# Official Journal C 86/2015

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 86 |
| | |
| English edition | Information and Notices | Volume 5813 March 2015 |

ISSN 1977-091X

Official Journal

of the European Union

C 86

English edition

Information and Notices

Volume 5813 March 2015

---

| Notice No | Contents | page |
| --- | --- | --- |
| | IV   Notices |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2015/C 086/01 | Euro exchange rates | 1 |
| 2015/C 086/02 | New national side of euro coins intended for circulation | 2 |
| 2015/C 086/03 | New national side of euro coins intended for circulation | 3 |
| 2015/C 086/04 | New national side of euro coins intended for circulation | 4 |
| 2015/C 086/05 | Opinion of the Advisory Committee on mergers given at its meeting of 18 June 2014 regarding a draft decision relating to Case M.7018 — Telefónica Germany/E-Plus — Rapporteur: Portugal | 5 |
| 2015/C 086/06 | Final Report of the Hearing Officer — Telefónica Deutschland/E-Plus (M.7018) | 7 |
| 2015/C 086/07 | Summary of Commission Decision of 2 July 2014 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.7018 — Telefónica Deutschland/E-Plus) (notified under document C(2014) 4443) | 10 |

Notice No

Contents

page

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2015/C 086/01

Euro exchange rates

1

2015/C 086/02

New national side of euro coins intended for circulation

2

2015/C 086/03

New national side of euro coins intended for circulation

3

2015/C 086/04

New national side of euro coins intended for circulation

4

2015/C 086/05

Opinion of the Advisory Committee on mergers given at its meeting of 18 June 2014 regarding a draft decision relating to Case M.7018 — Telefónica Germany/E-Plus — Rapporteur: Portugal

5

2015/C 086/06

Final Report of the Hearing Officer — Telefónica Deutschland/E-Plus (M.7018)

7

2015/C 086/07

Summary of Commission Decision of 2 July 2014 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.7018 — Telefónica Deutschland/E-Plus) (notified under document C(2014) 4443)

(notified under document C(2014) 4443)

10

---

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2015/C 086/08 | Prior notification of a concentration (Case M.7422 — Riverstone/Barclays/Origo) — Candidate case for simplified procedure (
  1
  ) | 15 |
| | OTHER ACTS |
| | European Commission |
| 2015/C 086/09 | Acknowledgement of receipt of complaint CHAP(2015) 227 | 16 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2015/C 086/08

Prior notification of a concentration (Case M.7422 — Riverstone/Barclays/Origo) — Candidate case for simplified procedure (
  1
  )

1

15

OTHER ACTS

European Commission

2015/C 086/09

Acknowledgement of receipt of complaint CHAP(2015) 227

16

---

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

---

(1)   Text with EEA relevance

1

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

EN

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 13.3.2015 | EN | Official Journal of the European Union | C 86/1 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/1

---

Euro exchange rates (1)

12 March 2015

(2015/C 86/01)

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,0613 |
| JPY | Japanese yen | 128,29 |
| DKK | Danish krone | 7,4575 |
| GBP | Pound sterling | 0,70910 |
| SEK | Swedish krona | 9,1141 |
| CHF | Swiss franc | 1,0636 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 8,5910 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 27,303 |
| HUF | Hungarian forint | 303,60 |
| PLN | Polish zloty | 4,1371 |
| RON | Romanian leu | 4,4373 |
| TRY | Turkish lira | 2,7517 |
| AUD | Australian dollar | 1,3771 |
| CAD | Canadian dollar | 1,3432 |
| HKD | Hong Kong dollar | 8,2439 |
| NZD | New Zealand dollar | 1,4329 |
| SGD | Singapore dollar | 1,4623 |
| KRW | South Korean won | 1 188,78 |
| ZAR | South African rand | 12,9632 |
| CNY | Chinese yuan renminbi | 6,6458 |
| HRK | Croatian kuna | 7,6450 |
| IDR | Indonesian rupiah | 13 941,23 |
| MYR | Malaysian ringgit | 3,9061 |
| PHP | Philippine peso | 46,976 |
| RUB | Russian rouble | 64,2140 |
| THB | Thai baht | 34,823 |
| BRL | Brazilian real | 3,3031 |
| MXN | Mexican peso | 16,3260 |
| INR | Indian rupee | 66,2762 |

Currency

Exchange rate

USD

US dollar

1,0613

JPY

Japanese yen

128,29

DKK

Danish krone

7,4575

GBP

Pound sterling

0,70910

SEK

Swedish krona

9,1141

CHF

Swiss franc

1,0636

ISK

Iceland króna

NOK

Norwegian krone

8,5910

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

27,303

HUF

Hungarian forint

303,60

PLN

Polish zloty

4,1371

RON

Romanian leu

4,4373

TRY

Turkish lira

2,7517

AUD

Australian dollar

1,3771

CAD

Canadian dollar

1,3432

HKD

Hong Kong dollar

8,2439

NZD

New Zealand dollar

1,4329

SGD

Singapore dollar

1,4623

KRW

South Korean won

1 188,78

ZAR

South African rand

12,9632

CNY

Chinese yuan renminbi

6,6458

HRK

Croatian kuna

7,6450

IDR

Indonesian rupiah

13 941,23

MYR

Malaysian ringgit

3,9061

PHP

Philippine peso

46,976

RUB

Russian rouble

64,2140

THB

Thai baht

34,823

BRL

Brazilian real

3,3031

MXN

Mexican peso

16,3260

INR

Indian rupee

66,2762

---

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

---

| 13.3.2015 | EN | Official Journal of the European Union | C 86/2 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/2

---

New national side of euro coins intended for circulation

(2015/C 86/02)

Euro coins intended for circulation have legal tender status throughout the euro area. For the purpose of informing the public and all parties who handle the coins, the Commission publishes a description of the designs of all new coins (1). In accordance with the Council conclusions of 10 February 2009 (2), euro-area Member States and countries that have concluded a monetary agreement with the European Union providing for the issuing of euro coins are allowed to issue commemorative euro coins intended for circulation, provided that certain conditions are met, particularly that only the 2-euro denomination is used. These coins have the same technical characteristics as other 2-euro coins, but their national face features a commemorative design that is highly symbolic in national or European terms.

Issuing country
  : the Republic of San Marino

Subject of commemoration
  : the 500th anniversary of the death of Bramante Lazzari delle Penne di San Marino

Description of the design
  : The coin depicts Bramante’s portrait, and part of Tempietto (Italian: ‘small temple’), which is a small commemorative tomb built by Donato Bramante, possibly as early as 1502, in the courtyard of San Pietro in Montorio and considered a masterpiece of the High Renaissance Italian architecture. The inscription ‘BRAMANTE LAZZARI DELLE PENNE DI SAN MARINO’ surrounds almost completely the design. At the left and right the years ‘1514’ and ‘2014’, respectively. At the bottom the initials of the artist ‘MCC’ (Maria Carmela Colaneri) and the mint mark.

The coin’s outer ring depicts the 12 stars of the European flag.

Number of coins to be issued
  :

Date of issue
  : June 2015

---

(1)  See OJ C 373, 28.12.2001, p. 1 for the national faces of all the coins issued in 2002.

(2)  See the conclusions of the Economic and Financial Affairs Council of 10 February 2009 and the Commission Recommendation of 19 December 2008 on common guidelines for the national sides and the issuance of euro coins intended for circulation (OJ L 9, 14.1.2009, p. 52).

