# Official Journal C 141/2016

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 141 |
| | |
| English edition | Information and Notices | Volume 5922 April 2016 |

ISSN 1977-091X

Official Journal

of the European Union

C 141

English edition

Information and Notices

Volume 5922 April 2016

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| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2016/C 141/01 | Inapplicability of the Regulation to a notified operation (Case M.7940 — Netto/Grocery Store at Armitage Avenue Little Hulton) (
  1
  ) | 1 |
| 2016/C 141/02 | Non-opposition to a notified concentration (Case M.7726 — Coty/Procter & Gamble Beauty Businesses) (
  1
  ) | 1 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2016/C 141/01

Inapplicability of the Regulation to a notified operation (Case M.7940 — Netto/Grocery Store at Armitage Avenue Little Hulton) (
  1
  )

1

1

2016/C 141/02

Non-opposition to a notified concentration (Case M.7726 — Coty/Procter & Gamble Beauty Businesses) (
  1
  )

1

1

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| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2016/C 141/03 | Euro exchange rates | 2 |
| 2016/C 141/04 | Opinion of the Advisory Committee on Mergers given at its meeting of 21 January 2016 regarding a draft decision relating to Case M.7637 — Liberty Global/BASE Belgium — Rapporteur: Czech Republic | 3 |
| 2016/C 141/05 | Final Report of the Hearing Officer — Liberty Global/BASE Belgium (M.7637) | 5 |
| 2016/C 141/06 | Summary of Commission Decision of 4 February 2016 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.7637 — Liberty Global/BASE Belgium) (notified under document C(2016) 531)
   (
  1
  ) | 7 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2016/C 141/03

Euro exchange rates

2

2016/C 141/04

Opinion of the Advisory Committee on Mergers given at its meeting of 21 January 2016 regarding a draft decision relating to Case M.7637 — Liberty Global/BASE Belgium — Rapporteur: Czech Republic

3

2016/C 141/05

Final Report of the Hearing Officer — Liberty Global/BASE Belgium (M.7637)

5

2016/C 141/06

Summary of Commission Decision of 4 February 2016 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.7637 — Liberty Global/BASE Belgium) (notified under document C(2016) 531)
   (
  1
  )

(notified under document C(2016) 531)

1

7

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| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2016/C 141/07 | Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40023 — Cross-border access to pay-TV | 13 |
| | OTHER ACTS |
| | European Commission |
| 2016/C 141/08 | Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs | 16 |
| 2016/C 141/09 | Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs | 21 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2016/C 141/07

Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40023 — Cross-border access to pay-TV

13

OTHER ACTS

European Commission

2016/C 141/08

Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

16

2016/C 141/09

Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

21

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| | |
| --- | --- |
| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 22.4.2016 | EN | Official Journal of the European Union | C 141/1 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/1

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Inapplicability of the Regulation to a notified operation

(Case M.7940 — Netto/Grocery Store at Armitage Avenue Little Hulton)

(Text with EEA relevance)

(2016/C 141/01)

On 26 February 2016, the Commission decided that the notified operation in the above case does not fall within the scope of the application of Council Regulation (EC) No 139/2004 (1) because it does not constitute a concentration within the meaning of Article 3 of the said Regulation. This decision is based on Article 6(1)(a) of the Regulation. The full text of the decision is available only in the English language and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | In the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes. |
| --- | --- |

—

In the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes.

| — | In electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7940. EUR-Lex is the online access to European law. |
| --- | --- |

—

In electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7940. EUR-Lex is the online access to European law.

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(1)  OJ L 24, 29.1.2004, p. 1.

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| 22.4.2016 | EN | Official Journal of the European Union | C 141/1 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/1

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Non-opposition to a notified concentration

(Case M.7726 — Coty/Procter & Gamble Beauty Businesses)

(Text with EEA relevance)

(2016/C 141/02)

On 16 February 2016, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7726. EUR-Lex is the online access to European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7726. EUR-Lex is the online access to European law.

---

(1)  OJ L 24, 29.1.2004, p. 1.

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 22.4.2016 | EN | Official Journal of the European Union | C 141/2 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/2

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Euro exchange rates (1)

21 April 2016

(2016/C 141/03)

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,1355 |
| JPY | Japanese yen | 124,50 |
| DKK | Danish krone | 7,4411 |
| GBP | Pound sterling | 0,78693 |
| SEK | Swedish krona | 9,1845 |
| CHF | Swiss franc | 1,0989 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 9,2015 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 27,024 |
| HUF | Hungarian forint | 310,70 |
| PLN | Polish zloty | 4,3085 |
| RON | Romanian leu | 4,4815 |
| TRY | Turkish lira | 3,1962 |
| AUD | Australian dollar | 1,4496 |
| CAD | Canadian dollar | 1,4346 |
| HKD | Hong Kong dollar | 8,8088 |
| NZD | New Zealand dollar | 1,6262 |
| SGD | Singapore dollar | 1,5252 |
| KRW | South Korean won | 1 286,36 |
| ZAR | South African rand | 16,0999 |
| CNY | Chinese yuan renminbi | 7,3525 |
| HRK | Croatian kuna | 7,4870 |
| IDR | Indonesian rupiah | 14 903,44 |
| MYR | Malaysian ringgit | 4,4105 |
| PHP | Philippine peso | 52,822 |
| RUB | Russian rouble | 73,8545 |
| THB | Thai baht | 39,743 |
| BRL | Brazilian real | 4,0043 |
| MXN | Mexican peso | 19,6232 |
| INR | Indian rupee | 75,2595 |

Currency

Exchange rate

USD

US dollar

1,1355

JPY

Japanese yen

124,50

DKK

Danish krone

7,4411

GBP

Pound sterling

0,78693

SEK

Swedish krona

9,1845

CHF

Swiss franc

1,0989

ISK

Iceland króna

NOK

Norwegian krone

9,2015

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

27,024

HUF

Hungarian forint

310,70

PLN

Polish zloty

4,3085

RON

Romanian leu

4,4815

TRY

Turkish lira

3,1962

AUD

Australian dollar

1,4496

CAD

Canadian dollar

1,4346

HKD

Hong Kong dollar

8,8088

NZD

New Zealand dollar

1,6262

SGD

Singapore dollar

1,5252

KRW

South Korean won

1 286,36

ZAR

South African rand

16,0999

CNY

Chinese yuan renminbi

7,3525

HRK

Croatian kuna

7,4870

IDR

Indonesian rupiah

14 903,44

MYR

Malaysian ringgit

4,4105

PHP

Philippine peso

52,822

RUB

Russian rouble

73,8545

THB

Thai baht

39,743

BRL

Brazilian real

4,0043

MXN

Mexican peso

19,6232

INR

Indian rupee

75,2595

---

(1)  Source: reference exchange rate published by the ECB.

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| 22.4.2016 | EN | Official Journal of the European Union | C 141/3 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/3

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Opinion of the Advisory Committee on Mergers given at its meeting of 21 January 2016 regarding a draft decision relating to Case M.7637 — Liberty Global/BASE Belgium

Rapporteur: Czech Republic

(2016/C 141/04)

Concentration

| 1. | The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation.

| 2. | The Advisory Committee agrees with the Commission that the notified operation has a Union dimension pursuant to Article 1(2) of the Merger Regulation. |
| --- | --- |

2.

The Advisory Committee agrees with the Commission that the notified operation has a Union dimension pursuant to Article 1(2) of the Merger Regulation.

Relevant markets

| 3. | The Advisory Committee agrees with the Commission’s definitions of the relevant product and geographic markets in the draft Decision. |
| --- | --- |

3.

The Advisory Committee agrees with the Commission’s definitions of the relevant product and geographic markets in the draft Decision.

Competitive assessment

Horizontal effects

| 4. | The Advisory Committee agrees with the Commission that the proposed concentration is likely to give rise to non-coordinated horizontal effects that would significantly impede effective competition on the retail market for mobile telecommunications services in Belgium. |
| --- | --- |

4.

The Advisory Committee agrees with the Commission that the proposed concentration is likely to give rise to non-coordinated horizontal effects that would significantly impede effective competition on the retail market for mobile telecommunications services in Belgium.

| 5. | The Advisory Committee agrees with the Commission that the proposed concentration is not likely to lead to a significant impediment of effective competition on the retail markets for fixed telecommunications services in Belgium (i.e. (i) the retail market for TV services, (ii) the retail market for fixed internet services and (iii) the retail market for fixed telephony services) as the conditions for the concentration with a potential competitor to have significant anti-competitive effects are not met. |
| --- | --- |

5.

The Advisory Committee agrees with the Commission that the proposed concentration is not likely to lead to a significant impediment of effective competition on the retail markets for fixed telecommunications services in Belgium (i.e. (i) the retail market for TV services, (ii) the retail market for fixed internet services and (iii) the retail market for fixed telephony services) as the conditions for the concentration with a potential competitor to have significant anti-competitive effects are not met.

Vertical effects

| 6. | The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to vertical effects (input foreclosure) by foreclosing retail providers of mobile telecommunications services in Belgium from wholesale access and call origination on mobile networks in Belgium. |
| --- | --- |

6.

The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to vertical effects (input foreclosure) by foreclosing retail providers of mobile telecommunications services in Belgium from wholesale access and call origination on mobile networks in Belgium.

| 7. | The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to vertical effects (input foreclosure) by (i) foreclosing retail providers of fixed telecommunications services (i.e. fixed telephony, fixed internet and TV services) and (ii) retail providers of bundles of fixed and mobile telecommunications services in Belgium from wholesale access to Telenet’s cable network. |
| --- | --- |

7.

The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to vertical effects (input foreclosure) by (i) foreclosing retail providers of fixed telecommunications services (i.e. fixed telephony, fixed internet and TV services) and (ii) retail providers of bundles of fixed and mobile telecommunications services in Belgium from wholesale access to Telenet’s cable network.

| 8. | The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to vertical effects (input foreclosure) by foreclosing retail providers of mobile telecommunications services in Belgium from access to (i) the wholesale market of leased lines, (ii) the wholesale market for domestic call transit services, and (iii) the wholesale market for termination and hosting of calls to non-geographic numbers. |
| --- | --- |

8.

The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to vertical effects (input foreclosure) by foreclosing retail providers of mobile telecommunications services in Belgium from access to (i) the wholesale market of leased lines, (ii) the wholesale market for domestic call transit services, and (iii) the wholesale market for termination and hosting of calls to non-geographic numbers.

Conglomerate effects

| 9. | The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to conglomerate effects by foreclosing competitors of the merged entity on (i) the retail market for mobile telecommunications services, (ii) the retail market for TV services, (iii) the retail market for fixed internet services and (iv) the retail market for fixed telephony services as a result of bundling of these fixed and mobile services by the merged entity. |
| --- | --- |

9.

