Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,   BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERG ER-REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 24.3.2021  
C(2021 ) 2094 final  
PUBLIC VERSION  
 
Proximus NV/SA  
Koning Albert II -laan 27  
Boulevard du Roi Albert II  
1030  – Brussels  
Belgium  
 
Nexus Infrastructure S. à r.l.  
(formerly named Delta Fiber Belgium 
S.à.r.l.)  
26A, Boulevard Royal   
L-2449 – Luxembourg  
Grand Duc hy of Luxembourg  
Subject : Case M. 10087  – PROXIMUS / NEXUS INFRASTRUCTURE / JV  
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 and Article 57 of the  Agreement on the European Economic 
Area2 
 
 
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the “Merger Regulation ”). With effect from 1 December 2009,  the Treaty on the 
Functioning of the European Union ( “TFEU ”) has introduced certain changes, such as the replacement of  
“Community ” by “Union ” and “common market ” by “internal market ”. The terminology of the TFEU will 
be used throughout this decision.  
2  OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).  
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
confidential information. The omissions are 
shown thus […] . Where possible the 
information omitted has been replaced by 
ranges of figures or a general description.  
 
 
2 Dear Sir or Madam,  
(1) On 17 February 2021 , the European Commission received notification of a proposed 
concentration (“the Transaction”) pursuant to Article 4 of the Merger Regulation by 
which Proximus, NV/SA (“Prox imus”) and Nexus Infrastructure, S.à r.l. (“Nexus”, 
together with Proximus, the “Notifying Parties”) acquire, within the meaning of 
Articles 3(1)b and  3(4) of the Merger Regulation, joint control over a joint venture 
Nexus Fiber BV (the “JV” ).3 Proximus , Nexus and the JV are collectively referred to 
as “the Parties”.  
1. THE  PARTIE S  
(2) Proximus  is the incumbent telecommunications operator in Belgium. It is active in a 
full range of electronic communications services providing wholesale and retail 
services, fixed a nd mobile telecommunications, voice and data services, mainly at 
national level within Belgium. Proximus is listed on the Brussels Stock Exchange. 
The Belgian State owns 53.5% of Proximus’ shares ,4 Proximus owns 4.5% of its 
shares and 42% of Proximus’ shares are publicly traded.  
(3) Nexus  (previously  called  “Delta Fiber Belgium”) is a special purpose vehicle with 
no other current business activities than its use as a holding for purposes of the 
Transaction. Nexus is part of the EQT group (“EQT”) and is indi rectly controlled by 
EQT Fund Management S.à r.l. EQT is a global integrated alternative investments 
firm, which amongst other things, invests in infrastructure and infrastructure -related 
assets and businesses primarily in Europe and North America.  
(4) The JV5 will roll out and operat e a dense passive6 open point -to-point Fiber -To-The-
Home (“FTT H”) network7 in certain parts of the Flanders Region of Belgium  and 
                                                 
3  Publication in the Official Journal of the European Union No C 65 , 25.02.2021 , p. 16. 
4  Notifying Partie s’ response to RFI 7. The Notifying Parties submit  that the Be lgian State does not control 
a company that is active in the same market or upstream / downstream of the JV.  In light of this, while the 
Belgian State is Proximus’ largest shareholder, the Commission considers that, in any event, it is not 
necessary for the Commission to reach a definitive conclusion on the independence of Proximus from the 
Belgian State as the Transaction does not raise serious doubts as to its compatibility with the internal 
market regardless of whether or not Proximus has an independent power of decision from the Belgian 
state.  
5  This JV constitutes a newly -created undertaking (see paragraph 139 of the Commission Consolidated 
Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the control of concentrations 
between undertakings).  
6  The JV’s future activity is about passive access allowing service providers to “physically” rent the JV’s 
first-mile infrastructure. “Passive ” (also referred to as “unlit” or “dark” services ) means that there is no 
active equipment on the infrastructure to which access is provided. It is the responsibility of the service 
provider to build this extra l ayer (OSI model) in order to offer services and connectivity to end -customers. 
The passive point -to-point F TTH network includes: (i) infrastructure (i.e. physical elements that are 
required to build the FTTH network such as trenches, ducts and poles (areal ) on which the network is 
deployed); and (ii) passive network layer (i.e. the physical elements that are required to build the FTT H 
Network such as the optical fiber cables, fiber enclosures, optical distribution frames, patch panels and 
splicing shelves).  
7  The “dense passive FFTH  network” covers a full and blanket coverage of all possible connections in a 
given area. Thus, a dense passive network can be used as an alternative to for example the traditional 
copper network infrastructure of an operator lik e Proximus. FTTH is one of the configurations of “Fiber -
To-The-X” (“FTTx”). FTTx is a generic term for a telecommunications (optical fiber) network 
architecture that is used within the local loop – the last leg of the network that spans between the end -user 
 
 
 
3 offer access services to its network infrastructure to telecommunication operators, 
including Proximu s. This will allow Proximus and other telecommunications 
operators to provide (i) retail services to residential and business customers, as well 
as (ii) wholesale active network infrastructure access services. The JV itself will not 
operate at the retail l evel or provi de any active  wholesale access services . 
2. THE  OPE RATION  AND CONCE NTRATION  
(5) The main objective of the Transaction is for Proximus and Nexus, through the JV, to 
enlarge and accelerate the rollout of FTTH in the Flanders region of Belgium in a 
cost-efficient way. There is a rather low level of fiber penetration in the Flanders 
region compared to other Member States , owing to the exceptionally strong 
penetration of cable -TV networks and the significant investments that were made in 
the traditional co pper network to enhance it with xDSL -technologies and techniques. 
Accordingly, end of March 2020, Proximus announced its ambition to accelerate its 
deployment plans to bring fiber to 2.4 million homes by 2025 (instead of 2030), 
notably via the conclusion o f partnerships with third parties such as Nexus.  
(6) The JV will develop and deploy its own passive FTTH -infrastructure and will offer a 
new and additional choice to interested operators and service providers. According 
to the Notifying Parties, the network an d services provided by the JV will be neutral 
and non -discriminatory to ensure access for all interested operators and to enhance 
competition on the relevant electronic communications downstream markets.  
(7) On 26 November 2020, the Notifying Parties signed a Subscription and 
Shareholders’ Agreement (“SSHA”).  
2.1. Joint control  
(8) Proximus and Nexus will respectively be allotted 49.9% and 50.1% of the JV’s share 
capital and will each have the ability to exercise decisive influence over the JV. 
Therefore, they exercise joint control over the JV . In particular, t he JV’s  Board will 
consist of six Board members (“ directors ”) and the Notifying Parties will each be 
entitled to nominate three directors, including the Chairman nominated by Nexus. 
The C hairman has a cas ting vote  in case of a deadlock situation , however this  only 
relates to matters that  are not “Board Reserved Matters” or “Shareholder Reserved 
Matters” (i.e.  the casting vote is only relevant in relation to  matters not relate d to the 
JV’s strategic busines s behaviour ).8  
(9) In relation to the strategic business behaviour of the JV, e ach of the Notifying Parties 
has veto rights that enable them to exercise decisive influence . First, the appointment 
of senior management (including the CEO, finance director, oper ations director, 
business development director and construction director) must be unanimous by the 
Board.9 Second, the Notifying Parties have jointly developed and agreed on a 
Business Plan, which can only be amended by the shareholders as a “Shareholder 
                                                                                                                                                      
premises and the edge of the carrier network – and delivers broadband connections to homes and places of 
business.  
8  Article 7.3.2 of the SSHA.  
9  Article 10.1.3 of the SSHA.  
 
 
4 Reserved Matter” in a Shareholders’ meeting.10 A “Shareholder Reserved Matter” 
requires a simple majority of the votes cast by the Proximus shareholders , and a 
simple majority of the votes cast by the Nexus shareholders , which essentially 
provides each of the Notifying Parties with veto rights. Finally, the veto rights also 
relate to a number of major investments and market specific rights.11  
(10) Therefore, as a result of the Transaction, Proximus and Nexus will jointly control the 
JV within the meaning of Article 3(1)(b) of the Merger Regulation.  
2.2. Full-functionality    
(11) The JV will be fully functional. First, the JV will have its own presence on the 
market independent ly from the Notifying Parties. It will have its own management, 
staff, assets and financial resources to conduct its business activities on a lasting 
basis. The JV will moreover have sole ownership of the FFTH network.12 Second, 
the JV will have a ctivities be yond one specific function for the parents as it will 
deploy, run, and market the FTT H network, and offer access to an d passive services 
on the FTTH network to operators based on the wholesale offer that it will determine 
and market to other operators . Acc ordingly, the JV will take the commercial and 
deployment risk.13 Third, as to sale/purchase relations with the parents, the network 
will be open and neutral meaning that it will be available to all interested service 
providers under non -exclusive and non -discriminatory terms. Moreover, t he 
relationship between the JV and Proximus will be truly commercial in character, as 
the JV will deal with Proximus  at arm’s length on the basis of normal commercial 
conditions.14 Fourth, the JV will operate and market the ne twork following its 
constru ction for a period of minimum […] years, with a tacit renewal of […] years.15 
Accordingly, the JV is intended to operate on a lasting basis.  
(12) Therefore,  the JV will be a full -function joint venture within the meaning of Article 
3(4) of the Merger Regulation.    
                                                 
10  Articles 8.3.2 and 11.1.4 of the SSHA.  
11  Schedule 1 of the SSHA. This rel ates for instance to any decision to approve a Budget that is not 
consistent with the principles of the Business Plan.  
12  Form CO, paragraphs 36 -37.  
13  Form CO, paragraph 38.  
14  In the present case, there are strong indications that the Parties will have access to the JV’s infrastructure 
at market terms. First, Proximus provides a “take -or-pay” commitment to the JV and will gradually 
migrate its existing broadband customers to the  passive fiber infrastructure services that it will purchase 
from the JV. According to the Notifying Parties, Prox imus is expected to generate […] of the JV’s total 
revenue in 2025, but this figure will decrease as other operators would be interested in th e JV’s wholesale 
offer. Such an expectation is also reflected in the business plan (Schedule 6 of the SSHA). See also Q1 – 
Questionnaire to market participants – telecommunications Belgium, response to question 24, where a 
number of respondents confirmed t hat they consider it critical or important to obtain access to the JV’s 
infrastructure.  Second, t he JV’s FTTH network will be open and neutral, offering passive access to third 
parties on the basis of non -discriminatory pricing. This means that each purcha ser will be offered the same 
price per comparable unit regardless of the aggregate volume or amount of units purchased by such 
purchaser (including Proximus).  These non -discriminatory pricing models are contained in Annex 2 to 
Schedule 3 of the SSHA (Maste r Services Agreement on wholesale access). Finally, the Commission 
recalls that Nexus, one of the parents of the JV together with Proximus, is not active on any of the 
telecommunication markets in Belgium and therefore, will not have any incentive to limit  the JV’s 
wholesale revenues by offering terms that are not at market price (see also paragraph (146) ). 
15  Form CO, paragraph 40.  
 
