# Official Journal C 357/2016

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 357 |
| | |
| English edition | Information and Notices | Volume 5929 September 2016 |

ISSN 1977-091X

Official Journal

of the European Union

C 357

English edition

Information and Notices

Volume 5929 September 2016

---

| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2016/C 357/01 | Non-opposition to a notified concentration (Case M.7893 — Plastic Omnium/Faurecia Exterior Automotive Business) (
  1
  ) | 1 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2016/C 357/01

Non-opposition to a notified concentration (Case M.7893 — Plastic Omnium/Faurecia Exterior Automotive Business) (
  1
  )

1

1

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| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | Council |
| 2016/C 357/02 | Council Conclusions on the Follow up of the Union Customs Code | 2 |
| | European Commission |
| 2016/C 357/03 | Euro exchange rates | 4 |
| 2016/C 357/04 | Explanatory Notes to the Combined Nomenclature of the European Union | 5 |
| 2016/C 357/05 | Commission Implementing Decision of 28 September 2016 on the establishment of a work programme for the assessment of applications for the renewal of approvals of active substances expiring in 2019, 2020 and 2021 in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council | 9 |
| 2016/C 357/06 | Opinion of the Advisory Committee on Restrictive Agreements and dominant position given at its meeting of 27 April 2016 regarding a draft decision relating to Case M.7612 Hutchison 3G UK/Telefónica UK — Rapporteur: Sweden | 12 |
| 2016/C 357/07 | Final Report of the Hearing Officer — Hutchison 3G UK/Telefónica UK (Case M.7612) | 13 |
| 2016/C 357/08 | Summary of Commission Decision of 11 May 2016 declaring a concentration incompatible with the internal market (Case M.7612 — Hutchison 3G UK/Telefónica UK) (notified under document C(2016) 2796) | 15 |
| | NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA |
| | EFTA Surveillance Authority |
| 2016/C 357/09 | State aid — Decision to raise no objections | 29 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

Council

2016/C 357/02

Council Conclusions on the Follow up of the Union Customs Code

2

European Commission

2016/C 357/03

Euro exchange rates

4

2016/C 357/04

Explanatory Notes to the Combined Nomenclature of the European Union

5

2016/C 357/05

Commission Implementing Decision of 28 September 2016 on the establishment of a work programme for the assessment of applications for the renewal of approvals of active substances expiring in 2019, 2020 and 2021 in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council

9

2016/C 357/06

Opinion of the Advisory Committee on Restrictive Agreements and dominant position given at its meeting of 27 April 2016 regarding a draft decision relating to Case M.7612 Hutchison 3G UK/Telefónica UK — Rapporteur: Sweden

12

2016/C 357/07

Final Report of the Hearing Officer — Hutchison 3G UK/Telefónica UK (Case M.7612)

13

2016/C 357/08

Summary of Commission Decision of 11 May 2016 declaring a concentration incompatible with the internal market (Case M.7612 — Hutchison 3G UK/Telefónica UK) (notified under document C(2016) 2796)

(notified under document C(2016) 2796)

15

NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

2016/C 357/09

State aid — Decision to raise no objections

29

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| | V   Announcements |
| --- | --- |
| | COURT PROCEEDINGS |
| | EFTA Court |
| 2016/C 357/10 | Request for an Advisory Opinion from the EFTA Court by Fürstlicher Oberster Gerichtshof, Liechtenstein, dated 9 July 2015, in the Case of Franz-Josef Hagedorn v Vienna-Life Lebensversicherung AG (Case E-15/15) | 30 |
| 2016/C 357/11 | Request for an Advisory Opinion from the EFTA Court by Fürstlicher Oberster Gerichtshof, Liechtenstein, dated 9 July 2015, in the Case of Rainer Armbruster v Swiss Life (Liechtenstein) AG (Case E-16/15) | 31 |
| 2016/C 357/12 | Order of the President of 28 August 2015 in Case E-22/14 Schenker North AB, Schenker Privpak AB, Schenker Privpak AS v EFTA Surveillance Authority | 32 |
| 2016/C 357/13 | Order of the Court of 20 March 2015 in Case E-19/13 — Konkurrenten.no AS v EFTA Surveillance Authority (Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Local bus transport services — Decision not to open the formal investigation procedure — Decision following the formal investigation procedure — Admissibility — Measures of organization of procedure) | 32 |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2016/C 357/14 | Prior notification of a concentration (Case M.8201 — Randstad Holding/Monster Worldwide) (
  1
  ) | 33 |
| 2016/C 357/15 | Prior notification of a concentration (Case M.8105 — Marmedsa/UECC/UECC Ibérica) — Candidate case for simplified procedure (
  1
  ) | 34 |
| 2016/C 357/16 | Prior notification of a concentration (Case M.8185 — Atlantia/EDF/ACA) — Candidate case for simplified procedure (
  1
  ) | 35 |

V   Announcements

COURT PROCEEDINGS

EFTA Court

2016/C 357/10

Request for an Advisory Opinion from the EFTA Court by Fürstlicher Oberster Gerichtshof, Liechtenstein, dated 9 July 2015, in the Case of Franz-Josef Hagedorn v Vienna-Life Lebensversicherung AG (Case E-15/15)

30

2016/C 357/11

Request for an Advisory Opinion from the EFTA Court by Fürstlicher Oberster Gerichtshof, Liechtenstein, dated 9 July 2015, in the Case of Rainer Armbruster v Swiss Life (Liechtenstein) AG (Case E-16/15)

31

2016/C 357/12

Order of the President of 28 August 2015 in Case E-22/14 Schenker North AB, Schenker Privpak AB, Schenker Privpak AS v EFTA Surveillance Authority

32

2016/C 357/13

Order of the Court of 20 March 2015 in Case E-19/13 — Konkurrenten.no AS v EFTA Surveillance Authority (Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Local bus transport services — Decision not to open the formal investigation procedure — Decision following the formal investigation procedure — Admissibility — Measures of organization of procedure)

(Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Local bus transport services — Decision not to open the formal investigation procedure — Decision following the formal investigation procedure — Admissibility — Measures of organization of procedure)

32

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2016/C 357/14

Prior notification of a concentration (Case M.8201 — Randstad Holding/Monster Worldwide) (
  1
  )

1

33

2016/C 357/15

Prior notification of a concentration (Case M.8105 — Marmedsa/UECC/UECC Ibérica) — Candidate case for simplified procedure (
  1
  )

1

34

2016/C 357/16

Prior notification of a concentration (Case M.8185 — Atlantia/EDF/ACA) — Candidate case for simplified procedure (
  1
  )

1

35

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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

| 29.9.2016 | EN | Official Journal of the European Union | C 357/1 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/1

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Non-opposition to a notified concentration

(Case M.7893 — Plastic Omnium/Faurecia Exterior Automotive Business)

(Text with EEA relevance)

(2016/C 357/01)

On 11 July 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) in conjunction with Article 6(2) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in 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 32016M7893. EUR-Lex is the online access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7893. EUR-Lex is the online access to the 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

Council

| 29.9.2016 | EN | Official Journal of the European Union | C 357/2 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/2

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Council Conclusions on the Follow up of the Union Customs Code

(2016/C 357/02)

The Council,

ACKNOWLEDGING THAT:

| — | the Union Customs Code (UCC) is an important milestone in the history of the ongoing development of the Customs Union since 1968 as it reflects a major overhaul of existing EU customs legislation in order to achieve clearer customs procedures, better safety and security of EU citizens, and, through new IT systems, a stronger cooperation between the customs authorities and the Commission; |
| --- | --- |

—

the Union Customs Code (UCC) is an important milestone in the history of the ongoing development of the Customs Union since 1968 as it reflects a major overhaul of existing EU customs legislation in order to achieve clearer customs procedures, better safety and security of EU citizens, and, through new IT systems, a stronger cooperation between the customs authorities and the Commission;

| — | close cooperation between the Commission, the Council and the European Parliament, together with the input from trade, paved the way for the adoption of the basic legislative framework of the UCC on 9 October 2013; |
| --- | --- |

—

close cooperation between the Commission, the Council and the European Parliament, together with the input from trade, paved the way for the adoption of the basic legislative framework of the UCC on 9 October 2013;

| — | intensive work has continued until recently, notably in completing the legislative framework through detailed implementing and delegated acts; |
| --- | --- |

—

intensive work has continued until recently, notably in completing the legislative framework through detailed implementing and delegated acts;

| — | this ‘UCC package’ (1) has become applicable from the 1 May 2016 but further work is foreseen for a transitional period up until 2020 to refine and fully implement the new rules. |
| --- | --- |

—

this ‘UCC package’ (1) has become applicable from the 1 May 2016 but further work is foreseen for a transitional period up until 2020 to refine and fully implement the new rules.

STRESSING

| — | the importance of this transitional period to allow a pragmatic, business-friendly approach to implementation in which a constructive and supportive approach on behalf of the Commission is essential; |
| --- | --- |

—

the importance of this transitional period to allow a pragmatic, business-friendly approach to implementation in which a constructive and supportive approach on behalf of the Commission is essential;

| — | the importance that further work in this transitional period, in particular on IT-systems, is based on realistic costs and time planning, and explores ways to keep costs for customs and trade at a minimum, e.g. by adopting common IT solutions. |
| --- | --- |

—

the importance that further work in this transitional period, in particular on IT-systems, is based on realistic costs and time planning, and explores ways to keep costs for customs and trade at a minimum, e.g. by adopting common IT solutions.

EMPHASIZING the pivotal role of customs with regard to the movement of goods across EU borders, in particular, as set out in the UCC, for the protection of the revenue, the safety and the security of EU citizens, in fighting fraud and in maintaining a proper balance between controls and trade facilitation for legitimate trade.

UNDERLINING THE NEED:

| — | to look forward and continue work on further innovation of the ‘UCC package’ so as to deal effectively with the constantly changing environment in which customs work, such as changes in IT technology, management of the integral supply chain, trade flows, e-commerce, safety and security; |
| --- | --- |

—

to look forward and continue work on further innovation of the ‘UCC package’ so as to deal effectively with the constantly changing environment in which customs work, such as changes in IT technology, management of the integral supply chain, trade flows, e-commerce, safety and security;

| — | to continue work that effectively reflects the input and the needs of customs authorities and trade, and that takes into account the needs of the SME’s; |
| --- | --- |

—

to continue work that effectively reflects the input and the needs of customs authorities and trade, and that takes into account the needs of the SME’s;

| — | to continue work in developing further trade facilitation and simplification; |
| --- | --- |

—

to continue work in developing further trade facilitation and simplification;

| — | to continue the work based on a clear and realistic indication of both the costs and the time planning for the implementation of new rules by Member States and trade. |
| --- | --- |

—

to continue the work based on a clear and realistic indication of both the costs and the time planning for the implementation of new rules by Member States and trade.

INVITES COMMISSION AND MEMBER STATES

| — | to continue the work in keeping the ‘UCC package’ up to date, that is, modern, agile and able to cope with challenges for customs. This entails, but is not limited to:






  — | further developing effective simplifications and modernization, such as centralised clearance and self-assessment, as well as a modern approach to for instance single window and cooperation between customs and other government authorities involved in the movement of goods across the EU borders; |
| --- | --- | --- |

—

to continue the work in keeping the ‘UCC package’ up to date, that is, modern, agile and able to cope with challenges for customs. This entails, but is not limited to:

—

further developing effective simplifications and modernization, such as centralised clearance and self-assessment, as well as a modern approach to for instance single window and cooperation between customs and other government authorities involved in the movement of goods across the EU borders;

| — | enhancing benefits for Authorised Economic Operators; |
| --- | --- |

—

enhancing benefits for Authorised Economic Operators;

| — | ensuring the best alignment of provisions and procedures in customs and other policy areas, including efficient and effective risk management in the wider customs area; |
| --- | --- |

—

ensuring the best alignment of provisions and procedures in customs and other policy areas, including efficient and effective risk management in the wider customs area;

| — | improving transparency in the development of IT systems, in particular in relation to planning, by finding flexible approaches, funding, and cost-efficiency; |
| --- | --- |

—

improving transparency in the development of IT systems, in particular in relation to planning, by finding flexible approaches, funding, and cost-efficiency;

| — | having clear provisions in the basic legislative text and a common view on the use of delegated acts, implementing acts and guidance. Guidance should be based on best practices to help the implementation by Member States, and cannot exceed the limits set by the regulations; |
| --- | --- |

—

having clear provisions in the basic legislative text and a common view on the use of delegated acts, implementing acts and guidance. Guidance should be based on best practices to help the implementation by Member States, and cannot exceed the limits set by the regulations;

| — | promoting the use of UCC-based provisions, in e.g. Free Trade Agreements and World Customs Organization instruments. |
| --- | --- |

—

promoting the use of UCC-based provisions, in e.g. Free Trade Agreements and World Customs Organization instruments.

| — | when considering further work, the following should be taken into account:






  — | ensuring a proper balance between controls and trade facilitation for legitimate trade by Member States, and by the Commission in particular, when developing new legislative proposals; |
| --- | --- | --- |

—

when considering further work, the following should be taken into account:

—

ensuring a proper balance between controls and trade facilitation for legitimate trade by Member States, and by the Commission in particular, when developing new legislative proposals;

| — | ensuring that adequate attention is given to realistic timelines, costs, and impact on customs and trade, based on comprehensive business cases and, when possible, pilot projects; |
| --- | --- |

—

ensuring that adequate attention is given to realistic timelines, costs, and impact on customs and trade, based on comprehensive business cases and, when possible, pilot projects;

| — | ensuring timely and optimal involvement of trade; |
| --- | --- |

—

ensuring timely and optimal involvement of trade;

| — | data protection legislation and the respective competences of the Union and the Member States. |
| --- | --- |

—

data protection legislation and the respective competences of the Union and the Member States.

| — | to continue cooperation in a pro-active way on strategic topics at Council level, in order to obtain the maximum from the post-Lisbon institutional framework. This remains essential in securing a viable customs union. |
| --- | --- |

—

to continue cooperation in a pro-active way on strategic topics at Council level, in order to obtain the maximum from the post-Lisbon institutional framework. This remains essential in securing a viable customs union.

INVITES THE COMMISSION to ensure regular and adequate reporting at Council level on the progress made and the planning of further modernisation of the ‘UCC package’, taking into account the reporting that is already foreseen.

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(1)  Regulation (EU) No 952/2013 of the European Parliament and the Council of 9 October 2013, Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015, Commission Delegated Regulation (EU) 2016/341 of 17 December 2015, Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 and Commission Implementing Decision (EU) 2016/578 of 11 April 2016.

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European Commission

| 29.9.2016 | EN | Official Journal of the European Union | C 357/4 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/4

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Euro exchange rates (1)

28 September 2016

(2016/C 357/03)

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,1225 |
| JPY | Japanese yen | 112,93 |
| DKK | Danish krone | 7,4511 |
| GBP | Pound sterling | 0,86208 |
| SEK | Swedish krona | 9,6165 |
| CHF | Swiss franc | 1,0891 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 9,0888 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 27,023 |
| HUF | Hungarian forint | 307,95 |
| PLN | Polish zloty | 4,2893 |
| RON | Romanian leu | 4,4506 |
| TRY | Turkish lira | 3,3438 |
| AUD | Australian dollar | 1,4637 |
| CAD | Canadian dollar | 1,4829 |
| HKD | Hong Kong dollar | 8,7041 |
| NZD | New Zealand dollar | 1,5459 |
| SGD | Singapore dollar | 1,5270 |
| KRW | South Korean won | 1 231,76 |
| ZAR | South African rand | 15,2492 |
| CNY | Chinese yuan renminbi | 7,4911 |
| HRK | Croatian kuna | 7,5160 |
| IDR | Indonesian rupiah | 14 533,57 |
| MYR | Malaysian ringgit | 4,6434 |
| PHP | Philippine peso | 54,189 |
| RUB | Russian rouble | 71,7039 |
| THB | Thai baht | 38,839 |
| BRL | Brazilian real | 3,6389 |
| MXN | Mexican peso | 21,8177 |
| INR | Indian rupee | 74,5915 |

Currency

Exchange rate

USD

US dollar

1,1225

JPY

Japanese yen

112,93

DKK

Danish krone

7,4511

GBP

Pound sterling

0,86208

SEK

Swedish krona

9,6165

CHF

Swiss franc

1,0891

ISK

Iceland króna

NOK

Norwegian krone

9,0888

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

27,023

HUF

Hungarian forint

307,95

PLN

Polish zloty

4,2893

RON

Romanian leu

4,4506

TRY

Turkish lira

3,3438

AUD

Australian dollar

1,4637

CAD

Canadian dollar

1,4829

HKD

Hong Kong dollar

8,7041

NZD

New Zealand dollar

1,5459

SGD

Singapore dollar

1,5270

KRW

South Korean won

1 231,76

ZAR

South African rand

15,2492

CNY

Chinese yuan renminbi

7,4911

HRK

Croatian kuna

7,5160

IDR

Indonesian rupiah

14 533,57

MYR

Malaysian ringgit

4,6434

PHP

Philippine peso

54,189

RUB

Russian rouble

71,7039

THB

Thai baht

38,839

BRL

Brazilian real

3,6389

MXN

Mexican peso

21,8177

INR

Indian rupee

74,5915

---

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

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| 29.9.2016 | EN | Official Journal of the European Union | C 357/5 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/5

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Explanatory Notes to the Combined Nomenclature of the European Union

(2016/C 357/04)

Pursuant to Article 9(1)(a) of Council Regulation (EEC) No 2658/87 (1), the Explanatory Notes to the Combined Nomenclature of the European Union (1) are hereby amended as follows:

On page 138, Annex A of the Explanatory notes to Chapter 27 is replaced by the following text:

‘ANNEX A

METHOD OF DETERMINING THE CONTENT OF AROMATIC CONSTITUENTS IN PRODUCTS WITH A DISTILLATION END POINT EXCEEDING 315 °C

1.   Scope

This test method covers the determination of the content of aromatic and non-aromatic constituents in mineral oils.

2.   Definition

2.1.   Aromatic constituents: the portion of the sample dissolved in the solvent and adsorbed on silica gel. The aromatic constituents may contain: aromatic hydrocarbons, condensed naphthenic-aromatics, aromatic olefins, asphaltenes, aromatic compounds containing sulphur, nitrogen, oxygen and polar aromatics.

2.2.   Non-aromatic constituents: the portion of the sample which is not adsorbed on silica gel and which is eluted by the solvent (such as non-aromatic hydrocarbons).

3.   Principle of the method

The sample, dissolved in n-pentane, is allowed to percolate through a special chromatography column packed with silica gel. The nonaromatic constituents, eluted with solvent, are collected subsequently and assayed by weighing after the solvent has evaporated.

Samples not dissolving in n-pentane should be dissolved in cyclohexane.

4.   Apparatus and reagents

Chromatography column: this is a glass tube with the dimensions and shape shown in the accompanying sketch. The top aperture must be capable of being sealed by a glass joint having its ground flat face pressed against the top of the column by two rubber-covered metal clamps. The seal must be completely leak tight against an applied pressure of nitrogen or air.

Silica gel: fineness of 200 mesh or more. It must be activated for seven hours in an oven kept at 170 °C before use and placed in a desiccator to cool. After activation, the silica gel must be used within a few days.

Solvent I n-pentane: minimum 95 % pure, aromatic-free.

Solvent II cyclohexane: minimum 98 % pure, aromatic-free.

5.   Procedure 1 (chromatography column 1)

Preparation of the sample solution: dissolve approximately 3,6 g (exactly weighed) of the sample in 10 ml of n-pentane (I). If the sample is insoluble in n-pentane, dissolve it in cyclohexane and the determination is performed using cyclohexane (II) instead of n-pentane (I).

Pack the chromatography column (chromatography column 1) with the previously activated silica gel, up to about 10 cm from the upper glass bulb, by carefully tamping the contents of the column with a vibrator so as not to leave any channels. Then insert a plug of glass wool in the top of the silica gel column.

Pre-moisten the silica gel with 180 ml of solvent (I) or (II), and apply a pressure of air or nitrogen from above until the upper surface of the liquid reaches the top of the silica gel.

Carefully release the pressure inside the column and pour over it approximately 3,6 g (exactly weighed expression with 2 decimals) of sample dissolved in 10 ml of solvent (I) or (II), then rinse out the beaker with another 10 ml of solvent (I) or (II), and pour this also over the column.

Apply the pressure progressively while allowing the liquid to flow in drops from the bottom capillary tube of the column at the approximate rate of 1 ml/min and collect this liquid in a 500 ml flask.

When the level of the liquid containing the substance to be separated falls to the surface of the silica gel, carefully remove the pressure once more and add 230 ml of solvent (I) or (II), re-apply the pressure immediately and bring down the level of the liquid to the surface of the silica gel while collecting the eluate in the same flask as before.