The Advisory Committee agrees with the Commission that the proposed concentration is not likely to give rise to conglomerate effects by foreclosing competitors of the merged entity on (i) the retail market for mobile telecommunications services, (ii) the retail market for TV services, (iii) the retail market for fixed internet services and (iv) the retail market for fixed telephony services as a result of bundling of these fixed and mobile services by the merged entity.

Remedy

| 10. | The Advisory Committee agrees with the Commission that the final commitments offered by the Notifying Party on 18 December 2015 are sufficient to remove the concerns raised by the proposed concentration with respect to non-coordinated horizontal effects of the proposed concentration on the Belgian retail market for mobile telecommunications services. |
| --- | --- |

10.

The Advisory Committee agrees with the Commission that the final commitments offered by the Notifying Party on 18 December 2015 are sufficient to remove the concerns raised by the proposed concentration with respect to non-coordinated horizontal effects of the proposed concentration on the Belgian retail market for mobile telecommunications services.

| 11. | The Advisory Committee agrees with the Commission that, subject to full compliance with the final commitments, the proposed concentration is not likely to significantly impede effective competition in the internal market or in a substantial part thereof. |
| --- | --- |

11.

The Advisory Committee agrees with the Commission that, subject to full compliance with the final commitments, the proposed concentration is not likely to significantly impede effective competition in the internal market or in a substantial part thereof.

| 12. | The Advisory Committee agrees with the Commission’s view that the proposed concentration should be declared compatible with the internal market and the EEA Agreement in accordance with Articles 2(2) and 8(2) of the Merger Regulation and Article 57 of the EEA Agreement. |
| --- | --- |

12.

The Advisory Committee agrees with the Commission’s view that the proposed concentration should be declared compatible with the internal market and the EEA Agreement in accordance with Articles 2(2) and 8(2) of the Merger Regulation and Article 57 of the EEA Agreement.

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| 22.4.2016 | EN | Official Journal of the European Union | C 141/5 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/5

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Final Report of the Hearing Officer (1)

Liberty Global/BASE Belgium

(M.7637)

(2016/C 141/05)

| 1. | On 17 August 2015, the European Commission received a notification of a proposed concentration by which Telenet NV (‘Telenet’), controlled by Liberty Global Broadband I Limited (the ‘Notifying Party’), would acquire control of the whole of the undertaking BASE Company NV (‘BASE’) by way of purchase of shares (the ‘Proposed Transaction’). |
| --- | --- |

1.

On 17 August 2015, the European Commission received a notification of a proposed concentration by which Telenet NV (‘Telenet’), controlled by Liberty Global Broadband I Limited (the ‘Notifying Party’), would acquire control of the whole of the undertaking BASE Company NV (‘BASE’) by way of purchase of shares (the ‘Proposed Transaction’).

| 2. | On 5 October 2015, the Commission adopted a decision initiating proceedings pursuant to Article 6(1)(c) of Council Regulation (EC) No 139/2004 (2) (the Merger Regulation). In that decision, the Commission indicated that the Proposed Transaction falls within the scope of the Merger Regulation and that it raised serious doubts as to its compatibility with the internal market and the EEA Agreement as regards the potential markets for retail and wholesale mobile telecommunications services in Belgium. On the same day, the Commission shared key documents with the Notifying Party. |
| --- | --- |

2.

On 5 October 2015, the Commission adopted a decision initiating proceedings pursuant to Article 6(1)(c) of Council Regulation (EC) No 139/2004 (2) (the Merger Regulation). In that decision, the Commission indicated that the Proposed Transaction falls within the scope of the Merger Regulation and that it raised serious doubts as to its compatibility with the internal market and the EEA Agreement as regards the potential markets for retail and wholesale mobile telecommunications services in Belgium. On the same day, the Commission shared key documents with the Notifying Party.

| 3. | On 6 October 2015, at the Notifying Party’s request and pursuant to Article 10(3), second subparagraph, first sentence, of the Merger Regulation, the second phase period for reviewing the Proposed Transaction was extended by 10 working days. The time limit was extended by a further 10 working days on 30 October 2015, with the agreement of the Notifying Party in accordance with Article 10(3), second subparagraph, third sentence, of the Merger Regulation. |
| --- | --- |

3.

On 6 October 2015, at the Notifying Party’s request and pursuant to Article 10(3), second subparagraph, first sentence, of the Merger Regulation, the second phase period for reviewing the Proposed Transaction was extended by 10 working days. The time limit was extended by a further 10 working days on 30 October 2015, with the agreement of the Notifying Party in accordance with Article 10(3), second subparagraph, third sentence, of the Merger Regulation.

| 4. | On 27 October 2015, upon reasoned request, I admitted Proximus NV van publiek recht to be heard as interested third person pursuant to Article 5 of Decision 2011/695/EU. |
| --- | --- |

4.

On 27 October 2015, upon reasoned request, I admitted Proximus NV van publiek recht to be heard as interested third person pursuant to Article 5 of Decision 2011/695/EU.

| 5. | On 14 September 2015, during the first phase investigation, the Notifying Party submitted proposed commitments in order to address the competition concerns identified by the Commission. On 18 September 2015, the Notifying Party submitted modified commitments. |
| --- | --- |

5.

On 14 September 2015, during the first phase investigation, the Notifying Party submitted proposed commitments in order to address the competition concerns identified by the Commission. On 18 September 2015, the Notifying Party submitted modified commitments.

| 6. | Based on the results of its market testing, the Commission considered that the modified commitments did not address in full and in a clear-cut fashion the serious doubts identified by the Commission during the first phase investigation and therefore did not meet the standard for an acceptable remedy in the first phase investigation. |
| --- | --- |

6.

Based on the results of its market testing, the Commission considered that the modified commitments did not address in full and in a clear-cut fashion the serious doubts identified by the Commission during the first phase investigation and therefore did not meet the standard for an acceptable remedy in the first phase investigation.

| 7. | After the commencement of the second phase investigation, the Notifying Party submitted a new set of commitments on 27 October 2015. On the same date, the Notifying Party informed the Commission of agreements involving Medialaan NV as a potential upfront remedy taker. |
| --- | --- |

7.

After the commencement of the second phase investigation, the Notifying Party submitted a new set of commitments on 27 October 2015. On the same date, the Notifying Party informed the Commission of agreements involving Medialaan NV as a potential upfront remedy taker.

| 8. | The following day the Commission launched a market test of these proposals. |
| --- | --- |

8.

The following day the Commission launched a market test of these proposals.

| 9. | Following this second market test, the Notifying Party submitted revised commitments on 26 November 2015 and 2 December 2015. It submitted a final set of commitments on 18 December 2015 (the ‘Final Commitments’). |
| --- | --- |

9.

Following this second market test, the Notifying Party submitted revised commitments on 26 November 2015 and 2 December 2015. It submitted a final set of commitments on 18 December 2015 (the ‘Final Commitments’).

| 10. | The Commission did not issue a statement of objections pursuant to Article 13(2) of Regulation (EC) No 802/2004 (3). There was no formal oral hearing in accordance with Article 14 of that regulation. |
| --- | --- |

10.

The Commission did not issue a statement of objections pursuant to Article 13(2) of Regulation (EC) No 802/2004 (3). There was no formal oral hearing in accordance with Article 14 of that regulation.

| 11. | In the draft decision, the Commission concludes that the Final Commitments address in full the significant impediment to effective competition identified by the Commission as resulting from the Proposed Transaction. As a result, the draft decision declares the Proposed Transaction compatible with the internal market and the EEA agreement pursuant to Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement, subject to full compliance with the Final Commitments. |
| --- | --- |

11.

In the draft decision, the Commission concludes that the Final Commitments address in full the significant impediment to effective competition identified by the Commission as resulting from the Proposed Transaction. As a result, the draft decision declares the Proposed Transaction compatible with the internal market and the EEA agreement pursuant to Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement, subject to full compliance with the Final Commitments.

| 12. | In accordance with Articles 16 and 17 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views. I conclude that it does. |
| --- | --- |

12.

In accordance with Articles 16 and 17 of Decision 2011/695/EU, I have examined whether the draft decision deals only with objections in respect of which the parties have been afforded the opportunity of making known their views. I conclude that it does.

| 13. | Overall, I consider that the effective exercise of procedural rights has been respected during the present proceedings. |
| --- | --- |

13.

Overall, I consider that the effective exercise of procedural rights has been respected during the present proceedings.

Brussels, 26 January 2016.

Joos STRAGIER

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(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 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ L 24, 29.1.2004, p. 1).

2

(3)  Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1).

3

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| 22.4.2016 | EN | Official Journal of the European Union | C 141/7 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/7

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Summary of Commission Decision

of 4 February 2016

declaring a concentration compatible with the internal market and the functioning of the EEA Agreement

(Case M.7637 — Liberty Global/BASE Belgium)

(notified under document C(2016) 531)

(Only the English version is authentic)

(Text with EEA relevance)

(2016/C 141/06)

On 4 February 2016 the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
   (1)
  (hereinafter ‘the Merger Regulation’), and in particular Article 8(2) of that Regulation. A non-confidential version of the full Decision, as the case may be in the form of a provisional version, can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address: http://ec.europa.eu/comm/competition/index_en.html

I.   THE PARTIES

| (1) | Telenet NV (‘Telenet’), controlled by Liberty Global Broadband I Limited (‘Liberty Global’), is a cable network operator in Belgium, specialising in the supply of fixed internet, fixed telephony services and cable television to customers throughout Flanders and parts of Brussels. Telenet also offers retail mobile telecommunications services as a mobile virtual network operator (‘MVNO’) in Belgium. Most of its mobile customers live in the footprint of Telenet’s cable network, which covers Flanders and parts of Brussels. |
| --- | --- |

(1)

Telenet NV (‘Telenet’), controlled by Liberty Global Broadband I Limited (‘Liberty Global’), is a cable network operator in Belgium, specialising in the supply of fixed internet, fixed telephony services and cable television to customers throughout Flanders and parts of Brussels. Telenet also offers retail mobile telecommunications services as a mobile virtual network operator (‘MVNO’) in Belgium. Most of its mobile customers live in the footprint of Telenet’s cable network, which covers Flanders and parts of Brussels.

| (2) | BASE Company NV (‘BASE’) is a subsidiary of the Dutch telecommunications group KPN. BASE is a mobile network operator (‘MNO’) offering mobile telecommunications services in Belgium. BASE also offers wholesale access to its network to MVNOs in Belgium. BASE owns 50 % of the shares in VikingCo NV (‘Mobile Vikings’). Mobile Vikings is an MVNO which sells mobile services under the Mobile Vikings brand and uses BASE’s mobile network. The other 50 % of Mobile Vikings is owned by VikingCo International NV. |
| --- | --- |

(2)

BASE Company NV (‘BASE’) is a subsidiary of the Dutch telecommunications group KPN. BASE is a mobile network operator (‘MNO’) offering mobile telecommunications services in Belgium. BASE also offers wholesale access to its network to MVNOs in Belgium. BASE owns 50 % of the shares in VikingCo NV (‘Mobile Vikings’). Mobile Vikings is an MVNO which sells mobile services under the Mobile Vikings brand and uses BASE’s mobile network. The other 50 % of Mobile Vikings is owned by VikingCo International NV.