 
5 3. EU DIME NSION  
(13) In the last financial year, Proximus and Nexus achieved  a combined aggregate 
world -wide turnover of more than EUR 5 ,000 million  (Proximus: EUR 5,637.9 
million; EQT: 27,178.56 million).16 Each of the  undertakings concerned  has a n EU-
wide turnover in excess of EUR 250 million  (Proximus: EUR [...] million; EQT: [...] 
million) , but they do not achieve more than two -thirds of their aggregate EU-wide 
turnover within one and the same Member State.  
(14) The noti fied operation therefore has an EU dimension  within the meaning of Article 
1(2) of the Merger Regulation .  
4. RE LE VANT MARKE TS  
(15) Both Proximus and the JV will be active on the market for wholesale local 
broadband access  (Section 4.1). Proximus is also active on the (i) wholesale markets 
for central and resale  broadband access (Section 4.1) and the supply of leased lines  
(Section 4.2), and the (ii) retail markets for mobile telecommunications  (Section 
4.3), fixed voice  (Section 4.4), fixed internet access  (Section 4.5), business 
connectivity  (Section 4.6) and a potential retail market for multiplay services  
(Section 4.7). Nexus, and any other subsidiary of EQT, is not active in Belgium  on 
any of these markets , [details regarding EQT activities in Belgium] . 
4.1. Wholesale broadband access  
4.1.1.  Releva nt product market  
(16) Wholesale broadband access (also defined as wholesale access to internet services) 
includes different types of access to fixed connections that allow internet service 
providers to provide services to end  consumers. It comprises : (i) physi cal access at  a 
fixed location (such as local loop unbundling (“LLU”)17), (ii) non-physical or virtual 
network access  at a fixed location  (such as “bitstream” access) , and (iii) resale of a 
fixed provider's internet access services  (“wholesale resale broadband access”) .18 
4.1.1.1.  The Commission’s  previous  practice  
(17) In previous decisions , including relating to the Belgian market , the Commission 
defined the product market  as a separate  wholesale broadband access market,  and 
left the question op en as to whether it should be subdivided according to the type of 
access  (i.e., LLU, bitstream or resale (see paragraph (16) above )),19 or based on t he 
                                                 
16  Turnover calculated in accordance with Article 5 of the Merger Regulation . 
17  LLU (local loop unbundling): unbundled (shared) access to metallic loops of the loc al access network in  a 
number of local telecommunications exchanges (in parti cular in urban areas), as this is the most cost-
efficient  way for alternative operators to provide differentiated retail broadband services.  
18  Commission decision of 9 July 2018  in case M.8808 – T-Mobile Austria/UPC Austria , paragraph 73; of 4 
February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital 164.  
19  Commission decision of 9 July 2018 in case M.8808 – T-Mobile Austria/UPC Austria , paragraph 76; of 
20 September 2 013 in case M.6990 – Vodafone/Kabel Deutschland , paragraph  161; of 29 June 2009 in 
case M.5532 – Carphone Warehouse/Tiscali UK , paragraphs 28- 34; of 4 February 2016 in case M.7637 – 
Liberty Global/BASE Belgium , recital 164.  
 
 
6 level where the point of interconnection is situated .20 The latter  connects the 
infrastructure of the wholesale provider and that of the customer and comprises  (i) 
local broadband access , and (ii) central broadband access .21 
(18) The Commission  also considered but left open whether the wholesale broadband 
access market should be segmented according to the type of technology used 
between (i) stand -alone DSL access22, (ii) stand -alone cable access, and (iii) cable 
access for all TV and internet services.23  
4.1.1.2.  The Notifying Parties’  views  
(19) The Notifying Parties submit that the market should be segmented between 
wholesale local and central broadband access. First, the European Commission 
Recommendation of 9 October 2014 (“the 2014 Recommendation”)24 defines 
markets for the purpose of ex ante regulatory intervention.25 The 2014 
Recommendation defines distinct markets for wholesale local access at a fixed 
location, which includes LLU as well as virtual products that exhibit functionalities 
equivalent or comparable to key features of physica l unbundling, and for wholesale 
central access at a fixed location, which includes bitstream products with certain 
characteristics (respectively markets 3(a) and 3(b) of the 2014 Recommendation). In 
relation to the local broadband access market specificall y, the Parties note that it 
includes both fiber optic and copper  access.  
(20) Second, according to the Notifying  Parties , the Belgian sectoral regulator (“BIPT”) 
concluded26 that the market for wholesale local access includes the passive physical 
access and the virtual access to copper and fiber networks at a local level, excluding 
possible forms of local access on the cable networks and access to Fiber -to-the-
                                                 
20  Commission decision of 9 July 2018 in case M.8808 – T-Mobile Austria/UPC Austria , paragraph 76; of 
20 September 2013 in case M.6990 – Vodafone/Kabel Deutschland , paragraph  161; of 29 June 2009 in 
case M.5532 – Carphone Warehouse/Tiscali UK , paragraphs 28- 34; of 4 February 2016 in case M.7637 – 
Liberty Global/BASE Belgium , recital 164.  
21   Commission decision of 24 October 2014 in case M.7307 – Electricity Supply Board/Vodafone  
Ireland/JV , paragraph  22; of 29 June 2009 in case M.5532 – Carphone Warehouse/Ti scali UK , paragraph  
33. 
22  Standalone DSL access is, by definition, related to the use of a copper network only as the underlying 
access infrastructure for the provision of this service, given that the xDSL -technologies are specific to 
such copper infrastr ucture.  
23  Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recitals 165 -
168, of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraphs 71 -74. 
24  European Commission's Recommendation on relevant product market  and service markets within the 
electronic communications sector susceptible to ex ante regulation in accordance with Directive 
2000/21/EC of the European Parliament and of the Council on a common regulatory framework for 
electronic communications networks  and services, 9 October 2014 (hereinafter the " 2014 
Recommendation") . 
25  The Commission published an updated recommendation in 2020, i.e. European Commission ’s 
Recommendation on relevant product and service markets within the electronic communications sec tor 
susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European Parliament 
and of the Council of 11 December 2018 establishing the European Electronic Communications Code , 18 
December 2020  (hereinafter the “2020 Recommenda tion”).  
26  BIPT, CSA, Medienrat, Vlaams regulator voor Media, Conferentie van regulatoren voor de elektronische  
communicatiesector, 29 June 2018, Analyse van de markten voor breedband en televisieomroep, 
paragraphs 1003 and 1015 (hereinafter the “ BIPT deci sion of 29 June 2018 ”). 
 
 
7 Office (“FTTO”) .27 Proximus is the only supplier in Belgium  on this market at the 
national level.  Proximus however considers that other forms of local access (notably 
on cable networks) and other players such as Eurofiber and Fluvius, should be 
included in the same market  based on the fact that Virtual Unbundled Local Access 
(“VULA ”) on cable would be functionally interchangeable with other forms of 
active local wholesale access.  
(21) Nevertheless, the Notifying Parties consider that the exact product market definition 
can be left open as the Transaction does not raise serious doubts, regardless of the 
envisaged product market definition.  
4.1.1.3.   The Commission’s assessment  
(22) The results of  the market investigation are inconclusive regarding whether there is a 
single overall wholesale broadband access market in Belgi um.28 Similarly, the 
results of the market investigation are also inconclusive regarding a possible 
segmentation (i)  according to the level where the point of interconnection is situated, 
that connects the i nfrastructure of the wholesale provider and that of the customer 
(i.e. local broadband access / central broadband access) , (ii) according to the type of 
access to fixed connections, or (iii) according to the type of technology (cable or 
copper / DSL pair /  fiber) .29  
(23) Some  respondents referred to the BIPT’s 2018 decision30 where the BIPT identified 
a wholesale local broadband access market, which includes the passive physical 
access and the virtual access to copper and fiber networks at a local level, excluding 
possible forms of local access on the cable networks and access to Fiber -to-the-
Office (“FTTO”), and which is separate from the wholesale central  broadband access 
market.31 Another respondent criticized the BI PT’s decision, noting that the Belgian 
wholesale broadband access  markets should be technologically neutral (i.e. including 
both copper and cable).32 
(24) In light of the above, the Commission considers  that, for the purpose of this decision, 
the question of the exact scope of the wholesale broadband access market with 
respect to its possible segmentations ((i) the level where the point of interconnection 
is situated (i.e., wholesale local or central bro adband access), (ii) the type of access 
to fixed connections (i.e., wholesale LLU, bitstream or resale broadband access), or 
(iii) the type of technology (i.e., cable or copper, DSL pair or fiber)) can be left open 
as the Transaction does not raise serious  doubts as to its compatibility with the 
internal market or the functioning of the EEA Agreement under any of the plausible 
product market definitions considered .  
                                                 
27  The BIPT concluded in the direction of technology segmentation (DSL and cable), i.e. excluding forms of 
local access on the cable networks (and access to the FTTO) because it did not consider that these were 
substitutable forms o f access, both from a demand and a supply side.  
28  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 17.  
29  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 17.2.  
30  BIPT decision of 29 June 2018 , paragraphs 1003 and 1015. The BIPT concluded in the direction of 
technology segmentation (DSL and cable), i.e. excluding forms of local access on the cable networks (and 
access to the FTTO) because it did not consider that thes e were substitutable forms of access, both from a 
demand and a supply side.  
31  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 17.1.  
32  Q1 – Questionnaire to market participants – telecommunications Belgium, re sponse to question 17.1.  
 