---

| 13.3.2015 | EN | Official Journal of the European Union | C 86/3 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/3

---

New national side of euro coins intended for circulation

(2015/C 86/03)

Euro coins intended for circulation have legal tender status throughout the euro area. For the purpose of informing the public and all parties who handle the coins, the Commission publishes a description of the designs of all new coins (1). In accordance with the Council conclusions of 10 February 2009 (2), euro-area Member States and countries that have concluded a monetary agreement with the European Union providing for the issuing of euro coins are allowed to issue commemorative euro coins intended for circulation, provided that certain conditions are met, particularly that only the 2-euro denomination is used. These coins have the same technical characteristics as other 2-euro coins, but their national face features a commemorative design that is highly symbolic in national or European terms.

Issuing country
  : Luxembourg

Subject of commemoration
  : the 15th anniversary of the accession to the throne of H.R.H. the Grand Duke

Description of the design
  : The coin depicts their Royal Highnesses Grand Duke Henri and the Grand Duchess. The year of accession ‘2000’, the issuing country ‘Luxembourg’ and the year mark ‘2015’ appear above them. Below them appears the inscription ‘15e anniversaire de l’accession au trône de S.A.R. le Grand-Duc’ (15th anniversary of the accession to the throne of H.R.H. the Grand Duke).

The coin’s outer ring depicts the 12 stars of the European flag.

Number of coins to be issued
  : 1,4 million

Date of issue
  : March 2015

---

(1)  See OJ C 373, 28.12.2001, p. 1 for the national faces of all the coins issued in 2002.

(2)  See the conclusions of the Economic and Financial Affairs Council of 10 February 2009 and the Commission Recommendation of 19 December 2008 on common guidelines for the national sides and the issuance of euro coins intended for circulation (OJ L 9, 14.1.2009, p. 52).

---

| 13.3.2015 | EN | Official Journal of the European Union | C 86/4 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/4

---

New national side of euro coins intended for circulation

(2015/C 86/04)

Euro coins intended for circulation have legal tender status throughout the euro area. For the purpose of informing the public and all parties who handle the coins, the Commission publishes a description of the designs of all new coins (1). In accordance with the Council conclusions of 10 February 2009 (2), euro-area Member States and countries that have concluded a monetary agreement with the European Union providing for the issuing of euro coins are allowed to issue commemorative euro coins intended for circulation, provided that certain conditions are met, particularly that only the 2-euro denomination is used. These coins have the same technical characteristics as other 2-euro coins, but their national face features a commemorative design that is highly symbolic in national or European terms.

Issuing country
  : Italian Republic

Subject of commemoration
  : EXPO Milano 2015

Description of the design
  : The design depicts a composition symbolising the fertility of Earth: on a semicircle indicating the terrestrial sphere, a seed fed by the water waits to sprout; above the Earth, a vine, an olive twig and an ear grow from a tree trunk; around, the inscription ‘NUTRIRE IL PIANETA’; on the left the initials of the designer Maria Grazia Urbani, ‘MGU’; on the right, the monogram of Italian Republic ‘RI’ and ‘R’, identifying the Mint of Rome; in the middle, logo of the EXPO MILANO 2015.

The coin’s outer ring depicts the 12 stars of the European flag.

Number of coins to be issued
  : 3,5 million

Date of issue
  : March 2015

---

(1)  See OJ C 373, 28.12.2001, p. 1 for the national faces of all the coins issued in 2002.

(2)  See the conclusions of the Economic and Financial Affairs Council of 10 February 2009 and the Commission Recommendation of 19 December 2008 on common guidelines for the national sides and the issuance of euro coins intended for circulation (OJ L 9, 14.1.2009, p. 52).

---

| 13.3.2015 | EN | Official Journal of the European Union | C 86/5 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/5

---

Opinion of the Advisory Committee on mergers given at its meeting of 18 June 2014 regarding a draft decision relating to Case M.7018 — Telefónica Germany/E-Plus

Rapporteur: Portugal

(2015/C 86/05)

Concentration

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

1.

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

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

2.

The Advisory Committee agrees with the Commission that the notified transaction has a Union 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:






  — | German market for mobile telecommunication services to end customers (retail mobile telecommunications services market); |
| --- | --- | --- |

4.

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

—

German market for mobile telecommunication services to end customers (retail mobile telecommunications services market);

| — | German market for wholesale access and call origination on public mobile telephone networks; |
| --- | --- |

—

German market for wholesale access and call origination on public mobile telephone networks;

| — | German wholesale market for international roaming; |
| --- | --- |

—

German wholesale market for international roaming;

| — | German wholesale market for mobile call termination. |
| --- | --- |

—

German wholesale market for mobile call termination.

Horizontal effects

| 5. | The Advisory Committee agrees with the Commission’s assessment that the proposed operation is likely to give rise to non-coordinated horizontal effects that would significantly impede effective competition on the German market for mobile telecommunication services to end customers (retail mobile telecommunications services market) mainly due to the:






  a) | combination of two close competitors; |
| --- | --- | --- |

5.

The Advisory Committee agrees with the Commission’s assessment that the proposed operation is likely to give rise to non-coordinated horizontal effects that would significantly impede effective competition on the German market for mobile telecommunication services to end customers (retail mobile telecommunications services market) mainly due to the:

a)

combination of two close competitors;

| b) | removal of two important competitive forces (Telefónica and E-Plus). |
| --- | --- |

b)

removal of two important competitive forces (Telefónica and E-Plus).

| 6. | As regards the Commission’s assessment that there is no need to come to a final decision on whether the proposed operation is likely to lead to a significant impediment of effective competition in the wholesale market for mobile network access and call origination in Germany, since the commitments proposed by the Notifying Party in relation to the retail market will also address any potential concerns on the wholesale market, a plurality of Member States agrees, a minority of Member States disagrees and a smaller minority of Member States abstains. |
| --- | --- |

6.

As regards the Commission’s assessment that there is no need to come to a final decision on whether the proposed operation is likely to lead to a significant impediment of effective competition in the wholesale market for mobile network access and call origination in Germany, since the commitments proposed by the Notifying Party in relation to the retail market will also address any potential concerns on the wholesale market, a plurality of Member States agrees, a minority of Member States disagrees and a smaller minority of Member States abstains.

Vertical effects

| 7. | The Advisory Committee agrees with the Commission’s assessment that the proposed operation is not likely to give rise to vertical effects that would significantly impede effective competition on the:






  — | German wholesale market for international roaming; |
| --- | --- | --- |

7.

The Advisory Committee agrees with the Commission’s assessment that the proposed operation is not likely to give rise to vertical effects that would significantly impede effective competition on the:

—

German wholesale market for international roaming;

| — | German wholesale market for mobile call termination. |
| --- | --- |

—

German wholesale market for mobile call termination.

Remedy

| 8. | As regards the Commission’s findings that the final commitments offered by the Notifying Party on 29 May 2014 address the competition concerns identified by the Commission on the German market for mobile telecommunication services to end customers, a plurality of Member States disagrees, an equal plurality of Member States abstains and a minority of Member States agrees. |
| --- | --- |

8.

As regards the Commission’s findings that the final commitments offered by the Notifying Party on 29 May 2014 address the competition concerns identified by the Commission on the German market for mobile telecommunication services to end customers, a plurality of Member States disagrees, an equal plurality of Member States abstains and a minority of Member States agrees.

| 9. | As regards the Commission’s conclusion that, subject to the full compliance with the final commitments, the notified transaction is not likely to significantly impede effective competition in the internal market or in a substantial part of it, a plurality of Member States disagrees, an equal plurality of Member States abstains and a minority of Member States agrees. |
| --- | --- |

9.

