# C_2013140EN.01001001.xml

| 18.5.2013 | EN | Official Journal of the European Union | C 140/10 |
| --- | --- | --- | --- |

18.5.2013

EN

Official Journal of the European Union

C 140/10

---

Final Report of the Hearing Officer (1)

1

COMP/39.839 — Telefónica/Portugal Telecom

2013/C 140/06

| (1) | On 19 January 2011, the Commission decided to open proceedings within the meaning of Article 11(6) of Council Regulation (EC) No 1/2003 (2) and Article 2(1) of Commission Regulation (EC) No 773/2004 (3) against Telefónica, SA and Portugal Telecom, SGPS, SA (‘PT’) in relation to a non-compete clause in the stock purchase agreement entered by the two companies with regard to the acquisition by Telefónica of sole control over a Brazilian mobile services operator, Vivo Participações, SA. |
| --- | --- |

(1)

On 19 January 2011, the Commission decided to open proceedings within the meaning of Article 11(6) of Council Regulation (EC) No 1/2003 (2) and Article 2(1) of Commission Regulation (EC) No 773/2004 (3) against Telefónica, SA and Portugal Telecom, SGPS, SA (‘PT’) in relation to a non-compete clause in the stock purchase agreement entered by the two companies with regard to the acquisition by Telefónica of sole control over a Brazilian mobile services operator, Vivo Participações, SA.

2

3

| (2) | The non-compete clause had originally been detected by the Spanish competition authority. After consultations between the Spanish and the Portuguese competition authorities and the European Commission, it was decided that the Commission should deal with the investigation. Therefore, pursuant to Article 12 of Council Regulation (EC) No 1/2003, the Spanish competition authority transferred all the documents of the case to the Commission. |
| --- | --- |

(2)

The non-compete clause had originally been detected by the Spanish competition authority. After consultations between the Spanish and the Portuguese competition authorities and the European Commission, it was decided that the Commission should deal with the investigation. Therefore, pursuant to Article 12 of Council Regulation (EC) No 1/2003, the Spanish competition authority transferred all the documents of the case to the Commission.

| (3) | The Commission adopted a statement of objections (‘SO’) on 21 October 2011 and notified it to Telefónica and PT on 24 October 2011. Both parties were granted access to the file on 4 November 2011. The Commission had initially set 3 January 2012 as the deadline to reply to the SO. Upon request from the parties, this deadline was extended by eight working days. |
| --- | --- |

(3)

The Commission adopted a statement of objections (‘SO’) on 21 October 2011 and notified it to Telefónica and PT on 24 October 2011. Both parties were granted access to the file on 4 November 2011. The Commission had initially set 3 January 2012 as the deadline to reply to the SO. Upon request from the parties, this deadline was extended by eight working days.

| (4) | Both Telefónica and PT declined to exercise their right to request an oral hearing pursuant to Article 12(1) of Commission Regulation (EC) No 773/2004. Therefore, no oral hearing took place in this case. |
| --- | --- |

(4)

Both Telefónica and PT declined to exercise their right to request an oral hearing pursuant to Article 12(1) of Commission Regulation (EC) No 773/2004. Therefore, no oral hearing took place in this case.

| (5) | In the SO, the Commission reached the preliminary view that the non-compete clause in the stock purchase agreement between Telefónica and PT amounted to a market-sharing agreement with the object of restricting competition within the internal market in violation of Article 101 of the TFEU. |
| --- | --- |

(5)

In the SO, the Commission reached the preliminary view that the non-compete clause in the stock purchase agreement between Telefónica and PT amounted to a market-sharing agreement with the object of restricting competition within the internal market in violation of Article 101 of the TFEU.

| (6) | In the decision, the Commission rebuts the arguments put forward by the parties in their replies and confirms the findings reached in the SO. |
| --- | --- |

(6)

In the decision, the Commission rebuts the arguments put forward by the parties in their replies and confirms the findings reached in the SO.

| (7) | I have not received any complaint about the effective exercise of procedural rights by the parties to the proceedings. The draft decision does not contain any objections on which the parties have not had the opportunity to make known their views. In view thereof, I consider that all parties in the proceeding have been able to effectively exercise their procedural rights in this case. |
| --- | --- |

(7)

I have not received any complaint about the effective exercise of procedural rights by the parties to the proceedings. The draft decision does not contain any objections on which the parties have not had the opportunity to make known their views. In view thereof, I consider that all parties in the proceeding have been able to effectively exercise their procedural rights in this case.

Brussels, 21 January 2013.

Michael ALBERS

---

(1)  Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29).

1

(2)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ L 1, 4.1.2003, p. 1).

2

(3)  Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty (OJ L 123, 27.4.2004, p. 18).

3

---