 
8 4.1.2.  Relevant geographic market  
4.1.2.1.  The Commission’s previous practice  
(25) In its decisional practice, the Commission considered  whether the geographic market  
for wholesale broadband access was  national (i.e. Belgian) or limited to the footprint 
of the operators’ cable network, but ultimately left the definition open.33 In a recent 
decision concerning the Belg ian market, the Commission concluded, for the purpose 
of that decision that  the geogr aphical scope corresponded  to the coverage area of 
each cable operator  (i.e. Telenet, Brutélé and VOO/Nethys ).34  
4.1.2.2.  The Notifying Parties’ views  
(26) The Notifying Parties consider that the markets could be national, but they may also 
need to be defined along more limited borders than national, such as for instance at 
regional or cable zone level or on the basis of the catchment area of the network 
concerned.35  
(27) In any event, t he Notifying Parties consider that, when l ooking at those  narrower 
geographic dimensions of the market, the respective wholesale broadband access 
offers of Proximus and the JV will not be in direct competition with each other but 
will in fact be complementary from a geographic perspective. Indeed, the JV will 
only deploy its own FTTH -infrastructure in areas in which there is no standalone 
deployment by Proximus of such infrastructure. Therefore , from a geographic 
perspective, the res pective FTTH -network deployments by Proximus and the JV will 
be distinct.  
(28) Consequently , the Notifying Parties consider that the exact geographic market can be 
left open as the Transaction does not raise concerns under any possible delimitation.  
4.1.2.3.  The Commiss ion’s assessment  
(29) A larg e majority of respondents in the market investigation  consider that the 
wholesale broadband access  market should be defined  as national .36 A small  number 
of respondents to the market investigation however consider that the geographica l 
market should be defined  according to the coverage area of each cable operator .37  
(30) In this respect, in its decision of 29 June 2018, the BIPT defined a separate (i) 
national wholesale local access market; (ii) national wholesale central access market 
(limited to copper and fibre networks); and a (iii) wholesale central access market 
(limited to cable networks) with a geographic dimension matching the coverage area 
of each cable operator.38   
                                                 
33  Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital 172; of 
29 June 2009 in case M.5532 – Carphone Warehouse/Tiscali UK , paragraphs 48-53. 
34  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 79.  
35  Form CO , paragraphs 92 (regarding the overall wholesale broadband access market) and 107 (regarding 
the wholesale local broadband access market). According to th e Notifying Parties, this is due to 
differences between the different regions and, specifically, between the different cable zones . 
36  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 18.  
37  Q1 – Questionnaire to  market participants – telecommunications Belgium, response to question 18.  
38  BIPT  decision of 29 June 2018 , Section S 9.1-9.4 (page 32) . 
 
 
9 (31) In light of the  above and for the purpose of this decision, the Commission considers 
that it is appropriate to consider  the effects of this Transaction on  both a national  
wholesale broadband access market and a wholesale broadband access market 
limited to  the level of the cable operator’s coverage area.   
(32) In any event, the exact delineation of the relevant geographic market can be left open 
given that the Transaction would not raise serious doubts as to its compatibility with 
the internal market or the functioning of the EEA Agreement under any of the 
plausible geographi c market definitions considered .  
4.2. Wholesale supply of leased lines  
(33) Wholesale leased lines are part -circuits that allow telecommunications providers to 
connect their own networks to end user sites for the supply of business connectivity 
services. In additio n, wholesale leased lines are an input for the provision of fixed 
and mobile telecommunications services.39 
4.2.1.  Relevant product market  
4.2.1.1.  The Commission’s previous practice  
(34) In previous decisions, the Commission has considered a general product market  for 
wholesale supply of leased lines and potential further segmentations between trunk 
and terminating segments, passive and activated lines, as well as according to 
bandwidth (below/above 2Mbits/s).40 The Commission has also considered a further 
segmentat ion of the wholesale leased lines market into passive (dark fibe r) and 
active infrastructure (traditional managed leased lines, Ethernet services with 
guaranteed bandwidth).41 Ultimately , the Commission left the market definition 
open.  
4.2.1.2.  The Notifying Parties ’ views  
(35) The Notifying Parties submit that the relevant market is the broader wholesale 
market for high -quality access provided at a fixed location, including the wholesale 
supply of leased lines.42 This is based on the evolving demand of business customers 
for high -quality access as a consequence of which, operators use a number of 
different wholesale inputs, ranging from leased lines using traditional or alternative 
interfaces to other wholesale access products.  These products fulfil certain high -
quality characteristics such as : (i) connectivity providing a dedicated connection per 
user point to point very high (symmetrical) bandwidth lines; (ii) extremely low 
packet drop ratio (IP packet loss); (iii) service level agreement up to 7 d ays/7, 24 
hours/24; (iv) symmetrical or near -symmetrical line profiles; (v) very high bit rates 
up to 10 Gbps, including often also a guaranteed bandwidth; (vi) possibility of 
                                                 
39  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital  
196.  
40  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
199; of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital  146; of 14 April 2014 in 
case M.7109 – Deutsche Telecom/GTS , paragraph 70. 
41   Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
201; of 14 April 2014 in case M.7109 – Deutsche Telecom/GTS , paragraph 70. 
42  Form CO, para graph  125. 
 
 
10 security thanks to the redundancy of the equipment and of the physical line (dou ble 
path, double connection to the network, double CPE, etc.); and (vii) jitter and 
wander guarantees.   
(36) Similarly, the 2014 and 2020 Recommendation identifies such a wholesale high -
quality access provided at a fixed location (market 2 of the 2020 Recommend ation or 
the “wholesale dedicated access” market).43 In its most recent decision, the BIPT has 
also identified  a wholesale market for high -quality access, without distinction as to 
the technology or speed and use of these services, but excluding dark fiber.44 
4.2.1.3.  The Commission’s assessment  
(37) A large majority of respondents consider that there is a single overall market for 
wholesale supply of leased lines in Belgium , without further segmenting the 
market .45  
(38) In line with the BIPT’s decision of 13 December 201946, a majority of respondents 
consider that the wholesale supply of leased lines  market include s various wholesale 
inputs, ranging from leased lines using traditional or alternative interfaces 
independently of the underlying infrastructure, to other wholesale ac cess products, 
which fulfil certain high -quality access requirements .47 This would include (i) all 
high-quality access services (whether or not they include a trunk segment); (ii) all 
Ethernet services, WDM leased lines and SDH leased lines, (iii) all point -to-point, 
point -to-multipoint and multipoint -to-multipoint Ethernet services; (iv) both 
“access” and “backhaul” type services; and (v) all of these high -quality access 
services independently of their speed.  
(39) In its decision of 13 December 2019, the BI PT considers that dark fiber does not 
constitute a substitute for active leased lines (or any other substitutable wholesale 
high-quality access services). T he BIPT has determined that the wholesale leased 
lines services, and more generally all substitutabl e wholesale high -quality access 
services, encompass only active services since they require precisely the active 
intervention of the services provider in terms of “ control of the connectivity and 
proactive management of defects and incidents that may occur ”.48 
                                                 
43  Annex to the Commission Recommendation on releva nt product and service markets within the electronic 
communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of 
the European Parliament and of the Council of 11 December 2018 establishing the European Electronic 
Communications Code (the “2020 Recommendation”).  
44  BIPT, 13 December 2019, Analyse van de markt voor hoogwaardige toegang, paragraphs  399; 423. 
According to the BIPT, the market for wholesale high quality includes: (i) all high -quality access services 
(whether or not they include a trunk segment); (ii) all Ethernet services, WDM leased lines and SDH 
leased lines, (iii) all point -to-point, point -to-multipoint and multipoint -to-multipoint Ethernet services; (iv) 
both “access” and “backhaul” type services; and (v) all of these high -quality access servic es independently 
of their speed (hereinafter the “BIPT decision of 13 December 2019”).  
45  Q1 – Quest ionnaire to market participants – telecommunications Belgium, response to question 19.  
46  BIPT decision of 13 December 2019 , paragraphs  399-423.  
47  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 19.3.  
48  BIPT decision of 13 December 2019, paragraph 392. Translation from: “ 392. […] In geval van een kleine 
maar blijven de prijsverhoging van de hoogwaardige lijn zal de gebruiker van een hoogwaardige lijn niet 
migreren naar een dienst voor dark fibre, omdat hij dan deze onmisbare functies niet heeft om zijn eigen 
klanten een gewaarborgde dienst te kunnen verstrekken .” 
 
 
11 (40) However, c ontrary to that decision, a number of respondents to the market 
investigation consider that the wholesale supply of leased lines market in Belgium 
should include dark fiber given its substitutability  with a number of the services 
listed in pa ragraph (38) above .49 However, other respondents nuance that, while dark 
fiber (passive) can be substitutable to active products, this may not be the case for all 
customers on the leased lines market given that not all customers have the ability to 
self-supply and operate active equipment.  
(41) In light of the above,  the Commission considers that, for the purpose of this decision, 
the relevant product market is the  overall  wholesale supply of leased lines market 
(which includes various wholesale inputs, ranging from leased lines to other 
wholesale access products, which fulfil certain high -quality access requirements) . 
The question whether this product market includes dark fiber or not, can be left open  
as the Transaction would not raise serious doubts as to its compatibility with the 
internal market or the functioning of the EEA Agreement under any of the plausible 
product  market definitions considered.  
4.2.2.  Relevant geographic market  
4.2.2.1.  The Commission’s previous practice  
(42) In previous  decisional practice, the Commission considered that the geographic 
market  for wholesale supply of leased lines is national in scope.50 
4.2.2.2.  The Notifying Parties’ views  
(43) The Notifying P arties submit that the r elevant geographic market to be c onsidered is 
national in scope .51 
4.2.2.3.  The Commission’s assessment  
(44) A large majority of respondents to the market investigation  consider that the 
geographic market for wholesale supply of leased lines is national in scope .52 These 
results are also consistent with the BIPT’s market analysis decision  of 13 December 
2019, which defined the geographical market as national in scope.53 
(45) In light of the above, and for  the purposes of this decision, the Commission  
considers that the relevant  geographic market for the wholesale supply of leased 
lines (irrespective of whether such market includes dark fiber or not , see paragraph 
(41) above ) is national in scope  and corresponds to the territory of Belgium . 
                                                 
49  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 19.2.  
50  Commission decision of 3 July 2012 in case M.6 584 -Vodafone/Cable & Wireless , paragraph 31; of 4 
February 2016 in case M.7637 - Liberty Global/BASE Belgium , recital 148; of 14 April 2014 in case 
M.7109 - Deutsche Telecom/GTS , paragraph 74; of 18 July 2019 in case M.8864 – Vodafone/Certain 
Liberty Glob al Assets, recital 201 . 
51  Form CO, paragraph  136 and BIPT decision of 13 December 2019 , paragraph  420. 
52  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 20.  
53  BIPT decision of 13 December 2019 , paragraph  420. 
 
