optic networks. For example, it no longer contains the provisions proposed by the Commission and approved by the Parliament on fictitious authorizations. According to these, authorizations should be deemed to have been granted if they are not expressly granted or refused within certain deadlines.

Although BREKO understands that approval fictions under the law of some EU Member States would raise concerns, we are convinced that this measure would have a direct, measurable, positive impact on the speed of roll-out of fiber networks in those EU Member States that have not yet introduced such procedures. BREKO therefore supports the current legislative developments in Germany, which aim to extend the scope of such mechanisms in the relatively short term.