II.   THE OPERATION

| (3) | On 18 April 2015, a Sale and Purchase Agreement (‘SPA’) was concluded between KPN Mobile International B.V. and KPN Mobile N.V., as the sellers, and Telenet, as the purchaser, pursuant to which Telenet would acquire all issued and outstanding shares in the capital of BASE. Under the SPA, Telenet will acquire sole control over BASE. |
| --- | --- |

(3)

On 18 April 2015, a Sale and Purchase Agreement (‘SPA’) was concluded between KPN Mobile International B.V. and KPN Mobile N.V., as the sellers, and Telenet, as the purchaser, pursuant to which Telenet would acquire all issued and outstanding shares in the capital of BASE. Under the SPA, Telenet will acquire sole control over BASE.

| (4) | On 17 August 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Telenet acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of the undertaking BASE, by way of purchase of shares. |
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(4)

On 17 August 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Telenet acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of the undertaking BASE, by way of purchase of shares.

III.   THE RELEVANT PRODUCT AND GEOGRAPHIC MARKETS

| (5) | The operation concerns services provided on the wholesale and retail level of the Belgian telecommunications sector. |
| --- | --- |

(5)

The operation concerns services provided on the wholesale and retail level of the Belgian telecommunications sector.

| (6) | The Commission defined an overall product market for the retail provision of mobile telecommunications. The Commission defined such retail market for mobile telecommunications services as national in scope. However, in assessing the competitive impact of the operation, the Commission took account of the fact that Telenet competes almost exclusively in the geographic area that corresponds to its cable network footprint. |
| --- | --- |

(6)

The Commission defined an overall product market for the retail provision of mobile telecommunications. The Commission defined such retail market for mobile telecommunications services as national in scope. However, in assessing the competitive impact of the operation, the Commission took account of the fact that Telenet competes almost exclusively in the geographic area that corresponds to its cable network footprint.

| (7) | With respect to retail TV services, the Commission defined the relevant product market as the overall retail market for TV services. As for the geographic scope, the Commission left open the question of whether the market was national, regional or corresponded to the footprint of Telenet’s cable network. |
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(7)

With respect to retail TV services, the Commission defined the relevant product market as the overall retail market for TV services. As for the geographic scope, the Commission left open the question of whether the market was national, regional or corresponded to the footprint of Telenet’s cable network.

| (8) | With respect to retail fixed internet access services, the Commission defined the market as the overall retail market for fixed internet access services, and left open the question of whether the geographic scope of this market should be national, regional, or limited to the footprint of Telenet’s cable network. |
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(8)

With respect to retail fixed internet access services, the Commission defined the market as the overall retail market for fixed internet access services, and left open the question of whether the geographic scope of this market should be national, regional, or limited to the footprint of Telenet’s cable network.

| (9) | The Commission defined an overall product market for retail fixed telephony services, and left open the question of whether the geographic scope of this market should be national, regional or limited to the footprint of Telenet’s cable network. |
| --- | --- |

(9)

The Commission defined an overall product market for retail fixed telephony services, and left open the question of whether the geographic scope of this market should be national, regional or limited to the footprint of Telenet’s cable network.

| (10) | The Commission also assessed whether a separate retail market should be identified in Belgium for so-called fixed-mobile multiple play services, that is to say a retail market where customers purchase mobile telecommunications services together with one or more fixed telecommunications service (TV, fixed internet, fixed telephony). The Commission concluded that such market does not currently exist in Belgium, among others because of the limited amount of mobile-fixed services purchased together by consumers. In any case, if such a retail market for multiple play services were to exist, the effects of the operation on such a market would have been taken into account in the Commission’s competitive assessment of possible conglomerate effects. |
| --- | --- |

(10)

The Commission also assessed whether a separate retail market should be identified in Belgium for so-called fixed-mobile multiple play services, that is to say a retail market where customers purchase mobile telecommunications services together with one or more fixed telecommunications service (TV, fixed internet, fixed telephony). The Commission concluded that such market does not currently exist in Belgium, among others because of the limited amount of mobile-fixed services purchased together by consumers. In any case, if such a retail market for multiple play services were to exist, the effects of the operation on such a market would have been taken into account in the Commission’s competitive assessment of possible conglomerate effects.

| (11) | At the wholesale level, the Commission defined a market for access and call origination on mobile networks, which is national in scope. |
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(11)

At the wholesale level, the Commission defined a market for access and call origination on mobile networks, which is national in scope.

| (12) | The Commission also identified separate markets for wholesale access to TV and internet services, and left open the question of whether these markets should be national in scope, or limited to Telenet’s footprint. |
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(12)

The Commission also identified separate markets for wholesale access to TV and internet services, and left open the question of whether these markets should be national in scope, or limited to Telenet’s footprint.

| (13) | The Commission also identified and defined relevant markets for: wholesale call termination services on mobile networks, wholesale international roaming services, wholesale call termination services on fixed networks, wholesale domestic call transit services on fixed networks, wholesale services for termination and hosting of calls to non-geographic numbers, and wholesale access to leased lines. However, the Commission found that the operation did not raise competition concerns with respect to any of these markets. |
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(13)

The Commission also identified and defined relevant markets for: wholesale call termination services on mobile networks, wholesale international roaming services, wholesale call termination services on fixed networks, wholesale domestic call transit services on fixed networks, wholesale services for termination and hosting of calls to non-geographic numbers, and wholesale access to leased lines. However, the Commission found that the operation did not raise competition concerns with respect to any of these markets.

IV.   COMPETITIVE ASSESSMENT

1.   Horizontal assessment: Effective competition would be significantly impeded on the retail market for mobile telecommunications

| (14) | At the retail level, BASE’s and Telenet’s activities overlap only with respect to the retail market for mobile telecommunications services. On this market, BASE operates as an MNO, which owns its mobile network. In 2014, it had a market share of [10-20] % by revenue and [20-30] % by subscribers. |
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(14)

At the retail level, BASE’s and Telenet’s activities overlap only with respect to the retail market for mobile telecommunications services. On this market, BASE operates as an MNO, which owns its mobile network. In 2014, it had a market share of [10-20] % by revenue and [20-30] % by subscribers.

| (15) | Telenet also offers retail mobile telecommunications services, but does not have a mobile network. It operates as an MVNO, by relying on wholesale access to the mobile network of Mobistar, another MNO active in Belgium. Telenet started offering retail mobile telecommunications services in 2006 as a light MVNO, and became a full MVNO in 2012. In 2014, it had a market share of [5-10] % by revenue and [5-10] % by subscribers. Telenet’s success as an MVNO was due to several specific factors, including the fact that, when it launched its activities as an MVNO, it already had an established market presence and brand in Belgium based on its activities as a provider of fixed TV and internet services. |
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(15)

Telenet also offers retail mobile telecommunications services, but does not have a mobile network. It operates as an MVNO, by relying on wholesale access to the mobile network of Mobistar, another MNO active in Belgium. Telenet started offering retail mobile telecommunications services in 2006 as a light MVNO, and became a full MVNO in 2012. In 2014, it had a market share of [5-10] % by revenue and [5-10] % by subscribers. Telenet’s success as an MVNO was due to several specific factors, including the fact that, when it launched its activities as an MVNO, it already had an established market presence and brand in Belgium based on its activities as a provider of fixed TV and internet services.

| (16) | The Commission concluded that the operation would lead to a significant impediment to effective competition stemming from non-coordinated anti-competitive effects on the retail market for mobile telecommunications services in Belgium. The Belgian retail mobile market is a highly concentrated market with high barriers to entry. At the end of 2014, the three MNOs in Belgium and Telenet together accounted for [90-100] % of all revenue. BASE was the third largest MNO by revenue and the second largest MNO by subscribers at the end of 2014. Telenet was the largest MVNO in Belgium, both by revenue and subscribers. It was the fourth largest mobile operator in Belgium by revenue and subscribers. The operation would create an entity that would become the second largest mobile operator by subscribers, behind Proximus, and the third largest mobile operator by revenue, behind Proximus and Mobistar. |
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(16)

The Commission concluded that the operation would lead to a significant impediment to effective competition stemming from non-coordinated anti-competitive effects on the retail market for mobile telecommunications services in Belgium. The Belgian retail mobile market is a highly concentrated market with high barriers to entry. At the end of 2014, the three MNOs in Belgium and Telenet together accounted for [90-100] % of all revenue. BASE was the third largest MNO by revenue and the second largest MNO by subscribers at the end of 2014. Telenet was the largest MVNO in Belgium, both by revenue and subscribers. It was the fourth largest mobile operator in Belgium by revenue and subscribers. The operation would create an entity that would become the second largest mobile operator by subscribers, behind Proximus, and the third largest mobile operator by revenue, behind Proximus and Mobistar.

| (17) | The Commission found that BASE and Telenet have been particularly active and aggressive competitors in the retail mobile market, particularly in the private (non-business) segment of the market. Post-operation the merged entity would compete less aggressively, thus lessening competition on the retail market for mobile telecommunications. |
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(17)

The Commission found that BASE and Telenet have been particularly active and aggressive competitors in the retail mobile market, particularly in the private (non-business) segment of the market. Post-operation the merged entity would compete less aggressively, thus lessening competition on the retail market for mobile telecommunications.

| (18) | At the retail level, Telenet is also active in the markets for the provision of TV services, fixed internet access services and fixed telephony services. BASE is not active on these markets, as it stopped providing these fixed services in December 2014. Therefore, the Commission found that the operation did not raise horizontal competition concerns on these markets, and would not remove BASE as a (actual or potential) competitor to Telenet for retail TV services, fixed internet access services and fixed telephony services. |
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(18)

At the retail level, Telenet is also active in the markets for the provision of TV services, fixed internet access services and fixed telephony services. BASE is not active on these markets, as it stopped providing these fixed services in December 2014. Therefore, the Commission found that the operation did not raise horizontal competition concerns on these markets, and would not remove BASE as a (actual or potential) competitor to Telenet for retail TV services, fixed internet access services and fixed telephony services.

