Second, collecting pertinent and up-to-date data is not easy. NRAs sometimes complained the up-to-date date was not available. For instance, it is not easy to have information about the competing undertakings’ ability to have access to capital markets/financial resources, profitability and cost structure, and distribution and sales network. In the first Finnish case, Ficora clearly expressed this difficulty.
　　Last but not least, it is even more difficult to assess the market power on a forward-looking basis than on a backward-looking basis. For instance, taking from different point of views the application of so called “Greenfield” approach can lead to totally different conclusion.
　　
　　Therefore, I disagree with Mr. De Streel’s argument that “the burden of proof for an NRA is fairly high when selecting a market, but becomes quite low to intervene. It is certainly lower than under competition law as there is no need to show any specific anti-competitive behaviour”.　In my opinion, taking account of the second and the third difficulties for NRAs to assess SMP, the burdens of proof for competition authorities and NRAs are at least similar, or incommensurable to some extent.
　　
【注释】　 See, Commission guidelines on market analysis and the assessment of significant market power under the Community regulatory framework for electronic communications networks and services, 2002/C 165/03, Section 1.1.3.
See, Recital 25 and also Article 14(2) of Framework Directive.
See, Article 16(4) of Framework Directive.
For example, compulsory access to network to ensure end to end connectivity (Article 5 of Access Directive), compulsory access to associated facilities to ensure media pluralism (Article 5 and Article 6 of Access Directive).
See, the guideline, supra, note 1, Section 3.
See, Article 14(2) of Framework Directive.
See, the guideline, supra, note 1, Section 3
Ibid.
See, the guideline, supra, note 1, Section 1.3.

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