Before the level of the liquid containing the substance to be separated falls to the surface of the silica gel, check the eluate using FT-IR for the presence of aromatics. If the eluate contains only aliphatic hydrocarbons, add again 50 ml of solvent (I) or (II) after removing the pressure. Repeat this step if necessary.

Reduce the collected fraction to a small volume by evaporation in a vacuum oven at 35 °C or in a vacuum rotary evaporator or similar apparatus and then transfer it without loss into a tared beaker, using more solvent (I) or (II).

Evaporate the contents of the beaker in a vacuum oven at 35 °C to constant weight (W). The difference between the two last weights should not exceed 0,01 g. The time difference between the two weighings should be at least 30 minutes.

The percentage of non-aromatic constituents by weight (A) is given by the following formula:

| A | = | W/W1*100 |
| --- | --- | --- |

A

=

W/W1*100

where W1 is the weight of the sample.

The difference from 100 is the percentage of aromatic constituents absorbed by the silica gel.

6.   Accuracy of the method

| Repeatability | : | 5 %. |
| --- | --- | --- |
| Reproducibility | : | 10 %. |

Repeatability

:

5 %.

Reproducibility

:

10 %.

7.   Procedure 2 (chromatography column 2)

Preparation of the sample solution: dissolve approximately 0,9 g (exactly weighed) of the sample in 2,5 ml of n-pentane (I). If the sample is insoluble in n-pentane, dissolve it in cyclohexane and the determination is performed using cyclohexane (II) instead of n-pentane (I).

Pack the chromatography column (chromatography column 2) with the previously activated silica gel, up to about 2,5 cm from the upper glass bulb, by carefully tamping the contents of the column with a vibrator so as not to leave any channels. Then insert a plug of glass wool in the top of the silica gel column.

Pre-moisten the silica gel with 45 ml of solvent (I) or (II), and apply a pressure of air or nitrogen from above until the upper surface of the liquid reaches the top of the silica gel.

Carefully release the pressure inside the column and pour over it approximately 0,9 g (exactly weighed expression with 2 decimals) of sample dissolved in 2,5 ml of solvent (I) or (II), then rinse out the beaker with another 2,5 ml of solvent (I) or (II), and pour this also over the column.

Apply the pressure progressively while allowing the liquid to flow in drops from the bottom capillary tube of the column at the approximate rate of 1 ml/min and collect this liquid in a 250 ml flask.

When the level of the liquid containing the substance to be separated falls to the surface of the silica gel, carefully remove the pressure once more and add 57,5 ml of solvent (I) or (II), re-apply the pressure immediately and bring down the level of the liquid to the surface of the silica gel while collecting the eluate in the same flask as before.

Before the level of the liquid containing the substance to be separated falls to the surface of the silica gel, check the eluate using FT-IR for the presence of aromatics. If the eluate contains only aliphatic hydrocarbons, add again 12,5 ml of solvent (I) or (II) after removing the pressure. Repeat this step if necessary.

Reduce the collected fraction to a small volume by evaporation in a vacuum oven at 35 °C or in a vacuum rotary evaporator or similar apparatus and then transfer it without loss into a tared beaker, using more solvent (I) or (II).

Evaporate the contents of the beaker in a vacuum oven at 35 °C to constant weight (W). The difference between the two last weights should not exceed 0,01 g. The time difference between the two weighings should be at least 30 minutes.

The percentage of non-aromatic constituents by weight (A) is given by the following formula:

| A | = | W/W1*100 |
| --- | --- | --- |

A

=

W/W1*100

where W1 is the weight of the sample.

The difference from 100 is the percentage of aromatic constituents absorbed by the silica gel.

8.   Accuracy of the method

| Repeatability | : | 5 %. |
| --- | --- | --- |
| Reproducibility | : | 10 %. |

Repeatability

:

5 %.

Reproducibility

:

10 %.

Chromatography column 1

Image

Chromatography column 2

Image ’

---

(1)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, 7.9.1987, p. 1).

1

(1)  OJ C 76, 4.3.2015, p. 1.

1

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| 29.9.2016 | EN | Official Journal of the European Union | C 357/9 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/9

---

COMMISSION IMPLEMENTING DECISION

of 28 September 2016

on the establishment of a work programme for the assessment of applications for the renewal of approvals of active substances expiring in 2019, 2020 and 2021 in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council

(2016/C 357/05)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (1), and in particular Article 18 thereof,

Whereas:

| (1) | A large number of active substances deemed to have been approved in accordance with Regulation (EC) No 1107/2009 and listed in Part A of Annex to Regulation (EC) No 540/2011 (2) have an expiry date set between 1 January 2019 and 31 December 2021. Part B of the Annex to Commission Implementing Regulation (EU) No 686/2012 (3) lists those active substances and allocates to the Member States the evaluation of those active substances, naming for each active substance a rapporteur and a co-rapporteur Member State for the purposes of the renewal procedure. |
| --- | --- |

(1)

A large number of active substances deemed to have been approved in accordance with Regulation (EC) No 1107/2009 and listed in Part A of Annex to Regulation (EC) No 540/2011 (2) have an expiry date set between 1 January 2019 and 31 December 2021. Part B of the Annex to Commission Implementing Regulation (EU) No 686/2012 (3) lists those active substances and allocates to the Member States the evaluation of those active substances, naming for each active substance a rapporteur and a co-rapporteur Member State for the purposes of the renewal procedure.

| (2) | In view of the time and resources necessary for completing the assessment of applications for the renewal of approvals for such a large number of active substances by the Member States and by the European Food Safety Authority, it is necessary to establish a work programme grouping together similar active substances setting priorities on the basis of safety concerns for human and animal health or the environment as provided for in Article 18 of Regulation (EC) No 1107/2009. |
| --- | --- |

(2)

In view of the time and resources necessary for completing the assessment of applications for the renewal of approvals for such a large number of active substances by the Member States and by the European Food Safety Authority, it is necessary to establish a work programme grouping together similar active substances setting priorities on the basis of safety concerns for human and animal health or the environment as provided for in Article 18 of Regulation (EC) No 1107/2009.

| (3) | As reflected in recital 17 of Regulation (EC) No 1107/2009, low-risk substances should be identified and the placing on the market of plant protection products containing those substances should be facilitated. Moreover, in line with the objectives of Directive 2009/128/EC of the European Parliament and of the Council (4) the use of plant protection products having the least negative effects on human and animal health and on the environment should be promoted. The programme should therefore group together low-risk active substances in order to prioritise their assessment in view of a timely renewal of their approval. |
| --- | --- |

(3)

As reflected in recital 17 of Regulation (EC) No 1107/2009, low-risk substances should be identified and the placing on the market of plant protection products containing those substances should be facilitated. Moreover, in line with the objectives of Directive 2009/128/EC of the European Parliament and of the Council (4) the use of plant protection products having the least negative effects on human and animal health and on the environment should be promoted. The programme should therefore group together low-risk active substances in order to prioritise their assessment in view of a timely renewal of their approval.

| (4) | In addition, the substances, for which, given their properties, it is expected that they may fail to satisfy the approval criteria set out listed in points 3.6.2 to 3.6.5 and point 3.7 of Annex II to Regulation (EC) No 1107/2009, should also be identified. The programme should group together those substances in order to prioritise their assessment |
| --- | --- |

(4)

In addition, the substances, for which, given their properties, it is expected that they may fail to satisfy the approval criteria set out listed in points 3.6.2 to 3.6.5 and point 3.7 of Annex II to Regulation (EC) No 1107/2009, should also be identified. The programme should group together those substances in order to prioritise their assessment

| (5) | Given the available resources of the authorities conducting the assessment of applications for the renewal of approvals, it cannot be excluded that as a result of the prioritisation of the assessment of substances provided for by this Decision the approval of some other active substances may expire before a decision has been taken on the renewal of the approval of such substances. In such cases, the approval period of such active substances should be extended in due time in accordance with Article 17 of Regulation (EC) No 1107/2009. |
| --- | --- |

(5)

Given the available resources of the authorities conducting the assessment of applications for the renewal of approvals, it cannot be excluded that as a result of the prioritisation of the assessment of substances provided for by this Decision the approval of some other active substances may expire before a decision has been taken on the renewal of the approval of such substances. In such cases, the approval period of such active substances should be extended in due time in accordance with Article 17 of Regulation (EC) No 1107/2009.

| (6) | In addition to providing for the grouping together of similar active substances based on priorities for their assessment, Article 18 of Regulation (EC) No 1107/2009 also provides that the work programme is to include specific elements. Commission Implementing Regulations (EU) No 844/2012 (5) and (EU) No 686/2012 are, respectively, implementing points (a) to (e) and point (f) of the second paragraph of Article 18 of Regulation (EC) No 1107/2009, |
| --- | --- |

(6)

In addition to providing for the grouping together of similar active substances based on priorities for their assessment, Article 18 of Regulation (EC) No 1107/2009 also provides that the work programme is to include specific elements. Commission Implementing Regulations (EU) No 844/2012 (5) and (EU) No 686/2012 are, respectively, implementing points (a) to (e) and point (f) of the second paragraph of Article 18 of Regulation (EC) No 1107/2009,

HAS DECIDED AS FOLLOWS:

Sole Article

The work programme as set out in the Annex to this Decision is hereby adopted.

Done at Brussels, 28 September 2016.

For the Commission

Vytenis ANDRIUKAITIS

Member of the Commission

---

(1)  OJ L 309, 24.11.2009, p. 1.

1

(2)  OJ L 153, 11.6.2011, p. 1.

2

(3)  Commission Implementing Regulation (EU) No 686/2012 of 26 July 2012 allocating to Member States, for the purposes of the renewal procedure, the evaluation of the active substances (OJ L 200, 27.7.2012, p. 5).

3

(4)  Directive 2009/128/EC of the European Parliament and of the Council of 21 October 2009 establishing a framework for Community action to achieve the sustainable use of pesticides (OJ L 309, 24.11.2009, p. 71).

4

(5)  Commission Implementing Regulation (EU) No 844/2012 of 18 September 2012 setting out the provisions necessary for the implementation of the renewal procedure for active substances, as provided for in Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market (OJ L 252, 19.9.2012, p. 26).

5

---

ANNEX

| 1. | The work programme concerns active substances deemed to have been approved in accordance with Regulation (EC) No 1107/2009 which are listed in Part B of the Annex to Implementing Regulation (EU) No 686/2012. |
| --- | --- |

1.

The work programme concerns active substances deemed to have been approved in accordance with Regulation (EC) No 1107/2009 which are listed in Part B of the Annex to Implementing Regulation (EU) No 686/2012.

| 2. | The priorities for the assessment of applications for the renewal of approvals of the active substances and grouping together similar active substances, as provided for in Article 18 of Regulation (EC) No 1107/2009, are as follows:






  (1) | The assessment of applications for the renewal of approvals of active substances which, given their properties, could be identified as potentially low-risk active substances shall be prioritised in order to allow the largest possible number of low-risk active substances to be approved without delay or with as little delay as possible. |
| --- | --- | --- |

2.

The priorities for the assessment of applications for the renewal of approvals of the active substances and grouping together similar active substances, as provided for in Article 18 of Regulation (EC) No 1107/2009, are as follows:

(1)

The assessment of applications for the renewal of approvals of active substances which, given their properties, could be identified as potentially low-risk active substances shall be prioritised in order to allow the largest possible number of low-risk active substances to be approved without delay or with as little delay as possible.

| (2) | The assessment of applications for the renewal of approvals of active substances for which, given their properties, it is expected that they may fail to satisfy the approval criteria set out in points 3.6.2 to 3.6.5 and point 3.7 of Annex II to Regulation (EC) No 1107/2009, shall be prioritised. Accordingly, such assessments shall be carried out without delay or with as little delay as possible. |
| --- | --- |

(2)

The assessment of applications for the renewal of approvals of active substances for which, given their properties, it is expected that they may fail to satisfy the approval criteria set out in points 3.6.2 to 3.6.5 and point 3.7 of Annex II to Regulation (EC) No 1107/2009, shall be prioritised. Accordingly, such assessments shall be carried out without delay or with as little delay as possible.

| (3) | Where the approval of some active substances not covered by points (1) and (2) is likely to expire before a decision has been taken on the renewal of the approval of such substances, the approval period of those active substances shall be extended in due time in accordance with Article 17 of Regulation (EC) No 1107/2009. |
| --- | --- |

(3)

Where the approval of some active substances not covered by points (1) and (2) is likely to expire before a decision has been taken on the renewal of the approval of such substances, the approval period of those active substances shall be extended in due time in accordance with Article 17 of Regulation (EC) No 1107/2009.

---

| 29.9.2016 | EN | Official Journal of the European Union | C 357/12 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/12

---

Opinion of the Advisory Committee on Restrictive Agreements and dominant position given at its meeting of 27 April 2016 regarding a draft decision relating to Case M.7612 Hutchison 3G UK/Telefónica UK

Rapporteur: Sweden

(2016/C 357/06)

| 1. | The Advisory Committee agrees with the Commission that the notified transaction constitutes a concentration within the meaning of Article 3(1)(b) of the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1). |
| --- | --- |

1.

The Advisory Committee agrees with the Commission that the notified transaction constitutes a concentration within the meaning of Article 3(1)(b) of the Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1).

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

2.

The Advisory Committee agrees with the Commission that the notified transaction has an EU dimension pursuant to Article 1(2) of the Merger Regulation.

Market definition

| 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.

| 4. | In particular, the Advisory Committee agrees that the following markets should be distinguished:






  a) | Retail market for mobile telecommunications services in the United Kingdom. A minority disagrees. |
| --- | --- | --- |

4.

In particular, the Advisory Committee agrees that the following markets should be distinguished:

a)

Retail market for mobile telecommunications services in the United Kingdom. A minority disagrees.

| b) | Wholesale market for access and call origination services on public mobile telephone networks in the United Kingdom. |
| --- | --- |

b)

Wholesale market for access and call origination services on public mobile telephone networks in the United Kingdom.

Competitive assessment

| 5. | The Advisory Committee agrees with the Commission’s assessment that the notified transaction 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 the United Kingdom mainly due to the removal of the important competitive constraints that O2 and Three exerted upon each other, together with a reduction of the competitive pressure on the remaining competitors. |
| --- | --- |

5.

The Advisory Committee agrees with the Commission’s assessment that the notified transaction 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 the United Kingdom mainly due to the removal of the important competitive constraints that O2 and Three exerted upon each other, together with a reduction of the competitive pressure on the remaining competitors.

| 6. | The Advisory Committee agrees with the Commission’s assessment that the notified transaction 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 the United Kingdom due to the reduced competitive pressure exercised by one or both of BT/EE and Vodafone and the overall reduced level of industry-wide network investments resulting from the merged entity’s network consolidation plans. |
| --- | --- |

6.

The Advisory Committee agrees with the Commission’s assessment that the notified transaction 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 the United Kingdom due to the reduced competitive pressure exercised by one or both of BT/EE and Vodafone and the overall reduced level of industry-wide network investments resulting from the merged entity’s network consolidation plans.

| 7. | The Advisory Committee agrees with the Commission’s assessment that the notified transaction is likely to give rise to non-coordinated horizontal effects that would significantly impede effective competition in the wholesale market for mobile network access and call origination services on public mobile networks in the United Kingdom mainly due to the removal of the important competitive constraints that O2 and Three exerted upon each other, together with a reduction of the competitive pressure on the remaining competitors. |
| --- | --- |

7.

The Advisory Committee agrees with the Commission’s assessment that the notified transaction is likely to give rise to non-coordinated horizontal effects that would significantly impede effective competition in the wholesale market for mobile network access and call origination services on public mobile networks in the United Kingdom mainly due to the removal of the important competitive constraints that O2 and Three exerted upon each other, together with a reduction of the competitive pressure on the remaining competitors.

Remedy

| 8. | The Advisory Committee agrees with the Commission that the commitments offered by the Notifying Party on 6 April 2016 pursuant to Article 8(2) of the Merger Regulation do not address the competition concerns identified by the Commission on the retail market for mobile telecommunications services in the United Kingdom. |
| --- | --- |

8.

The Advisory Committee agrees with the Commission that the commitments offered by the Notifying Party on 6 April 2016 pursuant to Article 8(2) of the Merger Regulation do not address the competition concerns identified by the Commission on the retail market for mobile telecommunications services in the United Kingdom.

| 9. | The Advisory Committee agrees with the Commission that the commitments offered by the Notifying Party on 6 April 2016 pursuant to Article 8(2) of the Merger Regulation do not address the competition concerns identified by the Commission on the wholesale market for access and call origination services on public mobile networks in the United Kingdom. |
| --- | --- |

9.

The Advisory Committee agrees with the Commission that the commitments offered by the Notifying Party on 6 April 2016 pursuant to Article 8(2) of the Merger Regulation do not address the competition concerns identified by the Commission on the wholesale market for access and call origination services on public mobile networks in the United Kingdom.

| 10. | The Advisory Committee agrees with the Commission’s conclusion that the notified transaction is likely to significantly impede effective competition in the internal market or in a substantial part of it. |
| --- | --- |

10.

The Advisory Committee agrees with the Commission’s conclusion that the notified transaction is likely to significantly impede effective competition in the internal market or in a substantial part of it.

| 11. | The Advisory Committee agrees with the Commission that the notified transaction must therefore be declared incompatible with the internal market in accordance with Articles 2(2) and 8(3) of the Merger Regulation. |
| --- | --- |

11.

The Advisory Committee agrees with the Commission that the notified transaction must therefore be declared incompatible with the internal market in accordance with Articles 2(2) and 8(3) of the Merger Regulation.

---

(1)  OJ L 24, 29.1.2004, p. 1 (‘the Merger Regulation’)

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| 29.9.2016 | EN | Official Journal of the European Union | C 357/13 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/13

---

Final Report of the Hearing Officer (1)

Hutchison 3G UK/Telefónica UK

(Case M.7612)

(2016/C 357/07)

I.   INTRODUCTION

| 1. | On 11 September 2015, the European Commission (the ‘Commission’) received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation (2) by which CK Hutchison Holdings Limited (‘CKHH’), through its indirect subsidiary Hutchison 3G UK Investments Limited (the ‘Notifying Party’ or ‘Three’) (3) acquires within the meaning of Article 3(1)(b) of the Merger Regulation, sole control over Telefónica Europe Plc (‘O2’) (the ‘Transaction’). The Notifying Party and O2 will be referred to collectively as the ‘Parties’. |
| --- | --- |

1.

On 11 September 2015, the European Commission (the ‘Commission’) received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation (2) by which CK Hutchison Holdings Limited (‘CKHH’), through its indirect subsidiary Hutchison 3G UK Investments Limited (the ‘Notifying Party’ or ‘Three’) (3) acquires within the meaning of Article 3(1)(b) of the Merger Regulation, sole control over Telefónica Europe Plc (‘O2’) (the ‘Transaction’). The Notifying Party and O2 will be referred to collectively as the ‘Parties’.

II.   PROCEDURE

| 2. | The Commission’s first phase investigation raised serious doubts as to the compatibility of the Transaction with the internal market and the EEA Agreement. On 30 October 2015, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation. The Notifying Party submitted written comments on 22 November 2015. |
| --- | --- |

2.

The Commission’s first phase investigation raised serious doubts as to the compatibility of the Transaction with the internal market and the EEA Agreement. On 30 October 2015, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation. The Notifying Party submitted written comments on 22 November 2015.

Statement of Objections

| 3. | On 4 February 2016, the Commission adopted a Statement of Objections (‘SO’) in which it took the preliminary view that the Transaction would, through non-coordinated and coordinated effects in the market for retail mobile telecommunications services in the United Kingdom, as well as through non-coordinated effects on the wholesale market for access and call origination on public mobile networks in the United Kingdom, significantly impede effective competition in a substantial part of the internal market within the meaning of Article 2 of the Merger Regulation. |
| --- | --- |

3.

On 4 February 2016, the Commission adopted a Statement of Objections (‘SO’) in which it took the preliminary view that the Transaction would, through non-coordinated and coordinated effects in the market for retail mobile telecommunications services in the United Kingdom, as well as through non-coordinated effects on the wholesale market for access and call origination on public mobile networks in the United Kingdom, significantly impede effective competition in a substantial part of the internal market within the meaning of Article 2 of the Merger Regulation.

| 4. | The Commission set a time limit of 25 February 2016 to reply to the SO. The Notifying Party replied to the SO on behalf of the Parties on 26 February 2016. In its reply, the Notifying Party requested a formal oral hearing. |
| --- | --- |

4.

The Commission set a time limit of 25 February 2016 to reply to the SO. The Notifying Party replied to the SO on behalf of the Parties on 26 February 2016. In its reply, the Notifying Party requested a formal oral hearing.

Access to the file

| 5. | The Notifying Party received access to the file via CD-ROM on 4 February 2016. Additional access to the file was granted on 18 February, 29 February, 11 March, 23 March, 7 April, 15 April, 25 and 26 April 2016. |
| --- | --- |

5.