2.   Vertical assessment: Effective competition would not be significantly impeded as a result of reduced wholesale access to BASE’s mobile network or Telenet’s cable network (input foreclosure)

| (19) | With respect to the wholesale market for access and call origination on mobile networks, the Commission analysed whether the merged entity would foreclose the MVNOs on the BASE network from access to its mobile network (input foreclosure). First, the Commission concluded that the operation would not change the merged entity’s ability to engage in input foreclosure, as BASE could already deny access to MVNOs pre-operation. Second, the Commission found that the operation would alter the merged entity’s incentive to engage in input foreclosure only to a limited extent. Finally, the Commission found that even if the merged entity were to engage in input foreclosure towards MVNOs, this conduct would have limited effects, as MVNOs (other than Telenet) do not play a sufficiently important role in the competitive process on the retail market for mobile telecommunications services. For these reasons, the Commission concluded that the operation would not lead to a significant impediment to effective competition as a result of input foreclosure of wholesale access and call origination on mobile networks in Belgium. |
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(19)

With respect to the wholesale market for access and call origination on mobile networks, the Commission analysed whether the merged entity would foreclose the MVNOs on the BASE network from access to its mobile network (input foreclosure). First, the Commission concluded that the operation would not change the merged entity’s ability to engage in input foreclosure, as BASE could already deny access to MVNOs pre-operation. Second, the Commission found that the operation would alter the merged entity’s incentive to engage in input foreclosure only to a limited extent. Finally, the Commission found that even if the merged entity were to engage in input foreclosure towards MVNOs, this conduct would have limited effects, as MVNOs (other than Telenet) do not play a sufficiently important role in the competitive process on the retail market for mobile telecommunications services. For these reasons, the Commission concluded that the operation would not lead to a significant impediment to effective competition as a result of input foreclosure of wholesale access and call origination on mobile networks in Belgium.

| (20) | With respect to the markets for wholesale access to TV and internet services, the Commission assessed whether the operation would change Telenet’s ability and incentive to foreclose other telecommunications operators by hampering access to its cable network, which can be an input for the retail provision of fixed telecommunications services, such as fixed telephony, fixed internet, and TV services. The Commission noted that the Belgian telecommunications regulators imposed on Telenet an obligation to grant access to its cable network for the provision of retail TV services, and, in combination with retail TV services, retail internet access services. Given this regulatory regime, the Commission concluded that Telenet does not have the ability to foreclose access to its cable network for the purpose of providing TV services or fixed internet services in combination with TV services and this situation would not change with the operation. With respect to stand-alone internet services, the Commission noted that Telenet does have the ability and the incentive to foreclose access to its cable network, as there is no regulatory obligation upon Telenet to grant wholesale access to its network for standalone fixed internet services. However, this situation already existed pre-operation and would not be affected by the operation. As such, the Commission concluded that the operation would not lead to a significant impediment to effective competition as a result of input foreclosure of wholesale access to Telenet’s cable network. |
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(20)

With respect to the markets for wholesale access to TV and internet services, the Commission assessed whether the operation would change Telenet’s ability and incentive to foreclose other telecommunications operators by hampering access to its cable network, which can be an input for the retail provision of fixed telecommunications services, such as fixed telephony, fixed internet, and TV services. The Commission noted that the Belgian telecommunications regulators imposed on Telenet an obligation to grant access to its cable network for the provision of retail TV services, and, in combination with retail TV services, retail internet access services. Given this regulatory regime, the Commission concluded that Telenet does not have the ability to foreclose access to its cable network for the purpose of providing TV services or fixed internet services in combination with TV services and this situation would not change with the operation. With respect to stand-alone internet services, the Commission noted that Telenet does have the ability and the incentive to foreclose access to its cable network, as there is no regulatory obligation upon Telenet to grant wholesale access to its network for standalone fixed internet services. However, this situation already existed pre-operation and would not be affected by the operation. As such, the Commission concluded that the operation would not lead to a significant impediment to effective competition as a result of input foreclosure of wholesale access to Telenet’s cable network.

3.   Conglomerate assessment: The operation would not lead to conglomerate effects due to the bundling of fixed and mobile services

| (21) | The Commission assessed whether the operation would lead to conglomerate effects. The operation combines an MNO and an operator with a fixed network and the Commission therefore assessed whether the merged entity could foreclose competitors by bundling fixed and mobile services. |
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(21)

The Commission assessed whether the operation would lead to conglomerate effects. The operation combines an MNO and an operator with a fixed network and the Commission therefore assessed whether the merged entity could foreclose competitors by bundling fixed and mobile services.

| (22) | The Commission noted that pre-operation Telenet already offers all four components of retail fixed-mobile multiple play packages (TV, fixed internet, fixed telephony and mobile telecommunications services). Telenet can therefore already sell fixed-mobile bundles to consumers. The Commission also noted that the operation does not change Telenet’s position in any of the fixed markets, since BASE is not active in any of these markets. The operation does, however, increase the mobile customer base of the merged entity, since it will combine the BASE and Telenet customers. In turn, this could possibly facilitate fixed-mobile bundling in two ways. First, it may make it easier for Telenet to sell fixed-mobile bundles to BASE subscribers who do not yet purchase fixed services from Telenet. Second, it may make it easier for Telenet to sell fixed-mobile bundles to BASE subscribers who already purchase fixed services from Telenet. |
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(22)

The Commission noted that pre-operation Telenet already offers all four components of retail fixed-mobile multiple play packages (TV, fixed internet, fixed telephony and mobile telecommunications services). Telenet can therefore already sell fixed-mobile bundles to consumers. The Commission also noted that the operation does not change Telenet’s position in any of the fixed markets, since BASE is not active in any of these markets. The operation does, however, increase the mobile customer base of the merged entity, since it will combine the BASE and Telenet customers. In turn, this could possibly facilitate fixed-mobile bundling in two ways. First, it may make it easier for Telenet to sell fixed-mobile bundles to BASE subscribers who do not yet purchase fixed services from Telenet. Second, it may make it easier for Telenet to sell fixed-mobile bundles to BASE subscribers who already purchase fixed services from Telenet.

| (23) | With respect to the first of these two potential types of conduct which could be facilitated by the operation (foreclosure by selling fixed-mobile bundles to BASE’s mobile subscribers who do not yet purchase fixed services from Telenet), the Commission noted the following. First, it is unlikely that the operation would give the merged entity the ability to engage in foreclosure through bundling. A significant part of all BASE customers live outside of the Telenet footprint and it is unlikely that the merged entity would offer fixed-mobile services outside of its footprint. Moreover, the number of BASE customers to whom Telenet does not already sell its fixed services is limited and many BASE customers are pre-paid customers, who would first have to be converted into post-paid subscribers before being offered fixed-mobile bundles. This is an additional hurdle to the cross-selling of fixed-mobile bundles. In addition, the merged entity will not hold a dominant position in the mobile retail market and it is therefore doubtful that the merged entity would have sufficient market power to foreclose competitors through bundling. Finally, the merged entity’s competitors could deploy counter-strategies, such as offering fixed-mobile bundles themselves or offering mobile services at attractive prices to prevent customers from purchasing fixed-mobile bundles from the merged entity. |
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(23)

With respect to the first of these two potential types of conduct which could be facilitated by the operation (foreclosure by selling fixed-mobile bundles to BASE’s mobile subscribers who do not yet purchase fixed services from Telenet), the Commission noted the following. First, it is unlikely that the operation would give the merged entity the ability to engage in foreclosure through bundling. A significant part of all BASE customers live outside of the Telenet footprint and it is unlikely that the merged entity would offer fixed-mobile services outside of its footprint. Moreover, the number of BASE customers to whom Telenet does not already sell its fixed services is limited and many BASE customers are pre-paid customers, who would first have to be converted into post-paid subscribers before being offered fixed-mobile bundles. This is an additional hurdle to the cross-selling of fixed-mobile bundles. In addition, the merged entity will not hold a dominant position in the mobile retail market and it is therefore doubtful that the merged entity would have sufficient market power to foreclose competitors through bundling. Finally, the merged entity’s competitors could deploy counter-strategies, such as offering fixed-mobile bundles themselves or offering mobile services at attractive prices to prevent customers from purchasing fixed-mobile bundles from the merged entity.

| (24) | Second, the Commission considered that it was uncertain whether Telenet would have the incentive to engage in cross-selling of its fixed services to BASE mobile customers, as it would likely have to offer these services at a discount, which would come at a cost for Telenet. |
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(24)

Second, the Commission considered that it was uncertain whether Telenet would have the incentive to engage in cross-selling of its fixed services to BASE mobile customers, as it would likely have to offer these services at a discount, which would come at a cost for Telenet.

| (25) | Finally, the Commission found that such conduct was unlikely to have a negative impact on prices and choice, since it is unlikely that competitors would exit the market or lose the ability to compete effectively. The volume of sales that could be foreclosed through bundling as a result of the operation is limited. Moreover, a large majority of all mobile services in Belgium is still purchased as a stand-alone service, not in a bundle. The other MNOs in the Belgian market are Proximus and Mobistar and they could also engage in bundling. Proximus is by far the largest telecoms operator in the Belgian retail market and engages in fixed-mobile bundling itself. Mobistar is, even after the operation, the second largest mobile operator by revenue, after Proximus. It could offer fixed services based on wholesale access to Telenet’s cable network and has already announced that it will do so. Telenet is under a regulatory obligation to provide access to its network in order for alternative operators to offer TV services and, in combination with TV services, fixed internet services. |
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(25)

Finally, the Commission found that such conduct was unlikely to have a negative impact on prices and choice, since it is unlikely that competitors would exit the market or lose the ability to compete effectively. The volume of sales that could be foreclosed through bundling as a result of the operation is limited. Moreover, a large majority of all mobile services in Belgium is still purchased as a stand-alone service, not in a bundle. The other MNOs in the Belgian market are Proximus and Mobistar and they could also engage in bundling. Proximus is by far the largest telecoms operator in the Belgian retail market and engages in fixed-mobile bundling itself. Mobistar is, even after the operation, the second largest mobile operator by revenue, after Proximus. It could offer fixed services based on wholesale access to Telenet’s cable network and has already announced that it will do so. Telenet is under a regulatory obligation to provide access to its network in order for alternative operators to offer TV services and, in combination with TV services, fixed internet services.

| (26) | With respect to the second type of conduct (foreclosure by selling fixed-mobile bundles to BASE’s mobile subscribers who also purchase fixed services from Telenet), the Commission noted the following. First, the operation would not significantly increase Telenet’s ability to foreclose competitors by offering a single bill or a bundle to the BASE subscribers that already purchase Telenet services. As indicated in paragraph (22), that advantage is indeed limited by a number of elements, notably the fact that a significant part of BASE subscribers lives outside of Telenet’s footprint and are pre-paid subscribers. Moreover, Telenet would, even after the operation, not have a dominant position in the retail mobile market and the merged entity’s rivals could engage in counter-strategies in response to bundling. Second, it was uncertain whether Telenet would have the incentive to engage in such a conduct, considering the speculative nature of the long-term gains of a foreclosure strategy. Finally, as explained in paragraph (24), such a conduct would not likely have a negative impact upon prices or lead to foreclosure of competitors which, in particular, could offer bundles themselves or price their mobile services more cheaply to prevent customers from purchasing the merger entity’s bundles. |
| --- | --- |

(26)

With respect to the second type of conduct (foreclosure by selling fixed-mobile bundles to BASE’s mobile subscribers who also purchase fixed services from Telenet), the Commission noted the following. First, the operation would not significantly increase Telenet’s ability to foreclose competitors by offering a single bill or a bundle to the BASE subscribers that already purchase Telenet services. As indicated in paragraph (22), that advantage is indeed limited by a number of elements, notably the fact that a significant part of BASE subscribers lives outside of Telenet’s footprint and are pre-paid subscribers. Moreover, Telenet would, even after the operation, not have a dominant position in the retail mobile market and the merged entity’s rivals could engage in counter-strategies in response to bundling. Second, it was uncertain whether Telenet would have the incentive to engage in such a conduct, considering the speculative nature of the long-term gains of a foreclosure strategy. Finally, as explained in paragraph (24), such a conduct would not likely have a negative impact upon prices or lead to foreclosure of competitors which, in particular, could offer bundles themselves or price their mobile services more cheaply to prevent customers from purchasing the merger entity’s bundles.