 
12 4.3. Retail mobile telecommunications  services  
(46) Mobile telecommunications services to end customers consist of the sale of 
subscriptions enabling access to public mobile telecommunications networks. Such 
access allows end users to make voice national and international calls, send and 
receive messages and use mobile data.54 
4.3.1.  Relevant product markets  
4.3.1.1.  The Commission’s previous practice  
(47) In previous decisions, the Commission found that there is an overall retail market for 
mobile telecommunications services, constituting a separate market from retail fixed 
telecommunications services. The Commission  did not divide that market further 
into possible sub -segments based on the  type of customer (business or private), type 
of tariff (pre -paid or post -paid), network technology (2G/3G, 3G/UMTS and 
4G/LTE), or type of service (national or international calls, internet data services, 
voice and text services) .55 
(48) The Commission has considered possible distinctions within the overall r etail market 
for mobile telecommunication services between pre -paid or post -paid services and 
private customers or business customers, concluding that these did not constitute 
separate product markets but represent rather market segments within an overall 
retail market and leaving the question of these possible further segmentations open.56 
4.3.1.2.  The Notifying Parties’ views  
(49) The Notifying Part ies submit that, in line with the Commission's previous decisions, 
there is an overall market for retail mob ile telecommunications services , including 
business and private customers, and pre -paid and post-paid services .57 
4.3.1.3.  The Commission’s assessment  
(50) A large majority of respondents to the market investigation stated that there is a 
single overall retail market for ret ail mobile telecommunications services.58  
                                                 
54  Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV , recital  118; 
of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph  199. 
55  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital  
65; of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL , recital  202; of 4 February 2016 in 
case M.7637 – Liberty Global/BASE Belgium , recitals 32 -35; of 1 September 2016 in case M.7758 – 
Hutchison 3G Italy/Wind/JV , recitals 146 -149; of 3 August 2016 in case M.7978 – Vodafone/Liberty 
Global/Dutch JV , paragraph  74; of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK , 
recitals 255, 261, 270, 279, 287; of 2 July 2014 in case M.7018 – Telefónica Deutschland/E -Plus, recitals 
31-55; of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph  206; of 28 May 2014 in case 
M.6992 – Hutchison 3G UK/Telefónica Ireland , recital 141; of 12 December 2012 in case M.6497 –
Hutchison 3G Austria/Orange Austria , recital 58.  
56  Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem , recital 47; of 1 September 
2016 in case M.7758 – Hutchison 3G Italy/Wind/JV , recitals 149 and 161; of 3 August 2016 in case 
M.7978 – Vodafone/Liberty Global/Dutch JV , recital 74; of  11 May 2016 in case M.7612 – Hutchison 3G 
UK/Telefónica UK , recitals 255, 261, 270, 279, 287; of 2 July 2014 in case M.7018 – Telefónica 
Deutschland/E -Plus, recitals 31 to 55; of 10 October 2014 in case M.7000 – Liberty Global/Ziggo , recital 
141; of 28 Ma y 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland , recital 141; of 12 December 
2012 in case M.6497 – Hutchison 3G Austria/Orange Austria , recital 58.  
57  Form CO, paragraph 168.   
 
 
13 (51) In light of the above, for the purpose of this decision, the Commission considers that 
there is an overall retail market for mobile telecommunications services.  
4.3.2.  Relevant geographic market  
4.3.2.1.  The Commission’s previous practice  
(52) In its decisional practice, the Commission  has consistently concluded  that the market 
for the provision of retail mobile telecommunication services is national in scope .59 
4.3.2.2.  The Notifying Parties’ views  
(53) The Notifying P arties consider that the relevan t market should be considered  as 
national  in scope .60 
4.3.2.3.  The Commission’s assessment  
(54) First, a large majority of respondents consider that the geographic market for retail 
mobile telecommunication services is national in scope.61  
(55) In light of the above, and for  the purposes of this decision, the relevant  geographic 
market for retail mobile telecommunication services is national in scope , and 
corresponds to the territory of Belgium . 
4.4. Retail fixed voice services  
(56) Fixed telephony services to end customers comprise the provision of subscriptions 
enabling access to public telephone networks at a fixed location for the purpose of 
making and/or receiv ing calls and related services.62 
4.4.1.  Relevant product markets  
4.4.1.1.  The Commission’s previous practice  
(57) In previous decisions, the E uropean Commission considered an overall market for 
retail fixed voice services (“retail fixed voice market”) without further subdivisions 
between local/national and international calls,  residential and non -residential 
customers ,63 and including Voice over Internet Protocol (“ VoIP ”) services.64 
                                                                                                                                                      
58  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 7.  
59  Commission decision of 15 July 2019 in case M.9370, Telenor/DNA ; of 27 July 2018 in case M.8883, 
PPF/Telenor Target Companies ; of 27 November 2018 in case M.8792, T-Mobile NL/Tele2 NL , of 4 
February 2016 in case M.7637 – Liberty Global/BASE Belgium , recitals 32 -35.   
60  Form CO, paragraph 168.  
61  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 8.  
62  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
33. 
63   Commission decision of 29 January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation , 
paragraphs 16 -17; of 29 June 2009 in case M.5532 – Carphone Warehouse/Tiscali UK , paragraphs  35-39; 
of 7 September 2005 in case M.3914 – Tele2/Versatel , paragraph  10. 
64  Commission decision of 30 June 2020 in case M. 9757 – Providence/VOO/Brutélé , paragraph 40; of 4 
February 2016 in case M.763 7 – Liberty Global/BASE Belgium , recitals  67-69; of 3 August 2016 in case  
 
 
 
14 4.4.1.2.  The Notifying Parties’ views  
(58) The Notifying Part ies agree with the Commission’s decisional practice and consider 
that there is an overall retail fixed voice market, including all subdivisions between 
local/national and international calls,  residential and non -residential customers , and 
including Voice over Internet Protocol (“ VoIP ”) services .65 
4.4.1.3.  The Commission’s assessment  
(59) A large majority of respondents confirm that there is a single overall retail market 
for retail fixed voice  services.66  
(60) In light of the above, for the purpose of this decision, there is an overall retail fixed 
voice market without further subdivisions between local/national and international 
calls,  residential and non -residential customers ,67 and including  Voice over Internet 
Protocol (“ VoIP ”) services.   
4.4.2.  Relevant geographic market  
4.4.2.1.  The Commission’s previous practice  
(61) In its decisional  practice, the Commission has left the geographic definition of the 
market open, considering the possibility that the market ma y be national, regional or 
limited to the coverage  area of each operator.68 In some decisions,  the Commission 
has considered this market as national due to the continued importance of national 
regulation of the telecommunications sector, the provision of wh olesale upstream 
services at national level and the fact that the tariff plan of telecommunications 
service provi ders is predominantly national .69  
4.4.2.2.  The Notifying Parties’ views  
(62) The Notifying P arties consider that the relevant geographic market should be defined 
as national  in scope .70  
4.4.2.3.  The Commission’s assessment  
(63) The large majority of respondents to the market investigation  confirm that the 
geographic market for retail fixed voice services is national in scope .71 A few 
                                                                                                                                                      
M.7978, Vodafone/Liberty Global/Dutch JV , paragraphs  25-26; of 20 September 2013 in case M.69 90 – 
Vodafone/Kabel Deutschland , paragraph 131.  
65  Form CO, paragraph 186.  
66  Q1 – Questionnaire to market participants – telecommunica tions Belgium, response to question 9.  
67   Commission decision of 29 January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation , 
paragraphs 16 -17; of 29 June 2009 in case M.5532 – Carphone Warehouse/Tiscali UK , paragraphs  35-39; 
of 7 September 200 5 in case M.3914 – Tele2/Versatel , paragraph  10. 
68  Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital  73. 
69  Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 150; of 19 May 
2015 in case M.7421 - Orange/Jazztel , recital 37; of 3 August 2016 in case M.7978 – Vodafone/Liberty 
Global/Dutch JV , paragraph 29. 
70  Form CO, paragraph 187.  
71  Q1 – Questionnaire to market participants – telecommunications Belg ium, response to question 10. One 
respondent notes that the market is national given that “ both Proximus and Orange operate a nationwide 
fixed infrastructure, they have nation -wide product offerings at uniform prices and they compete at 
 
 
 
15 respondents to the market investigatio n consider that the market should be defined 
according to the coverage area of each cable operator  or at the level of the operator’s 
footprint .72  
(64) In light of the above,  while there are indications that the relevant geographic market 
is national in scope, the Commission considers that, for the purposes of this decision, 
it is appropriate to assess  the effects of the Transaction at the national level, at the 
level of the coverage area of each cable operator, and at the level of the operator’s 
footprint.   
(65) In any event, the exact delineation of the relevant geographic market can be left open 
for the purpose of this decision, as the Transaction would not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement  under any of the plausible geographic market definitions considered.  
4.5. Retail fixed internet services  
(66) Fixed internet access services at the retail level consist of the provision of 
subscriptions enabling customers to access the internet through a fixed 
telecommunications connection.73 
4.5.1.  Relevant product market  
4.5.1.1.  The Commission’s previous practice  
(67) In recent cases, within an overall product market  for the supply of retail fixed 
internet access  services (“retail fixed internet market”) , the Commission considered  
but ultimately left open  possible segmentations according to (i) product type 
(distinguishing between narrowband, broadband, and dedicated access), and (ii) 
distribution technology (distinguishing between xDSL, fibre, cable, and mobile 
broadband).   
(68) Furthe rmore, the Commission also considered, but ultimately left open, possible 
segmentations as to customer type, distinguishing between residential and small 
business customers, on the one hand, and larger business and public authorities, on 
the other hand .74 Conversely, the Commission acknowledged that the retail market 
for fixed internet access services should not be divided according to download 
speed .75 In relation to the Belgian market specifically, the Commission recently 
concluded that there was an overall  single retail market for the provision of internet 
                                                                                                                                                      
national level. […]  Proximus’ and Orange’s commercial practice shows that the conditions of 
competition at national level are homogeneous. […] ”. 
72  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 10.  
73  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 45; of 18 
July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 47.  
74  Commission decisions of 8 October 2018 in case M.8842 - Tele2/Com Hem , paragraph 26; of 7 October 
2016 in case M.8131 - Tele2 Sverige/TDC Sverige , recital 32; of 19 May 2015 in case M.7421 - 
Orange/Jazztel , recital 42; of 10 October 2014 in case M.7000 - Liberty Global/Ziggo , recital 132.  
75  Commission decisions of 12 November 2019 in case M.9064 – Telia Co mpany/Bonnier Broadcasting 
Holding , recital 218; of 8 October 2018 in case M.8842 – Tele2/Com Hem , paragraph 26; of 3 August 
2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , recital 38; of 20 September 2013 in case 
M.6990 - Vodafone/Kabel Deutschlan d, recital 194.  
 