As regards the Commission’s conclusion that, subject to the full compliance with the final commitments, the notified transaction is not likely to significantly impede effective competition in the internal market or in a substantial part of it, a plurality of Member States disagrees, an equal plurality of Member States abstains and a minority of Member States agrees.

| 10. | As regards the Commission’s conclusion that the notified transaction must therefore be declared compatible with the internal market and the functioning of the EEA Agreement in accordance with Articles 2(2) and 8(2) of the Merger Regulation and Article 57 of the EEA Agreement, a plurality of Member States disagrees, an equal plurality of Member States abstains and a minority of Members agrees. |
| --- | --- |

10.

As regards the Commission’s conclusion that the notified transaction must therefore be declared compatible with the internal market and the functioning of the EEA Agreement in accordance with Articles 2(2) and 8(2) of the Merger Regulation and Article 57 of the EEA Agreement, a plurality of Member States disagrees, an equal plurality of Member States abstains and a minority of Members agrees.

---

| 13.3.2015 | EN | Official Journal of the European Union | C 86/7 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/7

---

Final Report of the Hearing Officer (1)

Telefónica Deutschland/E-Plus

(M.7018)

(2015/C 86/06)

I.   WRITTEN PROCEDURE

A.   Introduction

| 1. | On 31 October 2013, the European Commission (the ‘Commission’) received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation (2) by which Telefónica Deutschland Holding AG (‘Telefónica’ or the ‘Notifying Party’) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control over E-Plus Mobilfunk GmbH & Co. KG (‘E-Plus’) (the ‘Transaction’). Telefónica and E-Plus are collectively referred to as the ‘Parties’. |
| --- | --- |

1.

On 31 October 2013, the European Commission (the ‘Commission’) received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation (2) by which Telefónica Deutschland Holding AG (‘Telefónica’ or the ‘Notifying Party’) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control over E-Plus Mobilfunk GmbH & Co. KG (‘E-Plus’) (the ‘Transaction’). Telefónica and E-Plus are collectively referred to as the ‘Parties’.

| 2. | The Commission’s first phase investigation raised serious doubts as to the compatibility of the Transaction with the internal market. On 20 December 2013, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation. The Notifying Party submitted written comments on 15 January 2014. |
| --- | --- |

2.

The Commission’s first phase investigation raised serious doubts as to the compatibility of the Transaction with the internal market. On 20 December 2013, the Commission initiated proceedings pursuant to Article 6(1)(c) of the Merger Regulation. The Notifying Party submitted written comments on 15 January 2014.

B.   Statement of Objections

| 3. | On 26 February 2014, the Commission adopted a Statement of Objections (‘SO’), in which it took the preliminary view that the Transaction would significantly impede effective competition in a substantial part of the internal market within the meaning of Article 2 of the Merger Regulation. |
| --- | --- |

3.

On 26 February 2014, the Commission adopted a Statement of Objections (‘SO’), in which it took the preliminary view that the Transaction would 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 12 March 2014 for replying to the SO. The Parties as well as Koninklijke KPN NV (‘KPN’), the ultimate parent of E-Plus, replied on that date. In its reply, the Notifying Party requested a formal oral hearing. |
| --- | --- |

4.

The Commission set a time limit of 12 March 2014 for replying to the SO. The Parties as well as Koninklijke KPN NV (‘KPN’), the ultimate parent of E-Plus, replied on that date. In its reply, the Notifying Party requested a formal oral hearing.

C.   Access to the file

| 5. | The Notifying Party initially received access to the file via CD-ROM on 27 February 2014. On 3 March 2014, the Notifying Party submitted a request to DG Competition for further access to the file. DG Competition dealt with this request. |
| --- | --- |

5.

The Notifying Party initially received access to the file via CD-ROM on 27 February 2014. On 3 March 2014, the Notifying Party submitted a request to DG Competition for further access to the file. DG Competition dealt with this request.

| 6. | Additional access to the file was granted on 10 March, 4 April, 25 April, 8 May and 16 June 2014. |
| --- | --- |

6.

Additional access to the file was granted on 10 March, 4 April, 25 April, 8 May and 16 June 2014.

D.   Interested third persons and competent authorities of the Member States

1.   Admission of interested third persons

| 7. | Upon their reasoned requests, I allowed Deutsche Telekom AG (‘Deutsche Telekom’), Vodafone Group plc (‘Vodafone’), freenet AG (‘freenet’), l&l Telekom GmbH (‘1&1 Telekom’), Drillisch AG (‘Drillisch’) and Airdata AG (‘Airdata’) to be heard as interested third persons. I also acceded to requests from each of these to participate in the formal oral hearing. |
| --- | --- |

7.

Upon their reasoned requests, I allowed Deutsche Telekom AG (‘Deutsche Telekom’), Vodafone Group plc (‘Vodafone’), freenet AG (‘freenet’), l&l Telekom GmbH (‘1&1 Telekom’), Drillisch AG (‘Drillisch’) and Airdata AG (‘Airdata’) to be heard as interested third persons. I also acceded to requests from each of these to participate in the formal oral hearing.

2.   Rejection of application to be heard as an interested third person

| 8. | A private consultancy applied to be heard as an interested third person for the purposes of Article 18(4) of the Merger Regulation. By a letter of 25 February followed by a decision of 7 March 2014, I rejected that application in accordance with Article 5(3) of Decision 2011/695/EU. |
| --- | --- |

8.

A private consultancy applied to be heard as an interested third person for the purposes of Article 18(4) of the Merger Regulation. By a letter of 25 February followed by a decision of 7 March 2014, I rejected that application in accordance with Article 5(3) of Decision 2011/695/EU.

| 9. | In essence, that consultancy had not shown a ‘sufficient interest’ to be heard as an interested third person (3). In that regard, I considered that expertise in the sector concerned and the mere expression of interest in the Commission’s investigation are not enough to show the existence of a ‘sufficient interest’ for the purposes of Article 18(4) of the Merger Regulation. In addition: (i) the mere fact that an applicant to be heard as an interested third person purchases retail services of the type concerned by the present case did not, taken on its own, suffice for the purposes of Article 18(4) of the Merger Regulation; (ii) the consultancy did not purport to act as a ‘consumer association’; and (iii) its claimed superior expertise for the purposes of appraising the proposed concentration had no bearing on whether it had a ‘sufficient interest’ for the purposes of Article 18(4) of the Merger Regulation. |
| --- | --- |

9.

In essence, that consultancy had not shown a ‘sufficient interest’ to be heard as an interested third person (3). In that regard, I considered that expertise in the sector concerned and the mere expression of interest in the Commission’s investigation are not enough to show the existence of a ‘sufficient interest’ for the purposes of Article 18(4) of the Merger Regulation. In addition: (i) the mere fact that an applicant to be heard as an interested third person purchases retail services of the type concerned by the present case did not, taken on its own, suffice for the purposes of Article 18(4) of the Merger Regulation; (ii) the consultancy did not purport to act as a ‘consumer association’; and (iii) its claimed superior expertise for the purposes of appraising the proposed concentration had no bearing on whether it had a ‘sufficient interest’ for the purposes of Article 18(4) of the Merger Regulation.

3.   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 Austrian Regulatory Authority for Broadcasting and Telecommunications and the German Bundesnetzagentur to the formal oral hearing. |
| --- | --- |

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 Austrian Regulatory Authority for Broadcasting and Telecommunications and the German Bundesnetzagentur to the formal oral hearing.