4.   Conclusion regarding the competitive assessment

| (27) | The Commission concluded that the operation would lead to a significant impediment to effective competition stemming from non-coordinated anti-competitive effects on the retail market for mobile telecommunications services in Belgium. The Commission found that the operation would not lead to a significant impediment to effective competition with respect to vertical and conglomerate effects on the retail or wholesale fixed and mobile telecommunications markets. |
| --- | --- |

(27)

The Commission concluded that the operation would lead to a significant impediment to effective competition stemming from non-coordinated anti-competitive effects on the retail market for mobile telecommunications services in Belgium. The Commission found that the operation would not lead to a significant impediment to effective competition with respect to vertical and conglomerate effects on the retail or wholesale fixed and mobile telecommunications markets.

V.   COMMITMENTS

| (28) | In order to address the competition concerns identified by the Commission on the retail market for mobile telecommunications services, Liberty Global submitted commitments. |
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(28)

In order to address the competition concerns identified by the Commission on the retail market for mobile telecommunications services, Liberty Global submitted commitments.

1.   Description of the commitments

| (29) | The final commitments submitted by Liberty Global consisted of two elements. First, Telenet would divest two of BASE’s customer bases, amounting to around [...] active subscribers, to one and the same purchaser. Second, Telenet would enter into an MVNO agreement with the purchaser of the customer bases, enabling the remedy taker to operate on the retail market for mobile telecommunications services as an MVNO on the BASE network. The final commitments included an upfront buyer clause (Telenet could not close the operation until it had concluded an agreement for the divestment of the customer bases) and required that the Commission approve the MVNO agreement as compliant with the requirements set in the final commitments. |
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(29)

The final commitments submitted by Liberty Global consisted of two elements. First, Telenet would divest two of BASE’s customer bases, amounting to around [...] active subscribers, to one and the same purchaser. Second, Telenet would enter into an MVNO agreement with the purchaser of the customer bases, enabling the remedy taker to operate on the retail market for mobile telecommunications services as an MVNO on the BASE network. The final commitments included an upfront buyer clause (Telenet could not close the operation until it had concluded an agreement for the divestment of the customer bases) and required that the Commission approve the MVNO agreement as compliant with the requirements set in the final commitments.

| (30) | Liberty Global proposed Medialaan to the Commission as a fix-it-first remedy taker. Liberty Global also provided to the Commission copies of (i) the agreement with Medialaan for the sale of the BASE customer bases; and (ii) the MVNO agreement with Medialaan. |
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(30)

Liberty Global proposed Medialaan to the Commission as a fix-it-first remedy taker. Liberty Global also provided to the Commission copies of (i) the agreement with Medialaan for the sale of the BASE customer bases; and (ii) the MVNO agreement with Medialaan.

| (31) | Under the final commitments, Telenet would transfer to Medialaan the ownership of the customers of the ‘JIM Mobile’ brand, and its 50 % stake in the light MVNO Mobile Vikings. ‘JIM Mobile’ is a brand already owned by Medialaan, but the ‘JIM Mobile’ customers belong to BASE. Mobile Vikings is a light MVNO operating on the BASE network, in which BASE has a 50 % share. In parallel to the acquisition of BASE’s share in Mobile Vikings, Medialaan separately acquired the other 50 % share in Mobile Vikings. The combined effect of the final commitments and Medialaan’s separate acquisition is thus that Medialaan will directly or indirectly own 100 % of Mobile Vikings. |
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(31)

Under the final commitments, Telenet would transfer to Medialaan the ownership of the customers of the ‘JIM Mobile’ brand, and its 50 % stake in the light MVNO Mobile Vikings. ‘JIM Mobile’ is a brand already owned by Medialaan, but the ‘JIM Mobile’ customers belong to BASE. Mobile Vikings is a light MVNO operating on the BASE network, in which BASE has a 50 % share. In parallel to the acquisition of BASE’s share in Mobile Vikings, Medialaan separately acquired the other 50 % share in Mobile Vikings. The combined effect of the final commitments and Medialaan’s separate acquisition is thus that Medialaan will directly or indirectly own 100 % of Mobile Vikings.

| (32) | The final commitments provided that the MVNO agreement would have the following features: (i) Medialaan would become a full MVNO within a set time period, with Telenet’s assistance; (ii) the MVNO agreement would have a duration of 5 years from the full MVNO launch; (iii) under the MVNO agreement, the MVNO would operate under a ‘pay-as-you-go’ model, but would have the option to acquire capacity from BASE for data (the ‘pay-as-you-go’ model would continue for voice and SMS); (iv) under the capacity option, Medialaan could acquire, at a fixed annual price, 20 % of the capacity on the BASE network, with the possibility to acquire further additional capacity (5 % plus another 5 %); (v) in case of exercise of the capacity option, the MVNO agreement would be extended for 5 years from the first year of implementation of the capacity option; (vi) the MVNO agreement would have an exclusivity period of a fixed time period starting from the date of the divestment of the customer bases, during which Medialaan could not rely on another MNO host; (vii) under the capacity option, should Medialaan exceed the capacity purchased from BASE, it would be entitled after the exclusivity period to rely on another MNO for the necessary excess capacity (as an alternative to purchasing additional capacity from BASE). |
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(32)

The final commitments provided that the MVNO agreement would have the following features: (i) Medialaan would become a full MVNO within a set time period, with Telenet’s assistance; (ii) the MVNO agreement would have a duration of 5 years from the full MVNO launch; (iii) under the MVNO agreement, the MVNO would operate under a ‘pay-as-you-go’ model, but would have the option to acquire capacity from BASE for data (the ‘pay-as-you-go’ model would continue for voice and SMS); (iv) under the capacity option, Medialaan could acquire, at a fixed annual price, 20 % of the capacity on the BASE network, with the possibility to acquire further additional capacity (5 % plus another 5 %); (v) in case of exercise of the capacity option, the MVNO agreement would be extended for 5 years from the first year of implementation of the capacity option; (vi) the MVNO agreement would have an exclusivity period of a fixed time period starting from the date of the divestment of the customer bases, during which Medialaan could not rely on another MNO host; (vii) under the capacity option, should Medialaan exceed the capacity purchased from BASE, it would be entitled after the exclusivity period to rely on another MNO for the necessary excess capacity (as an alternative to purchasing additional capacity from BASE).

2.   Assessment of the commitments submitted and of the remedy taker

| (33) | The Commission considered that the final commitments removed the Commission’s horizontal concerns with respect to the retail market for mobile telecommunications services. |
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(33)

The Commission considered that the final commitments removed the Commission’s horizontal concerns with respect to the retail market for mobile telecommunications services.

| (34) | The Commission considered that the divestment of the two customer bases (‘JIM Mobile’ customers and Mobile Vikings) to Medialaan would create a mobile operator with the necessary scale and scope to compete aggressively on the retail market for mobile telecommunications and recreate to the greatest extent possible the competitive pressure exercised by Telenet pre-operation. |
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(34)

The Commission considered that the divestment of the two customer bases (‘JIM Mobile’ customers and Mobile Vikings) to Medialaan would create a mobile operator with the necessary scale and scope to compete aggressively on the retail market for mobile telecommunications and recreate to the greatest extent possible the competitive pressure exercised by Telenet pre-operation.

| (35) | With respect to the MVNO agreement, the Commission considered that the ‘pay-as-you-go’ model [...], and would thus enable Medialaan to operate under favourable economic terms. With respect to the capacity option, the Commission considered that this option would enable Medialaan to further grow and compete effectively. |
| --- | --- |

(35)

With respect to the MVNO agreement, the Commission considered that the ‘pay-as-you-go’ model [...], and would thus enable Medialaan to operate under favourable economic terms. With respect to the capacity option, the Commission considered that this option would enable Medialaan to further grow and compete effectively.

| (36) | As part of its assessment, the Commission also analysed Medialaan as the proposed remedy taker. The Commission concluded that Medialaan would be a suitable buyer, would be independent of Telenet, and would have the financial resources, expertise and incentives to compete effectively on the retail market for mobile telecommunications. In particular, the Commission considered that the transfer of the ‘JIM Mobile’ and Mobile Vikings customers to Medialaan and the transition of Medialaan to full MVNO could be achieved within the timeframe provided in the final commitments and would enable Medialaan to become an effective competitor. The Commission also concluded that Medialaan’s acquisition of ‘JIM Mobile’ customers and Mobile Vikings would not raise prima facie competition concerns. |
| --- | --- |

(36)

As part of its assessment, the Commission also analysed Medialaan as the proposed remedy taker. The Commission concluded that Medialaan would be a suitable buyer, would be independent of Telenet, and would have the financial resources, expertise and incentives to compete effectively on the retail market for mobile telecommunications. In particular, the Commission considered that the transfer of the ‘JIM Mobile’ and Mobile Vikings customers to Medialaan and the transition of Medialaan to full MVNO could be achieved within the timeframe provided in the final commitments and would enable Medialaan to become an effective competitor. The Commission also concluded that Medialaan’s acquisition of ‘JIM Mobile’ customers and Mobile Vikings would not raise prima facie competition concerns.

| (37) | The Commission also reviewed the MVNO agreement between Telenet and Medialaan, and concluded that its terms complied with the requirements of the final commitments. |
| --- | --- |

(37)

The Commission also reviewed the MVNO agreement between Telenet and Medialaan, and concluded that its terms complied with the requirements of the final commitments.

| (38) | The Commission therefore concluded that the final commitments would remove the horizontal concerns it had identified with respect to the retail market for mobile telecommunications. It approved Medialaan as a suitable remedy taker and declared the MVNO agreement consistent with the final commitments. |
| --- | --- |

(38)

The Commission therefore concluded that the final commitments would remove the horizontal concerns it had identified with respect to the retail market for mobile telecommunications. It approved Medialaan as a suitable remedy taker and declared the MVNO agreement consistent with the final commitments.