 
16 access, without the need to segment it according to the technology used or download 
speed.76 
(69) Finally,  the Commission previously considered that fixed internet access services 
provided through mobile networ k infrastructure (so -called “fixed wireless access” or 
FWA services) do not form part of the retail fixed internet access market .77 
Similarly, the Commission acknowledged that fixed internet services to large 
business and  government customers form part of a  separate market for the retail 
supply of business connectivity .78 
4.5.1.2.  The Notifying Parties’ views  
(70) The Notifying Parties submit that there is  an overall retail fixed internet market in  
line with the Commission's decisional practice .79 
4.5.1.3.  The Commission’s assessmen t 
(71) A large majority of the respondents to the market investigation confirm that there is 
an overal l retail fixed internet market , excluding FWA services and retail business 
connectivity services without the need to distinguish different customer and product  
types .80  
(72) As regards a potential distinction according to the type of distribution technology 
(xDSL, fibre, cable, and mobile broadband) , the majority of respondents disagrees 
with the need for such a segmentation. For instance, one respondent notes “ [r]etail 
customers switch relatively easily between technologies in case the coverage of the 
networks allows it ”.81 
(73) As regards a potential distinction according to the download speed (e.g. above or 
below 30 Mbps) , the large majority of respondents disagrees  with the need for such a 
segmentation.82 
(74) In light of the above, for the purpose of this decision, the Commission concludes that 
an overall market for the retail supply of fixed internet access services exists, 
excluding FWA services and retail business con nectivity services, and without the 
need to further segment the market.  
4.5.2.  Relevant  geographic market  
4.5.2.1.  The Commission’s previous practice  
(75) In its previous decisions, t he Comm ission concluded that the retail market for the 
provision of fixed internet services w as national in scope, and in some cases, the 
                                                 
76  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraphs 46 -48. 
77  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
56. 
78  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
51. 
79  Form CO, paragraph 178 . 
80  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 11.  
81  Q1 – Questionnaire to  market participants – telecommunications Belgium, response to question 11.2.1.  
82  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 11.2.2.  
 
 
17 Commission left open whether markets should potentially be defined on a regional 
basis or by reference to the footprint of the operators’ networks .83  
(76) In a recent decision, concerning the Belgian market, the mark et investigation 
revealed elements tending towards a deli neation corresponding to the operators' 
coverage area . Ultimately, the exact geographic market definition was left open.84 
4.5.2.2.  The Notifying Parties’ views  
(77) The Notifying Parties submit that the market struct ure in Belgium shows different 
competitive dynamics  between the different regions and, more specifically, between 
the different cable zones, and that therefore the market is subnational in scope  (i.e. 
region, cable zone or catchment area of the opera tors’ concerned) .85  
4.5.2.3.  The Commission’s assessment  
(78) A majority of respondents in the market investigation consider that the geographic  
retail fixed internet  market should be defined as national.86  
(79) However, a  number of respondents to the market investigation consider that the 
geographical retail fixed internet market should be defined at the regional level, at 
the level of the cable operator’s coverage area or at the level of the operator’s 
footprint .87 For ins tance, one respondent noted: “ there is a clear regional split as the 
fixed internet market is dominated by 3 main provider: Proximus, Voo & Telenet 
where Voo & Telenet are regionally bound because of their network. This makes 
competition very different in the 2 areas ”.88 
(80) In light of the above, the Commission considers that, for the purpose of this decision, 
it is appropriate to assess the effects of the Transaction on the retail fixed internet 
market on a (i) national  level, (ii) regional  level, (iii) the cab le operator’s coverage 
area, and (iv) the operator’s footprint.  
(81) In any event, the exact delineation  of the relevant geographic  market can be left open  
for the purpose of this decision , as the Transaction would not raise serious doubts as 
to its compatibil ity with the internal market or the functioning of the EEA 
Agreement under any of the plausible geographic market definitions considered.  
                                                 
83   Commission decisions of 12 November 2019 in case M.9064 – Telia Comp any/Bonnier Broadcasting 
Holding , recital 239; of 8 October 2018 in case M.8842 – Tele2/Com Hem ; of 3 August 2016 in case 
M.7978 – Vodafone/Liberty Global/Dutch JV , recital 40; of 20 September 2013 in case M.6990 - 
Vodafone/Kabel Deutschland , recital 197.   
84  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 52.  
85  Form CO, paragraphs  107 and 179 and BIPT  decision of 29 June 2018 , paragraph 255.  
86  Q1 – Questionnaire to market participants – telecommunications Belgium,  response to question 12.  
87  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 12.  
88  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 11.  
 
 
18 4.6. Retail business connectivity services  
(82) The retail market for business connectivity includes fixed telecommunications 
services purchased by large businesses, enterprises and public sector customers in 
order to provide data connectivity between multiple sites.89 
4.6.1.  Relevant product market  
4.6.1.1.  The Commission’s previous practice  
(83) In previous decisions, the Commission has considered a  product market  for retail 
business connectivity services (“retail business connectivity market”), including  (i) 
broadband access for large business customers; (ii) leased lines; and (iii) VPN90 
services,91 but excluding connectivity services offered to resi dential, SMEs and 
small -office -home -offices customers, which are part of the retail fixed internet 
market . This is because of the particular  requirements and purchase processes of 
larger business customers. The precise product market definition was ultimat ely left 
open.92 
4.6.1.2.  The Notifying Parties’ views  
(84) The Notifying Parties submit that there is  an overall retail business connectivity 
market  in line with the Commission's decisional practice .93  
4.6.1.3.  The Commission’s assessment  
(85) A large majority of respondents confirm that there is an overall retail business 
connectivity market , including (i) broadband access for large business customers; (ii) 
leased lines; and (iii) VPN services, excluding connectivity services offered to 
residential, SMEs and small -office -home -offices  customers, which are part of the 
retail fixed internet market .94 A majority of respondents also confirmed that there is 
no need to distinguish the retail business connectivity services market according to 
technology or download speed and this market also excludes fixed wireless access 
(“FWA”) and fixed internet services to large business and government customers.95 
                                                 
89  Commission decision of 18 J uly 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
166; of 9 July 2018 in case M.8808 – T-Mobile Austria/UPC Austria , paragraph 65.  
90  Virtual Private Network (“VPN”).  
91  Commission decision of 14 April 2014 in case M.7109 – Deutsch e Telecom/GTS , paragraph  26; of 29 
January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation , paragraphs 6 and subsequent.  
92  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital  
171; of 3 August 20 16 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraphs  126-127. 
93  Form CO, paragraph  196. The Notifying Parties refer to the BIPT’s position. BIPT decision of 13 
December 2019 , paragraph  190. The BIPT considers that all high -quality services allowing to satisfy those 
higher/tailored needs of businesses are considered as sufficiently interchangeable and therefore part of the 
same market, i.e. (i) classical leased lines, (ii) leased lines with high speed on WDM, (iii) connectivity 
based on Tline  of circuit emulation, (iv) connectivity based on E -line, and (v) connectivity based on E -
LAN. Moreover, the BIPT finds that high -quality connectivity services include both P2P connections (i.e., 
classical leased lines with traditional interfaces or Ethern et interfaces, new generation leased lines or 
Ethernet services) and P2MP service . 
94  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 13.  
95  Q1 – Questionnaire to market participants – telecommunications Belgium , response to question 13.2.  
 
 
19 (86) In light of the above, the Commission considers that, for the purpose of the decision, 
the relevant product market is the overall reta il business connectivity market. The 
question whether this product market can be further segmented according to (i) 
technology or (ii) download speed can be left open as the Transaction does not raise 
serious doubts as to its compatibility with the internal market or the functioning of 
the EEA Agreement under any of the plausible product market definitions 
considered.  
4.6.2.  Relevant geographic market  
4.6.2.1.  The Commission’s previous practice  
(87) In previous decisions, the Commission has found that the retail mark et for business 
connec tivity was national in scope.96 
4.6.2.2.  The Notifying Parties’ views  
(88) According to the  Notifying  Parties, the geographic retail business connectivity  
market can be considered as national in scope. 97 
4.6.2.3.  The Commission’s assessment  
(89) A majority of respondents confirm that the geographic market for retail business 
connectivity  services is national in scope .98  
(90) In light of the above, while there are indications that a national retail business 
connectivity market exists, for the purpose of this decision, the Commission 
considers that  it is appropriate to consider a (i) national geographic scope, and a 
narrower scope ((ii) regional, (iii ) the cable operator’s coverage area, and (iv) the 
operator’s footprint) for any of the plausible product market definitions considered in 
paragraph (86) above.  
(91) In any event, the exact delineation of the  relevant geographic  market  can be left open  
for the purpose of this decision, as the Transaction would not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement under any of the plausible geographic market definitions considered .  
4.7. Potential market for the retail supply of multi-play services  
(92) Multi -play services include several telecommunications products (mobile services 
and one or more of the fixed services such as fixed internet, fixed telephony and 
TV), which are provided to consumers through a common offer.99 
                                                 
96  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
176; of 14 April 2014 in case M.7109 – Deutsche Telecom/GTS , paragraph  30; of 3 July 2012 in case 
M.6584 -Vodafone/Cable & Wireless , paragraph 10; of 29 January 2010 in case M.5730 – 
Telefónica/Hansenet Telekommunikation , paragraph  28.  
97  Form CO, paragraph 197.  
98  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 14.  
99  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph  54. 
 