II.   ORAL PROCEDURE

A.   Participants at the formal oral hearing

| 11. | The formal oral hearing was held on 17 March 2014 and was attended by:






  — | the Parties and KPN, as well as their external legal and economic advisers, |
| --- | --- | --- |

11.

The formal oral hearing was held on 17 March 2014 and was attended by:

—

the Parties and KPN, as well as their external legal and economic advisers,

| — | the interested third persons Deutsche Telekom, Vodafone, freenet, 1&1 Telekom, Drillisch and Airdata, some of whom were assisted by external advisers, |
| --- | --- |

—

the interested third persons Deutsche Telekom, Vodafone, freenet, 1&1 Telekom, Drillisch and Airdata, some of whom were assisted by external advisers,

| — | relevant Commission services, |
| --- | --- |

—

relevant Commission services,

| — | the competition authorities of 10 Member States (Belgium, Germany, Spain, France, Italy, Netherlands, Latvia, Hungary, Finland and the United Kingdom), and |
| --- | --- |

—

the competition authorities of 10 Member States (Belgium, Germany, Spain, France, Italy, Netherlands, Latvia, Hungary, Finland and the United Kingdom), and

| — | other competent authorities of the Member States, namely the Bundesnetzagentur (Germany) and the Regulatory Authority for Broadcasting and Telecommunications (Austria). |
| --- | --- |

—

other competent authorities of the Member States, namely the Bundesnetzagentur (Germany) and the Regulatory Authority for Broadcasting and Telecommunications (Austria).

B.   Closed sessions

| 12. | The Parties requested and were granted closed sessions for parts of their presentations. |
| --- | --- |

12.

The Parties requested and were granted closed sessions for parts of their presentations.

III.   PROCEDURE AFTER THE FORMAL ORAL HEARING

A.   Letter of facts

| 13. | On 4 April 2014, the Commission issued a letter of facts to the Notifying Party. The Parties and KPN submitted their comments on the letter of facts on 10 April 2014. |
| --- | --- |

13.

On 4 April 2014, the Commission issued a letter of facts to the Notifying Party. The Parties and KPN submitted their comments on the letter of facts on 10 April 2014.

B.   Remedies

| 14. | The Notifying Party submitted a first set of commitments on 10 April 2014 and the Commission undertook a market test of these commitments on 11 April 2014. On 28 April 2014, the Notifying Party submitted a second set of commitments which were market tested starting 30 April 2014. The Notifying Party submitted a final set of commitments on 29 May 2014. |
| --- | --- |

14.

The Notifying Party submitted a first set of commitments on 10 April 2014 and the Commission undertook a market test of these commitments on 11 April 2014. On 28 April 2014, the Notifying Party submitted a second set of commitments which were market tested starting 30 April 2014. The Notifying Party submitted a final set of commitments on 29 May 2014.

C.   Additional interested third person

| 15. | Upon its request, I admitted Mass Response Services GmbH to the proceedings as an interested third person. |
| --- | --- |

15.

Upon its request, I admitted Mass Response Services GmbH to the proceedings as an interested third person.

D.   The draft decision

| 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 and KPN 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 and KPN have been afforded the opportunity of making known their views.

IV.   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, 25 June 2014.

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

2

(3)  In accordance with Article 18(4) of the Merger Regulation, Article 11 of Commission Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ L 133, 30.4.2004, p. 1) (the ‘Merger Implementing Regulation’) and Article 5(2) of Decision 2011/695/EU, if natural or legal persons other than notifying parties or other involved parties are to be heard pursuant to Article 18 of the Merger Regulation and Article 16(1) of the Merger Implementing Regulation, they must demonstrate a ‘sufficient interest’ within the meaning of Article 18(4), second sentence, of the Merger Regulation. It follows from Articles 1(2) and 5(2) of Decision 2011/695/EU that, in merger cases, when assessing whether an applicant has shown a sufficient interest, the hearing officer takes into account whether and to what extent that applicant is affected by the proposed concentration.

3

---

| 13.3.2015 | EN | Official Journal of the European Union | C 86/10 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/10

---

Summary of Commission Decision

of 2 July 2014

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

(Case M.7018 — Telefónica Deutschland/E-Plus)

(notified under document C(2014) 4443)

(Only the English version is authentic)

(2015/C 86/07)

On 2 July 2014 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(2) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address: http://ec.europa.eu/comm/competition/index_en.html

I.   THE PARTIES

| (1) | Telefónica Deutschland Holding AG (‘Telefónica’ or the ‘Notifying Party’) and E-Plus Mobilfunk GmbH & Co. KG (‘E-Plus’, together with Telefónica the ‘Parties’) are two of the four mobile network operators (‘MNOs’) present on the retail mobile telecommunications services market and the wholesale market for access and call origination in Germany. The transaction would lead to a market structure with three MNOs (Deutsche Telekom, Vodafone and the merged entity) with similar market shares in terms of revenues. Besides these MNOs, there are some mobile virtual network operators (‘MVNOs’) and several Service Providers active in the retail market. |
| --- | --- |

(1)

Telefónica Deutschland Holding AG (‘Telefónica’ or the ‘Notifying Party’) and E-Plus Mobilfunk GmbH & Co. KG (‘E-Plus’, together with Telefónica the ‘Parties’) are two of the four mobile network operators (‘MNOs’) present on the retail mobile telecommunications services market and the wholesale market for access and call origination in Germany. The transaction would lead to a market structure with three MNOs (Deutsche Telekom, Vodafone and the merged entity) with similar market shares in terms of revenues. Besides these MNOs, there are some mobile virtual network operators (‘MVNOs’) and several Service Providers active in the retail market.

II.   THE OPERATION

| (2) | On 31 October 2013, the Commission received a formal notification pursuant to Article 4 of the Merger Regulation by which by which Telefónica acquires within the meaning of Article 3(1)(b) of the Merger Regulation, sole control over E-Plus from Koninklijke KPN N.V. (‘KPN’). |
| --- | --- |

(2)

On 31 October 2013, the Commission received a formal notification pursuant to Article 4 of the Merger Regulation by which by which Telefónica acquires within the meaning of Article 3(1)(b) of the Merger Regulation, sole control over E-Plus from Koninklijke KPN N.V. (‘KPN’).

| (3) | Germany requested via the Bundeskartellamt on the basis of Article 9(2)(a) of the Merger Regulation, a referral of the proposed transaction from the Commission to Germany. The Commission adopted a decision rejecting the referral request. |
| --- | --- |

(3)

Germany requested via the Bundeskartellamt on the basis of Article 9(2)(a) of the Merger Regulation, a referral of the proposed transaction from the Commission to Germany. The Commission adopted a decision rejecting the referral request.