VI.   CONCLUSION

| (39) | For the reasons mentioned above, the decision concludes that, subject to compliance with the commitments given by the notifying party, the proposed concentration will not significantly impede effective competition in the Internal Market or in a substantial part of it. |
| --- | --- |

(39)

For the reasons mentioned above, the decision concludes that, subject to compliance with the commitments given by the notifying party, the proposed concentration will not significantly impede effective competition in the Internal Market or in a substantial part of it.

| (40) | Consequently the concentration should be declared compatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement. |
| --- | --- |

(40)

Consequently the concentration should be declared compatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement.

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(1)  OJ L 24, 29.1.2004, p. 1.

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V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 22.4.2016 | EN | Official Journal of the European Union | C 141/13 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/13

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Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40023 — Cross-border access to pay-TV

(2016/C 141/07)

1.   Introduction

| (1) | According to Article 9 of the 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 (1), the Commission may decide — in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment — to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. |
| --- | --- |

(1)

According to Article 9 of the 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 (1), the Commission may decide — in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment — to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission.

| (2) | According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission. |
| --- | --- |

(2)

According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.

2.   Summary of the Case

| (3) | On 23 July 2015 the Commission adopted a Statement of Objections (‘SO’) concerning, inter alia, conduct by Paramount Pictures International Limited (as successor by merger to Viacom Global (Netherlands) B.V.) (‘PPIL’) and Viacom Inc. (‘Viacom’) (together ‘Paramount’). The SO also constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003. |
| --- | --- |

(3)

On 23 July 2015 the Commission adopted a Statement of Objections (‘SO’) concerning, inter alia, conduct by Paramount Pictures International Limited (as successor by merger to Viacom Global (Netherlands) B.V.) (‘PPIL’) and Viacom Inc. (‘Viacom’) (together ‘Paramount’). The SO also constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003.

| (4) | According to the SO, Paramount has entered into licensing agreements with the pay-TV broadcaster, Sky UK Limited, containing clauses that:






  — | prohibit or limit Sky from making its retail pay-TV services available in response to unsolicited requests from consumers residing or located in the EEA but outside the United Kingdom and the Republic of Ireland, and/or |
| --- | --- | --- |

(4)

According to the SO, Paramount has entered into licensing agreements with the pay-TV broadcaster, Sky UK Limited, containing clauses that:

—

prohibit or limit Sky from making its retail pay-TV services available in response to unsolicited requests from consumers residing or located in the EEA but outside the United Kingdom and the Republic of Ireland, and/or

| — | require Paramount to prohibit or limit broadcasters located within the EEA but outside the United Kingdom and the Republic of Ireland from making their retail pay-TV services available in response to unsolicited requests from consumers residing or located in the United Kingdom and the Republic of Ireland (both types of clauses are referred to as the ‘Contested Clauses’). |
| --- | --- |

—

require Paramount to prohibit or limit broadcasters located within the EEA but outside the United Kingdom and the Republic of Ireland from making their retail pay-TV services available in response to unsolicited requests from consumers residing or located in the United Kingdom and the Republic of Ireland (both types of clauses are referred to as the ‘Contested Clauses’).

| (5) | The SO reaches the preliminary conclusion that Paramount’s conduct constitutes an infringement of Article 101 of the TFEU and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’) because: (i) the clauses have as their object the restriction of competition within the meaning of Article 101(1) TFEU and Article 53(1) of the EEA Agreement; (ii) there are no circumstances falling within the economic and legal context of the clauses that would justify the finding that they are not liable to impair competition; and (iii) the clauses do not satisfy the conditions for an exemption under Article 101(3) TFEU and Article 53(3) of the EEA Agreement. |
| --- | --- |

(5)

The SO reaches the preliminary conclusion that Paramount’s conduct constitutes an infringement of Article 101 of the TFEU and Article 53 of the Agreement on the European Economic Area (‘EEA Agreement’) because: (i) the clauses have as their object the restriction of competition within the meaning of Article 101(1) TFEU and Article 53(1) of the EEA Agreement; (ii) there are no circumstances falling within the economic and legal context of the clauses that would justify the finding that they are not liable to impair competition; and (iii) the clauses do not satisfy the conditions for an exemption under Article 101(3) TFEU and Article 53(3) of the EEA Agreement.

| (6) | The SO also concerns conduct by, on the one hand, Sky, and on the other hand, Disney, NBCUniversal, Sony, Twentieth Century Fox and Warner Bros. The Commission is still investigating the compatibility with Article 101 of the TFEU and Article 53 of the EEA Agreement of the conduct of Disney, NBCUniversal, Sony, Twentieth Century Fox, Warner Bros and Sky (including the latter’s conduct in relation to the abovementioned clauses in the licensing agreements between Paramount and Sky). |
| --- | --- |

(6)

The SO also concerns conduct by, on the one hand, Sky, and on the other hand, Disney, NBCUniversal, Sony, Twentieth Century Fox and Warner Bros. The Commission is still investigating the compatibility with Article 101 of the TFEU and Article 53 of the EEA Agreement of the conduct of Disney, NBCUniversal, Sony, Twentieth Century Fox, Warner Bros and Sky (including the latter’s conduct in relation to the abovementioned clauses in the licensing agreements between Paramount and Sky).

3.   The main content of the offered commitments

| (7) | Paramount does not agree with the concerns expressed in the SO. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003 to meet the Commission’s competition concerns. The key elements of the commitments would be as follows:






  (a) | Paramount should not enter into, renew or extend a Pay-TV Output License Agreement (2) that, with respect to any territory in the EEA, (re)introduces any Additional Obligations. These are defined as:






  — | contractual obligations of the type identified in the SO preventing or limiting a Broadcaster from responding to unsolicited requests from consumers residing and located in the European Economic Area but outside of such Broadcaster’s licensed territory (‘Broadcaster Obligation’), |
| --- | --- | --- | --- |

(7)

Paramount does not agree with the concerns expressed in the SO. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003 to meet the Commission’s competition concerns. The key elements of the commitments would be as follows:

(a)

Paramount should not enter into, renew or extend a Pay-TV Output License Agreement (2) that, with respect to any territory in the EEA, (re)introduces any Additional Obligations. These are defined as:

—

contractual obligations of the type identified in the SO preventing or limiting a Broadcaster from responding to unsolicited requests from consumers residing and located in the European Economic Area but outside of such Broadcaster’s licensed territory (‘Broadcaster Obligation’),

| — | contractual obligations of the type identified in the SO requiring Paramount to prohibit or limit Broadcasters located within the European Economic Area but outside a Broadcaster’s licensed territory from responding to unsolicited requests from consumers residing and located inside such Broadcaster’s licensed territory (‘Paramount Obligation’); |
| --- | --- |

—

contractual obligations of the type identified in the SO requiring Paramount to prohibit or limit Broadcasters located within the European Economic Area but outside a Broadcaster’s licensed territory from responding to unsolicited requests from consumers residing and located inside such Broadcaster’s licensed territory (‘Paramount Obligation’);

| (b) | Paramount should not:






  — | seek to enforce or initiate proceedings before a court or tribunal for the violation of a Broadcaster Obligation in an existing Pay-TV Output License Agreement, and |
| --- | --- | --- |

(b)

Paramount should not:

—

seek to enforce or initiate proceedings before a court or tribunal for the violation of a Broadcaster Obligation in an existing Pay-TV Output License Agreement, and

| — | directly or indirectly honour or enforce a Paramount Obligation in an existing Pay-TV Output License Agreement. |
| --- | --- |

—

directly or indirectly honour or enforce a Paramount Obligation in an existing Pay-TV Output License Agreement.

| (8) | Paramount’s commitments would cover both linear pay-TV services and, to the extent included in the licence (or separate licence(s)) with a broadcaster, subscription video-on-demand services (‘SVOD’). |
| --- | --- |

(8)

Paramount’s commitments would cover both linear pay-TV services and, to the extent included in the licence (or separate licence(s)) with a broadcaster, subscription video-on-demand services (‘SVOD’).

| (9) | The duration of the commitments would be five years from the date on which Paramount receives formal notification of the Commission’s decision pursuant to Article 9 of Regulation (EC) No 1/2003. |
| --- | --- |

(9)

The duration of the commitments would be five years from the date on which Paramount receives formal notification of the Commission’s decision pursuant to Article 9 of Regulation (EC) No 1/2003.

| (10) | The commitments are published in full in English on the website of the Directorate-General for Competition at:
  http://ec.europa.eu/competition/index_en.html |
| --- | --- |

(10)

The commitments are published in full in English on the website of the Directorate-General for Competition at:

http://ec.europa.eu/competition/index_en.html

4.   Invitation to make comments

| (11) | Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring binding the commitments summarised above and published on the internet, on the website of the Directorate-General for Competition, to be binding. |
| --- | --- |

(11)

Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring binding the commitments summarised above and published on the internet, on the website of the Directorate-General for Competition, to be binding.

| (12) | In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ‘business secrets’ or ‘confidential’. |
| --- | --- |

(12)

In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ‘business secrets’ or ‘confidential’.

| (13) | Answers and comments should preferably be reasoned and should set out the relevant facts. If you identify a problem with any part of the proposed commitments, the Commission would also invite you to suggest a possible solution. |
| --- | --- |

(13)

Answers and comments should preferably be reasoned and should set out the relevant facts. If you identify a problem with any part of the proposed commitments, the Commission would also invite you to suggest a possible solution.

| (14) | Observations can be sent to the Commission under reference number AT.40023 — Cross-border access to pay-TV either by email (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128) or by post, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Antitrust Registry |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

(14)

Observations can be sent to the Commission under reference number AT.40023 — Cross-border access to pay-TV either by email (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128) or by post, to the following address:

European Commission

Directorate-General for Competition

Antitrust Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

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(1)  OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 of the EC Treaty when applicable.

(2)  ‘Pay-TV Output License Agreement’ is defined as an agreement that licenses to a Broadcaster (as the licensee) a licensor’s future output of defined films on an exclusive basis (and may include other audiovisual content) for a limited period of time during which the Broadcaster may exhibit the films on a Pay-TV basis and, to the extent included in the licence (or separate licence(s)) with such Broadcaster, on an SVOD basis.