 
20 4.7.1.  Relevant product market  
4.7.1.1.  The Commission’s previous practice  
(93) In its decisional practice, the Commission has left the question open as to whether 
this market was separate from the retail markets for television, voice and Internet 
access.100 In Liberty Global/BASE  Belgium and Providence/VOO/Brutélé , the 
Commission has noted an upward trend in sales of bundled offers in Belgium, but 
concluded that it was not necess ary to define a separate retail multi-play market .101 
4.7.1.2.  The Notifying Parties’ views  
(94) The Notifying Parties submit that, in line with the position of the BIPT102, a multi -
play market does not exist.103  
(95) First, customers can easily switch between the purchase of bundled services and 
separate services, and the same applies from the supply -side. Second, the BIPT 
noted that the asymmetry observed in the development of individual retail mobile 
shares in the Be lgian market, appears to contradict the existence, at this stage, of a 
separate multi -play market. If a separate multi -play market in Belgium existed, in 
response to a price  increase of a bundle, consumers would  switch  to a bundle with 
another operator and  not unpick the bundle and revert to purchasing mobile services 
on a standalone basis,  implying a symmetrical development at the level of the market 
shares of the different products among the different operators .104 
4.7.1.3.  The Commission’s assessment  
(96) A large  majori ty of respondents to the market investigation consider that no separate 
market for multi -play services exists in Belgium.105  
(97) As noted above (paragraph (95)), from the  demand side, customers can and do 
switch easily between purchasing their services as part of a multi -play offering or 
separately (e.g. “unpicking” the bundle),  subject to their needs. From the supply 
side, operators who already offer separate services  can easily offer these services as 
a bundle, and vice versa . Finally,  while the popularity of multi -play offers in 
Belgium is certainly growing, its commercial development is still evolving.106 
(98) Similarly, the BIPT confirmed  that the sale of bundles is growing , however it left 
open the question of whether a  separate market for multi -play services exists in 
Belgium.107 Furthermore, in its 2014 Recommendation,108 the Commission 
acknowledges the increased demand for packages of services offered by the same 
operator at  a flat rate (also known as “bundles”). However, the Recommendation has 
                                                 
100  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 60; of 4 
February 2016 in case M.7637 – Liberty Global/BASE Belgium , recita l 98.  
101  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 54. 
102  BIPT  decision of 29 June 2018, paragraphs 3303 -3306.  
103  Form CO, paragraphs 207 -209.  
104  BIPT  decision of 29 June 2018, paragraphs 3303 -3306.  
105  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 15.  
106  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 15.  
107  BIPT  decision of 29  June 2018, Section 10.2 . 
108  Explanatory Notes to the 2014 and 2020 Recommendations.  
 
 
21 not proposed to define a separate retail market for bundles because individual 
wholesale markets will, in all likelihood, constitute (previously regulated) inputs to 
replicate the reta il market for bundles. Therefore, in case of competition concerns at 
the retail level, such concerns would be addressed at the level of the relevant 
wholesale market.109  
(99) In light of the above, and for the purpose of this decision, the question as to whether  
there exist one or more multi -play markets which are distinct from each of the 
underlying individual telecommunications services can be left open  given that the 
Transaction would not raise serious doubts as to its compatibility with the internal 
market or  the functioning of the EE A Agreement , independently of the existence of a 
separate market, or a lack thereof.   
4.7.2.  Relevant geographic market  
4.7.2.1.  The Commission’s previous practice  
(100)  In previous decisions , the Commission considered that the geographic scope of any 
possible retail market for multi -play services would be national since the 
components of the mult i-play offers are offered individually at a national level, and 
the bundling of the services would not change the geographic scope of the 
components .110 In the r ecent Providence/VOO/Brutélé  decision, the Commission 
however left the question o f the geographic market definition open.111 
4.7.2.2.  The Notifying Parties’ views  
(101)  The Notifying Parties submit that a multi -play market does not exist, and have 
therefore not commented on its potential geographic scope (see paragraph (95) 
above).   
4.7.2.3.  The Commission’s assessment  
(102)  A majority of the respondents to the market investigation of this case considered that 
a possible market for multi-play offers  (irrespective of what type of bundles are 
included in such a possible market) would be national in scope .112 This view, 
however, does not necessarily align with the results from the market investigation 
obtained in relation to retail fixed internet access services, which would be one of the 
components of such a hypothetical market.  
(103)  On this basis, the Com mission considers that, for the purpose of this decision, it is 
appropriate to consider a (i) national geographic scope, and a narrower scope ((ii) 
regional, (iii) the cable operator’s coverage area, and (iv) the operator’s footprint) to 
                                                 
109  Explanatory Note to the 2014 Recommendation, page 18. See also  Commission decision of 30 June 2020 
in case M.9757 – Providence/VOO/Brutélé , paragraph 59.  
110  Commission decisions of 3 August 2016 in case M.797 8 – Vodafone/Liberty Global/Dutch JV , paragraphs 
112; of 19 May 2015 in case M.7421 - Orange/Jazztel , recitals 89 -90; of 10 October 2014 in case M.7000 
- Liberty Global/Ziggo , recitals 152 -153; of 20 September 2013 in case M.6990 - Vodafone/Kabel 
Deutschla nd, paragraphs 263 -265; of 16 June 2011 in case M.5900 - LGI/KBW , paragraphs 183 -186. 
111  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraphs 63 -64.  
112  Q1 – Questionnaire to market participants – telecommunications Belgi um, response to question 15.  
 
 
22 the extent one or more separate retail multi -play markets exist as  considered in 
paragraph (99) above.  
(104)  In any event, the exact delineation of the relevant geographic market can be lef t open 
for the purpose of this decision, as the Transaction would not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement under any of the plausible geographic market definitions considered.  
5. COMPE TI TIVE ASSE SSME NT  
5.1. Analytical framework  
(105)  Article 2 of the Merger Regulation requires the Commission to examine whether 
notified concentrations are compatible with the internal market, by assessing whether 
they would significantly impede effective competition i n the internal market or in a 
substantial part of it, in particular through the creation or strengthening of a 
dominant position.113 
(106)  In this respect, a merger may entail horizontal and/or non -horizontal (i.e. vertical or 
conglomerate) effects. Horizontal eff ects are those deriving from a concentration 
where the undertakings concerned are actual or potential competitors of each other in 
one or more of the relevant markets concerned. Non-horizontal effects are those 
deriving from a concentration where the under takings concerned are active in 
different relevant markets. In a case where a merger entails both horizontal and non -
horizontal effects, the Commission will appraise these effects in accordance with the 
guidance set out in the relevant notices.114 
(107)  Horizontal mergers involve companies which are actual or potential competitors  of 
each other in one or more of the relevant markets concerned. The Horizontal Merger 
Guidelines list a number of factors which may influence whether or not significant 
horizont al non -coordinated effects are likely to result from a merger, such as the 
large market shares of the merging firms, the fact that the merging firms are close 
competitors, the limited possibilities for customers to switch suppliers, or the fact 
that the me rger would eliminate an important competitive force.115 
(108)  Vertical mergers  involve companies operating at different levels of the supply chain. 
There are two main ways in which vertical mergers may significantly impede 
effective competition: input foreclosure and customer foreclosure . 
(109)  Input foreclosure may raise competition problems only if it concerns an important 
input for the downstream market, and if the combined entity has a significant de gree 
of market power upstream.116 In assessing the likelihood of an an ticompetitive input 
                                                 
113  With regard to the application of the Merger Regulation in the EEA, see Annex XIV to the EEA 
Agreement.   
114  Guidelines on the assessment of non -horizontal mergers under the Council Regulation on the control of 
concentrations  between undertakings ("Non -Horizontal Merger Guidelines"), OJ C  265, 18.10.2008, 
paragraph 7.  
115  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Horizontal Merger Guid elines"), OJ C  31, 5.2.2004, paragraphs 27 
and following.  
116  Non-Horizontal Merger Guidelines, paragraphs 34 -35.   
 
 
23 foreclosure strategy, the Commission examines: (i) whether the combined entity 
would have the ability to substantially foreclose access to inputs; (ii) whether it 
would have the incentive to do so; and (iii) whether a foreclosure strate gy would 
have a significant detrimental effect on competition downstream.117 
(110)  For a transaction to raise customer foreclosure competition concerns, the combined 
entity must be an important customer with a significant degree of market power in 
the downstream m arket.118 In assessing the likelihood of an anticompetitive customer 
foreclosure strategy, the Commission examines: (i) whether the combined entity 
would have the ability to foreclose access to downstream markets by reducing its 
purchases from upstream rival s; (ii) whether it would have the incentive to do so; 
and (iii) whether a foreclosure strategy would have a significant detrimental effect 
on consumers in the downstream market.119  
5.2. Identification of affected markets  
(111)  Following the start -up of the JV’s activi ties in 2022, the Transaction gives rise to the 
following  horizontally and vertically affected markets.  
(112)  First, on the wholesale broadband access market, Proximus and the JV ’s combined 
market share  exceed s 20% ( based on expected 2022  figures )120 in Telenet’s  coverage  
area. In the wholesale local broadband access market,  including a potential narrower 
segment of the wholesale local broadband access market which is limited to DSL 
technology (fiber and copper),  this is also the case on a potential national Belgi an 
market and in Telenet’s coverage  area. Therefore, the wholesale (local) broadband 
access market is horizontally affected  (see paragraphs (115) -(116)  below) .  
(113)  Second, this wholesale (local) broadband access market, where both Proximus and 
the JV are active, is upstream from Proximus’ wholesale and retail activities 
downstream on the (i) wholesale resale broadband access121 and supply of leased 
lines markets, and the (ii) retail telecommunications markets (retail mobile, fixed 
internet, fixed voice, business connectivity and a potential supply of multi -play 
services). These markets are vertically affected (see paragraph (130)  below).  
(114)  The Transaction does not giv e rise to any cooperative effects given that the 
Notifying Parties will not both be independently active on any of the same markets  
as the JV , or in a market which is upstream or downstream from that  of the JV  or in 
a neighbouring market closely related t o this market . As set out above in paragraph 
(15), Nexus, and any other subsidiary of EQT, is not active in Belgium , [details 
regarding EQT activities in Belgium] .122 
                                                 
117  Non-Horizontal  Merger Guidelines, paragraph 32.  
118  Non-Horizontal Merger Guidelines, paragraph 58.   
119  Non-Horizontal  Merger Guidelines, paragraph 59.  
120  All market shares of the Notifying Parties are volume -based, unless specified otherwise.  
121  Note that the wholesale resale broadband  access market is included in a potential  overall wholesale 
broadband access market. Therefore, this market is only considered downstream from the potential 
narrower wholesale local access broadband market (see paragraph (24) above).  
122  Form CO, parag raph 457. 
 