III.   SUMMARY

| (4) | Telefónica and E-Plus are two of the four mobile network operators (‘MNOs’) present on the retail mobile telecommunications services market and the wholesale market for access and call origination in Germany. The transaction would lead to a market structure with three MNOs (Deutsche Telekom, Vodafone and the merged entity) with similar market shares in terms of revenues. Besides these MNOs, there are some mobile virtual network operators (‘MVNOs’) and several Service Providers active in the retail market. |
| --- | --- |

(4)

Telefónica and E-Plus are two of the four mobile network operators (‘MNOs’) present on the retail mobile telecommunications services market and the wholesale market for access and call origination in Germany. The transaction would lead to a market structure with three MNOs (Deutsche Telekom, Vodafone and the merged entity) with similar market shares in terms of revenues. Besides these MNOs, there are some mobile virtual network operators (‘MVNOs’) and several Service Providers active in the retail market.

| (5) | While the proposed merger would not lead to the creation or strengthening of a (single) dominant position of the merged entity, the decision finds that the merger would nevertheless result in a significant impediment to effective competition on the retail mobile telecommunications market and, potentially, on the wholesale market for network access and call origination in Germany. |
| --- | --- |

(5)

While the proposed merger would not lead to the creation or strengthening of a (single) dominant position of the merged entity, the decision finds that the merger would nevertheless result in a significant impediment to effective competition on the retail mobile telecommunications market and, potentially, on the wholesale market for network access and call origination in Germany.

| (6) | To remove these concerns, Telefónica submitted commitments consisting, in their final version, of three elements:






  (a) | First, Telefónica commits to enter into capacity based wholesale agreements with one or several (up to three) Upfront Mobile Bitstream Access MVNOs (‘Upfront MBA MVNOs’) in Germany prior to the closing of the merger. These agreements foresee that the Upfront MBA MVNO(s) can purchase against an upfront payment up to 30 % of the total capacity of the merged company’s network for up to 10 years after the completion of the proposed transaction. This capacity corresponds to a market share of up to 11 %, while Telefónica’s market share is around 15 % today. |
| --- | --- | --- |

(6)

To remove these concerns, Telefónica submitted commitments consisting, in their final version, of three elements:

(a)

First, Telefónica commits to enter into capacity based wholesale agreements with one or several (up to three) Upfront Mobile Bitstream Access MVNOs (‘Upfront MBA MVNOs’) in Germany prior to the closing of the merger. These agreements foresee that the Upfront MBA MVNO(s) can purchase against an upfront payment up to 30 % of the total capacity of the merged company’s network for up to 10 years after the completion of the proposed transaction. This capacity corresponds to a market share of up to 11 %, while Telefónica’s market share is around 15 % today.

| (b) | Second, Telefónica commits to extend existing wholesale agreements with Telefónica’s and E-Plus’ wholesale partners and to offer 4G services to the wholesale market in the future. In addition, Telefónica commits to allow its wholesale partners to switch their customers hosted on Telefónica’s and/or E-Plus’ networks from one business model to another without any penalty. Further, Telefónica commits to eliminate the contractual clauses in the agreements with wholesale partners of either Telefónica or E-Plus, which could prevent the MVNOs/Service Providers from switching their customers from one MNO to another. |
| --- | --- |

(b)

Second, Telefónica commits to extend existing wholesale agreements with Telefónica’s and E-Plus’ wholesale partners and to offer 4G services to the wholesale market in the future. In addition, Telefónica commits to allow its wholesale partners to switch their customers hosted on Telefónica’s and/or E-Plus’ networks from one business model to another without any penalty. Further, Telefónica commits to eliminate the contractual clauses in the agreements with wholesale partners of either Telefónica or E-Plus, which could prevent the MVNOs/Service Providers from switching their customers from one MNO to another.

| (c) | Third, Telefónica commits to offer an agreement to be concluded with a new MNO entrant or subsequently with the upfront MVNO. According to Telefónica, this remedy is supposed to facilitate the entry of a new fourth MNO into the German market. For this purpose, Telefónica commits to make the following offers: (a) a spectrum offer consisting of the lease of spectrum in the 2,1 GHz band and 2,6 GHz band; (b) a national roaming offer; (c) a divestiture of sites offer; (d) a passive radio network sharing offer; and (e) a sale of shops offer. |
| --- | --- |

(c)

Third, Telefónica commits to offer an agreement to be concluded with a new MNO entrant or subsequently with the upfront MVNO. According to Telefónica, this remedy is supposed to facilitate the entry of a new fourth MNO into the German market. For this purpose, Telefónica commits to make the following offers: (a) a spectrum offer consisting of the lease of spectrum in the 2,1 GHz band and 2,6 GHz band; (b) a national roaming offer; (c) a divestiture of sites offer; (d) a passive radio network sharing offer; and (e) a sale of shops offer.

| (7) | In light of these commitments, the Commission concluded that the proposed transaction would no longer raise competition concerns, as the decision is conditional upon full compliance with the commitments. |
| --- | --- |

(7)

In light of these commitments, the Commission concluded that the proposed transaction would no longer raise competition concerns, as the decision is conditional upon full compliance with the commitments.

IV.   EXPLANATORY MEMORANDUM

A.   The relevant product and geographic markets

| (8) | In compliance with previous Commissions decisions concerning markets for mobile telecommunications services (2) and the Notifying Party’s views, the relevant product markets were delimitated as follows:






  (a) | the market for mobile telecommunications services to end customers (also referred to as the ‘retail mobile telecommunications services market’); |
| --- | --- | --- |

(8)

In compliance with previous Commissions decisions concerning markets for mobile telecommunications services (2) and the Notifying Party’s views, the relevant product markets were delimitated as follows:

(a)

the market for mobile telecommunications services to end customers (also referred to as the ‘retail mobile telecommunications services market’);

| (b) | the wholesale market for access and call origination on public mobile telephone networks (also referred to as the ‘wholesale market for access and call origination’); |
| --- | --- |

(b)

the wholesale market for access and call origination on public mobile telephone networks (also referred to as the ‘wholesale market for access and call origination’);

| (c) | the wholesale market for international roaming; and |
| --- | --- |

(c)

the wholesale market for international roaming; and

| (d) | the wholesale market for mobile call termination. |
| --- | --- |

(d)

the wholesale market for mobile call termination.

| (9) | The details on the definition of the first two markets, which are primarily and both horizontally and vertically affected in this case, are set out below. |
| --- | --- |

(9)

The details on the definition of the first two markets, which are primarily and both horizontally and vertically affected in this case, are set out below.

The retail mobile telecommunications services market

| (10) | The Commission considers that, for the purpose of this case, mobile and fixed telecommunication services, including data services constitute separate markets. |
| --- | --- |

(10)

The Commission considers that, for the purpose of this case, mobile and fixed telecommunication services, including data services constitute separate markets.

| (11) | The Commission concluded that the relevant product market in this case is the retail mobile telecommunications services market. In previous decisions (3), the Commission found that there is one overall market for retail mobile telecommunications services. This is the market on which mobile network operators (‘MNOs’) and different types of non-MNOs sell voice and data services to end customers via a mobile network. In previous decisions, the Commission did not further divide this market by type of customer (business or private customers), by type of payment modality (post-paid or pre-paid), nor by type of network technology (2G/GSM or 3G/UMTS). The Commission has not previously found that there is a separate market for data-only services (4). |
| --- | --- |

(11)

The Commission concluded that the relevant product market in this case is the retail mobile telecommunications services market. In previous decisions (3), the Commission found that there is one overall market for retail mobile telecommunications services. This is the market on which mobile network operators (‘MNOs’) and different types of non-MNOs sell voice and data services to end customers via a mobile network. In previous decisions, the Commission did not further divide this market by type of customer (business or private customers), by type of payment modality (post-paid or pre-paid), nor by type of network technology (2G/GSM or 3G/UMTS). The Commission has not previously found that there is a separate market for data-only services (4).

| (12) | In this case, the Commission assessed whether different sub-segments of the market constitute separate markets. The Commission reviewed the post-paid and pre-paid segments, the Voice (including voice/data), mobile broadband (data only) and the private and business customer segments. Following the results of its investigation in this case, the Commission concluded, consistent with its previous decisions, that the relevant product market is the overall market for retail mobile telecommunication services. |
| --- | --- |

(12)

In this case, the Commission assessed whether different sub-segments of the market constitute separate markets. The Commission reviewed the post-paid and pre-paid segments, the Voice (including voice/data), mobile broadband (data only) and the private and business customer segments. Following the results of its investigation in this case, the Commission concluded, consistent with its previous decisions, that the relevant product market is the overall market for retail mobile telecommunication services.

| (13) | In line with previous Commission decisions and the Parties’ view, the geographic scope of the above market is national, that is to say it corresponds to the territory of Germany. |
| --- | --- |

(13)

In line with previous Commission decisions and the Parties’ view, the geographic scope of the above market is national, that is to say it corresponds to the territory of Germany.