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OTHER ACTS

European Commission

| 22.4.2016 | EN | Official Journal of the European Union | C 141/16 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/16

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Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

(2016/C 141/08)

This publication confers the right to oppose the application pursuant to Article 51 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council (1)

SINGLE DOCUMENT

‘PÃO DE LÓ DE OVAR’

EU No: PT-PGI-0005-01341 – 28.5.2015

PDO ( ) PGI ( X )

1.   Name(s)

‘Pão de Ló de Ovar’

2.   Member State or Third Country

Member State or Third Country

Portugal

3.   Description of the agricultural product or foodstuff

Description of the agricultural product or foodstuff

3.1.   Type of product

Type of product

Class 2.3. Bread, pastry, cakes, confectionery, biscuits and other baker’s wares

3.2.   Description of the product to which the name in (1) applies

Description of the product to which the name in (1) applies

‘Pão de Ló de Ovar’ is a bakery product made from eggs (mainly yolks), sugar and flour.

It comes in a mould lined with white paper, is shaped like a ‘country loaf’ and consists of light, creamy, soft, yellow cake known as ló, with a fine, slightly moist, golden brown crust and a moist part inside known as the pito. Its physical, chemical and organoleptic characteristics are set out below:

ló

pito

Physical parameters: average values for the two sizes of ‘Pão de Ló de Ovar’:

| | ‘Pão de Ló de Ovar’

  Miniatura or Infantes | ‘Pão de Ló de Ovar’

  Normal |
| --- | --- | --- |
| Min. | Max. | Min. | Max. |
| Weight (g) | 100 | 125 | 485 | 1 500 |
| Height (cm) | 3 | 8 | 7 | 14 |
| Diameter (cm) | 11 | 12 | 16 | 28 |

‘Pão de Ló de Ovar’

Miniatura or Infantes

Miniatura

Infantes

‘Pão de Ló de Ovar’

Normal

Normal

Min.

Max.

Min.

Max.

Weight (g)

100

125

485

1 500

Height (cm)

3

8

7

14

Diameter (cm)

11

12

16

28

The miniature ‘Pão de Ló de Ovar’ is also commonly known as Infantes [‘baby’].

Infantes

Chemical composition: average values:

| | Min. | Max. | Min. | Max. |
| --- | --- | --- | --- | --- |
| Sugar (%) | 37,80 | 49,20 | Soluble
  29,20 | Soluble
  39,20 |
| Insoluble
  5,40 | Insoluble
  13,40 |
| Fat (%) | 12,80 | 18,20 | | |
| Total water (%) | 24,50 | 33,10 | | |
| Protein (%) | 7,40 | 14,60 | Soluble
  1,30 | Soluble
  2,70 |
| Insoluble
  7,90 | Insoluble
  10,10 |
| Water activity
  0,831 | Water activity
  0,937 |

Min.

Max.

Min.

Max.

Sugar (%)

37,80

49,20

Soluble

29,20

Soluble

39,20

Insoluble

5,40

Insoluble

13,40

Fat (%)

12,80

18,20

Total water (%)

24,50

33,10

Protein (%)

7,40

14,60

Soluble

1,30

Soluble

2,70

Insoluble

7,90

Insoluble

10,10

Water activity

0,831

Water activity

0,937

The product does lose moisture during its shelf life, so these figures may drop by 2,5 %.

Organoleptic characteristics

| Colour | Crust: toasted yellow to brown |
| --- | --- |
| Moist part or pito: golden egg-yolk yellow, may have orangey or slightly brownish tones |
| Dry part: egg-yolk yellow, may have orange tones |
| Appearance | Crust: uniform; the surface may be slightly uneven where the cake has sunk, and there may be a few small dough bubbles |
| Moist part or pito: creamy, slightly liquid, may run when the pão de ló is cut |
| Dry part: spongy |
| Aroma | Pão de Ló: slightly eggy, with a hint of caramel (but not burnt) |
| Taste | Pão de Ló: sweet and eggy |
| Texture | Pão de Ló: medium consistency which melts in the mouth, soft, allowing the creaminess of the runny part to be fully savoured |

Colour

Crust: toasted yellow to brown

Moist part or pito: golden egg-yolk yellow, may have orangey or slightly brownish tones

pito

Dry part: egg-yolk yellow, may have orange tones

Appearance

Crust: uniform; the surface may be slightly uneven where the cake has sunk, and there may be a few small dough bubbles

Moist part or pito: creamy, slightly liquid, may run when the pão de ló is cut

pito

Dry part: spongy

Aroma

Pão de Ló: slightly eggy, with a hint of caramel (but not burnt)

Taste

Pão de Ló: sweet and eggy

Texture

Pão de Ló: medium consistency which melts in the mouth, soft, allowing the creaminess of the runny part to be fully savoured

3.3.   Feed (for products of animal origin only) and raw materials (for processed products only)

Feed (for products of animal origin only) and raw materials (for processed products only)

Fresh eggs, white sugar, wheat flour (type 55) and salt. The salt is optional.

3.4.   Specific steps in production that must take place in the defined geographical area

Specific steps in production that must take place in the defined geographical area

Preparation of the mixture

Preparation of the mixture

During this stage, experience is crucial in determining the quality of the final product, as the baker needs to know when the mixture is ‘just right’.

Preparation and filling of the mould

Preparation and filling of the mould

The mould is lined with baking paper, which has to be carefully adjusted to fit. This requires skill and manual dexterity.

The mixture is then poured into the mould, which also requires expertise and experience on the part of the baker.

Baking

Baking

A constant eye must be kept on the ‘Pão de Ló de Ovar’ while it is in the oven, as the amount of pito, a distinguishing characteristic, depends on the cooking time.

pito

Cooling

Cooling

‘Pão de Ló de Ovar’ is left to cool in the mould. Once it has cooled the paper is cut.

3.5.   Specific rules concerning slicing, grating, packaging, etc. of the product to which the registered name refers

Specific rules concerning slicing, grating, packaging, etc. of the product to which the registered name refers

—

3.6.   Specific rules concerning labelling of the product to which the registered name refers

Specific rules concerning labelling of the product to which the registered name refers

The labelling must bear the following:

| 1. | The words ‘Pão de Ló de Ovar – Protected Geographical Indication’ or ‘Pão de Ló de Ovar PGI’ |
| --- | --- |

1.

The words ‘Pão de Ló de Ovar – Protected Geographical Indication’ or ‘Pão de Ló de Ovar PGI’

| 2. | The ‘Pão de Ló de Ovar’ logo, shown below |
| --- | --- |

2.

The ‘Pão de Ló de Ovar’ logo, shown below

4.   Concise definition of the geographical area

Concise definition of the geographical area

The municipality of Ovar (civil parishes of Esmoriz, Cortegaça, Maceda, Arada, Ovar, São João, São Vicente and Válega).

5.   Link with the geographical area

Link with the geographical area

Since the late 18th century the know-how associated with the production of ‘Pão de Ló de Ovar’ has remained within the confines of the municipality of Ovar, or Villa de Ovar as it was then known.

Production of ‘Pão de Ló de Ovar’ is restricted to the municipality of Ovar because this is where it was traditionally made and acquired its reputation, associated with the festivities of Holy Week – as documented by the local people since 1781 – and it is a historical tradition specific to the area.

Confirmation that ‘Pão de Ló de Ovar’ was being made in Villa de Ovar at the end of the 18th century came from Padre Manuel Lírio, who had the opportunity to peruse the decaying records of the Irmandade dos Passos. Looking at the books, which were ‘rotting face down on the ground, the pages torn, the binding coming undone, creased and lying in a tangled heap, like filthy rags’, Padre Lírio wrote the following in Os Passos: subsídios para a história de Ovar: ‘in 1781 gifts of Pão de Ló de Ovar were offered to the priests who carried the float in the Holy Week procession. This should be kept as a testimony of how long this sweet has been in existence’.

Irmandade dos Passos

Os Passos: subsídios para a história de Ovar

Its reputation derives from the combination of natural and regional factors and the high quality of the eggs used with the know-how that is crucial in determining the final result.

‘Pão de Ló de Ovar’ can be distinguished from other bakery products by its ‘country loaf’ shape and the creamy, yellow, light, soft cake known as ló, with a fine golden-brown crust that is slightly moist, resulting from the artisanal methods used, and by the moist part inside, known as the pito.

ló

pito

The method of production used to obtain a creamy, light, soft yellow cake that is moist on the inside consists of several stages, where the rituals of preparation rooted in the know-how of Ovar’s bakers are essential for getting the even bake that will ensure that the final product has the requisite characteristics.

First, to prepare the dough, the eggs, sugar and salt (optional) are beaten together for up to 20 minutes, until the mixture turns a whitish colour. The sifted flour is then added and slowly and evenly stirred in.

The know-how employed at this stage is crucial in determining the quality of the final product, as the distinctive characteristics of ‘Pão de Ló de Ovar’ depend on it.

Next, the black or red earthenware mould is lined with paper; this is a distinctive stage specific to this product. It is lined with baking paper (100 to 120 g/m2), which has to be folded eight times to form four even pleats. This has to be done carefully so that it fits the mould properly. The pleats must be at an equal distance from one another; the paper is later trimmed with pinking shears.

2

Second, the mixture is transferred to the paper-lined moulds. This demonstrates the bakers’ know-how and expertise, as the right amount of mixture has to be placed in the mould in the right way for the cake to cook normally, without the mixture spilling over the paper.

Third, the cakes are baked in an electric oven at a temperature of between 140 and 200 °C, for 50 minutes to 2 hours depending on the liquid weight of product to be produced. This stage is of great importance in determining the quality of the product – success depends on the know-how employed to ensure that the cakes are baked for just the right length of time to achieve the desired texture, so they have to be watched constantly.

They are ready when the crust is golden brown and slightly moist, and the part underneath is creamy. Depending on the cooking time, the Pão de Ló will have more or less pito, making it a unique bakery product.

pito

The specificity of ‘Pão de Ló de Ovar’ derives from the know-how employed in preparing the mixture, transferring it to the mould and baking it for just the right length of time.

‘Pão de Ló de Ovar’, whose history goes back to the late 18th century, is the direct result of the know-how required to prepare the mixture and bake it.

Oral tradition has it that in the 19th century there were various families in Ovar making regional sweets, notably the famous ‘Pão de Ló de Ovar’. In 1877, Marques Gomes, writing about Vila de Ovar in Aveiro e seu Distrito, said that ‘Aveiro’s rival sweets pão de ló and ovos molles are increasingly highly regarded’. ‘Pão de Ló de Ovar’ gained renown as a traditional Portuguese sweet and this was clearly because of its high quality and the fact that over time the market began to expand.

Aveiro e seu Distrito

pão de ló

ovos molles

It also became more widely known as a result of shows held by the Orfeão de Ovar in 1949, 1950 and 1972.

Orfeão de Ovar

Lingering in the memory and on the palate, since the 1980s ‘Pão de Ló de Ovar’ has been shown at most of Portugal’s food fairs, featuring prominently at the main events. It became popular in the capital, especially in the 1890s, because during festive periods the crews of the fragatas de Ovar [local sailing boats] would offer the boat owners and their clients gifts of ‘Pão de Ló de Ovar’ transported in large baskets.

fragatas de Ovar

Pão de Ló Celeste de Ovar, produced and distributed on a wider scale from 1917, also did much to spread the fame of ‘Pão de Ló de Ovar’.