The Notifying Party received access to the file via CD-ROM on 4 February 2016. Additional access to the file was granted on 18 February, 29 February, 11 March, 23 March, 7 April, 15 April, 25 and 26 April 2016.

Interested third persons and competent authorities of the Member States

Interested third persons

| 6. | Upon their requests, I allowed Sky UK Limited (‘Sky’), Liberty Global Europe Ltd (‘Liberty Global’), Iliad S.A. (‘Iliad’), Vodafone Group Plc (‘Vodafone’), Talk Talk Telecom Group PLC (‘TalkTalk’), Tesco plc (‘Tesco’), BT Group plc (‘BT’), EE Limited (‘EE’, now ‘BT/EE’ (4)), Dixons Carphone plc (‘Dixons Carphone’), UK Broadband Networks Limited (‘UKBN’), Gamma Communications plc (‘Gamma’) and Wireless Infrastructure Group Limited (‘WIG’) to be heard as interested third persons in the current proceedings. |
| --- | --- |

6.

Upon their requests, I allowed Sky UK Limited (‘Sky’), Liberty Global Europe Ltd (‘Liberty Global’), Iliad S.A. (‘Iliad’), Vodafone Group Plc (‘Vodafone’), Talk Talk Telecom Group PLC (‘TalkTalk’), Tesco plc (‘Tesco’), BT Group plc (‘BT’), EE Limited (‘EE’, now ‘BT/EE’ (4)), Dixons Carphone plc (‘Dixons Carphone’), UK Broadband Networks Limited (‘UKBN’), Gamma Communications plc (‘Gamma’) and Wireless Infrastructure Group Limited (‘WIG’) to be heard as interested third persons in the current proceedings.

| 7. | All these interested third persons received a non-confidential version of the summary of the SO and were given the opportunity to make known their views. Except for WIG, all interested third persons requested to participate in the formal oral hearing requested by the Notifying Party. I acceded to the requests from each interested third person. |
| --- | --- |

7.

All these interested third persons received a non-confidential version of the summary of the SO and were given the opportunity to make known their views. Except for WIG, all interested third persons requested to participate in the formal oral hearing requested by the Notifying Party. I acceded to the requests from each interested third person.

| 8. | A number of interested third persons have complained about the extensive redaction of the non-confidential version of the summary of the SO and their subsequent inability to comment fully on it and thus to properly exercise their rights in these proceedings. Vodafone and BT/EE have referred primarily to the SO sections concerning their respective network sharing agreements with the Parties. After the formal oral hearing, the Commission made available new, less redacted, versions of the SO and granted the interested third persons the opportunity to supplement their views. In the case of Vodafone and BT/EE, redactions of the SO sections concerning their respective network sharing agreements were significantly reduced. |
| --- | --- |

8.

A number of interested third persons have complained about the extensive redaction of the non-confidential version of the summary of the SO and their subsequent inability to comment fully on it and thus to properly exercise their rights in these proceedings. Vodafone and BT/EE have referred primarily to the SO sections concerning their respective network sharing agreements with the Parties. After the formal oral hearing, the Commission made available new, less redacted, versions of the SO and granted the interested third persons the opportunity to supplement their views. In the case of Vodafone and BT/EE, redactions of the SO sections concerning their respective network sharing agreements were significantly reduced.

| 9. | Upon its request, I admitted Arqiva Limited to the proceedings as an additional interested third person after the formal oral hearing. |
| --- | --- |

9.

Upon its request, I admitted Arqiva Limited to the proceedings as an additional interested third person after the formal oral hearing.

Competent authorities of the Member States

| 10. | The national competition authorities of each Member State were invited to the oral hearing. Upon request, on the basis of Article 15(3) of the Merger Implementing Regulation, I also invited the UK Communications Regulator (‘Ofcom’) to the formal oral hearing as another competent authority of a Member State. |
| --- | --- |

10.

The national competition authorities of each Member State were invited to the oral hearing. Upon request, on the basis of Article 15(3) of the Merger Implementing Regulation, I also invited the UK Communications Regulator (‘Ofcom’) to the formal oral hearing as another competent authority of a Member State.

Formal oral hearing

| 11. | The formal oral hearing was held on 7 March 2016 and was attended by the Parties, as well as their external legal and economic advisers, the interested third persons Sky, Dixons Carphone, BT/EE, Vodafone, Tesco, Liberty Global, TalkTalk, Gamma, Iliad and UKBN, most of whom were assisted by external advisers, relevant Commission services, the competition authorities of 11 Member States (Belgium, Germany, Ireland, Spain, France, Italy, Latvia, the Netherlands, Finland, Sweden and the United Kingdom), and Ofcom (the United Kingdom). |
| --- | --- |

11.

The formal oral hearing was held on 7 March 2016 and was attended by the Parties, as well as their external legal and economic advisers, the interested third persons Sky, Dixons Carphone, BT/EE, Vodafone, Tesco, Liberty Global, TalkTalk, Gamma, Iliad and UKBN, most of whom were assisted by external advisers, relevant Commission services, the competition authorities of 11 Member States (Belgium, Germany, Ireland, Spain, France, Italy, Latvia, the Netherlands, Finland, Sweden and the United Kingdom), and Ofcom (the United Kingdom).

| 12. | The Parties requested and were granted closed sessions for parts of their presentations. Among the interested third persons, Sky and Dixons Carphone requested and were granted closed sessions for their respective presentations, but only with respect to the other interested third persons. |
| --- | --- |

12.

The Parties requested and were granted closed sessions for parts of their presentations. Among the interested third persons, Sky and Dixons Carphone requested and were granted closed sessions for their respective presentations, but only with respect to the other interested third persons.

Letters of Facts

| 13. | On 17 March 2016 and on 23 March 2016 the Commission addressed to the Notifying Party letters of facts where it pointed out additional evidence in the Commission’s file in support of the preliminary findings of the SO. The Notifying Party submitted written comments to the letter of facts of 17 March 2016 on 29 March 2016 and to the letter of facts of 23 March 2016 on 4 April 2016. |
| --- | --- |

13.

On 17 March 2016 and on 23 March 2016 the Commission addressed to the Notifying Party letters of facts where it pointed out additional evidence in the Commission’s file in support of the preliminary findings of the SO. The Notifying Party submitted written comments to the letter of facts of 17 March 2016 on 29 March 2016 and to the letter of facts of 23 March 2016 on 4 April 2016.

Commitments

| 14. | The Notifying Party submitted a first set of commitments on 2 March 2016. On 15 March 2016, the Notifying Party submitted a second set of commitments, which were market tested starting 18 March 2016. The Notifying Party submitted a final set of commitments on 6 April 2016. |
| --- | --- |

14.

The Notifying Party submitted a first set of commitments on 2 March 2016. On 15 March 2016, the Notifying Party submitted a second set of commitments, which were market tested starting 18 March 2016. The Notifying Party submitted a final set of commitments on 6 April 2016.

The draft decision

| 15. | After having heard the Parties and in derogation of the SO, the Commission no longer takes the view in the draft decision that the Transaction would give rise to coordinated effects in the market for retail mobile telecommunications services in the United Kingdom. In the draft decision, the Commission confirms the view that the Transaction would significantly impede effective competition in a substantial part of the internal market within the meaning of Article 2(3) of the Merger Regulation, through non-coordinated effects in the market for retail mobile telecommunications services in the United Kingdom, as well as through non-coordinated effects on the wholesale market for access and call origination on public mobile networks in the United Kingdom. Pursuant to Article 8(3) of the Merger Regulation, the draft decision therefore declares the Transaction incompatible with the internal market. |
| --- | --- |

15.

After having heard the Parties and in derogation of the SO, the Commission no longer takes the view in the draft decision that the Transaction would give rise to coordinated effects in the market for retail mobile telecommunications services in the United Kingdom. In the draft decision, the Commission confirms the view that the Transaction would significantly impede effective competition in a substantial part of the internal market within the meaning of Article 2(3) of the Merger Regulation, through non-coordinated effects in the market for retail mobile telecommunications services in the United Kingdom, as well as through non-coordinated effects on the wholesale market for access and call origination on public mobile networks in the United Kingdom. Pursuant to Article 8(3) of the Merger Regulation, the draft decision therefore declares the Transaction incompatible with the internal market.

| 16. | I have reviewed the draft decision pursuant to Article 16(1) of Decision 2011/695/EU and I conclude that it deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views. |
| --- | --- |

16.

I have reviewed the draft decision pursuant to Article 16(1) of Decision 2011/695/EU and I conclude that it deals only with objections in respect of which the Parties have been afforded the opportunity of making known their views.

III.   CONCLUSION

| 17. | Overall, I consider that the effective exercise of the procedural rights has been respected in this case. |
| --- | --- |

17.

Overall, I consider that the effective exercise of the procedural rights has been respected in this case.

Brussels, 29 April 2016.

Joos STRAGIER

---

(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) (‘Decision 2011/695/EU’).

1

(2)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ L 24, 29.1.2004, p. 1) (the ‘Merger Regulation’).

2

(3)  On 9 March 2016, Hutchison 3G UK Investments Limited has changed the name of its legal entity to CK Telecoms UK Investments Limited, which is therefore the addressee of the decision.

3

(4)  By the time of the oral hearing, BT had completed its acquisition of EE.

4

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| 29.9.2016 | EN | Official Journal of the European Union | C 357/15 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/15

---

Summary of Commission Decision

of 11 May 2016

declaring a concentration incompatible with the internal market

(Case M.7612 — Hutchison 3G UK/Telefónica UK)

(notified under document C(2016) 2796)

(Only the English version is authentic)

(2016/C 357/08)

On 11 May 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)
  , and in particular Article 8(3) 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 PROCEDURE

| (1) | On 11 September 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which the undertaking CK Hutchison Holdings Limited (‘CKHH’), through its indirect subsidiary Hutchison 3G UK Investments Limited (‘H3GI’ or the ‘Notifying Party’ (2)), acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of the undertaking Telefónica Europe Plc (‘O2’), by way of purchase of its shares (the ‘Transaction’) (3). The Notifying Party and O2 are referred to collectively as the ‘Parties’. |
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(1)

On 11 September 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which the undertaking CK Hutchison Holdings Limited (‘CKHH’), through its indirect subsidiary Hutchison 3G UK Investments Limited (‘H3GI’ or the ‘Notifying Party’ (2)), acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of the undertaking Telefónica Europe Plc (‘O2’), by way of purchase of its shares (the ‘Transaction’) (3). The Notifying Party and O2 are referred to collectively as the ‘Parties’.

| (2) | After the phase I investigation the Commission concluded that the Transaction raises serious doubts as to its compatibility with the internal market and adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation on 30 October 2015. Based on the phase II investigation which supplemented the findings of the phase I market investigation, the Commission issued a Statement of Objections on 4 February 2016. The Notifying Party submitted its written comments on the Statement of Objections on 26 February 2016. At the request of the Notifying Party, an oral hearing was held on 7 March 2016. The Notifying Party submitted commitments on 2 March 2016, on 15 March 2016 and on 6 April 2016. On 17 March 2016 and on 23 March 2016 the Commission addressed to the Notifying Parties letters where it pointed out additional evidence in the Commission's file in support of the preliminary findings of the Statement of Objections. On 29 March 2016 and 4 April 2016 the Notifying Party submitted written comments to the two Letters of Facts of 17 March 2016 and on 4 April 2016, respectively. The Advisory Committee discussed the draft of the Decision on 27 April 2016 and issued a favourable opinion. |
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(2)

After the phase I investigation the Commission concluded that the Transaction raises serious doubts as to its compatibility with the internal market and adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation on 30 October 2015. Based on the phase II investigation which supplemented the findings of the phase I market investigation, the Commission issued a Statement of Objections on 4 February 2016. The Notifying Party submitted its written comments on the Statement of Objections on 26 February 2016. At the request of the Notifying Party, an oral hearing was held on 7 March 2016. The Notifying Party submitted commitments on 2 March 2016, on 15 March 2016 and on 6 April 2016. On 17 March 2016 and on 23 March 2016 the Commission addressed to the Notifying Parties letters where it pointed out additional evidence in the Commission's file in support of the preliminary findings of the Statement of Objections. On 29 March 2016 and 4 April 2016 the Notifying Party submitted written comments to the two Letters of Facts of 17 March 2016 and on 4 April 2016, respectively. The Advisory Committee discussed the draft of the Decision on 27 April 2016 and issued a favourable opinion.

II.   THE PARTIES AND THE CONCENTRATION

| (3) | H3GI is an indirect wholly owned subsidiary of CKHH. CKHH is a multinational group headquartered in Hong Kong and listed on the Hong Kong Stock Exchange Limited. CKHH has five core businesses: ports and related services, retail, infrastructure, energy, and telecommunications. CKHH's indirect wholly owned subsidiary, Hutchison 3G UK Limited (‘Three’) is a Mobile Network Operator (‘MNO’) in the United Kingdom. Three offers mobile telecommunications services such as voice, SMS, MMS, mobile internet, mobile broadband, roaming and call termination services. |
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(3)

H3GI is an indirect wholly owned subsidiary of CKHH. CKHH is a multinational group headquartered in Hong Kong and listed on the Hong Kong Stock Exchange Limited. CKHH has five core businesses: ports and related services, retail, infrastructure, energy, and telecommunications. CKHH's indirect wholly owned subsidiary, Hutchison 3G UK Limited (‘Three’) is a Mobile Network Operator (‘MNO’) in the United Kingdom. Three offers mobile telecommunications services such as voice, SMS, MMS, mobile internet, mobile broadband, roaming and call termination services.

| (4) | O2 is also active in the United Kingdom and offers mobile telecommunications services such as voice, SMS, MMS, mobile internet, mobile broadband, roaming and call termination services. O2 belongs to Telefónica S.A. (‘Telefónica’), a holding company of a group of companies that operate fixed and mobile communication networks. |
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(4)

O2 is also active in the United Kingdom and offers mobile telecommunications services such as voice, SMS, MMS, mobile internet, mobile broadband, roaming and call termination services. O2 belongs to Telefónica S.A. (‘Telefónica’), a holding company of a group of companies that operate fixed and mobile communication networks.

| (5) | On 24 March 2015, H3GI, Hutchison 3G UK Holdings (CI) Limited (a parent company under the sole control of CKHH), and Telefónica SA entered into a Sale and Purchase Agreement under which H3GI acquires all of O2's shares. During the course of the proceedings the Notifying Party presented two alternative Transaction structures. Regardless of the structure under which the Transaction will be implemented, the Commission considers that the Transaction consists of an acquisition of sole control by H3GI (and ultimately by CKHH, which under both Transaction structures will continue to exercise sole control over Three) over O2 and accordingly constitutes a concentration within the meaning of Article 3(1)(b) Merger Regulation. |
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(5)

On 24 March 2015, H3GI, Hutchison 3G UK Holdings (CI) Limited (a parent company under the sole control of CKHH), and Telefónica SA entered into a Sale and Purchase Agreement under which H3GI acquires all of O2's shares. During the course of the proceedings the Notifying Party presented two alternative Transaction structures. Regardless of the structure under which the Transaction will be implemented, the Commission considers that the Transaction consists of an acquisition of sole control by H3GI (and ultimately by CKHH, which under both Transaction structures will continue to exercise sole control over Three) over O2 and accordingly constitutes a concentration within the meaning of Article 3(1)(b) Merger Regulation.

III.   EU DIMENSION

| (6) | The Transaction has an EU dimension within the meaning of Article 1 of the Merger Regulation. |
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(6)

The Transaction has an EU dimension within the meaning of Article 1 of the Merger Regulation.

IV.   REFERRAL

| (7) | On 4 December 2015, the Commission adopted a decision rejecting the United Kingdom's Referral Request. The Commission considers that the criteria for a referral provided for in Article 9(2)(a) of the Merger Regulation are fulfilled with regard to the Transaction. However, in exercising its discretion, the Commission does not consider it appropriate to refer the Transaction to the CMA for a number of reasons, including the need for the Commission to ensure a coherent and consistent approach when assessing mergers in the telecom sector in different Member States and its own significant previous expertise in assessing concentrations in the European mobile telecommunications markets. |
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(7)

On 4 December 2015, the Commission adopted a decision rejecting the United Kingdom's Referral Request. The Commission considers that the criteria for a referral provided for in Article 9(2)(a) of the Merger Regulation are fulfilled with regard to the Transaction. However, in exercising its discretion, the Commission does not consider it appropriate to refer the Transaction to the CMA for a number of reasons, including the need for the Commission to ensure a coherent and consistent approach when assessing mergers in the telecom sector in different Member States and its own significant previous expertise in assessing concentrations in the European mobile telecommunications markets.

V.   THE UNITED KINGDOM MOBILE TELECOMMUNICATIONS SECTOR

| (8) | The retail mobile telecommunications market in the United Kingdom is well functioning and very competitive at present. The United Kingdom is one of the most advanced countries in the European Union in terms of 4G technology roll-out and 4G services take-up. |
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(8)

The retail mobile telecommunications market in the United Kingdom is well functioning and very competitive at present. The United Kingdom is one of the most advanced countries in the European Union in terms of 4G technology roll-out and 4G services take-up.

| (9) | Convergence of mobile and fixed communications is a trend in telecommunications towards removing differences between fixed and mobile networks. There are two aspects to convergence, one related to changes in technology and the other one to the ability of operators to offer bundles of mobile and fixed services. With respect to the latter, the Commission considers that the adoption of fixed-mobile bundles in the United Kingdom has been very limited and that it is unlikely to significantly increase in the near future. |
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(9)

Convergence of mobile and fixed communications is a trend in telecommunications towards removing differences between fixed and mobile networks. There are two aspects to convergence, one related to changes in technology and the other one to the ability of operators to offer bundles of mobile and fixed services. With respect to the latter, the Commission considers that the adoption of fixed-mobile bundles in the United Kingdom has been very limited and that it is unlikely to significantly increase in the near future.

| (10) | There are four MNOs in the United Kingdom. Other than the Parties, these are EE (4) and Vodafone. All MNOs in the United Kingdom have rolled out their networks with another MNO. The network sharing arrangements in place are CTIL/Beacon between O2 and Vodafone, on the one hand, and MBNL between Three and BT/EE, on the other hand. These agreements have contributed to the competitiveness of the market. |
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(10)

There are four MNOs in the United Kingdom. Other than the Parties, these are EE (4) and Vodafone. All MNOs in the United Kingdom have rolled out their networks with another MNO. The network sharing arrangements in place are CTIL/Beacon between O2 and Vodafone, on the one hand, and MBNL between Three and BT/EE, on the other hand. These agreements have contributed to the competitiveness of the market.

| (11) | The market in the United Kingdom is also characterised by a large number of mobile operators which do not own a network. These are the mobile virtual networks and branded resellers, together referred to as non-MNOs. |
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(11)

The market in the United Kingdom is also characterised by a large number of mobile operators which do not own a network. These are the mobile virtual networks and branded resellers, together referred to as non-MNOs.

| (12) | MNOs and non-MNOs sell mobile contracts to end customers directly through their own retail outlets, online or by telemarketing. They also sell mobile contracts indirectly through independent retailers (such as Dixons), with those retailers selling mobile subscriptions through their own retail stores, online and through telesales. Within independent retailers, a distinction can be drawn between independent specialist retailers, on the one hand, and generalist retailers and specialist electrical retailers, on the other hand. |
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(12)

MNOs and non-MNOs sell mobile contracts to end customers directly through their own retail outlets, online or by telemarketing. They also sell mobile contracts indirectly through independent retailers (such as Dixons), with those retailers selling mobile subscriptions through their own retail stores, online and through telesales. Within independent retailers, a distinction can be drawn between independent specialist retailers, on the one hand, and generalist retailers and specialist electrical retailers, on the other hand.

