35. In section 79 (market power determinations)(1), after subsection (2) insert—
“(2A) In determining whether to identify a market for the purpose of considering whether to make a market power determination, OFCOM must consider whether the criteria in subsection (2B) are met; and OFCOM may not identify that market for that purpose unless they consider that the criteria are met.
(2B) Those criteria are—
(a)that high and non-transitory structural, legal or regulatory barriers to entry are present;
(b)that there is a market structure which, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry, does not tend towards effective competition within such period as OFCOM determine to be appropriate in relation to the review;
(c)that competition law alone is insufficient adequately to address the identified market failure.
(2C) Where OFCOM carry out an analysis of a market that is included in a Recommendation on Relevant Product and Service Markets adopted by the European Commission under Article 64(1) of the EECC Directive, OFCOM must presume that the criteria in subsection (2B)(a), (b) and (c) are met unless there is evidence showing that one or more of those criteria are not met.”.
Section 79 was amended by S.I. 2011/1043 and is prospectively amended by S.I. 2019/246.