The rebates, which consist in granting a lump sum discount to the ...

network through which it possible to provide all type of services. The NGA refers instead to thedeployment of next generation infrastructure in the access network. The problem of access wasalready a crucial issue in the 2002 regulatory framework for European communications,constituting a bottleneck able to distort the competition: it represents in fact an “essential facility”owned by the incumbent and without that the alternative operators are unable to provide services.For this reason, the Access directive gives the NRAs the power to impose on Significant MarketPower operators the obligation to provide access at cost-oriented-price to the alternative operators 80 .The directive, as showed the data of the 14 thImplementation report, has worked very well,especially with regard to the Fixed broadband penetration: in 2008 the average fixed broadbandpenetration was 22.9%, confirming the world leadership of EU countries in the world. According tothe Report the main tool used to reach this high degree of penetration was the unbundling of localloop (ULL) that represents 69.3% of all DSL lines used by alternative operators 81 . This datademonstrate that the alternative operators have made many investment in ULL and that theregulation of access was a key tool to address the bottleneck problem arising from the presence of afacility owned by the incumbent and not replicable by the alternative operators. The development oftechnology has led to the born of a new facility with the potential rise of the same bottleneckproblem. How does regulate them?80 Directive 2002/19/EC of the European Parliament and of the Council, 7 March 2002, Official Journal of the EuropeanCommunities. In particular, the art 12, paragraph 1 of the directive stated that “A national regulatory authority may, inaccordance with the provisions of Article 8, impose obligations on operators to meet reasonable requests for access to,and use of, specific network elements and associated facilities, inter alia in situations where the national regulatoryauthority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder theemergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest”. Moreover,the art 18 paragraph 1 specified that: “A national regulatory authority may, in accordance with the provisions of Article8, impose obligations relating to cost recovery and price controls, including obligations for cost orientation of pricesand obligations concerning cost accounting systems, for the provision of specific types of interconnection and/oraccess, in situations where a market analysis indicates that a lack of effective competition means that the operatorconcerned might sustain prices at an excessively high level, or apply a price squeeze, to the detriment of end-users.National regulatory authorities shall take into account the investment made by the operator and allow him a reasonablerate of return on adequate capital employed, taking into account the risks involved”.81 EUROPEAN COMMISSION, Communication from the commission to the European parliament, the council, theEuropean economic and social committee and the committee of the regions. Progress report on the single Europeanelectronic communications market 2008 (14th Report)87