VI.   RELEVANT MARKETS

| (13) | The Commission has raised objections as regards the effects of the Transaction with respect to the provision of retail mobile telecommunications services and wholesale services for access and call origination on public mobile telephone networks. Therefore, relevant product and geographic market for these services are defined as follows: |
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(13)

The Commission has raised objections as regards the effects of the Transaction with respect to the provision of retail mobile telecommunications services and wholesale services for access and call origination on public mobile telephone networks. Therefore, relevant product and geographic market for these services are defined as follows:

a.   Retail market for mobile telecommunications services

| (14) | The Commission considers that, in line with its decisional practice, mobile telecommunications services constitute a separate market from fixed telecommunications services. Further, the Commission considers that mobile services and over the top services (‘OTT’) are not substitutable as at the very least a mobile data connection is required to access OTT instant messaging and voice services. Given the very limited penetration of multiple-play offers with a mobile component in United Kingdom, for the purposes of the present case it is not necessary to define a separate product market for multiple-play offers including a mobile component. |
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(14)

The Commission considers that, in line with its decisional practice, mobile telecommunications services constitute a separate market from fixed telecommunications services. Further, the Commission considers that mobile services and over the top services (‘OTT’) are not substitutable as at the very least a mobile data connection is required to access OTT instant messaging and voice services. Given the very limited penetration of multiple-play offers with a mobile component in United Kingdom, for the purposes of the present case it is not necessary to define a separate product market for multiple-play offers including a mobile component.

| (15) | As regards the market for the provision of mobile telecommunications services to end customers, consistent with its previous decisional practice, the Commission concludes that separate markets for the provision of retail mobile telecommunications services should not be identified according to: the type of technology (2G, 3G and 4G); the type of service (voice SMS/MMS and data); the type of contract (pre-paid and post-paid), and the type of end-customer (business and private). Pre-paid and post-paid services, as well as services to business and private customers are assessed as separate segments. |
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(15)

As regards the market for the provision of mobile telecommunications services to end customers, consistent with its previous decisional practice, the Commission concludes that separate markets for the provision of retail mobile telecommunications services should not be identified according to: the type of technology (2G, 3G and 4G); the type of service (voice SMS/MMS and data); the type of contract (pre-paid and post-paid), and the type of end-customer (business and private). Pre-paid and post-paid services, as well as services to business and private customers are assessed as separate segments.

| (16) | Further, in this case, the Commission has investigated the possible distinction between mobile services sold in contracts including the purchase of a handset (‘handset contracts’) and pure mobile subscriptions (‘SIM only contracts’), as well as a possible distinction by distribution channel (direct or indirect). These distinctions appear to be particularly relevant in the United Kingdom. The Commission considers that the definition of separate markets along these lines is not necessary as these distinctions constitute rather different segments within the same market. |
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(16)

Further, in this case, the Commission has investigated the possible distinction between mobile services sold in contracts including the purchase of a handset (‘handset contracts’) and pure mobile subscriptions (‘SIM only contracts’), as well as a possible distinction by distribution channel (direct or indirect). These distinctions appear to be particularly relevant in the United Kingdom. The Commission considers that the definition of separate markets along these lines is not necessary as these distinctions constitute rather different segments within the same market.

| (17) | In line with previous Commission decisions, and with the view of the Notifying Party, the Commission concludes that the relevant geographic market for the assessment of this case is national in scope, and corresponds to the territory of the United Kingdom. |
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(17)

In line with previous Commission decisions, and with the view of the Notifying Party, the Commission concludes that the relevant geographic market for the assessment of this case is national in scope, and corresponds to the territory of the United Kingdom.

b.   Wholesale market for access and call origination on public mobile networks

| (18) | In line with previous cases, the Commission concludes that the relevant product market for the assessment of the present case is the market for wholesale access and all origination on public mobile telephone networks. The Commission concludes that the geographic scope of the market is the territory of the United Kingdom. |
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(18)

In line with previous cases, the Commission concludes that the relevant product market for the assessment of the present case is the market for wholesale access and all origination on public mobile telephone networks. The Commission concludes that the geographic scope of the market is the territory of the United Kingdom.

VII.   COMPETITIVE ASSESSMENT

a.   Retail market for mobile telecommunications services

(i)   Horizontal non-coordinated effects arising from the elimination of important competitive constraints

| (19) | The Transaction would combine the operations of O2 and Three, respectively the first and the fourth players by subscribers (the second and the fourth by revenues) in the retail market for the provision of mobile telecommunications services in the United Kingdom, creating a market leader by number of subscribers and revenues and significantly increasing the level of market concentration. |
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(19)

The Transaction would combine the operations of O2 and Three, respectively the first and the fourth players by subscribers (the second and the fourth by revenues) in the retail market for the provision of mobile telecommunications services in the United Kingdom, creating a market leader by number of subscribers and revenues and significantly increasing the level of market concentration.

| (20) | Three is the latest network operator to have entered the market and has been the driver of competition since its entry, for example by changing the industry trend of restricting data usage and data price increases. Its recent and current market behaviour shows that it is the most aggressive and innovative player. Namely, it offers the most competitive prices in the direct channel, and offered 4G at no extra cost, forcing the industry to abandon strategies to sell 4G at a premium. It also offered such popular propositions as free international roaming and was the first to launch a voice over LTE (‘VoLTE’) service. Despite being a late entrant, Three managed to build out an excellent network as shown by independent surveys, network tests carried out by independent network performance firms, and data by the national regulator Ofcom. In particular its network was rated as the most reliable of the networks in the United Kingdom. |
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(20)

Three is the latest network operator to have entered the market and has been the driver of competition since its entry, for example by changing the industry trend of restricting data usage and data price increases. Its recent and current market behaviour shows that it is the most aggressive and innovative player. Namely, it offers the most competitive prices in the direct channel, and offered 4G at no extra cost, forcing the industry to abandon strategies to sell 4G at a premium. It also offered such popular propositions as free international roaming and was the first to launch a voice over LTE (‘VoLTE’) service. Despite being a late entrant, Three managed to build out an excellent network as shown by independent surveys, network tests carried out by independent network performance firms, and data by the national regulator Ofcom. In particular its network was rated as the most reliable of the networks in the United Kingdom.

| (21) | Absent the Transaction Three is likely to continue to compete strongly. Based on the available evidence in its file, the Commission considers it unlikely that Three's ability to compete will materially deteriorate in the next two to three years. In particular, as explained in Annex C (a summary of which is attached) it is unlikely to experience [capacity constraints]. Further, Three is financially sound [...]. [...] external analyses forecast a dynamically expanding business. |
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(21)

Absent the Transaction Three is likely to continue to compete strongly. Based on the available evidence in its file, the Commission considers it unlikely that Three's ability to compete will materially deteriorate in the next two to three years. In particular, as explained in Annex C (a summary of which is attached) it is unlikely to experience [capacity constraints]. Further, Three is financially sound [...]. [...] external analyses forecast a dynamically expanding business.

| (22) | Therefore, pre-Transaction Three constitutes an important competitive force pursuant to paragraph 37 of the Horizontal Merger Guidelines, or in any event it exerts an important competitive constraint on that market, and that it is likely to continue exerting such a constraint absent the Transaction. |
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(22)

Therefore, pre-Transaction Three constitutes an important competitive force pursuant to paragraph 37 of the Horizontal Merger Guidelines, or in any event it exerts an important competitive constraint on that market, and that it is likely to continue exerting such a constraint absent the Transaction.

| (23) | O2 has the strongest brand in the market and in the past seven years it has consistently achieved the highest customer satisfaction scores. Its success is due to its customer centric propositions, such as its transparent and flexible Refresh tariff, its popular loyalty programme, its customer friendly technology experts and its excellent customer service. It has also launched popular non-MNOs such as giffgaff and it owns 50 % of Tesco Mobile. Its popularity with customers and its brand image is a strong asset that exerts significant pressure on other competitors. As explained in Annex C (a summary of which is attached), the Commission considers that O2's ability to compete will [...]. Further, it also has healthy finances and thus retains the ability to invest and grow. |
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(23)

O2 has the strongest brand in the market and in the past seven years it has consistently achieved the highest customer satisfaction scores. Its success is due to its customer centric propositions, such as its transparent and flexible Refresh tariff, its popular loyalty programme, its customer friendly technology experts and its excellent customer service. It has also launched popular non-MNOs such as giffgaff and it owns 50 % of Tesco Mobile. Its popularity with customers and its brand image is a strong asset that exerts significant pressure on other competitors. As explained in Annex C (a summary of which is attached), the Commission considers that O2's ability to compete will [...]. Further, it also has healthy finances and thus retains the ability to invest and grow.

| (24) | The Commission therefore considers that pre-Transaction O2 exerts an important competitive constraint and that it is likely to continue exerting such a constraint absent the Transaction. |
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(24)

The Commission therefore considers that pre-Transaction O2 exerts an important competitive constraint and that it is likely to continue exerting such a constraint absent the Transaction.

| (25) | The Commission also notes that Three and O2 are the only mobile network operators in the United Kingdom whose market shares have been constantly growing over the last years and that they compete closely between each other and the other MNOs. |
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(25)

The Commission also notes that Three and O2 are the only mobile network operators in the United Kingdom whose market shares have been constantly growing over the last years and that they compete closely between each other and the other MNOs.

| (26) | The Transaction would eliminate the competitive constraints that Three and O2 exercised on each other and on the other MNOs, which would result in significantly weakened competition on the retail market. In particular, based on the overall evidence in its file, it appears likely that the merged entity will compete less aggressively and would raise prices. It will be the largest MNO with little, if any incentive to be price aggressive. The Commission finds it likely that, given EE's and Vodafone's history and current strategy and positioning, they are likely to follow price increases by the merged entity. |
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(26)

The Transaction would eliminate the competitive constraints that Three and O2 exercised on each other and on the other MNOs, which would result in significantly weakened competition on the retail market. In particular, based on the overall evidence in its file, it appears likely that the merged entity will compete less aggressively and would raise prices. It will be the largest MNO with little, if any incentive to be price aggressive. The Commission finds it likely that, given EE's and Vodafone's history and current strategy and positioning, they are likely to follow price increases by the merged entity.

| (27) | In addition, as illustrated in Section VII.a.ii of this summary, the Commission also finds that the Transaction is likely to have a negative impact on the ability to compete of the remaining MNOs, which in turn would likely reduce those players' ability to compete on price and other parameters (innovation, network quality). Indeed, the Transaction will disrupt the existing well-functioning network sharing arrangements in the mobile market in the United Kingdom. |
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(27)

In addition, as illustrated in Section VII.a.ii of this summary, the Commission also finds that the Transaction is likely to have a negative impact on the ability to compete of the remaining MNOs, which in turn would likely reduce those players' ability to compete on price and other parameters (innovation, network quality). Indeed, the Transaction will disrupt the existing well-functioning network sharing arrangements in the mobile market in the United Kingdom.

| (28) | Given their limited ability to compete, in particular on data, and to innovate due to their dependence on MNOs, the Commission considers that non-MNOs will not be able to counterbalance the loss of competitive pressure resulting from the Transaction. Independent specialist retailers (Dixons), while generally succeed to improve on MNOs' offers, do not have the ability to compensate for the loss of competition among MNOs. |
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(28)

Given their limited ability to compete, in particular on data, and to innovate due to their dependence on MNOs, the Commission considers that non-MNOs will not be able to counterbalance the loss of competitive pressure resulting from the Transaction. Independent specialist retailers (Dixons), while generally succeed to improve on MNOs' offers, do not have the ability to compensate for the loss of competition among MNOs.

| (29) | The Commission has also undertaken an in-depth quantitative assessment of the likely price effects of the elimination of competition in the retail market. Such quantitative assessment is carried out in detail in Annex A to the Decision (5). Absent the harm resulting from network sharing, the Commission considers that the Parties would have significant incentives to increase prices post-Transaction. [...]. |
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(29)

The Commission has also undertaken an in-depth quantitative assessment of the likely price effects of the elimination of competition in the retail market. Such quantitative assessment is carried out in detail in Annex A to the Decision (5). Absent the harm resulting from network sharing, the Commission considers that the Parties would have significant incentives to increase prices post-Transaction. [...].

| (30) | The Commission considers that its quantitative analysis supports the conclusions reached by the qualitative market investigation. In the Commission's view, the Transaction is likely to generate a sizeable incentive to increase prices in the mobile market in the United Kingdom. Moreover, the Commission notes that the [...] customers of Three and O2 are expected to face price increases that are significantly higher than average. |
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(30)

The Commission considers that its quantitative analysis supports the conclusions reached by the qualitative market investigation. In the Commission's view, the Transaction is likely to generate a sizeable incentive to increase prices in the mobile market in the United Kingdom. Moreover, the Commission notes that the [...] customers of Three and O2 are expected to face price increases that are significantly higher than average.

(ii)   Horizontal non-coordinated effects arising from network sharing

| (31) | As mentioned above, the four network operators have entered into two network sharing agreements: Vodafone and O2 in the CTIL/Beacon agreements and Three and BT/EE in the MBNL agreements. Today, the partners of each network sharing arrangements have an incentive to jointly develop the shared elements of their networks with a view to achieving a better network than the other MNOs and in particular than the MNOs in the other network sharing arrangement. |
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(31)

As mentioned above, the four network operators have entered into two network sharing agreements: Vodafone and O2 in the CTIL/Beacon agreements and Three and BT/EE in the MBNL agreements. Today, the partners of each network sharing arrangements have an incentive to jointly develop the shared elements of their networks with a view to achieving a better network than the other MNOs and in particular than the MNOs in the other network sharing arrangement.

| (32) | Post-Transaction, this healthy competitive dynamic would be lost. The merged entity would be part of both network sharing agreements and each of Vodafone and BT/EE would no longer have a fully committed network sharing partner in, respectively, CTIL/Beacon and MBNL. |
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(32)

Post-Transaction, this healthy competitive dynamic would be lost. The merged entity would be part of both network sharing agreements and each of Vodafone and BT/EE would no longer have a fully committed network sharing partner in, respectively, CTIL/Beacon and MBNL.

| (33) | In more detail, the Commission considers that the implementation of the network consolidation plans as presented to the Commission by the Notifying Party, following the reduction of competing MNOs, would significantly harm the competitive position of either one or both of the Parties' partners in the network sharing arrangements. |
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(33)

In more detail, the Commission considers that the implementation of the network consolidation plans as presented to the Commission by the Notifying Party, following the reduction of competing MNOs, would significantly harm the competitive position of either one or both of the Parties' partners in the network sharing arrangements.

| (34) | The Notifying Party submitted in particular two network consolidation plans, the ‘Preferred Plan’ and the ‘Alternative Plan’. |
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(34)

The Notifying Party submitted in particular two network consolidation plans, the ‘Preferred Plan’ and the ‘Alternative Plan’.

| (35) | The Preferred Plan is likely to result in a significant impediment to BT/EE's ability to compete in the mobile telecommunications markets in the United Kingdom. |
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(35)

The Preferred Plan is likely to result in a significant impediment to BT/EE's ability to compete in the mobile telecommunications markets in the United Kingdom.

| (36) | The Alternative Plan is likely to result in a significant impediment to BT/EE and Vodafone's ability to compete in the mobile telecommunications markets in the United Kingdom. It also harms to a lesser extent the competitive position of BT/EE. |
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(36)

The Alternative Plan is likely to result in a significant impediment to BT/EE and Vodafone's ability to compete in the mobile telecommunications markets in the United Kingdom. It also harms to a lesser extent the competitive position of BT/EE.

| (37) | Furthermore, the Commission notes that neither of these plans provide for a commitment of the merged entity to implement the network consolidation as presented to the Commission. Taking other possible integration scenarios into account, the Commission concludes that also in all other scenarios reviewed by the Commission the Transaction would harm the competitive position of either one or both of the Parties' partners in the network sharing arrangements. |
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(37)

Furthermore, the Commission notes that neither of these plans provide for a commitment of the merged entity to implement the network consolidation as presented to the Commission. Taking other possible integration scenarios into account, the Commission concludes that also in all other scenarios reviewed by the Commission the Transaction would harm the competitive position of either one or both of the Parties' partners in the network sharing arrangements.

| (38) | Therefore, the Commission considers that the Transaction is likely to reduce the competitive pressure exerted by either one or both of the other MNOs that are partners of the Parties in the network sharing arrangements. |
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(38)

Therefore, the Commission considers that the Transaction is likely to reduce the competitive pressure exerted by either one or both of the other MNOs that are partners of the Parties in the network sharing arrangements.

| (39) | Besides, the network sharing situation resulting from the Transaction under the Alternative Plan is likely to lead to less industry-wide investments into network infrastructure, reducing the level of effective competition which would have prevailed in the absence of the Transaction. |
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(39)

Besides, the network sharing situation resulting from the Transaction under the Alternative Plan is likely to lead to less industry-wide investments into network infrastructure, reducing the level of effective competition which would have prevailed in the absence of the Transaction.

| (40) | The reduced competitive pressure and the less industry-wide investments into network infrastructure are likely to lead to a significant impediment of effective competition in an oligopolistic market featuring a limited number of players and high barriers to entry for this reason too. |
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(40)

The reduced competitive pressure and the less industry-wide investments into network infrastructure are likely to lead to a significant impediment of effective competition in an oligopolistic market featuring a limited number of players and high barriers to entry for this reason too.

(iii)   Countervailing factors

| (41) | The Commission considers, on the basis of its market investigation, that there are no countervailing buyer power or entry such as to offset the possible anticompetitive effects of the Transaction. |
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(41)

The Commission considers, on the basis of its market investigation, that there are no countervailing buyer power or entry such as to offset the possible anticompetitive effects of the Transaction.

(iv)   Conclusion

| (42) | Since the horizontal non-coordinated effects described above cannot be offset by efficiencies (see Section VII.c of this summary), on the basis of the above, the Commission concludes that the Transaction would lead to a significant impediment of effective competition in the retail market for mobile telecommunications services in the United Kingdom. |
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(42)

Since the horizontal non-coordinated effects described above cannot be offset by efficiencies (see Section VII.c of this summary), on the basis of the above, the Commission concludes that the Transaction would lead to a significant impediment of effective competition in the retail market for mobile telecommunications services in the United Kingdom.

b.   Wholesale market for access and call origination on public mobile networks

(i)   Horizontal non-coordinated effects arising from the elimination of important competitive constraints

| (43) | In addition to the retail market, the Parties are active on the wholesale market for network access and call origination. On this market, MNOs provide hosting services to non-MNOs which in turn offer retail services to subscribers. |
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(43)

In addition to the retail market, the Parties are active on the wholesale market for network access and call origination. On this market, MNOs provide hosting services to non-MNOs which in turn offer retail services to subscribers.

| (44) | Currently all four MNOs offer wholesale access to non-MNOs. The largest wholesale host currently is EE, followed closely by O2. Both EE and O2 have market shares which are growing stably. Vodafone is the third largest host and its market share has been declining in the past three years. Three is the smallest wholesale access host. |
| --- | --- |

(44)

Currently all four MNOs offer wholesale access to non-MNOs. The largest wholesale host currently is EE, followed closely by O2. Both EE and O2 have market shares which are growing stably. Vodafone is the third largest host and its market share has been declining in the past three years. Three is the smallest wholesale access host.

| (45) | Despite Three's relatively low historical market share, the Commission considers, on the basis of its market investigation, that Three is an important competitive force in the wholesale market. The Commission has conducted an analysis of share of recently contested customers by projected value. According to these, Three's share is [10-20] %. In addition, the Commission has found evidence that Three has significantly improved its position in the wholesale market. Three has been participating in a number of competitive processes including for the largest non-MNOs and has concluded contracts with non-MNOs with growth potential which will allow it to further grow in the future absent the Transaction. Moreover, Three's presence in the wholesale negotiations has a competitive impact even in situations where Three is not successful. The Commission considers, on the basis of its market investigation, that Three provides competitive wholesale rates for new technologies, such as 4G. The Commission considers on the basis of its market investigation, that Three has invested in both its network and its resources to be able to compete more effectively on this market. Finally, the Commission considers, on the basis of the market investigation, that both Three itself and the other market participants (including MNO competitors and non-MNO wholesale customers) consider Three as an important competitor. |
| --- | --- |

(45)

Despite Three's relatively low historical market share, the Commission considers, on the basis of its market investigation, that Three is an important competitive force in the wholesale market. The Commission has conducted an analysis of share of recently contested customers by projected value. According to these, Three's share is [10-20] %. In addition, the Commission has found evidence that Three has significantly improved its position in the wholesale market. Three has been participating in a number of competitive processes including for the largest non-MNOs and has concluded contracts with non-MNOs with growth potential which will allow it to further grow in the future absent the Transaction. Moreover, Three's presence in the wholesale negotiations has a competitive impact even in situations where Three is not successful. The Commission considers, on the basis of its market investigation, that Three provides competitive wholesale rates for new technologies, such as 4G. The Commission considers on the basis of its market investigation, that Three has invested in both its network and its resources to be able to compete more effectively on this market. Finally, the Commission considers, on the basis of the market investigation, that both Three itself and the other market participants (including MNO competitors and non-MNO wholesale customers) consider Three as an important competitor.

| (46) | On this basis, the Commission considers that Three constitutes an important competitive force, in accordance to paragraph 37 of the Horizontal Merger Guidelines. Absent the Transaction, Three would continue to grow in the wholesale market and exercise an important competitive constraint on O2 and the other MNOs. |
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(46)

On this basis, the Commission considers that Three constitutes an important competitive force, in accordance to paragraph 37 of the Horizontal Merger Guidelines. Absent the Transaction, Three would continue to grow in the wholesale market and exercise an important competitive constraint on O2 and the other MNOs.

| (47) | In relation to O2, the Commission considers, on the basis of the market investigation, that O2 exercises an important competitive constraint on Three and the other MNOs pre-Transaction and that this would continue absent the Transaction. |
| --- | --- |

(47)

In relation to O2, the Commission considers, on the basis of the market investigation, that O2 exercises an important competitive constraint on Three and the other MNOs pre-Transaction and that this would continue absent the Transaction.

| (48) | Post-Transaction, the Commission considers that the reduction in the number of wholesale hosts would reduce the competitive position of non-MNOs. Also, the merged entity is likely to have lower incentives to host non-MNOs on commercially attractive terms than Three and O2 would have absent the merger. Finally, the reduction in competition on the wholesale market is unlikely to be offset by the remaining competitors on the market, BT/EE and Vodafone. |
| --- | --- |

(48)

Post-Transaction, the Commission considers that the reduction in the number of wholesale hosts would reduce the competitive position of non-MNOs. Also, the merged entity is likely to have lower incentives to host non-MNOs on commercially attractive terms than Three and O2 would have absent the merger. Finally, the reduction in competition on the wholesale market is unlikely to be offset by the remaining competitors on the market, BT/EE and Vodafone.