Pão de Ló Celeste de Ovar

‘Pão de Ló de Ovar’ is a unique product whose specific qualities derive from the bakers’ expertise, creating invisible ties that impart form and flavour to the places where it is made.

The reputation and renown of ‘Pão de Ló de Ovar’, associated exclusively with the municipality of Ovar since the late 18th century, are well documented.

It is to be noted that the know-how associated with the production ‘Pão de Ló de Ovar’ has always remained within the confines of the municipality of Ovar.

Publication reference of the specification

Publication reference of the specification

(the second subparagraph of Article 6(1) of this Regulation)

http://www.dgadr.mamaot.pt/images/docs/val/dop_igp_etg/Valor/CE_Pao_lo_Ovar.pdf

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(1)  OJ L 343, 14.12.2012, p. 1.

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| 22.4.2016 | EN | Official Journal of the European Union | C 141/21 |
| --- | --- | --- | --- |

22.4.2016

EN

Official Journal of the European Union

C 141/21

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Publication of an application pursuant to Article 50(2)(a) of Regulation (EU) No 1151/2012 of the European Parliament and of the Council on quality schemes for agricultural products and foodstuffs

(2016/C 141/09)

This publication confers the right to oppose the application pursuant to Article 51 of Regulation (EU) No 1151/2012 of the European Parliament and of the Council (1).

SINGLE DOCUMENT

‘ORIEL SEA SALT’

EU No: IE-PDO-0005-01318 – 26.2.2015

PDO ( X ) PGI ( )

1.   Name(s)

‘Oriel Sea Salt’

2.   Member State or Third Country

Member State or Third Country

Ireland

3.   Description of the agricultural product or foodstuff

Description of the agricultural product or foodstuff

3.1.   Type of product

Type of product

Class 2.6. Salt

3.2.   Description of product to which the name in (1) applies

Description of product to which the name in (1) applies

‘Oriel Sea Salt’ is the name given to sea salt harvested from the bay of Port Oriel, Clogherhead, Drogheda, County Louth, Ireland. It is a fine-grain sea salt, crystal white, and additive free. Its fine grain is measured as ‘μm’ which is the measurement of a ‘micrometre’. 90 % of the grain is measured between 90-500 μm with the remaining 10 % measuring between 500 μm and 1 000 μm. It is almost powder-like to the touch. This grain (not flake or large crystal) allows the sea salt to penetrate food more rapidly as it dissolves, dissipates and disperses throughout the food without resistance.

The sea salt has a concentrated salty taste. It is smooth, not sharp or sour, due to the fact that it is harvested within a closed pressurised system that ensures the sea salt never comes in contact with air, earth or human interference until it emerges from the system ready for packaging. This ensures ‘Oriel Sea Salt’ is a perfect ingredient virgin sea salt due to its unique grain size, texture and smooth taste profile. Its intense taste profile has been proven in independent blind taste and texture tests to allow the reduction in the amount of sea salt used as an ingredient in food products by up to 30 %.

‘Oriel Sea Salt’ is naturally crystal white so it does not need to be washed or rinsed. This ensures a more consistent presence of natural sea minerals such as magnesium, potassium and up to 65 trace minerals. (Washing of sea salts is common when harvested in open air or on soil flats.)

Certificate of Analysis for ‘Oriel Sea Salt’, is within +/– 10 % of the table below.

| Oriel Sea Salt Analysis
  Testing: ICP MS | Oriel Sea Salt |
| --- | --- |
| | mg/kg |
| NaCl | Sodium chloride | Greater than 88 % by weight |
| H2O | Water | Less than 5 % |
| Ca | Calcium | Less than 5mg/kg |
| Mg | Magnesium | 500 mg – 800 mg/kg |
| K | Potassium | Less than 3 000 mg/kg |
| Cu | Copper | Less than 2,0 mg/kg |
| Zn | Zinc | Less than 2,0 mg/kg |
| Cr | Chromium | Less than 1,3 mg/kg |
| Ni | Nickel | Less than 0,5 mg/kg |
| Pb | Lead | Less than 0,4 mg/kg |
| Mn | Manganese | Less than 0,1 mg/kg |
| Cd | Cadmium | Less than 0,04 mg/kg |
| Fe | Iron | Trace |
| P | Phosphorus | Trace |
| B | Boron | Trace |
| Co | Cobalt | Trace |
| Hg | Mercury | Trace |

Oriel Sea Salt Analysis

Testing: ICP MS

Oriel Sea Salt

mg/kg

NaCl

Sodium chloride

Greater than 88 % by weight

H2O

2

Water

Less than 5 %

Ca

Calcium

Less than 5mg/kg

Mg

Magnesium

500 mg – 800 mg/kg

K

Potassium

Less than 3 000 mg/kg

Cu

Copper

Less than 2,0 mg/kg

Zn

Zinc

Less than 2,0 mg/kg

Cr

Chromium

Less than 1,3 mg/kg

Ni

Nickel

Less than 0,5 mg/kg

Pb

Lead

Less than 0,4 mg/kg

Mn

Manganese

Less than 0,1 mg/kg

Cd

Cadmium

Less than 0,04 mg/kg

Fe

Iron

Trace

P

Phosphorus

Trace

B

Boron

Trace

Co

Cobalt

Trace

Hg

Mercury

Trace

3.3.   Feed (for products of animal origin only) and raw materials (for processed products only)

Feed (for products of animal origin only) and raw materials (for processed products only)

Sea salt naturally harvested from the Irish Sea.

3.4.   Specific steps in production that must take place in the identified geographical area

Specific steps in production that must take place in the identified geographical area

Production and process steps:

All processes of harvesting, evaporation, separation and crystallisation are performed in the designated area, under controlled and monitored conditions to ensure consistency in the end-product. This includes:

| — | pumping and filtration of sea water through filter system, |
| --- | --- |

—

pumping and filtration of sea water through filter system,

| — | concentration of brine in a closed pressurised system, |
| --- | --- |

—

concentration of brine in a closed pressurised system,

| — | crystallisation of sea salt in a closed pressurised system, |
| --- | --- |

—

crystallisation of sea salt in a closed pressurised system,

| — | harvesting of fine-grain sea salt crystals. |
| --- | --- |

—

harvesting of fine-grain sea salt crystals.

3.5.   Specific rules concerning slicing, grating, packaging, etc. of the product the registered name refers to

Specific rules concerning slicing, grating, packaging, etc. of the product the registered name refers to

—

3.6.   Specific rules concerning labelling of the product the registered name refers to

Specific rules concerning labelling of the product the registered name refers to

—

4.   Concise definition of the geographical area

Concise definition of the geographical area

Port Oriel, Clogherhead is located on the north-west side of the headland Clogher Head that protrudes out into deep water straits. The specific demarcated area stretches from the southernmost tip of Clogher Head with latitude = 53.79497 (north), longitude = – 6.21778 (west), latitude = 53°47′42′′ (north), longitude = 6°13′04′′ (west) to the northern tip of Dunany Point, latitude = 53.86144 (north), longitude = – 6.23838 (west), latitude = 53°51′41′′ (north), longitude = 6°14′18′′ (west). A distance of five nautical miles located within the Dundalk Bay live bivalve mollusc classified production areas 2014, area code LH-DB-DB, as issued by the Sea Fisheries Protection Authority.

5.   Link with the geographical area

Link with the geographical area

The sea salt is characteristic of its origin in its taste and appearance. Just as grapes are affected by terroir and weather, Oriel Sea Salt is affected by the deep water currents, cleanliness, mineral content and purity of the water in this location and of the process used to make, preserve and refine these characteristics.

terroir

Harvesting of sea salt in this region dates back centuries. The following is from the County Louth Archaeological & Historical Journal: ‘On 28 January 1667 Viscount Dungannon leased a parcel of land lying neere ye towne of Carlingforde for erection of saltworks to Colonel Cooke of Chiswick in Middlesex as a salt manufacturer’. For hundreds of years Port Oriel has been synonymous with abundant fishing waters with locals fishing deep-water fish directly from the rocks and harbour. Salt was a vital ingredient in preserving fish landed at the harbour for consumption, storage and subsequent transport to market (pt mp 16 pm near Newry Street on the 1797 map had a salt works on it, with local documented facts detailing the salt/sluice gates also recorded).

‘On 28 January 1667 Viscount Dungannon leased a parcel of land lying neere ye towne of Carlingforde for erection of saltworks to Colonel Cooke of Chiswick in Middlesex as a salt manufacturer’.

The Gulf Stream flows up the west coast of Ireland and when it meets the cooler waters of the Norwegian Sea it wraps around the north and north-eastern headland to its final destination, five miles beyond the Bay at Port Oriel. At this point the current ends as it meets the massive outflow of the River Boyne (Ireland’s second-largest river).

Port Oriel is situated on the north-west side of the headland Clogher Head that protrudes directly out into deep water straits. In tests, the salinity in these waters is comparable to that normally only found in deep sea water. This high salinity has been linked with the unusual deep sea currents of the Gulf Stream in the area. The water at Port Oriel has been consistently tested at a density 3,5 %-3,6 % which is consistent with deeper waters.

The waters of Port Oriel have consistently been rated as Grade ‘A’ international shellfish quality, the purest of the sea, for many years by the Marine Institute of Ireland. The harvesting of mussels, clams, crab, lobsters and razorfish is a vibrant business in and around the bay of Port Oriel and this vibrancy of shellfish also contributes to the high quality and mineral content of the water. Indeed this region is also within the Dundalk Bay live bivalve mollusc classified production areas 2014, area code LH-DB-DB, as issued by the Sea Fisheries Protection Authority for Clams and Razor Fish.

The qualities of ‘Oriel Sea Salt’ are directly linked to the unusual deep sea currents in the geographical location, the high mineral content not usually found in such shallow waters and due to the Gulf Stream currents and the tidal movements that move around the northern coast of Ireland into the larger Dundalk bay and consequently to the bay of Port Oriel. This high quality and mineral content water is then harvested and refined through the process employed where it is untouched by air, earth or human touch until it emerges crystal white, unwashed and rich in minerals. This produces a fine-grain sea salt.

Summary:

The sea salt produced is characteristic of its origin with a direct relationship to the salinity, quality and density of the minerals in the water. This is reflected in the fine grain, intense taste and higher mineral content of ‘Oriel Sea Salt’.

Reference to publication of the specification

Reference to publication of the specification

(the second subparagraph of Article 6(1) of this Regulation)

http://www.agriculture.gov.ie/gi/pdopgitsg-protectedfoodnames/products/

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(1)  OJ L 343, 14.12.2012, p. 1.

1

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