Wholesale market for access and call origination on public mobile telephone networks

| (14) | On this market, MNOs sell access to their network and the ability to make calls (‘call origination’) to mobile virtual network operators (‘MVNOs’) and Service Providers. Both types of players use the wholesale access granted by MNOs to sell mobile telecommunications under their own brands and in their own name on the retail market. However, while MVNOs own and operate certain parts of a mobile network, such as the core network, Service Providers do not own any network infrastructure. The Commission considers that there is a distinct wholesale market for access and call origination on public mobile telephone networks. |
| --- | --- |

(14)

On this market, MNOs sell access to their network and the ability to make calls (‘call origination’) to mobile virtual network operators (‘MVNOs’) and Service Providers. Both types of players use the wholesale access granted by MNOs to sell mobile telecommunications under their own brands and in their own name on the retail market. However, while MVNOs own and operate certain parts of a mobile network, such as the core network, Service Providers do not own any network infrastructure. The Commission considers that there is a distinct wholesale market for access and call origination on public mobile telephone networks.

| (15) | In line with previous Commission decisions, the Commission considers that geographically, the wholesale market corresponds to the dimension of the MNOs’ networks, which are limited to the German territory given that mobile licenses are granted on national basis. |
| --- | --- |

(15)

In line with previous Commission decisions, the Commission considers that geographically, the wholesale market corresponds to the dimension of the MNOs’ networks, which are limited to the German territory given that mobile licenses are granted on national basis.

B.   Competitive assessment

1.   Retail market for mobile telecommunications services

| (16) | The merger would reduce the number of MNOs in Germany from four to three and combine the third player with the fourth player. The result would be a market featuring three large MNOs of roughly similar size: Deutsche Telekom, Vodafone and the merged entity. |
| --- | --- |

(16)

The merger would reduce the number of MNOs in Germany from four to three and combine the third player with the fourth player. The result would be a market featuring three large MNOs of roughly similar size: Deutsche Telekom, Vodafone and the merged entity.

| (17) | The decision finds that both Telefónica and E-Plus are important competitive forces on the German retail market for mobile telecommunications services, in particular in terms of pricing as well as in terms of the innovative nature of offers. They would continue to be an important competitive force absent the proposed transaction. The Parties have been close competitors in particular for low-value and pre-paid customers by offering a lesser network quality for less expensive tariffs than Deutsche Telekom and Vodafone. |
| --- | --- |

(17)

The decision finds that both Telefónica and E-Plus are important competitive forces on the German retail market for mobile telecommunications services, in particular in terms of pricing as well as in terms of the innovative nature of offers. They would continue to be an important competitive force absent the proposed transaction. The Parties have been close competitors in particular for low-value and pre-paid customers by offering a lesser network quality for less expensive tariffs than Deutsche Telekom and Vodafone.

| (18) | Furthermore, the decision finds that the merger will lead to, first, the elimination of competition between the Parties and second, the merged entity will have a larger customer base that will lead it to lower incentives to grow and compete. Similarly, it is likely that the incentives of Vodafone and Deutsche Telekom to compete after the merger would be reduced. Moreover, the degree to which MVNOs, Service Providers and Branded Resellers are currently able to exercise competitive pressure is limited and would be further reduced post transaction. |
| --- | --- |

(18)

Furthermore, the decision finds that the merger will lead to, first, the elimination of competition between the Parties and second, the merged entity will have a larger customer base that will lead it to lower incentives to grow and compete. Similarly, it is likely that the incentives of Vodafone and Deutsche Telekom to compete after the merger would be reduced. Moreover, the degree to which MVNOs, Service Providers and Branded Resellers are currently able to exercise competitive pressure is limited and would be further reduced post transaction.

| (19) | Indeed, the decision lays out that both Deutsche Telekom and Vodafone would benefit from the fact that E-Plus, the most price aggressive competitor, will be eliminated and that it is likely that the incentives of Deutsche Telekom and Vodafone to compete aggressively will also be reduced. According to the decision, the ability of existing MVNOs and Service Providers to exercise the same degree of competitive pressure as an MNO is more limited and would be further reduced post-transaction. Moreover, MVNOs and Service Providers currently have limited incentives to compete aggressively for new customers than MNOs due to lower (fixed) network investment costs that have to be recovered. MVNOs and Service Providers pay MNOs for the use of the network on a ‘pay-as-you-go’ basis, depending on the actual usage of the network by its customers. The incremental cost of adding customers or increasing network usage is therefore the same for each additional unit used and is pre-determined in the negotiations between MVNOs and MNOs. |
| --- | --- |

(19)

Indeed, the decision lays out that both Deutsche Telekom and Vodafone would benefit from the fact that E-Plus, the most price aggressive competitor, will be eliminated and that it is likely that the incentives of Deutsche Telekom and Vodafone to compete aggressively will also be reduced. According to the decision, the ability of existing MVNOs and Service Providers to exercise the same degree of competitive pressure as an MNO is more limited and would be further reduced post-transaction. Moreover, MVNOs and Service Providers currently have limited incentives to compete aggressively for new customers than MNOs due to lower (fixed) network investment costs that have to be recovered. MVNOs and Service Providers pay MNOs for the use of the network on a ‘pay-as-you-go’ basis, depending on the actual usage of the network by its customers. The incremental cost of adding customers or increasing network usage is therefore the same for each additional unit used and is pre-determined in the negotiations between MVNOs and MNOs.

| (20) | A quantitative assessment of the likely effects of the elimination of horizontal competition as a result of the merger indicates that the merger is likely to lead to significant price increases in the pre-paid and post-paid residential segments. |
| --- | --- |

(20)

A quantitative assessment of the likely effects of the elimination of horizontal competition as a result of the merger indicates that the merger is likely to lead to significant price increases in the pre-paid and post-paid residential segments.

2.   Wholesale market for access and call origination on mobile networks

| (21) | The decision finds that, despite the relatively low combined market shares of the Parties in terms of revenues and in terms of subscribers, the proposed transaction would nevertheless have a negative impact on the merged entity’s, and the other two MNOs’, incentive to grant MVNOs and Service Providers access to their respective mobile networks at commercially attractive conditions. It concludes that the proposed transaction may give rise to horizontal non-coordinated anti-competitive effects on the wholesale market for access and call origination on public mobile communication networks. |
| --- | --- |

(21)

The decision finds that, despite the relatively low combined market shares of the Parties in terms of revenues and in terms of subscribers, the proposed transaction would nevertheless have a negative impact on the merged entity’s, and the other two MNOs’, incentive to grant MVNOs and Service Providers access to their respective mobile networks at commercially attractive conditions. It concludes that the proposed transaction may give rise to horizontal non-coordinated anti-competitive effects on the wholesale market for access and call origination on public mobile communication networks.

| (22) | The decision leaves open whether these negative effects constitute a significant impediment of effective competition since the commitments proposed by Telefónica in relation to the retail market will also address any potential concerns on the wholesale market. |
| --- | --- |

(22)

The decision leaves open whether these negative effects constitute a significant impediment of effective competition since the commitments proposed by Telefónica in relation to the retail market will also address any potential concerns on the wholesale market.