(ii)   Countervailing factors

| (49) | The Commission considers, on the basis of its market investigation, that there is no countervailing buyer power or entry such as to offset the possible anti-competitive effects of the Transaction. |
| --- | --- |

(49)

The Commission considers, on the basis of its market investigation, that there is no countervailing buyer power or entry such as to offset the possible anti-competitive effects of the Transaction.

(iii)   Conclusion

| (50) | Since the horizontal non-coordinated effects described above cannot be offset by efficiencies (see Section VII.c of this summary), on the basis of the above, the Commission concludes that the Transaction would lead to a significant impediment of effective competition in the wholesale services for access and call origination on public mobile telephone networks in the United Kingdom. |
| --- | --- |

(50)

Since the horizontal non-coordinated effects described above cannot be offset by efficiencies (see Section VII.c of this summary), on the basis of the above, the Commission concludes that the Transaction would lead to a significant impediment of effective competition in the wholesale services for access and call origination on public mobile telephone networks in the United Kingdom.

c.   Efficiencies

| (51) | According to the Notifying Party the Transaction will lead to significant network and scale efficiencies. The network efficiencies would arise as radio access network (‘RAN’) consolidation would lead to densification of sites, increased use of spectrum (by deploying the combined spectrum on a denser grid), and more efficient use of spectrum (in particular through ‘carrier aggregation’). These technical benefits would bring an increase in network capacity, network quality and speed compared to the sum of Three and O2 absent the Transaction. They would also lower network costs. These effects would benefit consumers as: (i) the merged entity would [...]; (ii) reductions in incremental network costs would be passed on to consumers by the merged entity in terms of lower price; and (iii) the merged entity would exert greater competitive pressure on Vodafone and EE which would lead to lower prices by these rivals. Although these network efficiencies under Three's ‘Alternative Plan’ could not start to materialise before [...], the Notifying Party submits that they nevertheless should be considered to satisfy the Commission's timeliness criterion as they are not subject to uncertainty. Moreover, the scale economies and fixed cost savings brought by the Transaction would facilitate the merged entity's ability to make future investments, in particular in spectrum. |
| --- | --- |

(51)

According to the Notifying Party the Transaction will lead to significant network and scale efficiencies. The network efficiencies would arise as radio access network (‘RAN’) consolidation would lead to densification of sites, increased use of spectrum (by deploying the combined spectrum on a denser grid), and more efficient use of spectrum (in particular through ‘carrier aggregation’). These technical benefits would bring an increase in network capacity, network quality and speed compared to the sum of Three and O2 absent the Transaction. They would also lower network costs. These effects would benefit consumers as: (i) the merged entity would [...]; (ii) reductions in incremental network costs would be passed on to consumers by the merged entity in terms of lower price; and (iii) the merged entity would exert greater competitive pressure on Vodafone and EE which would lead to lower prices by these rivals. Although these network efficiencies under Three's ‘Alternative Plan’ could not start to materialise before [...], the Notifying Party submits that they nevertheless should be considered to satisfy the Commission's timeliness criterion as they are not subject to uncertainty. Moreover, the scale economies and fixed cost savings brought by the Transaction would facilitate the merged entity's ability to make future investments, in particular in spectrum.

| (52) | As regards the timeliness of network efficiencies, the Commission considers that there remains significant uncertainty regarding the timing and the extent of network integration and investments and hence whether claimed efficiencies would be achieved. Moreover, the fact that network efficiencies are not claimed to materialise before [...] gives rise to significant uncertainty relative to the situation where such efficiency claims would materialise earlier. Therefore, even if the network efficiencies claimed by the Notifying Party satisfied the three criteria of the Horizontal Merger Guidelines (which is not the case, as explained in the following paragraphs), the Commission considers that the weight that can be placed on such efficiency claims is limited. |
| --- | --- |

(52)

As regards the timeliness of network efficiencies, the Commission considers that there remains significant uncertainty regarding the timing and the extent of network integration and investments and hence whether claimed efficiencies would be achieved. Moreover, the fact that network efficiencies are not claimed to materialise before [...] gives rise to significant uncertainty relative to the situation where such efficiency claims would materialise earlier. Therefore, even if the network efficiencies claimed by the Notifying Party satisfied the three criteria of the Horizontal Merger Guidelines (which is not the case, as explained in the following paragraphs), the Commission considers that the weight that can be placed on such efficiency claims is limited.

| (53) | Regarding the technical benefits from the consolidation of the two networks, the Commission notes that it appears plausible that the Transaction would allow to deploy the joint spectrum on a denser network compared to a stand-alone scenario. However, the extent could not be sufficiently verified with the information provided by the Notifying Party. The Parties would also have realistic alternatives to expand capacity on a stand-alone basis. Moreover, the Commission considers that any quality benefits from higher download speeds are likely limited. The Commission therefore concludes that the claimed technical benefits as well as associated cost and quality benefits do not satisfy the criteria of verifiability and merger specificity. |
| --- | --- |

(53)

Regarding the technical benefits from the consolidation of the two networks, the Commission notes that it appears plausible that the Transaction would allow to deploy the joint spectrum on a denser network compared to a stand-alone scenario. However, the extent could not be sufficiently verified with the information provided by the Notifying Party. The Parties would also have realistic alternatives to expand capacity on a stand-alone basis. Moreover, the Commission considers that any quality benefits from higher download speeds are likely limited. The Commission therefore concludes that the claimed technical benefits as well as associated cost and quality benefits do not satisfy the criteria of verifiability and merger specificity.

| (54) | The Commission further considers that there is a duality between Notifying Party's arguments whereby (i) the merged entity would [...]. In the Commission's view, both lines of reasoning are conceptually different aspect of one and the same effect. |
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(54)

The Commission further considers that there is a duality between Notifying Party's arguments whereby (i) the merged entity would [...]. In the Commission's view, both lines of reasoning are conceptually different aspect of one and the same effect.

| (55) | [The Commission cannot verify the Notifying Party's arguments on this issue.] |
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(55)

[The Commission cannot verify the Notifying Party's arguments on this issue.]

| (56) | Regarding the second argument, the Commission does not exclude that the transaction might to some extent reduce the incremental network costs of the merged entity relative to the Parties' absent the transaction. However, the Commission considers that the Notifying Party's claims of zero or reduced incremental network costs do not pass the tests of merger specificity and verifiability. The Commission rejects the claim that the merged entity would have zero incremental network costs, and it cannot verify the level of incremental network costs for the merged entity proposed by the Notifying Party because of the severe limitations in the modelling used and lack of necessary data provided by the Notifying Party. Moreover even if the claim that the merged entity would have zero incremental costs were verifiable and merger specific, the pass-through of such reductions to consumers would not be sufficient to offset the incentives to increase price and the Transaction would still be likely to lead to significant price increases. |
| --- | --- |

(56)

Regarding the second argument, the Commission does not exclude that the transaction might to some extent reduce the incremental network costs of the merged entity relative to the Parties' absent the transaction. However, the Commission considers that the Notifying Party's claims of zero or reduced incremental network costs do not pass the tests of merger specificity and verifiability. The Commission rejects the claim that the merged entity would have zero incremental network costs, and it cannot verify the level of incremental network costs for the merged entity proposed by the Notifying Party because of the severe limitations in the modelling used and lack of necessary data provided by the Notifying Party. Moreover even if the claim that the merged entity would have zero incremental costs were verifiable and merger specific, the pass-through of such reductions to consumers would not be sufficient to offset the incentives to increase price and the Transaction would still be likely to lead to significant price increases.

| (57) | The Commission also considers that the efficiencies claimed by the Notifying Party in relation to increased competitive pressure on EE and Vodafone through higher quality do not fulfil the three criteria of verifiability, merger specificity and benefit to consumers, as such efficiencies are largely based on assumptions and on arguments already dismissed by the Commission. |
| --- | --- |

(57)

The Commission also considers that the efficiencies claimed by the Notifying Party in relation to increased competitive pressure on EE and Vodafone through higher quality do not fulfil the three criteria of verifiability, merger specificity and benefit to consumers, as such efficiencies are largely based on assumptions and on arguments already dismissed by the Commission.

| (58) | Finally, regarding the Notifying Party's claim that the scale economies and fixed cost savings would facilitate the merged entity's ability to make future investments and acquire more spectrum, the Commission considers that the efficiencies through fixed cost savings, even if they were verifiable and merger specific, would not benefit consumers. Furthermore, the Commission considers the alleged increased ability to acquire spectrum due to the Transaction is not verifiable and, in any event, the Notifying Party failed to show how such efficiency would benefit consumers. |
| --- | --- |

(58)

Finally, regarding the Notifying Party's claim that the scale economies and fixed cost savings would facilitate the merged entity's ability to make future investments and acquire more spectrum, the Commission considers that the efficiencies through fixed cost savings, even if they were verifiable and merger specific, would not benefit consumers. Furthermore, the Commission considers the alleged increased ability to acquire spectrum due to the Transaction is not verifiable and, in any event, the Notifying Party failed to show how such efficiency would benefit consumers.

VIII.   COMMITMENTS

a.   Procedure and timing

| (59) | In order to address the competition concerns identified in the Statement of Objections, the Notifying Party submitted three sets of commitments: The Notifying Party submitted the first set on 2 March 2016 (the ‘First Commitments’). On 15 March 2016, the Notifying Party submitted revised commitments (the ‘Second Commitments’). The Commission launched a market test of the Second Commitments on 18 March 2016 (the ‘Market Test’), addressed to (1) current and potential future providers of mobile telecommunications services in the United Kingdom, providers of infrastructure services in the mobile telecommunications sector, as well as the associations MVNO Europe and iMVNOx; and (2) national telecommunications regulators, including Ofcom. In addition, the national competition authorities of the United Kingdom, Germany, and the Netherlands provided their views on the Second Commitments. Following the Market Test, the Notifying Party submitted another revised set of commitments on 6 April 2016 (the ‘Third Commitments’). |
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(59)

In order to address the competition concerns identified in the Statement of Objections, the Notifying Party submitted three sets of commitments: The Notifying Party submitted the first set on 2 March 2016 (the ‘First Commitments’). On 15 March 2016, the Notifying Party submitted revised commitments (the ‘Second Commitments’). The Commission launched a market test of the Second Commitments on 18 March 2016 (the ‘Market Test’), addressed to (1) current and potential future providers of mobile telecommunications services in the United Kingdom, providers of infrastructure services in the mobile telecommunications sector, as well as the associations MVNO Europe and iMVNOx; and (2) national telecommunications regulators, including Ofcom. In addition, the national competition authorities of the United Kingdom, Germany, and the Netherlands provided their views on the Second Commitments. Following the Market Test, the Notifying Party submitted another revised set of commitments on 6 April 2016 (the ‘Third Commitments’).

b.   Description of the Second Commitments

| (60) | The Second Commitments comprised the following components: (1) the New Entrant Operator (‘NEO’) Commitment; the (2) Tesco Mobile Commitment; (3) the Network Sharing Commitment; and (4) the Wholesale Market Commitment. |
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(60)

The Second Commitments comprised the following components: (1) the New Entrant Operator (‘NEO’) Commitment; the (2) Tesco Mobile Commitment; (3) the Network Sharing Commitment; and (4) the Wholesale Market Commitment.

(i)   Tesco Mobile Commitment

| (61) | Under the Tesco Mobile Commitment Three commits, first, to divest its 50 % stake in Tesco Mobile. |
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(61)

Under the Tesco Mobile Commitment Three commits, first, to divest its 50 % stake in Tesco Mobile.

| (62) | Second, Three commits to offer a capacity based wholesale agreement to Tesco Mobile for a period of [...] years. Three would make available up to [...] % of capacity of the Network in return for a fixed annual fee to be agreed by Three and Tesco Mobile. Three would make the capacity available provided that Tesco Mobile has its own core network. Until Tesco does not have its own core network, Three commits to continue the wholesale access arrangements currently in place between O2 UK and Tesco Mobile. |
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(62)

Second, Three commits to offer a capacity based wholesale agreement to Tesco Mobile for a period of [...] years. Three would make available up to [...] % of capacity of the Network in return for a fixed annual fee to be agreed by Three and Tesco Mobile. Three would make the capacity available provided that Tesco Mobile has its own core network. Until Tesco does not have its own core network, Three commits to continue the wholesale access arrangements currently in place between O2 UK and Tesco Mobile.

(ii)   NEO Commitment

| (63) | Under the NEO Commitment Three commits, first, to divest a perpetual fractional network ownership interest, amounting to up to [...] % of the capacity (‘Capacity Share’) in the Network to one or two NEOs. The minimum amount of capacity to be used by the NEO(s) varies over time. A NEO is prevented from reselling the capacity. |
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(63)

Under the NEO Commitment Three commits, first, to divest a perpetual fractional network ownership interest, amounting to up to [...] % of the capacity (‘Capacity Share’) in the Network to one or two NEOs. The minimum amount of capacity to be used by the NEO(s) varies over time. A NEO is prevented from reselling the capacity.

| (64) | The NEO(s) will pay an agreed fixed price to Three in consideration for the network ownership interest entitling it/them to the use of the Capacity Share. In addition, the NEO(s) will pay, on an annual basis, a share corresponding to the percentage of their ownership interest of the running operating expenses, as well as ongoing capital maintenance and improvement costs incurred by Three for the Network plus a return on capital. |
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(64)

The NEO(s) will pay an agreed fixed price to Three in consideration for the network ownership interest entitling it/them to the use of the Capacity Share. In addition, the NEO(s) will pay, on an annual basis, a share corresponding to the percentage of their ownership interest of the running operating expenses, as well as ongoing capital maintenance and improvement costs incurred by Three for the Network plus a return on capital.

| (65) | The NEO(s) will have non-discriminatory access to all elements of the Network and to all current and future radio technologies, features and services deployed in the Network. The NEO(s) will have to provide own core network(s). |
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(65)

The NEO(s) will have non-discriminatory access to all elements of the Network and to all current and future radio technologies, features and services deployed in the Network. The NEO(s) will have to provide own core network(s).

| (66) | The NEO(s) will be updated and consulted on Three's technology and network roadmap plans. Three will retain sole control over all decisions concerning the operation of the Network and investments in the Network. Three will discuss in good faith requests by the NEO(s) for network investments that are not part of the network roadmap. If no agreement can be reached on such investments, they will be implemented either entirely at the expense of the NEO(s) (if the investment can be technically separated on the Network for the NEO's own use) or with a capped financial contribution by Three (in return for a full right by Three to use such investment). |
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(66)

The NEO(s) will be updated and consulted on Three's technology and network roadmap plans. Three will retain sole control over all decisions concerning the operation of the Network and investments in the Network. Three will discuss in good faith requests by the NEO(s) for network investments that are not part of the network roadmap. If no agreement can be reached on such investments, they will be implemented either entirely at the expense of the NEO(s) (if the investment can be technically separated on the Network for the NEO's own use) or with a capped financial contribution by Three (in return for a full right by Three to use such investment).

| (67) | The ownership interest is non-transferrable for a period of [...] years. After this period, it can be transferred, subject to a right of first refusal by Three. |
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(67)

The ownership interest is non-transferrable for a period of [...] years. After this period, it can be transferred, subject to a right of first refusal by Three.

| (68) | The NEO can request that the ownership interest be provided to the NEO using air interface prioritisation such as 4G MOCN or equivalent functionality. |
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(68)

The NEO can request that the ownership interest be provided to the NEO using air interface prioritisation such as 4G MOCN or equivalent functionality.

| (69) | Second, Three commits to offer an option for the NEO(s) to exclusively use the capacity provided over a total of [...] MHz spectrum in different spectrum bands currently owned by O2 UK (‘Target Spectrum Use Option’). The Target Spectrum Use Option would be available as of year [...] following the acquisition of the network ownership interest and be subject to a number of conditions. |
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(69)

Second, Three commits to offer an option for the NEO(s) to exclusively use the capacity provided over a total of [...] MHz spectrum in different spectrum bands currently owned by O2 UK (‘Target Spectrum Use Option’). The Target Spectrum Use Option would be available as of year [...] following the acquisition of the network ownership interest and be subject to a number of conditions.

| (70) | Third, Three commits to offer an option for the NEO(s) to acquire O2 UK (‘O2 UK Divestment Option’). The O2 UK Divestment Option can be exercised by the NEO(s) within [...] following the divestment of the network ownership interest and is subject to a number of conditions. If the NEO(s) were to prefer to acquire a stake in Three instead, Three commits to discuss this request in good faith. |
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(70)

Third, Three commits to offer an option for the NEO(s) to acquire O2 UK (‘O2 UK Divestment Option’). The O2 UK Divestment Option can be exercised by the NEO(s) within [...] following the divestment of the network ownership interest and is subject to a number of conditions. If the NEO(s) were to prefer to acquire a stake in Three instead, Three commits to discuss this request in good faith.

| (71) | Finally, Three can decide whether to provide the network ownership interest to one or two NEOs. In case of two NEOs, the capacity share of one NEO would be at least [...] %. The Target Spectrum Use Option and the O2 UK Divestment Option will have to be exercised by the NEO with the [...] % ownership interest. Three can also decide to provide an ownership interest of only [...] % provided that the capacity share made available to Tesco Mobile also amounts to [...] % instead of [...] %. |
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(71)

Finally, Three can decide whether to provide the network ownership interest to one or two NEOs. In case of two NEOs, the capacity share of one NEO would be at least [...] %. The Target Spectrum Use Option and the O2 UK Divestment Option will have to be exercised by the NEO with the [...] % ownership interest. Three can also decide to provide an ownership interest of only [...] % provided that the capacity share made available to Tesco Mobile also amounts to [...] % instead of [...] %.

(iii)   The Network Sharing Commitment

| (72) | The fourth component is the Network Sharing Commitment by which Three commits, among others, to: (1) offer to EE a number of amendments to the MBNL agreements, including a fest-track dispute resolution, aimed at facilitating unilateral network investments, to agree on a new business plan with EE on the basis of the current business plan, and to waive rights for a casting vote following the change of control in EE on certain decisions; (2) complete the Beacon network within a given deadline, offer to Vodafone to re-enter into the active sharing agreements except for [...] in case they are terminated by the merged entity, and to offer to Vodafone the partitioning of the transmission of 4G traffic according to certain rules; (3) to implement a certain network structure (a variation of the so-called ‘Preferred Plan’, whereby the merged entity would commit to the Beacon grid and use around [...] additional MBNL sites), and (4) to enhance information barriers in relation to MBNL and Beacon. The business plan for MBNL and the active sharing agreement under Beacon would cover a time period up to [...]. |
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(72)

The fourth component is the Network Sharing Commitment by which Three commits, among others, to: (1) offer to EE a number of amendments to the MBNL agreements, including a fest-track dispute resolution, aimed at facilitating unilateral network investments, to agree on a new business plan with EE on the basis of the current business plan, and to waive rights for a casting vote following the change of control in EE on certain decisions; (2) complete the Beacon network within a given deadline, offer to Vodafone to re-enter into the active sharing agreements except for [...] in case they are terminated by the merged entity, and to offer to Vodafone the partitioning of the transmission of 4G traffic according to certain rules; (3) to implement a certain network structure (a variation of the so-called ‘Preferred Plan’, whereby the merged entity would commit to the Beacon grid and use around [...] additional MBNL sites), and (4) to enhance information barriers in relation to MBNL and Beacon. The business plan for MBNL and the active sharing agreement under Beacon would cover a time period up to [...].