 
24 5.3. Horizontal relationships  
(115)  Following the start -up of the JV’s activities, in 2022, the Transaction is expected to 
give rise to a very limited horizontal overlap between the JV’s and Proximus’ 
activities in (i) the overall wholesale  broadband access market in  Telenet’s coverage  
area, (ii) the wholesale local broadband access market in Belgium and in Telenet’s 
coverage area  and (iii) the wholesale local broadband access market limited to DSL 
distribution technology in Belgium and in Telenet’s coverage area .  
(116)  In an overall wholesale broadband access mark et, Proximus’ market share is [20-
30]%  in Telenet’s coverage  area ( based on 2019  figures ) and the JV is  expected to 
hold less than [0-5]% market share ( based on expected 2022  figures ).123 Proximus’ 
market shares in a wholesale local broadband access market124 would be close to 
100%125 (based on 2019  figures ) with the JV expected to hold less than [0-5]% 
(based on expected 2022  figures ) in Belgium and in Telenet’s coverage area. The 
same figures apply  in a segment of the wholesale local broadband access market, 
which  is limited to DSL distribution technology (DSL, i.e. fiber and copper).126 
There are no other horizontally affected markets under any other possible product 
market definition.  
5.3.1.  The Notifying  Parties’ views  
(117)  The Notifying P arties  state that the Transaction is unlikely to raise any horizontal 
non-coordinated concerns on the wholesale broadband access market (and all its 
possible sub -segments) for the following reasons.  
(118)  First, the Transaction en tails the entry of a new competitor on the overall wholesale 
broadband access market in Belgium  by which it creates a new future -proof 
infrastructure that offers higher speeds to the benefit of customers.127  
(119)  Second, the Notifying Parties emphasize that the wholesale broadband access’ 
activities of Proximus have a modest scale on the market as compared with the 
activities of the cable operators on the market.128 For instance, the largest wholesale 
customer for broadband access  services is Orange Belgium. Orange  Belgium has 
chosen to procure the wholesale broadband access services mainly from Telenet (and 
Voo), based on Telenet’s  regulated offer instead of the copper -based wholesale 
broadband access services provided by Proximus.129 Concretely, at the level of 
Telenet’s coverage area, Orange Belgiu m is understood to purchase [...] wholesale 
lines with the cable operators, while Proximus only has [...] lines.130    
                                                 
123  Form CO, Annex 18.  
124  Form CO, Annex 18. The Notifying Parties clarify that t hese figures exclude cable  operators , in line with 
the BIPT’s analysis  and in view of the still hypothetical nature of such offer for local access to the cable 
networks.  
125  BIPT decision of 29 June 2018, paragraph  1020.  
126  Form CO, Annex 18.  
127  Form CO, paragraph 295.  
128  BIPT decision of 29 June 2018, paragraph  296. 
129  BIPT decision of 29 June 2018, paragraph  296. 
130  Form CO, paragraph 226.  
 
 
25 (120)  When looking at the wholesale local broadband access market , as defined by the 
BIPT131, Proximus holds clos e to 100% market share (see paragraph (116)  above) 
given that the BIPT has excluded wholesale broadband access offers on the cable 
network from this market. However, the Notifying Parties recall that these offers on 
the cable network are the most successful on the market, while the volumes of sales 
achieve d by Proximus are extremely limited. Concretely, the total volume of 
unbundled local loop services that are currently purchased from Proximus cover s 
less than [...] access lines (end of December 2020 ) and shows even a downward 
trend . Proximus’  VULA offers for virtual local unbundling is currently not being 
purchased  given that no market player  has expressed an interest .132 
(121)  Third , Proximus’ wholesale broadband access services  (i.e. LLU, VULA on copper 
and VULA on fiber)  are subject to ex ante  regulatory obliga tions. The BIPT has 
imposed physical and virtual access obligations on Proximus. Additionally, the BIPT 
imposed non -discrimination, transparency and price control obligations.133 Such 
regulatory obligations will also apply to the JV’s activities.134 Similar re gulatory 
obligations apply on the competing wholesale broadband access offers provided by 
the cable network operators in Belgium. Moreover, in line with the harmonised EU 
regulatory framework for electronic communications, the sector regulator can 
interven e at all times to conduct a market analysis and to impose amended or 
adapted ex ante  regulatory obligations based on its findings regarding the market 
evolution.135  
(122)  Finally , the JV will deploy its FTTH -infrastructure in areas in which there is no 
standalone  deployment  or plans to deploy  by Proximus of such infrastructure. 
Consequently, from a geographic perspective, the respective FTTH network 
deployments by Proximus and the JV will be clearly distinct  but complementary.136 
5.3.2.  Commission’s assessment  
(123)  The Commission considers that t he Transaction is unlikely to raise horizontal 
concerns in the market for wholesale broadband access  at the level of Telenet’s 
coverage area , in the national market for wholesale local broadband access or any 
possible narrower af fected markets, for the following reasons.  
(124)  First, as stated above in paragraph (116) , the Transaction does not involve an 
appreciable market share increment.  
(a) In the  overall  wholesale broadband access market  at the level of Telenet’s 
coverage area , the JV’s increme nt is extremely low (less than [0-5]% 
expected in 2022). This figur e is expected to increase to [5-10]% by 2024 in 
                                                 
131  BIPT decision of 29 June 2018, paragraph  1020.  
132  Form CO, paragraph 297.  
133  BIPT decision of 29 June 2018, paragraph  1020.  
134  Form CO, paragraph 300.  
135  Form CO, paragraph 298.  
136  Form CO, paragraph 299.  
 
 
26 Telenet’s coverage area. The Parties’ com bined market shares are modest 
([20-30]%).137 
(b) Similarly,  when considering the wholesale local broadband access  market or 
a wholesale local broadband  access  market limited to DSL distribution 
technology, the JV’s increment is extremely low . In both of these local access 
markets , the JV is expected to hold [0-5]% by 2022 and [0-5]% by 2024 at 
national level, and [0-5]% by 2022  and [5-10]% by 2024 in Telenet’s 
coverage area.138 
(125)  Second, the JV and the Notifying Parties are currently not competing on the Belgian 
market. Therefore, this Transaction will not eliminate any important competitive 
constraint on market players. On the contrary, the JV is a new entrant in the 
wholesale broadband access market and thus  a new additional choice on this market 
for customers.  
(126)  Third, as the Notifying Parties point out (see paragraph (122)  above), from a 
geographic perspective, the respective FTTH network deployments by Proximus and 
the JV wi ll be clearly distinct.139 
(127)  Fourth , a large majority of respondents to the market investigation confirmed that 
this new entrant would not have a negative impact on the wholesale broadband 
access market. A competitor of Proximus noted that “ Today, the Belgian market for 
wholesale broadband access services is characterised by competition between the 
incumbent copper network and the cable HFC networks. We expect the JV to 
compete with them which may further drive competition  and thus foster innovation  
and develop ment of new services and business models ”.140 Furthermore , an 
important customer on this market specified that they consider an “ increased 
provision of wholesale local broadband access services to the market as a welcome 
development  with the potential for significant positive impact on both the business 
environment and on the diversity and quality of choices available to Belgian 
retailers and end -consumers. ”141  
(128)  Finally, a majority of respondents to the market investigation also confir med that the 
existence of sector -specific regulation makes it possible to exclude or limit any 
potential anti -competitive effect resulting from the Transaction on the wholesale 
broadband access market.142 In this respect, the Commission notes that the BIPT’s  
2018 decision has imposed a regulatory obligation on Proximus to grant wholesale 
access to third parties to its copper pair network as well as its fiber network, insofar 
as this fiber network is destined to eventually replace Proximus’ copper network.143 
The Parties and the BIPT have confirmed that the same regulatory obligations will 
                                                 
137  Form CO, Annex 18. This market share is based on Proximus’ market share in the last financial year 
(2019)  and the JV’s expected market share in 2022.  
138  Form CO, Annex 18.  
139  Form CO, paragraph 299.  
140  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 21. 
Emphasis added.  
141  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 21. 
Emphasis added.  
142  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 23.  
143  BIPT  decision of 29 June 2018 , Section S.2.  
 