3.   Efficiencies

| (23) | The decision finds that the efficiencies claimed by the Notifying Party in relation to the retail market for mobile telecommunications services are not verifiable, merger specific and/or likely to benefit consumers. In particular, the claimed quality improvements and incremental cost savings could, to a very large extent, be achieved by alternative means (notably network sharing). The decision concludes that the Notifying Party has failed to show that the efficiencies are likely to counter any adverse effect on competition. |
| --- | --- |

(23)

The decision finds that the efficiencies claimed by the Notifying Party in relation to the retail market for mobile telecommunications services are not verifiable, merger specific and/or likely to benefit consumers. In particular, the claimed quality improvements and incremental cost savings could, to a very large extent, be achieved by alternative means (notably network sharing). The decision concludes that the Notifying Party has failed to show that the efficiencies are likely to counter any adverse effect on competition.

C.   Commitments submitted by the notifying party

1.   Description of the commitments

| (24) | In order to address the competition concerns, the Notifying Party submitted a final set of commitments on 29 May 2014 comprising the following three elements: (i) the MNO commitment; (ii) the MBA commitment; and (iii) the non-MNO commitment. |
| --- | --- |

(24)

In order to address the competition concerns, the Notifying Party submitted a final set of commitments on 29 May 2014 comprising the following three elements: (i) the MNO commitment; (ii) the MBA commitment; and (iii) the non-MNO commitment.

| (25) | The MNO component consists of an offer by Telefónica to sell to a new MNO entrant a number of assets and services, which are needed to start operating as an MNO in the German market. These assets include (a) spectrum; (b) national roaming; (c) network sites; (d) passive radio network sharing and (e) shops. |
| --- | --- |

(25)

The MNO component consists of an offer by Telefónica to sell to a new MNO entrant a number of assets and services, which are needed to start operating as an MNO in the German market. These assets include (a) spectrum; (b) national roaming; (c) network sites; (d) passive radio network sharing and (e) shops.

| (26) | Under the MBA commitment, Telefónica commits to sell upfront 20 % of the combined network capacity of the merged entity to up to three non-network operators. Telefónica also commits to offer for sale an additional 10 % of such capacity to these players at pre-defined terms and conditions. To the extent that the purchasers of the capacity already host subscribers on the Telefónica and/or the E-Plus networks, the capacity required to host these subscribers will also be sold by Telefónica (but deducted from the additional 10 % capacity to be offered). |
| --- | --- |

(26)

Under the MBA commitment, Telefónica commits to sell upfront 20 % of the combined network capacity of the merged entity to up to three non-network operators. Telefónica also commits to offer for sale an additional 10 % of such capacity to these players at pre-defined terms and conditions. To the extent that the purchasers of the capacity already host subscribers on the Telefónica and/or the E-Plus networks, the capacity required to host these subscribers will also be sold by Telefónica (but deducted from the additional 10 % capacity to be offered).

| (27) | Telefónica’s commits to upfront enter into an agreement for the sale and offer of the entire capacity covered by the MBA commitment prior to the closing of the proposed transaction. In other words, Telefónica will not be able to close the proposed transaction until it has entered into a legally binding agreement with one or more purchasers and until the Commission has formally approved the purchaser(s). |
| --- | --- |

(27)

Telefónica’s commits to upfront enter into an agreement for the sale and offer of the entire capacity covered by the MBA commitment prior to the closing of the proposed transaction. In other words, Telefónica will not be able to close the proposed transaction until it has entered into a legally binding agreement with one or more purchasers and until the Commission has formally approved the purchaser(s).

| (28) | The agreement to be entered into between Telefónica and the purchaser(s) will have an initial duration of 5 years, but it could be unilaterally extended for an additional 5 years at the purchaser(s)’ request at pre-defined terms and conditions. |
| --- | --- |

(28)

The agreement to be entered into between Telefónica and the purchaser(s) will have an initial duration of 5 years, but it could be unilaterally extended for an additional 5 years at the purchaser(s)’ request at pre-defined terms and conditions.

| (29) | Under the non-MNO commitment, Telefónica commits to offer to extend all existing wholesale contracts with MVNOs and Service Providers that are currently wholesale customers of Telefónica or E-Plus until the end of year 2025. Moreover, Telefónica commits to grant wholesale access to its 4G network to all MVNOs and Service Providers a certain period of time after the technical launch of the MBA MVNOs at the best available market terms and conditions. |
| --- | --- |

(29)

Under the non-MNO commitment, Telefónica commits to offer to extend all existing wholesale contracts with MVNOs and Service Providers that are currently wholesale customers of Telefónica or E-Plus until the end of year 2025. Moreover, Telefónica commits to grant wholesale access to its 4G network to all MVNOs and Service Providers a certain period of time after the technical launch of the MBA MVNOs at the best available market terms and conditions.

2.   Assessment of the commitments

| (30) | The decision concludes that the commitments fully address the competition concerns. |
| --- | --- |

(30)

The decision concludes that the commitments fully address the competition concerns.

| (31) | The MNO commitment, in conjunction with the fact that the German telecom regulator is planning to open proceedings in late 2014 for holding an auction to award a significant amount of spectrum, contributes to keep the door open for the entry of a new MNO in the German market or to the possible development of the purchaser(s) of the MBA commitment into an MNO. |
| --- | --- |

(31)

The MNO commitment, in conjunction with the fact that the German telecom regulator is planning to open proceedings in late 2014 for holding an auction to award a significant amount of spectrum, contributes to keep the door open for the entry of a new MNO in the German market or to the possible development of the purchaser(s) of the MBA commitment into an MNO.

| (32) | As regards the MBA commitment, the decision finds that this commitment will significantly increase the ability and incentive of MVNOs to compete on the retail market for mobile telecommunication services in Germany and therefore offset any possible price increase resulting from the proposed transaction. |
| --- | --- |

(32)

As regards the MBA commitment, the decision finds that this commitment will significantly increase the ability and incentive of MVNOs to compete on the retail market for mobile telecommunication services in Germany and therefore offset any possible price increase resulting from the proposed transaction.

| (33) | The total amount of capacity to be sold and offered by Telefónica under the MBA commitment is significant both in terms of incremental market share compared to the pre-merger situation, assuming Telefónica’s market share remains constant, and in terms of the sum of the capacity to be sold and offered by Telefónica, as measured in terms of total market share. |
| --- | --- |

(33)

The total amount of capacity to be sold and offered by Telefónica under the MBA commitment is significant both in terms of incremental market share compared to the pre-merger situation, assuming Telefónica’s market share remains constant, and in terms of the sum of the capacity to be sold and offered by Telefónica, as measured in terms of total market share.

| (34) | Telefónica will indeed be obliged to provide the purchaser(s) of the MBA commitment with access to all types of services and technologies (including 4G and future technologies). The purchaser(s) will therefore have access to the same network quality as Telefónica and will be free to design their retail tariffs in total independence from Telefónica. That will enable the purchaser(s) of the MBA commitment to fully compete with the MNOs by making highly attractive offers to end customers for current and new network technologies that are currently offered by MNOs only at a considerable surcharge. |
| --- | --- |

(34)