(iv)   The Wholesale Market Commitment

| (73) | Under the Wholesale Market Commitment, with respect to MVNOs that already have an MVNO agreement with either Three or O2 UK, and such agreements do not yet include access to 4G services, Three commits to offer to include 4G services on the same rates as charged for 3G services (i.e., at no extra cost). |
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(73)

Under the Wholesale Market Commitment, with respect to MVNOs that already have an MVNO agreement with either Three or O2 UK, and such agreements do not yet include access to 4G services, Three commits to offer to include 4G services on the same rates as charged for 3G services (i.e., at no extra cost).

| (74) | With respect to MVNOs which do not have an MVNO agreement with either Three or O2 UK, Three commits to offer wholesale access (including 4G) to such new MVNOs. The terms and conditions will be benchmarked against the average of those offered by Three and O2 UK as at the date of closing taking into account the size and type of the MVNO, type of products and services, volumes, prices, commercial/operational model and other relevant commercial terms. This Commitment shall continue for 10 years after closing or such earlier date on which H3GI ceases to offer such technology to its own end customers. |
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(74)

With respect to MVNOs which do not have an MVNO agreement with either Three or O2 UK, Three commits to offer wholesale access (including 4G) to such new MVNOs. The terms and conditions will be benchmarked against the average of those offered by Three and O2 UK as at the date of closing taking into account the size and type of the MVNO, type of products and services, volumes, prices, commercial/operational model and other relevant commercial terms. This Commitment shall continue for 10 years after closing or such earlier date on which H3GI ceases to offer such technology to its own end customers.

c.   Assessment of the Second Commitments

| (75) | Despite some interest in the NEO Commitment and the Tesco Mobile Commitment, the Market Test was negative on all elements of the Second Commitments. Based on the results of the Market Test, the Commission considered that the Second Commitments did not address the competition concerns identified. |
| --- | --- |

(75)

Despite some interest in the NEO Commitment and the Tesco Mobile Commitment, the Market Test was negative on all elements of the Second Commitments. Based on the results of the Market Test, the Commission considered that the Second Commitments did not address the competition concerns identified.

| (76) | As regards the Tesco Mobile Commitment, the Commission considered that it was uncertain if the divestment of O2's 50 % stake in Tesco Mobile would ever materialise. The capacity based wholesale agreement was not firmly committed but merely an offer and the Commission considered that it was uncertain whether Tesco Mobile would ultimately obtain wholesale access under that capacity based wholesale agreement. Even if that would have been the case, the Commission considered that the terms of the agreement as set out in the Second Commitments were unclear on a number of elements. Moreover, the [...] % capacity offered on the O2 network were considered to be insufficient to allow Tesco Mobile to compete in the short, medium and long-term. Finally, the Commission did not agree with the Notifying Party's argument that the Tesco Mobile Commitment (even if taken together with the NEO Commitment), would reduce the predicted price increases (or eliminate them altogether. |
| --- | --- |

(76)

As regards the Tesco Mobile Commitment, the Commission considered that it was uncertain if the divestment of O2's 50 % stake in Tesco Mobile would ever materialise. The capacity based wholesale agreement was not firmly committed but merely an offer and the Commission considered that it was uncertain whether Tesco Mobile would ultimately obtain wholesale access under that capacity based wholesale agreement. Even if that would have been the case, the Commission considered that the terms of the agreement as set out in the Second Commitments were unclear on a number of elements. Moreover, the [...] % capacity offered on the O2 network were considered to be insufficient to allow Tesco Mobile to compete in the short, medium and long-term. Finally, the Commission did not agree with the Notifying Party's argument that the Tesco Mobile Commitment (even if taken together with the NEO Commitment), would reduce the predicted price increases (or eliminate them altogether.

| (77) | Similarly, the Commission considered that the NEO Commitment was insufficient (even if taken together with the Tesco Mobile Commitment) to address the competition concerns identified on the retail market. In particular, a NEO would have been commercially and technically dependent on its host MNO. It would have had a cost structure that would not have allowed it to exercise a competitive constraint on other market participants, and in particular on MNOs and it would only have been able to differentiate its offerings, including in terms of quality, to a very limited extent. Also the growth potential of a NEO was questionable. Moreover, a number of elements of the NEO Commitment, including key commercial terms such as the annual costs to be borne by the NEO were not sufficiently clear. Finally, in addition to the Target Spectrum Use Option and the O2 UK Divestment Option, a number of other elements offered to the NEO(s) were equally optional and in light of the uncertainty of their implementation they could not be taken into account when assessing the adequacy of the Second Commitments. |
| --- | --- |

(77)

Similarly, the Commission considered that the NEO Commitment was insufficient (even if taken together with the Tesco Mobile Commitment) to address the competition concerns identified on the retail market. In particular, a NEO would have been commercially and technically dependent on its host MNO. It would have had a cost structure that would not have allowed it to exercise a competitive constraint on other market participants, and in particular on MNOs and it would only have been able to differentiate its offerings, including in terms of quality, to a very limited extent. Also the growth potential of a NEO was questionable. Moreover, a number of elements of the NEO Commitment, including key commercial terms such as the annual costs to be borne by the NEO were not sufficiently clear. Finally, in addition to the Target Spectrum Use Option and the O2 UK Divestment Option, a number of other elements offered to the NEO(s) were equally optional and in light of the uncertainty of their implementation they could not be taken into account when assessing the adequacy of the Second Commitments.

| (78) | The Network Sharing Commitment added to the numerous inconsistencies and uncertainties regarding network sharing instead of removing uncertainties. The Network Sharing Commitment was internally inconsistent with the Notifying Party's stated plans as it committed to implement a nationwide network grid based primarily on the Beacon network while at the same time it offered to divest the Beacon network [...] after the merger. Furthermore, the Network Sharing Commitment did not address the uncertainty in relation to the post-merger network sharing situation as there was no guarantee (it was even unlikely) that either EE or Vodafone would accept the Notifying Party's offers it committed to make under that Commitment. |
| --- | --- |

(78)

The Network Sharing Commitment added to the numerous inconsistencies and uncertainties regarding network sharing instead of removing uncertainties. The Network Sharing Commitment was internally inconsistent with the Notifying Party's stated plans as it committed to implement a nationwide network grid based primarily on the Beacon network while at the same time it offered to divest the Beacon network [...] after the merger. Furthermore, the Network Sharing Commitment did not address the uncertainty in relation to the post-merger network sharing situation as there was no guarantee (it was even unlikely) that either EE or Vodafone would accept the Notifying Party's offers it committed to make under that Commitment.

| (79) | The proposed amendments of the MBNL agreements were insufficient to prevent harm to the competitive position of BT/EE following the merger. Half of the six proposed clarification or amendments merely reiterated existing contractual obligations. The removal of the casting vote of the managing director and the addition of a fast track dispute resolution mechanism are unable to address the competitive concerns. The statement that neither party of MBNL shall have the ability to delay or frustrate unilateral deployments of the other party by any means is too unsubstantiated and uncertain in its implementation. The fast-track dispute resolution mechanism will not help in maintaining the current ability of BT/EE to make unilateral investments. The vague description of the business plan offered by Three that mostly repeats existing obligations of Three is also insufficient to address the concerns raised by the transaction. |
| --- | --- |

(79)

The proposed amendments of the MBNL agreements were insufficient to prevent harm to the competitive position of BT/EE following the merger. Half of the six proposed clarification or amendments merely reiterated existing contractual obligations. The removal of the casting vote of the managing director and the addition of a fast track dispute resolution mechanism are unable to address the competitive concerns. The statement that neither party of MBNL shall have the ability to delay or frustrate unilateral deployments of the other party by any means is too unsubstantiated and uncertain in its implementation. The fast-track dispute resolution mechanism will not help in maintaining the current ability of BT/EE to make unilateral investments. The vague description of the business plan offered by Three that mostly repeats existing obligations of Three is also insufficient to address the concerns raised by the transaction.

| (80) | The Network Sharing Commitment relating to Beacon was insufficient to exclude that the Transaction would impair the competitive position of Vodafone. Even though the Notifying Party offered to continue active sharing without [...] after the unilateral termination of active sharing, is likely not acceptable to Vodafone. The submissions by Vodafone and O2 to Ofcom in 2012 when establishing Beacon show that [...] was an integral element of the Beacon arrangements without which the parties would not have started active sharing. Therefore, the Commission concluded that Vodafone will likely not accept the offer and the harm to the competitive position of Vodafone following the termination of active sharing would not be addressed by the commitments. |
| --- | --- |

(80)

The Network Sharing Commitment relating to Beacon was insufficient to exclude that the Transaction would impair the competitive position of Vodafone. Even though the Notifying Party offered to continue active sharing without [...] after the unilateral termination of active sharing, is likely not acceptable to Vodafone. The submissions by Vodafone and O2 to Ofcom in 2012 when establishing Beacon show that [...] was an integral element of the Beacon arrangements without which the parties would not have started active sharing. Therefore, the Commission concluded that Vodafone will likely not accept the offer and the harm to the competitive position of Vodafone following the termination of active sharing would not be addressed by the commitments.

| (81) | On lower industry-wide investments, the network sharing situation aimed for under the commitments would result in one independent network of BT/EE and two actively shared networks of Vodafone and the merged entity of which one would have a better 4G capacity layer. This will likely lead to fewer industry-wide investments by all remaining MNOs. |
| --- | --- |

(81)

On lower industry-wide investments, the network sharing situation aimed for under the commitments would result in one independent network of BT/EE and two actively shared networks of Vodafone and the merged entity of which one would have a better 4G capacity layer. This will likely lead to fewer industry-wide investments by all remaining MNOs.

| (82) | The Wholesale Market Commitment as regards existing MVNOs was a mere offer the terms of which and thus its attractiveness for existing MVNOs were, at best, uncertain. 4G access would have been granted at current prices for 3G throughout the whole 10-year term. In light of decreasing costs for data which MNOs would be able to pass on, MVNOs would have been unable to compete against MNOs in the medium to long-term. Finally, the commitment did not include future technologies such as 5G. In relation to new MVNOs the Wholesale Market Commitment was also a mere offer. Wholesale prices would have been benchmarked against existing terms and would thus likely also have been uncompetitive in the medium to long-term. In addition, the benchmarking process was unclear. Finally, also this commitment did not include future technologies such as 5G. |
| --- | --- |

(82)

The Wholesale Market Commitment as regards existing MVNOs was a mere offer the terms of which and thus its attractiveness for existing MVNOs were, at best, uncertain. 4G access would have been granted at current prices for 3G throughout the whole 10-year term. In light of decreasing costs for data which MNOs would be able to pass on, MVNOs would have been unable to compete against MNOs in the medium to long-term. Finally, the commitment did not include future technologies such as 5G. In relation to new MVNOs the Wholesale Market Commitment was also a mere offer. Wholesale prices would have been benchmarked against existing terms and would thus likely also have been uncompetitive in the medium to long-term. In addition, the benchmarking process was unclear. Finally, also this commitment did not include future technologies such as 5G.

d.   Description of the Third Commitments

| (83) | The Third Commitments comprise the four components also contained in the Second Commitments in amended form. The commitment in relation to the certainty of the network plans, which was part of the Network Sharing Commitment in the Second Commitments has been made a stand-alone commitment. In addition, the Notifying Party commits to offer a capacity based wholesale agreement to Virgin Media (the ‘Virgin Media Commitment’). |
| --- | --- |

(83)

The Third Commitments comprise the four components also contained in the Second Commitments in amended form. The commitment in relation to the certainty of the network plans, which was part of the Network Sharing Commitment in the Second Commitments has been made a stand-alone commitment. In addition, the Notifying Party commits to offer a capacity based wholesale agreement to Virgin Media (the ‘Virgin Media Commitment’).

| (84) | The Notifying Party amended the definition of capacity (so as to cover the capacity of the networks of both, Three and O2) and the network on which that capacity will be provided to Tesco Mobile, to the NEO(s) and to Virgin Media (the O2 network). |
| --- | --- |

(84)

The Notifying Party amended the definition of capacity (so as to cover the capacity of the networks of both, Three and O2) and the network on which that capacity will be provided to Tesco Mobile, to the NEO(s) and to Virgin Media (the O2 network).

(i)   The Tesco Mobile Commitment

| (85) | Other than the amended definition of capacity, no substantial changes were made to the Tesco Mobile Commitment. |
| --- | --- |

(85)

Other than the amended definition of capacity, no substantial changes were made to the Tesco Mobile Commitment.

(ii)   The NEO Commitment

| (86) | The most important changes to the NEO Commitment are listed in the following paragraphs: |
| --- | --- |

(86)

The most important changes to the NEO Commitment are listed in the following paragraphs:

| (87) | First, the Notifying Party specified the minimum Capacity Share, expressed in Gbps, for years one to five. The time period for which a NEO would have to commit to a minimum Capacity Share to be utilised after year [...] has been extended by [...] years and now applies until year [...]. |
| --- | --- |

(87)

First, the Notifying Party specified the minimum Capacity Share, expressed in Gbps, for years one to five. The time period for which a NEO would have to commit to a minimum Capacity Share to be utilised after year [...] has been extended by [...] years and now applies until year [...].

| (88) | Second, the Ongoing Charges to be paid by a NEO were amended as follows: A NEO would pay cost-based charges measured in proportion to the Elected Capacity Share. The cost basis is to be agreed upon between the Notifying Party and a NEO and would include a cost-based return on capital. |
| --- | --- |

(88)

Second, the Ongoing Charges to be paid by a NEO were amended as follows: A NEO would pay cost-based charges measured in proportion to the Elected Capacity Share. The cost basis is to be agreed upon between the Notifying Party and a NEO and would include a cost-based return on capital.

| (89) | Third, as of year [...] a NEO may offer wholesale access to MVNOs up to a maximum of [...] % of its Elected Capacity Share. |
| --- | --- |

(89)

Third, as of year [...] a NEO may offer wholesale access to MVNOs up to a maximum of [...] % of its Elected Capacity Share.

| (90) | Fourth, the transfer of the Network Interest is no longer subject to a right of first refusal by the Notifying Party. |
| --- | --- |

(90)

Fourth, the transfer of the Network Interest is no longer subject to a right of first refusal by the Notifying Party.

| (91) | Fifth, unilateral investments requested by a NEO would be given the same level of priority as investments of the Notifying Party. |
| --- | --- |

(91)

Fifth, unilateral investments requested by a NEO would be given the same level of priority as investments of the Notifying Party.

| (92) | Sixth, the NEO Commitment now provides for a possibility of a NEO to opt out of certain features and investments. The opt-out would, however not be possible in respect of features or services which would lead to an improvement in coverage, capacity, peed or cost of the Network. |
| --- | --- |

(92)

Sixth, the NEO Commitment now provides for a possibility of a NEO to opt out of certain features and investments. The opt-out would, however not be possible in respect of features or services which would lead to an improvement in coverage, capacity, peed or cost of the Network.

| (93) | Seventh, any dispute between a NEO and the Notifying Party in relation to unilateral investments that cannot be settled by mutual agreement would be subject to a fast-track dispute resolution procedure. |
| --- | --- |

(93)

Seventh, any dispute between a NEO and the Notifying Party in relation to unilateral investments that cannot be settled by mutual agreement would be subject to a fast-track dispute resolution procedure.

| (94) | Eighth, the O2 UK Divestment Option is modified such that the transfer of O2 would not take effect in advance of completion of the roll out of the so-called ‘Beacon Single Grid Sites’ which is required by [...] in accordance with the Beacon agreements. |
| --- | --- |

(94)

Eighth, the O2 UK Divestment Option is modified such that the transfer of O2 would not take effect in advance of completion of the roll out of the so-called ‘Beacon Single Grid Sites’ which is required by [...] in accordance with the Beacon agreements.

| (95) | Finally, the NEO Commitment is now an upfront commitment. |
| --- | --- |

(95)

Finally, the NEO Commitment is now an upfront commitment.

(iii)   The Virgin Media Commitment

| (96) | Under the Virgin Media Commitment, the Notifying Party commits to offer to Virgin Media to enter into a capacity based wholesale agreement on the basis of an agreement referred to in the Third Commitments as the Virgin Mobile Short Form Wholesale Agreement. |
| --- | --- |

(96)

Under the Virgin Media Commitment, the Notifying Party commits to offer to Virgin Media to enter into a capacity based wholesale agreement on the basis of an agreement referred to in the Third Commitments as the Virgin Mobile Short Form Wholesale Agreement.

| (97) | The Notifying Party would make a Capacity Share of approximately [...] % of capacity of the combined network of Three and O2, delivered on the O2 network, available to Virgin Media for a period of [...] years. |
| --- | --- |

(97)

The Notifying Party would make a Capacity Share of approximately [...] % of capacity of the combined network of Three and O2, delivered on the O2 network, available to Virgin Media for a period of [...] years.

| (98) | In consideration for the capacity, Virgin Media would pay fees to the Notifying Party as specified in the Virgin Mobile Short Form Wholesale Agreement, which, in principle, provides for a fixed Gbps price for its elected Capacity Share until the end of [...] and an amount calculated in accordance with the cost and pricing methodology set out in Appendix 3 to that agreement from [...] until the end of the term of the arrangement. The minimum financial commitment by Virgin Media amounts to [...] from the service start date until the end of year [...]. |
| --- | --- |

(98)

In consideration for the capacity, Virgin Media would pay fees to the Notifying Party as specified in the Virgin Mobile Short Form Wholesale Agreement, which, in principle, provides for a fixed Gbps price for its elected Capacity Share until the end of [...] and an amount calculated in accordance with the cost and pricing methodology set out in Appendix 3 to that agreement from [...] until the end of the term of the arrangement. The minimum financial commitment by Virgin Media amounts to [...] from the service start date until the end of year [...].

| (99) | If the NEO were to exercise the O2 UK Divestment Option, H3GI would offer to Virgin Mobile an equivalent capacity agreement. |
| --- | --- |

(99)

If the NEO were to exercise the O2 UK Divestment Option, H3GI would offer to Virgin Mobile an equivalent capacity agreement.

| (100) | Finally, the Notifying Party commits to make the offer to Virgin Mobile within [...] days following the date of the adoption of a conditional clearance decision by the Commission. The offer would remain valid for a period of [...] months from the date of receipt by Virgin Media. |
| --- | --- |

(100)

Finally, the Notifying Party commits to make the offer to Virgin Mobile within [...] days following the date of the adoption of a conditional clearance decision by the Commission. The offer would remain valid for a period of [...] months from the date of receipt by Virgin Media.

(iv)   The Commitment in Relation to Certainty of Network Plans

| (101) | Under the Commitment in Relation to Certainty of Network Plans, the Notifying Party commits, subject to the network sharing commitments, to use all Beacon sites for the base coverage and capacity grid of the consolidated network as well as a to use at least [...] MBNL sites. |
| --- | --- |

(101)

Under the Commitment in Relation to Certainty of Network Plans, the Notifying Party commits, subject to the network sharing commitments, to use all Beacon sites for the base coverage and capacity grid of the consolidated network as well as a to use at least [...] MBNL sites.

| (102) | Furthermore, it commits to deploy [...] MHz of downlink spectrum on the network of O2 by [...], to continue radiating at least the [...] from the Beacon sites and to allow Three's customers to roam on the Beacon network only to the extent permitted under the current Beacon agreements. |
| --- | --- |

(102)

Furthermore, it commits to deploy [...] MHz of downlink spectrum on the network of O2 by [...], to continue radiating at least the [...] from the Beacon sites and to allow Three's customers to roam on the Beacon network only to the extent permitted under the current Beacon agreements.

| (103) | The Notifying Party also included a commitment to achieve at least 96 % 4G population coverage by 31 December 2017 and to fulfil its 4G population coverage commitments under the 4G license by 31 December 2018 as well as commitments to make available to the NEO any spectrum deployed on the O2 network and any radio access network that is owned by the Notifying Party and made available to customers of the Notifying Party on the O2 network. |
| --- | --- |

(103)

The Notifying Party also included a commitment to achieve at least 96 % 4G population coverage by 31 December 2017 and to fulfil its 4G population coverage commitments under the 4G license by 31 December 2018 as well as commitments to make available to the NEO any spectrum deployed on the O2 network and any radio access network that is owned by the Notifying Party and made available to customers of the Notifying Party on the O2 network.

(v)   The Network Sharing Commitment

| (104) | Under the Network Sharing Commitments relating to BT/EE, the Notifying Party commits to offer to BT/EE an agreement amending MBNL on substantially the same terms as a draft agreement attached to the commitments. In addition, the Notifying Party unilaterally commits to certain elements of the draft agreement in case BT/EE would not accept the offer. |
| --- | --- |

(104)

Under the Network Sharing Commitments relating to BT/EE, the Notifying Party commits to offer to BT/EE an agreement amending MBNL on substantially the same terms as a draft agreement attached to the commitments. In addition, the Notifying Party unilaterally commits to certain elements of the draft agreement in case BT/EE would not accept the offer.

| (105) | The draft agreement provides for provisions regarding network integrations activities of the merged entity, information barriers, a minimum sites commitment, sites on which Three deploy not more than [...] MHz of spectrum, sites on which Three deploys [...] spectrum, integration costs, an indemnity for harm caused by integration activities, unilateral deployments, the fast-track dispute resolution mechanisms, the business plan, transmission and the waiver of rights acquired by Three following the acquisition of EE by BT. |
| --- | --- |

(105)

The draft agreement provides for provisions regarding network integrations activities of the merged entity, information barriers, a minimum sites commitment, sites on which Three deploy not more than [...] MHz of spectrum, sites on which Three deploys [...] spectrum, integration costs, an indemnity for harm caused by integration activities, unilateral deployments, the fast-track dispute resolution mechanisms, the business plan, transmission and the waiver of rights acquired by Three following the acquisition of EE by BT.

| (106) | As a unilateral commitment in case BT/EE does not accept this offer, the Notifying Party commits to waive all rights under the MBNL agreements to object unilateral deployments of BT/EE on sites that do not carry any traffic on behalf of Three, to waive any rights under the MBNL agreements to raise concerns in the Technical Committee that are non-technical or non-operational in nature, to follow apply the fast track resolution mechanism set out in Schedule 1 to the proposed agreement for all concerns that are technical or operational in nature which result in a dispute with BT/EE, to approve a 10 year business plan in accordance with the one contained in Schedule 2 to the proposed agreement and to waive its rights following the change of control in BT/EE under the MBNL governance provisions. |
| --- | --- |

(106)

As a unilateral commitment in case BT/EE does not accept this offer, the Notifying Party commits to waive all rights under the MBNL agreements to object unilateral deployments of BT/EE on sites that do not carry any traffic on behalf of Three, to waive any rights under the MBNL agreements to raise concerns in the Technical Committee that are non-technical or non-operational in nature, to follow apply the fast track resolution mechanism set out in Schedule 1 to the proposed agreement for all concerns that are technical or operational in nature which result in a dispute with BT/EE, to approve a 10 year business plan in accordance with the one contained in Schedule 2 to the proposed agreement and to waive its rights following the change of control in BT/EE under the MBNL governance provisions.

(vi)   The Wholesale Market Commitment

| (107) | The Wholesale Market Commitment has essentially been amended such as to include also 5G services. |
| --- | --- |

(107)

The Wholesale Market Commitment has essentially been amended such as to include also 5G services.

e.   Assessment of the Third Commitments

| (108) | Despite the improvements made compared to the Second Commitments, the Commission considers that the Third Commitments do not address the competition concerns. |
| --- | --- |

(108)

Despite the improvements made compared to the Second Commitments, the Commission considers that the Third Commitments do not address the competition concerns.

| (109) | Although a term sheet was agreed between Tesco and the Notifying Party, the Tesco Mobile Commitment even if taken together with the NEO Commitment and the Virgin Mobile Commitment is inadequate to address the competition concerns on the retail market. In particular, the term sheet is not part of the Third Commitments and cannot therefore be taken as a benchmark for the adequacy of this commitment. Therefore, it remains uncertain if the divestment of O2's 50 % stake in Tesco Mobile would ever materialise. Similarly, the capacity based wholesale agreement remains a mere offer and the terms of the agreement as set out in the Third Commitments remain unclear on a number of elements. Moreover, despite the fact that the capacity share is now calculated on the basis of the capacity also of the network of Three, the [...] % capacity offered Tesco's potential to grow its subscriber share would remain limited. Finally, the Commission continues to disagree with the Notifying Party's argument that the Tesco Mobile Commitment (even if taken together with the NEO Commitment, would reduce the predicted price increases (or eliminate them altogether). |
| --- | --- |

(109)

Although a term sheet was agreed between Tesco and the Notifying Party, the Tesco Mobile Commitment even if taken together with the NEO Commitment and the Virgin Mobile Commitment is inadequate to address the competition concerns on the retail market. In particular, the term sheet is not part of the Third Commitments and cannot therefore be taken as a benchmark for the adequacy of this commitment. Therefore, it remains uncertain if the divestment of O2's 50 % stake in Tesco Mobile would ever materialise. Similarly, the capacity based wholesale agreement remains a mere offer and the terms of the agreement as set out in the Third Commitments remain unclear on a number of elements. Moreover, despite the fact that the capacity share is now calculated on the basis of the capacity also of the network of Three, the [...] % capacity offered Tesco's potential to grow its subscriber share would remain limited. Finally, the Commission continues to disagree with the Notifying Party's argument that the Tesco Mobile Commitment (even if taken together with the NEO Commitment, would reduce the predicted price increases (or eliminate them altogether).

| (110) | Similarly, although a term sheet was agreed between Sky and the Notifying Party, the Commission considers that the NEO Commitment remains insufficient (even if taken together with the other elements of the Third Commitments) to address the competition concerns identified at retail and at wholesale level. In particular, the term sheet is not part of the Third Commitments and cannot therefore be taken as a benchmark for the adequacy of this commitment. A NEO continues to be commercially and technically dependent on its host MNO with a cost structure that does not allow it to exercise a competitive constraint on other market participants, and in particular on MNOs and very limited ability to differentiate its offerings, including in terms of quality. Also the growth potential of a NEO continues to be more limited than that projected by the Notifying Party. Moreover, a number of elements of the NEO Commitment, including its cost structure, continue to be unclear. Finally, in addition to the Target Spectrum Use Option and the O2 UK Divestment Option, a number of other elements offered to the NEO(s) were equally optional and in light of the uncertainty of their implementation they could not be taken into account when assessing the adequacy of the Second Commitments. |
| --- | --- |

(110)

Similarly, although a term sheet was agreed between Sky and the Notifying Party, the Commission considers that the NEO Commitment remains insufficient (even if taken together with the other elements of the Third Commitments) to address the competition concerns identified at retail and at wholesale level. In particular, the term sheet is not part of the Third Commitments and cannot therefore be taken as a benchmark for the adequacy of this commitment. A NEO continues to be commercially and technically dependent on its host MNO with a cost structure that does not allow it to exercise a competitive constraint on other market participants, and in particular on MNOs and very limited ability to differentiate its offerings, including in terms of quality. Also the growth potential of a NEO continues to be more limited than that projected by the Notifying Party. Moreover, a number of elements of the NEO Commitment, including its cost structure, continue to be unclear. Finally, in addition to the Target Spectrum Use Option and the O2 UK Divestment Option, a number of other elements offered to the NEO(s) were equally optional and in light of the uncertainty of their implementation they could not be taken into account when assessing the adequacy of the Second Commitments.

| (111) | The terms of the Virgin Media Commitment are to some extent unclear. In addition, this commitment is merely an offer for a capacity based wholesale agreement, the implementation of which is uncertain. Even if Virgin Media were to accept the offer, similar concerns as set out in relation to the Tesco Mobile Commitment apply in relation to the amount of capacity made available to Virgin Media. |
| --- | --- |

(111)

The terms of the Virgin Media Commitment are to some extent unclear. In addition, this commitment is merely an offer for a capacity based wholesale agreement, the implementation of which is uncertain. Even if Virgin Media were to accept the offer, similar concerns as set out in relation to the Tesco Mobile Commitment apply in relation to the amount of capacity made available to Virgin Media.

| (112) | The commitments relating to the certainty of network plans are insufficient to address the considerable uncertainties as to the future network sharing situation following the Transaction. As the additional amendments compared to the Second Commitments rather relate to the NEO than aim to improving the certainty for BT/EE or Vodafone, the assessment is materially the same as for the Second Commitments. |
| --- | --- |

(112)

The commitments relating to the certainty of network plans are insufficient to address the considerable uncertainties as to the future network sharing situation following the Transaction. As the additional amendments compared to the Second Commitments rather relate to the NEO than aim to improving the certainty for BT/EE or Vodafone, the assessment is materially the same as for the Second Commitments.

| (113) | The proposed agreement with BT/EE does not address the concerns relating to the competitive position of BT/EE. In particular Three's ability to frustrate or delay unilateral deployments is not significantly decreased because a ‘pre-approval’ of certain deployments is conditioned upon compliance with the criteria that allowed Three to block or frustrate unilateral deployments in the first place. For this reason, it is also unlikely that BT/EE will accept such offer. The unilateral commitment relating to BT/EE is materially the same as the one offer committed to under the Second Commitments and, as discussed there, also insufficient to remedy the likely harm. |
| --- | --- |

(113)

The proposed agreement with BT/EE does not address the concerns relating to the competitive position of BT/EE. In particular Three's ability to frustrate or delay unilateral deployments is not significantly decreased because a ‘pre-approval’ of certain deployments is conditioned upon compliance with the criteria that allowed Three to block or frustrate unilateral deployments in the first place. For this reason, it is also unlikely that BT/EE will accept such offer. The unilateral commitment relating to BT/EE is materially the same as the one offer committed to under the Second Commitments and, as discussed there, also insufficient to remedy the likely harm.

| (114) | Regarding the commitments towards Vodafone, the Third Commitments are substantially the same as the Second Commitments and therefore do neither address the competitive concerns. The same holds true for the concerns relating to the uncertainty of the merged entity's consolidation plans. The amendments in the Third Commitments are rather aimed at the NEO than at BT/EE or Vodafone. |
| --- | --- |

(114)

Regarding the commitments towards Vodafone, the Third Commitments are substantially the same as the Second Commitments and therefore do neither address the competitive concerns. The same holds true for the concerns relating to the uncertainty of the merged entity's consolidation plans. The amendments in the Third Commitments are rather aimed at the NEO than at BT/EE or Vodafone.

| (115) | Although the Wholesale Market Commitment was amended such as to include 5G services, it continues to suffer from the shortcomings identified in relation to the Second Commitment, notably in relation to the envisage pricing for wholesale access. Therefore, the Wholesale Market Commitment is insufficient to address the competition concerns on the wholesale market. |
| --- | --- |

(115)

Although the Wholesale Market Commitment was amended such as to include 5G services, it continues to suffer from the shortcomings identified in relation to the Second Commitment, notably in relation to the envisage pricing for wholesale access. Therefore, the Wholesale Market Commitment is insufficient to address the competition concerns on the wholesale market.

IX.   CONCLUSION AND PROPOSAL

| (116) | In view of all that precedes, the Commission concludes that the Transaction would significantly impede effective competition in the internal market or a substantial part thereof within the meaning of Article 2(3) of the Merger Regulation. This is because the Transaction would give rise to horizontal non-coordinated anti-competitive effects in the retail market for the provision of retail mobile telecommunications services in the United Kingdom, because it involves the elimination of important competitive constraints that the Parties currently exert on each other and on the other competitors, as well as because the Transaction is likely to reduce the competitive pressure exerted by either one or both of the other MNOs that are partners of the Parties in the network sharing arrangements and to lead to less industry-wide investments into network infrastructure. In addition, the Transaction would give rise to non-coordinated anti-competitive effects in the wholesale services for access and call origination on public mobile telephone networks in the United Kingdom by reducing the number of providers of wholesale access. |
| --- | --- |

(116)

In view of all that precedes, the Commission concludes that the Transaction would significantly impede effective competition in the internal market or a substantial part thereof within the meaning of Article 2(3) of the Merger Regulation. This is because the Transaction would give rise to horizontal non-coordinated anti-competitive effects in the retail market for the provision of retail mobile telecommunications services in the United Kingdom, because it involves the elimination of important competitive constraints that the Parties currently exert on each other and on the other competitors, as well as because the Transaction is likely to reduce the competitive pressure exerted by either one or both of the other MNOs that are partners of the Parties in the network sharing arrangements and to lead to less industry-wide investments into network infrastructure. In addition, the Transaction would give rise to non-coordinated anti-competitive effects in the wholesale services for access and call origination on public mobile telephone networks in the United Kingdom by reducing the number of providers of wholesale access.

| (117) | The Third Commitments do not eliminate the identified competition concerns in the retail market for mobile telecommunications services and in the wholesale market for access and call origination on public mobile networks in the United Kingdom entirely and are not comprehensive and effective in all respects. |
| --- | --- |

(117)

The Third Commitments do not eliminate the identified competition concerns in the retail market for mobile telecommunications services and in the wholesale market for access and call origination on public mobile networks in the United Kingdom entirely and are not comprehensive and effective in all respects.

| (118) | The Transaction is, therefore, declared incompatible with the internal market and the EEA Agreement pursuant to Article 8(3) of the Merger Regulation. |
| --- | --- |

(118)

The Transaction is, therefore, declared incompatible with the internal market and the EEA Agreement pursuant to Article 8(3) of the Merger Regulation.

Summary of Annex B

| 1. | In Annex B the Commission assesses the Notifying Party’s claim whereby evidence from recent mergers in the mobile telecommunications sector shows that such transactions lead to increased competition. To support this view, the Notifying Party submitted a paper on the effects on competition and consumer welfare of the acquisition of Orange Austria (‘Orange’) by Hutchison 3G Austria (‘H3G’) that was consummated in Austria in late 2012. According to the Notifying Party, the study shows that the merger in Austria led to a decrease in prices, an increase in investment and an overall positive effect on consumer welfare. The Notifying Party further commented on other recent studies which, in the Notifying Party’s view, support its claim. |
| --- | --- |

1.

In Annex B the Commission assesses the Notifying Party’s claim whereby evidence from recent mergers in the mobile telecommunications sector shows that such transactions lead to increased competition. To support this view, the Notifying Party submitted a paper on the effects on competition and consumer welfare of the acquisition of Orange Austria (‘Orange’) by Hutchison 3G Austria (‘H3G’) that was consummated in Austria in late 2012. According to the Notifying Party, the study shows that the merger in Austria led to a decrease in prices, an increase in investment and an overall positive effect on consumer welfare. The Notifying Party further commented on other recent studies which, in the Notifying Party’s view, support its claim.

| 2. | In its assessment, the Commission first notes that ex-post studies of mobile telecommunications mergers in other markets can contribute to the understanding the general effects of market concentration in the mobile telecommunications sector. However, the Commission does not consider that the results from such studies can replace the specific assessment of the Transaction. Therefore, the Commission can only give limited evidentiary weight to the experience gathered by studying mergers in related markets. In this case, as in the other cases, the Commission bases its review of the Transaction primarily on its assessment of the evidence and circumstances of the present case. |
| --- | --- |

2.

In its assessment, the Commission first notes that ex-post studies of mobile telecommunications mergers in other markets can contribute to the understanding the general effects of market concentration in the mobile telecommunications sector. However, the Commission does not consider that the results from such studies can replace the specific assessment of the Transaction. Therefore, the Commission can only give limited evidentiary weight to the experience gathered by studying mergers in related markets. In this case, as in the other cases, the Commission bases its review of the Transaction primarily on its assessment of the evidence and circumstances of the present case.

| 3. | Second, the Commission considers that the study submitted by the Notifying Party presents shortcomings both in terms of methodology and interpretation of the results. Specifically, (i) the Commission disagrees with the Notifying Party’s ‘before and after’ methodology, and considers that, in the context of mobile telecommunication markets, the ‘difference in differences’ methodology is more appropriate to assess the causal relation of mergers on market outcomes; (ii) the Commission disagrees with the Notifying Party’s unit price measure, which confounds price developments with the evolution of demand and consumption, and consider the ‘basket approach’, whereby the consumption is held fixed, to be more reliable; and (iii) the Commission disagrees with the Notifying Party’s view whereby the merger led to an increase in investments, quality and consumer welfare, as the Notifying Party did not provide sufficient evidence to establish that such increases were due to the merger. |
| --- | --- |

3.

Second, the Commission considers that the study submitted by the Notifying Party presents shortcomings both in terms of methodology and interpretation of the results. Specifically, (i) the Commission disagrees with the Notifying Party’s ‘before and after’ methodology, and considers that, in the context of mobile telecommunication markets, the ‘difference in differences’ methodology is more appropriate to assess the causal relation of mergers on market outcomes; (ii) the Commission disagrees with the Notifying Party’s unit price measure, which confounds price developments with the evolution of demand and consumption, and consider the ‘basket approach’, whereby the consumption is held fixed, to be more reliable; and (iii) the Commission disagrees with the Notifying Party’s view whereby the merger led to an increase in investments, quality and consumer welfare, as the Notifying Party did not provide sufficient evidence to establish that such increases were due to the merger.

| 4. | Third, the Commission reviewed recent studies analysing the effects of consolidation on market outcomes in the mobile telecommunication sectors. The Commission considers that, although these studies contribute to the understanding of the effects of market concentration in the mobile telecommunications sector, due to the methodological challenges related to the complex sector characteristics and data limitations, such ex-post studies should be interpreted with caution especially in the assessment of future merger cases. The Commission also notes that the more reliable studies show that ‘four to three’ mergers tend to lead to price increases, and with respects to investments, the available evidence is insufficient to draw sound conclusions (although, conceptually sounder studies in this respect indicate that mergers tend to have no effect of industry level investments). |
| --- | --- |

4.

Third, the Commission reviewed recent studies analysing the effects of consolidation on market outcomes in the mobile telecommunication sectors. The Commission considers that, although these studies contribute to the understanding of the effects of market concentration in the mobile telecommunications sector, due to the methodological challenges related to the complex sector characteristics and data limitations, such ex-post studies should be interpreted with caution especially in the assessment of future merger cases. The Commission also notes that the more reliable studies show that ‘four to three’ mergers tend to lead to price increases, and with respects to investments, the available evidence is insufficient to draw sound conclusions (although, conceptually sounder studies in this respect indicate that mergers tend to have no effect of industry level investments).

| 5. | In any event, the Commission does not consider that the results from ex-post studies can replace the specific assessment of the Transaction. |
| --- | --- |

5.

In any event, the Commission does not consider that the results from ex-post studies can replace the specific assessment of the Transaction.

Summary of Annex C

| 1. | In Annex C the Commission undertakes the assessment of the Notifying Party’s claims that Three’s and O2’s [future relative competitiveness is likely to decline]. |
| --- | --- |

1.

In Annex C the Commission undertakes the assessment of the Notifying Party’s claims that Three’s and O2’s [future relative competitiveness is likely to decline].

| 2. | Preliminary to that, the Commission notes that network quality is a broad concept that is determined by several factors, including speed. Average speed experienced by customers in high traffic areas and in the busy hour is determined to a large extent by the available capacity and the demanded mobile data traffic. Whereas average speed is an important factor of network quality, there are many others. |
| --- | --- |

2.

Preliminary to that, the Commission notes that network quality is a broad concept that is determined by several factors, including speed. Average speed experienced by customers in high traffic areas and in the busy hour is determined to a large extent by the available capacity and the demanded mobile data traffic. Whereas average speed is an important factor of network quality, there are many others.

a.   Three

| 3. | In relation to Three, the Commission finds that today, despite its lower spectrum holdings in relation to the traffic carried compared to other MNOs, Three’s network is not [capacity constrained] and offers a very good quality of service, as confirmed by numerous consumer surveys. This is reflected in Three’s continuous increase in market share in recent years. |
| --- | --- |

3.

In relation to Three, the Commission finds that today, despite its lower spectrum holdings in relation to the traffic carried compared to other MNOs, Three’s network is not [capacity constrained] and offers a very good quality of service, as confirmed by numerous consumer surveys. This is reflected in Three’s continuous increase in market share in recent years.

| 4. | [The Commission finds that Three’s evidence is not convincing.] |
| --- | --- |

4.

[The Commission finds that Three’s evidence is not convincing.]

| 5. | [The Commission finds that Three’s evidence is not convincing.] |
| --- | --- |

5.

[The Commission finds that Three’s evidence is not convincing.]

| 6. | [The Commission’s assessment differs from Three’s assessment on its capacity constraints.] |
| --- | --- |

6.

[The Commission’s assessment differs from Three’s assessment on its capacity constraints.]

| 7. | [The Commission’s assessment on future developments differs from Three’s assessment.] |
| --- | --- |

7.

[The Commission’s assessment on future developments differs from Three’s assessment.]

| 8. | [The Commission concludes that Three’s ability to compete will not deteriorate.] |
| --- | --- |

8.

[The Commission concludes that Three’s ability to compete will not deteriorate.]

b.   O2

| 9. | With regard to O2, the Commission considers that O2’s network (and in particular its 4G layer) [can offer good quality service]. O2’s network also offers a very good quality of service to its customers, as confirmed by a high customer satisfaction and by O2’s recent increases in market share. |
| --- | --- |

9.

With regard to O2, the Commission considers that O2’s network (and in particular its 4G layer) [can offer good quality service]. O2’s network also offers a very good quality of service to its customers, as confirmed by a high customer satisfaction and by O2’s recent increases in market share.

| 10. | The Commission considers that [...] O2 [can offer good quality service on its network]. |
| --- | --- |

10.

The Commission considers that [...] O2 [can offer good quality service on its network].

| 11. | [The Commission finds that O2’s evidence to the contrary is not convincing.] |
| --- | --- |

11.

[The Commission finds that O2’s evidence to the contrary is not convincing.]

| 12. | [The Commission finds that O2’s evidence is not convincing.] |
| --- | --- |

12.