Telefónica will indeed be obliged to provide the purchaser(s) of the MBA commitment with access to all types of services and technologies (including 4G and future technologies). The purchaser(s) will therefore have access to the same network quality as Telefónica and will be free to design their retail tariffs in total independence from Telefónica. That will enable the purchaser(s) of the MBA commitment to fully compete with the MNOs by making highly attractive offers to end customers for current and new network technologies that are currently offered by MNOs only at a considerable surcharge.

| (35) | Most notably, the remedy is of a quasi-structural nature given that the MVNO/Service Provider(s) that will purchase capacity under the MBA commitment will commit upfront to purchase a significant amount of capacity from the merged entity at a fixed price. Hence, the MVNO/Service Provider(s) will have a strong incentive to compete effectively as they will have pre-purchased a significant amount of capacity that will need to be monetised. This capacity-based model is more attractive from a competition point of view than the standard MVNO/Service Provider contracts where these players pay the host MNO host on a per usage basis. Indeed, under the standard ‘pay as you go’ MVNO/Service Provider contracts, additional customers/traffic imply incremental payments to the MNO. Under the capacity-based model enshrined in the MBA commitment, there are no such network related incremental costs when acquiring new customers. In this respect, the capacity-based model comes closer to the cost structure of an MNO and hence provides similar incentives to acquire additional customers at the margin. This implies that the MVNO/Service Provider(s) entering into the MBA commitment with the merged entity can act as effective constraints on the MNOs. |
| --- | --- |

(35)

Most notably, the remedy is of a quasi-structural nature given that the MVNO/Service Provider(s) that will purchase capacity under the MBA commitment will commit upfront to purchase a significant amount of capacity from the merged entity at a fixed price. Hence, the MVNO/Service Provider(s) will have a strong incentive to compete effectively as they will have pre-purchased a significant amount of capacity that will need to be monetised. This capacity-based model is more attractive from a competition point of view than the standard MVNO/Service Provider contracts where these players pay the host MNO host on a per usage basis. Indeed, under the standard ‘pay as you go’ MVNO/Service Provider contracts, additional customers/traffic imply incremental payments to the MNO. Under the capacity-based model enshrined in the MBA commitment, there are no such network related incremental costs when acquiring new customers. In this respect, the capacity-based model comes closer to the cost structure of an MNO and hence provides similar incentives to acquire additional customers at the margin. This implies that the MVNO/Service Provider(s) entering into the MBA commitment with the merged entity can act as effective constraints on the MNOs.

| (36) | As regards the non-MNO commitment, the decision finds that this commitment improves the position of MVNOs and Service Providers to whom one of the Parties currently grants wholesale access, as it provides them with planning security for 2G and 3G services. Furthermore, all MVNOs and Service Providers active in Germany have an opportunity to be granted access to 4G services. |
| --- | --- |

(36)

As regards the non-MNO commitment, the decision finds that this commitment improves the position of MVNOs and Service Providers to whom one of the Parties currently grants wholesale access, as it provides them with planning security for 2G and 3G services. Furthermore, all MVNOs and Service Providers active in Germany have an opportunity to be granted access to 4G services.

V.   CONCLUSION

| (37) | For the reasons mentioned above, the decision concludes that the concentration as modified by the commitments submitted on 29 May 2014 will not significantly impede effective competition in the Internal Market or in a substantial part of it. |
| --- | --- |

(37)

For the reasons mentioned above, the decision concludes that the concentration as modified by the commitments submitted on 29 May 2014 will not significantly impede effective competition in the Internal Market or in a substantial part of it.

| (38) | Consequently the concentration is declared compatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement. |
| --- | --- |

(38)

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

---

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

(2)  Commission decision of 12 December 2012 in Case COMP/M.6497 — Hutchison 3G Austria/Orange Austria, paragraphs 58, 63, 67 and 70; Commission decision of 1 March 2010 in Case COMP/M.5650 — T-Mobile/Orange UK, 1 March 2010, paragraphs 27-30, 32-34, 36-37.

(3)  Commission decision of 12 December 2012 in Case COMP/M.6497 — Hutchison 3G Austria/Orange Austria, paragraph 58; Commission decision of 1 March 2010 in Case COMP/M.5650 — T-Mobile/Orange UK, paragraphs 21, 24; Commission decision of 27 November 2007 in Case COMP/M.4947 — Vodafone/Tele2 Italy/Tele2 Spain, paragraph 14; Commission decision of 26 April 2006 in Case COMP/M.3916 — T-Mobile Austria/Tele.ring, paragraph 18 (but leaving open the question whether a separate market exists for specific 3G-only applications).

(4)  Commission decision of 12 December 2012 in Case COMP/M.6497 — H3G Austria/Orange Austria, paragraph 52.

---

V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 13.3.2015 | EN | Official Journal of the European Union | C 86/15 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/15

---

Prior notification of a concentration

(Case M.7422 — Riverstone/Barclays/Origo)

Candidate case for simplified procedure

(Text with EEA relevance)

(2015/C 86/08)

| 1. | On 6 March 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Riverstone Holdings LLC (‘Riverstone’, UK) and Barclays Bank plc (‘Barclays’, UK) will acquire within the meaning of Article 3(1)(b) and Article 3(4) of the Merger Regulation joint control by way of purchase of shares in a newly-created company constituting a joint venture Origo Exploration AS (‘Origo’, Norway). |
| --- | --- |

1.

On 6 March 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Riverstone Holdings LLC (‘Riverstone’, UK) and Barclays Bank plc (‘Barclays’, UK) will acquire within the meaning of Article 3(1)(b) and Article 3(4) of the Merger Regulation joint control by way of purchase of shares in a newly-created company constituting a joint venture Origo Exploration AS (‘Origo’, Norway).

| 2. | The business activities of the undertakings concerned are:
  —   Riverstone: private equity firm focused on investments in the energy and power sectors,
  —   Barclays: global financial services provider engaged in personal banking, credit cards, corporate and investment banking and wealth and investment management services,
  —   Origo: newly-established company, which will be engaged in oil and gas exploration and production activities on the Norwegian and United Kingdom continental shelves. |
| --- | --- |

2.

The business activities of the undertakings concerned are:

—   Riverstone: private equity firm focused on investments in the energy and power sectors,

—   Barclays: global financial services provider engaged in personal banking, credit cards, corporate and investment banking and wealth and investment management services,

—   Origo: newly-established company, which will be engaged in oil and gas exploration and production activities on the Norwegian and United Kingdom continental shelves.

| 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 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 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 M.7422 — Riverstone/Barclays/Origo, 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.7422 — Riverstone/Barclays/Origo, 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.

---

OTHER ACTS

European Commission

| 13.3.2015 | EN | Official Journal of the European Union | C 86/16 |
| --- | --- | --- | --- |

13.3.2015

EN

Official Journal of the European Union

C 86/16

---

Acknowledgement of receipt of complaint CHAP(2015) 227

(2015/C 86/09)

The European Commission has received a series of complaints about enforcement of the German Minimum Wage Act in the international transport sector.

The Commission has registered these complaints in the central application for the registration of complaints on the application of Union law by a Member State under reference number CHAP(2015) 227.

Given the significant number of complaints it received on this subject, the Commission, with a view to responding swiftly and informing those concerned while making the most economical use of its administrative resources, is publishing this acknowledgment of receipt in the Official Journal of the European Union, and on the internet at:

http://ec.europa.eu/eu_law/complaints/receipt/index_en.htm

The Commission is currently examining thoroughly all elements of the contested national measure to make sure that it is compliant with the EU law. The complainants will be informed, through the same channels, of the results of the Commission’s examination of these complaints and of the follow-up that the Commission may decide to take.

---