[The Commission finds that O2’s evidence is not convincing.]

| 13. | [The Commission’s assessment on future developments differs from O2’s assessment.] |
| --- | --- |

13.

[The Commission’s assessment on future developments differs from O2’s assessment.]

| 14. | [The Commission concludes that O2’s ability to compete is not likely to deteriorate.] |
| --- | --- |

14.

[The Commission concludes that O2’s ability to compete is not likely to deteriorate.]

[...]

---

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

1

(2)  Unless otherwise specified, for simplicity in the following the term ‘Notifying Party’ will be used to refer to both H3GI, CKHH and the other subsidiaries of the latter.

2

On 9 March 2016, H3GI has changed the name of its legal entity to CK Telecoms UK Investments Limited (‘CTUI’), which is therefore the addressee of the Decision.

(3)  OJ C 310, 19.9.2015, p. 5.

3

(4)  As BT has closed its acquisition of EE, for the purposes of the assessment of the Transaction, following the unconditional approval of the merger by the Competition and Markets Authority (CMA), the national competition authority of the United Kingdom, the Commission considers BT and EE as a single entity.

4

(5)  The quantitative assessment performed by the Commission is based also on data collected in a customer survey (the ‘Survey’). The questionnaire and the methodology used in the Survey are contained in respectively Annex D and E to the Decision.

5

---

NOTICES CONCERNING THE EUROPEAN ECONOMIC AREA

EFTA Surveillance Authority

| 29.9.2016 | EN | Official Journal of the European Union | C 357/29 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/29

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State aid — Decision to raise no objections

(2016/C 357/09)

The EFTA Surveillance Authority raises no objections to the following State aid measure:

| Date of adoption of the decision | : | 15 March 2016 |
| --- | --- | --- |
| Case No | : | 78750 |
| Decision No | : | 063/16/COL |
| EFTA State | : | Norway |
| Title | : | Aid scheme for investment in a European Rail Traffic Management System (‘ERTMS’) |
| Legal basis | : | Decision by the Norwegian Parliament implementing Jernbaneverket’s guidelines — ‘Aid Scheme for ERTMS Onboard Equipment’ |
| Type of measure | : | Investment aid for a European Rail Traffic Management System |
| Objective | : | Transport interoperability |
| Form of aid | : | Direct grant |
| Budget | : | NOK 1 331 million |
| Intensity | : | 50 % |
| Duration | : | 1 July 2016-1 July 2021 |
| Economic sectors | : | Rail transport |
| Name and address of the granting authority | : | Jernbaneverket, Postboks 4350 |
| N-2308 Hamar |
| NORWAY |

Date of adoption of the decision

:

15 March 2016

Case No

:

78750

Decision No

:

063/16/COL

EFTA State

:

Norway

Title

:

Aid scheme for investment in a European Rail Traffic Management System (‘ERTMS’)

Legal basis

:

Decision by the Norwegian Parliament implementing Jernbaneverket’s guidelines — ‘Aid Scheme for ERTMS Onboard Equipment’

Type of measure

:

Investment aid for a European Rail Traffic Management System

Objective

:

Transport interoperability

Form of aid

:

Direct grant

Budget

:

NOK 1 331 million

Intensity

:

50 %

Duration

:

1 July 2016-1 July 2021

Economic sectors

:

Rail transport

Name and address of the granting authority

:

Jernbaneverket, Postboks 4350

N-2308 Hamar

NORWAY

The authentic text of the decision, from which all confidential information has been removed, can be found on the EFTA Surveillance Authority’s website:

http://www.eftasurv.int/state-aid/state-aid-register/

---

V Announcements

COURT PROCEEDINGS

EFTA Court

| 29.9.2016 | EN | Official Journal of the European Union | C 357/30 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/30

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Request for an Advisory Opinion from the EFTA Court by Fürstlicher Oberster Gerichtshof, Liechtenstein, dated 9 July 2015, in the Case of Franz-Josef Hagedorn v Vienna-Life Lebensversicherung AG

(Case E-15/15)

(2016/C 357/10)

A request has been made to the EFTA Court by a letter dated 9 July 2015 from Fürstlicher Oberster Gerichtshof, Liechtenstein (The Supreme Court, Liechtenstein), which was received at the Court Registry on 9 July 2015, for an Advisory Opinion in the case of Franz-Josef Hagedorn v Vienna-Life Lebensversicherung AG, on the following questions:

| 1. | Is Article 36(2) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance to be interpreted as meaning that the duties to provide information referred to therein and in Annex III(A)(a)(11) and (a)(12) and (B)(b)(2) for unit-linked life assurance policies must also be fulfilled in the case where a person who, by a legal transaction, acquires a unit-linked life assurance policy from another person with the consent of the assurer through the transfer of the contract (‘second-hand policies’)? |
| --- | --- |

1.

Is Article 36(2) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance to be interpreted as meaning that the duties to provide information referred to therein and in Annex III(A)(a)(11) and (a)(12) and (B)(b)(2) for unit-linked life assurance policies must also be fulfilled in the case where a person who, by a legal transaction, acquires a unit-linked life assurance policy from another person with the consent of the assurer through the transfer of the contract (‘second-hand policies’)?

In the event that the Court answers the first question in the affirmative, the following additional questions are asked:

| 2.(a) | Is Article 36(2) of Directive 2002/83/EC concerning life assurance to be interpreted as meaning that in the event that a unit-linked life assurance policy is acquired by a legal transaction, only general information must be provided to the new policy holder or is the assurance company also required to provide the new policy holder with information specifically regarding the assurance product to be acquired by him, in particular regarding any differences between the investor or risk profiles of the existing policy holder and of the transferee? |
| --- | --- |

2.(a)

Is Article 36(2) of Directive 2002/83/EC concerning life assurance to be interpreted as meaning that in the event that a unit-linked life assurance policy is acquired by a legal transaction, only general information must be provided to the new policy holder or is the assurance company also required to provide the new policy holder with information specifically regarding the assurance product to be acquired by him, in particular regarding any differences between the investor or risk profiles of the existing policy holder and of the transferee?

In the event that Question 2(a) is answered in the negative, the following question is asked:

| 2.(b) | Is specific information to be given to the transferee of the contract regarding the assurance product to be acquired by him where the existing policy holder is an undertaking, while the transferee of the contract is a natural person or a consumer? |
| --- | --- |

2.(b)

Is specific information to be given to the transferee of the contract regarding the assurance product to be acquired by him where the existing policy holder is an undertaking, while the transferee of the contract is a natural person or a consumer?

In the event that Question 2(b) is answered in the negative, the following question is asked:

| 2.(c) | Is specific information to be given to the transferee of the contract regarding the assurance product to be acquired by him where the transferor of the policy dispensed with information regarding the assurance product in question, for example because he did not disclose to the assurance company the information necessary in order to assess his own risk or investor profile? |
| --- | --- |

2.(c)

Is specific information to be given to the transferee of the contract regarding the assurance product to be acquired by him where the transferor of the policy dispensed with information regarding the assurance product in question, for example because he did not disclose to the assurance company the information necessary in order to assess his own risk or investor profile?

| 3. | Are the provisions concerning the assurer’s obligations under Annex III(B)(b)(2) of Directive 2002/83/EC concerning life assurance effectively transposed into national law even if national law provides, in Annex 4(II)(2) of the Versicherungsaufsichtsgesetz (Law on insurance supervision), in the case of unit-linked assurance policies, that during the term of an assurance contract information must be provided on the units underlying the assurance policy and the nature of the assets contained therein only where the changes in the information provided stem from ‘amendments of the law’ but not also ‘in the event of a change in the policy conditions’ (Annex III(B)(b)(2) to Directive 2002/83/EC)? |
| --- | --- |

3.

Are the provisions concerning the assurer’s obligations under Annex III(B)(b)(2) of Directive 2002/83/EC concerning life assurance effectively transposed into national law even if national law provides, in Annex 4(II)(2) of the Versicherungsaufsichtsgesetz (Law on insurance supervision), in the case of unit-linked assurance policies, that during the term of an assurance contract information must be provided on the units underlying the assurance policy and the nature of the assets contained therein only where the changes in the information provided stem from ‘amendments of the law’ but not also ‘in the event of a change in the policy conditions’ (Annex III(B)(b)(2) to Directive 2002/83/EC)?

---

| 29.9.2016 | EN | Official Journal of the European Union | C 357/31 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/31

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Request for an Advisory Opinion from the EFTA Court by Fürstlicher Oberster Gerichtshof, Liechtenstein, dated 9 July 2015, in the Case of Rainer Armbruster v Swiss Life (Liechtenstein) AG

(Case E-16/15)

(2016/C 357/11)

A request has been made to the EFTA Court by a letter dated 9 July 2015 from Fürstlicher Oberster Gerichtshof, Liechtenstein (The Supreme Court, Liechtenstein), which was received at the Court Registry on 9 July 2015, for an Advisory Opinion in the case of Rainer Armbruster v Swiss Life (Liechtenstein) AG, on the following questions:

| 1. | Is Article 36(2) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance to be interpreted as meaning that the duties to provide information referred to therein and in Annex III(A)(a)(11) and (a)(12) and (B)(b)(2) for unit-linked life assurance policies must also be fulfilled in the case where a person who, by a legal transaction, has acquired a unit-linked life assurance policy from another person with the consent of the assurer through the transfer of the contract (‘second-hand policies’)? |
| --- | --- |

1.

Is Article 36(2) of Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance to be interpreted as meaning that the duties to provide information referred to therein and in Annex III(A)(a)(11) and (a)(12) and (B)(b)(2) for unit-linked life assurance policies must also be fulfilled in the case where a person who, by a legal transaction, has acquired a unit-linked life assurance policy from another person with the consent of the assurer through the transfer of the contract (‘second-hand policies’)?

In the event that the Court answers the first question in the affirmative, the following additional question is asked:

| 2. | Is Article 36(2) of Directive 2002/83/EC concerning life assurance to be interpreted as meaning that, in the case of the legal transfer of the contract for a unit-linked life assurance policy, only general information must be provided to the new policy holder or is the assurance company also required to provide the new policy holder with information specifically regarding the assurance product to be acquired by him, in particular regarding any differences between the risk profiles of the existing policy holder and of the transferee? |
| --- | --- |

2.

Is Article 36(2) of Directive 2002/83/EC concerning life assurance to be interpreted as meaning that, in the case of the legal transfer of the contract for a unit-linked life assurance policy, only general information must be provided to the new policy holder or is the assurance company also required to provide the new policy holder with information specifically regarding the assurance product to be acquired by him, in particular regarding any differences between the risk profiles of the existing policy holder and of the transferee?

| 3. | Are the provisions concerning the assurer’s obligations under Annex III(B)(b)(2) of Directive 2002/83/EC concerning life assurance effectively transposed into national law even if national law provides, in Annex 4(II)(2) of the Versicherungsaufsichtsgesetz (Law on insurance supervision, VersAG), in the case of unit-linked assurance policies, that during the term of an assurance contract information must be provided on the units underlying the assurance policy and the nature of the assets contained therein only where the changes in the information provided stem from ‘amendments of the law’ but not also ‘in the event of a change in the policy conditions’ (Annex III(B)(b)(2) to Directive 2002/83/EC)? |
| --- | --- |

3.

Are the provisions concerning the assurer’s obligations under Annex III(B)(b)(2) of Directive 2002/83/EC concerning life assurance effectively transposed into national law even if national law provides, in Annex 4(II)(2) of the Versicherungsaufsichtsgesetz (Law on insurance supervision, VersAG), in the case of unit-linked assurance policies, that during the term of an assurance contract information must be provided on the units underlying the assurance policy and the nature of the assets contained therein only where the changes in the information provided stem from ‘amendments of the law’ but not also ‘in the event of a change in the policy conditions’ (Annex III(B)(b)(2) to Directive 2002/83/EC)?

---

| 29.9.2016 | EN | Official Journal of the European Union | C 357/32 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/32

---

ORDER OF THE PRESIDENT

of 28 August 2015

in Case E-22/14

Schenker North AB, Schenker Privpak AB, Schenker Privpak AS v EFTA Surveillance Authority

(2016/C 357/12)

With respect to the application from Schenker North AB, Schenker Privpak AB and Schenker Privpak AS of 10 November 2014 seeking annulment of EFTA Surveillance Authority Decision of 9 September 2014, the President of the Court made an Order of 28 August 2015, the operative part of which is as follows:

| 1. | Case E-22/14 is removed from the Register. |
| --- | --- |

1.

Case E-22/14 is removed from the Register.

| 2. | The applicants and the EFTA Surveillance Authority are to bear their own costs. |
| --- | --- |

2.

The applicants and the EFTA Surveillance Authority are to bear their own costs.

| 3. | The intervener is to bear its own costs. |
| --- | --- |

3.

The intervener is to bear its own costs.

---

| 29.9.2016 | EN | Official Journal of the European Union | C 357/32 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/32

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ORDER OF THE COURT

of 20 March 2015

in Case E-19/13

Konkurrenten.no AS v EFTA Surveillance Authority

(Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Local bus transport services — Decision not to open the formal investigation procedure — Decision following the formal investigation procedure — Admissibility — Measures of organization of procedure)

(2016/C 357/13)

In Case E-19/13: Konkurrenten.no AS v EFTA Surveillance Authority — Application for annulment of EFTA Surveillance Authority Decision No 519/12/COL of 19 December 2012, closing a formal investigation concerning aid granted by Oslo Municipality to AS Oslo Sporveier, and of EFTA Surveillance Authority Decision No 181/13/COL of 8 May 2013, refusing to open a formal investigation into aid measures not covered by Decision No 519/12/COL, the Court, composed of: Carl Baudenbacher, President and Judge-Rapporteur, Per Christiansen and Páll Hreinsson, Judges, gave order of 20 March 2015, the operative part of which is as follows:

| 1. | The application is dismissed as inadmissible; |
| --- | --- |

1.

The application is dismissed as inadmissible;

| 2. | Konkurrenten.no AS is to bear its own costs and the costs incurred by the EFTA Surveillance Authority; |
| --- | --- |

2.

Konkurrenten.no AS is to bear its own costs and the costs incurred by the EFTA Surveillance Authority;

| 3. | Sporveien Oslo AS is to bear its own costs. |
| --- | --- |

3.

Sporveien Oslo AS is to bear its own costs.

---

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 29.9.2016 | EN | Official Journal of the European Union | C 357/33 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/33

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Prior notification of a concentration

(Case M.8201 — Randstad Holding/Monster Worldwide)

(Text with EEA relevance)

(2016/C 357/14)

| 1. | On 21 September 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Randstad Holding n.v. (‘Randstad’, the Netherlands) acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of Monster Worldwide, Inc. (‘Monster’, United States of America) by way of public bid announced on 9 August 2016. |
| --- | --- |

1.

On 21 September 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Randstad Holding n.v. (‘Randstad’, the Netherlands) acquires within the meaning of Article 3(1)(b) of the Merger Regulation control of the whole of Monster Worldwide, Inc. (‘Monster’, United States of America) by way of public bid announced on 9 August 2016.

| 2. | The business activities of the undertakings concerned are:
  —   for Randstad: provision of temporary employment services (‘TES’), permanent employment services (‘PES’) and other HR related services;
  —   for Monster: provision of online job advertising and online recruitment services. |
| --- | --- |

2.

The business activities of the undertakings concerned are:

—   for Randstad: provision of temporary employment services (‘TES’), permanent employment services (‘PES’) and other HR related services;

—   for Monster: provision of online job advertising and online recruitment services.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.8201 — Randstad Holding/Monster Worldwide, to the following address:





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

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.8201 — Randstad Holding/Monster Worldwide, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

---

| 29.9.2016 | EN | Official Journal of the European Union | C 357/34 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/34

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Prior notification of a concentration

(Case M.8105 — Marmedsa/UECC/UECC Ibérica)

Candidate case for simplified procedure

(Text with EEA relevance)

(2016/C 357/15)

| 1. | On 22 September 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings Marítima del Mediterráneo, S.A.U. (‘Marmedsa’, of Spain) belonging to IIF Int’l Holding L.P, and United European Car Carriers Unipessoal, Lda (‘UECC’, of Portugal) belonging to United European Car Carriers, B.V, acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of the whole of the undertaking United European Car Carriers Ibérica, S.L.U. (‘UECC Ibérica’, of Spain) by way of purchase of shares. |
| --- | --- |

1.

On 22 September 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings Marítima del Mediterráneo, S.A.U. (‘Marmedsa’, of Spain) belonging to IIF Int’l Holding L.P, and United European Car Carriers Unipessoal, Lda (‘UECC’, of Portugal) belonging to United European Car Carriers, B.V, acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of the whole of the undertaking United European Car Carriers Ibérica, S.L.U. (‘UECC Ibérica’, of Spain) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:
  —   for Marmedsa: provision of maritime, logistics and cargo terminal operations mainly in the Iberian Peninsula. Marmedsa operates together with its sister company Noatum Ports, S.L.U. under the Noatum brand;
  —   for UECC: provision of short sea vehicle transportation of cars and light commercial vehicles within Europe;
  —   for UECC Ibérica: management and operation of a Roll-On-Roll-Off terminal located in the port of Pasajes/Pasaia, Spain, for the handling of vehicles (mainly cars and light commercial vehicles) and general cargo. |
| --- | --- |

2.

The business activities of the undertakings concerned are:

—   for Marmedsa: provision of maritime, logistics and cargo terminal operations mainly in the Iberian Peninsula. Marmedsa operates together with its sister company Noatum Ports, S.L.U. under the Noatum brand;

—   for UECC: provision of short sea vehicle transportation of cars and light commercial vehicles within Europe;

—   for UECC Ibérica: management and operation of a Roll-On-Roll-Off terminal located in the port of Pasajes/Pasaia, Spain, for the handling of vehicles (mainly cars and light commercial vehicles) and general cargo.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in this Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in this Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number Case M.8105 — Marmedsa/UECC/UECC Ibérica, to the following address:





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

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number Case M.8105 — Marmedsa/UECC/UECC Ibérica, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

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| 29.9.2016 | EN | Official Journal of the European Union | C 357/35 |
| --- | --- | --- | --- |

29.9.2016

EN

Official Journal of the European Union

C 357/35

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Prior notification of a concentration

(Case M.8185 — Atlantia/EDF/ACA)

Candidate case for simplified procedure

(Text with EEA relevance)

(2016/C 357/16)

| 1. | On 16 September 2016, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings Atlantia S.p.A., through its subsidiary Aeroporti di Roma (‘AdR’), and Électricité de France (‘EDF’), through its investment subsidiary EDF Invest, indirectly acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of the whole of Société Aéroports de la Côte d'Azur (‘ACA’) by way of purchase of shares. |
| --- | --- |

1.

On 16 September 2016, the Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings Atlantia S.p.A., through its subsidiary Aeroporti di Roma (‘AdR’), and Électricité de France (‘EDF’), through its investment subsidiary EDF Invest, indirectly acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of the whole of Société Aéroports de la Côte d'Azur (‘ACA’) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:






  — | Atlantia is an Italian group that invests at the global level in infrastructures and services relating to the transport sector. Atlantia is particularly active in the airport sector in Italy through its subsidiary AdR. Edizione S.r.l owns 30,25 % of Atlantia and also owns 50,1 % of the capital in Autogrill, which is active in the sector of catering services for travellers. |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

Atlantia is an Italian group that invests at the global level in infrastructures and services relating to the transport sector. Atlantia is particularly active in the airport sector in Italy through its subsidiary AdR. Edizione S.r.l owns 30,25 % of Atlantia and also owns 50,1 % of the capital in Autogrill, which is active in the sector of catering services for travellers.

| — | EDF is a producer and provider of electricity and, to a lesser extent, gas, and is active in France and across the world. In addition to its industrial activities, in accordance with its obligations to cover long-term nuclear commitments, EDF manages the unlisted investments in its dedicated asset portfolio through its EDF Invest division. |
| --- | --- |

—

EDF is a producer and provider of electricity and, to a lesser extent, gas, and is active in France and across the world. In addition to its industrial activities, in accordance with its obligations to cover long-term nuclear commitments, EDF manages the unlisted investments in its dedicated asset portfolio through its EDF Invest division.

| — | ACA builds, develops, renovates, maintains, operates and manages airport infrastructures in the Region of Provence-Alpes-Côte d’Azur (Nice, Cannes-Mandelieu and Saint-Tropez airports). |
| --- | --- |

—

ACA builds, develops, renovates, maintains, operates and manages airport infrastructures in the Region of Provence-Alpes-Côte d’Azur (Nice, Cannes-Mandelieu and Saint-Tropez airports).

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of publication of this notification. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.8185 — Atlantia/EDF/ACA, to the following address:





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

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of publication of this notification. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.8185 — Atlantia/EDF/ACA, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

---

(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

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