 
27 apply to the JV’s wholesale broadband access activities. Namely, the JV will be 
obliged to provide a non -discriminatory  non-exclusive open  access for all interested 
third parti es to its passive n etwork  (see paragraph (137)  below) .  
(129)  Therefore, for the reasons set out  above, the Commission concludes  that the 
Transaction does not raise serious doubts as to the compatibility with the internal 
market as a result of horizontal effects on the market for wholesale broadband 
access , or any possible narrower affected markets, either at the national level, or at 
the level of  Telen et’s coverage area.  
5.4. Vertical relationships  
(130)  The JV’s upstream  activities in the wholesale  broadband access market in Telenet’s 
coverage area ( [0-5]%, expected 2022 )144 and in the wholesale local broadband 
access market145 at national level ( [0-5]%, expected 20 22)146 and in Telenet’s 
coverage area ([0-5]%, expected 2022)147 are vertically linked to Proximus’ activities 
in the following downstream  markets in Belgium. This gives rise to the following 
vertically affected markets:   
(a) Wholesale  markets: broadband resale ma rket ( [90-100]%, 2019 )148, supply of 
leased lines ( approx. [50-60]%, 2019 )149; and  
(b) Retail markets: retail mobile ( [30-40]%, 2019 ), fixed internet ( [40-50]%, 
2019 ), fixed voice ( [50-60]% , 2019 ), business connectivity ( [40-50]%, 2019 ) 
and a potential market for multiple-play services (approx. [40 -50]%, 
2019 ).150  
(131)  The Commission notes that the Notifying Parties’ arguments and the Commission’s 
analysis is the same in relation to all downstream markets (including all possible 
segments).  There are no vertically affecte d markets under any possible market 
definition other than those listed in paragraph (130)  above.  
                                                 
144  Form CO , Annex 18.  
145  The same figures apply irrespective of whether the market is limited to DSL distribution technology or 
not.  
146  Form CO , Annex 18.  
147  Form CO , Annex 18.  
148  Form CO, Annex 18. The Notifying Parties confirm that if the wholesale broadband resale market is 
limited to the resale offers provided by Proximus, Proximus would – by definition – hold a market share 
of [90-100]% on said market, which represents however a limited number of lines that are sold t o third 
parties (approximately [...] in total). However, based on publicly available information, the Notifying 
Parties cannot exclude that a resale -like offer curre ntly exists on other network infrastructure, in particular 
on the cable infrastructure of Telenet  (see https://www2.telenet.be/nl/business/sector/carriers/).  
149  Form CO , Annex 18. Proximus has an approx. [50-60]%  market share at the national level and at t he level 
of its footprint. Figures are not available at the regional level or at the level of the cable operator’s 
coverage area.  
150  Form CO, Annex 18. According to the BIPT’s Communication of 30 June 2020, market shares on a 
hypothetical market for multiple -play services  would be between 40% and 50%.  All market share figures 
quoted are at the national level.  
 
 
28 5.4.1.  Input foreclosure  
5.4.1.1.  The Notifying Parties’ views  
(132)  The Notifying Parties argue that there will be no input foreclosure  by restricting 
access to the JV’s network for competing providers of wholesale and/or retail 
telecommunications services  for the following reasons.  
(133)  First, through t he Transaction a new pr ovider of passive fiber -based services will 
enter at the wholesale level . The JV will offer an alternative to any interested 
operator for realising high bandwidth access to customers. Therefore, the 
Transaction does not involve a possible foreclosure upstream  of an existing 
(important) input that is currently used downstream .151  
(134)  Second, for input foreclosure to be a concern, the firm resulting from the merger (in 
this case the JV) must have a significant degree of market power in the upstream 
market. In  the present case, the JV is a new entrant and it is unlikely to have any 
significant degree of market power in the near future.152  
(135)  Third, d ownstream providers of fixed electronic communications services are 
vertically integrated cable operators which benef it from access to their own cable 
infrastructure network, covering the entire territory of Belgium. Moreover, 
alternative operators are currently able to access the network infrastructure of both 
Proximus and the cable operators, which have an obligation t o provide access to 
their networks under regulated terms throughout Belgium.  Such regulation will 
apply to any wholesale broadband access product that will be provided in the future 
by Proximus and that will use as an input the passive wholesale fiber acce ss services 
that will be provided by the JV .153 
5.4.1.2.  Commission’s assessment  
(136)  For the reasons set out below, the Commission considers that the Transaction does 
not lead to credible input foreclosure concerns  in the downstream markets for (i) 
wholesale resale broad band access and leased lines services , and (ii) retail mobile  
services , fixed internet  services , fixed voice  services , business connectivity services 
and potential multi -play services (see paragraph (130)  above).   
(A) Ability to engage in input foreclosure  
(137)  The Commission considers  that the Parties  will not have the ability to engage in 
input foreclosure by restricting access to the JV’s wholesale offer to downstream 
operators .  
(138)  First, the Commission recalls that the JV will have a very limited market position in 
the wholesale (local) broadband access mark et. The JV will have less than [0 -5]% 
market share both at national level and at the level of Telenet’s coverage ar ea 
(expected in 2022) (see paragraph s (124)  and (130)  above).  The JV can the refore not 
                                                 
151  Form CO, paragraph  313. 
152  Form CO, paragraph  314. 
153  Form CO, paragraph  315. 
 
 
29 be considered to have significant market power in the upstream wholesale (local) 
broadband access market.  
(139)  Second , the Commission notes that the JV’s activit ies are subject to  sector -specific 
regulation , which prevents the JV from refusing acces s to their network and from 
charging excessive fees.154 In its decision of 29 June 2018, the BIPT has designated 
Proximus as an SMP operator (i.e. operators with significant market power in the 
relevant markets) with regard to its wholesale local broadband a ccess activities.155 
The designation of Proximus as an SMP operator also include s the JV (as an 
affiliated company, which is jointly controlled by the Notifying Parties).156 This has 
also been acknowledged and confirmed by the Notifying Parties.157 Under the 
BIPT’s decision, the JV (and Proximus) (i) must meet all requests for physical (and 
virtual) access to their (copper and) fibre networks158, and (ii) are bound by non -
discrimination obligations which state that access to the wholesale inputs must be 
similar in terms of functionalities and price.159 Other key obligations include 
transparency obligations by which SMP operators must make public spe cific 
information such as reference offer specifying the technical and tariff conditions of 
the access to their networks  and price control obligations which includes an 
obligation to apply fair tariffs (as defined in the BIPT’s decision).160 As a result of 
this sector -specific regulation, the JV would not have the ability to foreclose 
wholesale network access.  
(140)  Third , following the proposed Transaction, customers will have a new and additional 
supplier of wholesale local broadband access services, in addition to the existing 
offers by market players such as Proximus  and the cable operators.161 Concretely, the 
JV represents a new and additional wholesale input on the (local) broadband access 
market in Belgium  (as opposed to a (particularly important) existing inpu t access to 
which is being limited or prohibited) .  
                                                 
154  Market 1: wholesale local access provided at a fixed locati on of the European Commission, 18 December 
2020, Recommendation on relevant product and service markets within the electronic communications 
sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of the European 
Parliament and  of the Council of 11 December 2018 establishing the European Electronic 
Communications Code (former Market 3a: wholesale local access provided at a fixed location of the 
Commission Recommendation of 9 October 2014 on relevant product and service markets w ithin the 
electronic communications sector susceptible to ex ante regulation in accordance with Directive 
2002/21/EC of the European Parliament and of the Council on a common regulatory framework for 
electronic communications networks and services (2014/71 0/EU).   
155  BIPT, decision of 29 June 2018 .  
156  See also European Commission comments pursuant to Article 7(3) of Directive 2002/21/EC in 
Commission decision in Case DE/2019/2200: Wholesale local access provided at a fixed location in 
Germany , page 9 regar ding a JV between DT and EWE. The Commission determined that a different 
interpretation (i.e. where the SMPT designation would not extend to the JV) would result in regulatory 
gaming allowing the SMP operator to circumvent the SMP status by simply setting up a new legal entity.  
157  Form CO, paragraph  300. 
158  The JV’s activities are limited to the provision of physical unbundled (i.e. passive) access to the fiber local 
loop.  
159  BIPT, decision of 29 June 2018 , S2.3 (page 35).  
160  BIPT, decision of 29 June 2018, S21 (page 36).  
161  The Notifying Parties do not have reliable market data available on the number of wholesale broadband 
local access lines currently offered by the various operators. According to the BIPT’s market analysis 
decision of 29 June 2018, which identified a market for wholesale broadband local access including both  
copper - and fiber -technologies, Proximus was the only player on this market.  A broader market would 
include the cable operators ( Telenet, Brutélé and VOO/Nethys ).  
 
 
30 (141)  Fourth , in terms of alternatives to the JV’s services, in the wholesale broadband 
access market, the offers by Proximus and the cable operators are similarly subject to 
sector -specific regulation. For ins tance, the BIPT’s decision of 29 June 2018 
regulates Proximus’ copper pair network (at national level) and the coaxial cable 
network of Brutélé, Nethys and Telenet (including SFR)  (respective coverage 
areas).162 Therefore, customers will have the choice with  Proximus and the cable 
operators as alternatives to the JV’s offer. Any strategy by the JV to foreclose 
downstream operators would therefore not be successful . 
(142)  Finally, a respondent to the market investigation appear s concerned by the threat of 
the JV’s n etwork triggering a potential de -regulation of the zones covered by the 
JV’s network.163 The BIPT’s market regulation provides that, in the geographic 
zones where at least 3 independent N ext Generation Access (“NGA”) -operators 
compete, in line with the defin itions of the BIPT decision, the regulatory obligations 
that were imposed would no longer apply.164 However, the JV cannot constitute such 
an independent NGA -operator. First, the BIPT assesses the presence of an NGA -
operator at the level of the retail markets. The JV is not present on these retail 
markets, therefore, it cannot be considered as an indepe ndent NGA -operator. This 
has also been confirmed by the Notifying Parties.165 Second, the BIPT has also 
confirmed that it does not consider the JV to be independent from Proximus.166 
Therefore, the Commission considers that this threat is not credible.  
(143)  Theref ore, for the reasons set out above, the Commission concludes that the JV 
would not have the ability to foreclose rival operators by engaging in an input 
foreclosure strategy.  
(B) Incentive to engage in input foreclosure  
(144)  The Commission considers  that the Parties will not have the incentive  to engage in 
input foreclosure by restricting access to the JV’s wholesale offer to downstream 
operators . 
(145)  A majority of respondents do es not believe it is credible that the JV would have the 
incentive  to restrict or limit acc ess to its network in view of the presence of 
alternative networks and the existence of sector -specific regulation.167 In this respect, 
one customer emphasizes that Nexus is “ a pure infrastructure player with no ret ail 
activities in Belgium today ”, and they would consider “ it is unlikely to seek to corner 
the FTTH market in any way. The JV will deploy significant capital expenditures 
and, in theory, should be  open to allowing whole [sale] buyers unfettered access to 
its passive network so as to expand its mark et opportunities as much as possible .”. 
(146)  Further, the Commission recalls that Nexus, one of the parents of the JV together 
with Proximus, is not active on any of the downstream telecommunication markets 
in Belgium and therefore, will not have any incentive to limit the JV’s wholesale 
offers to third parties  (i.e. limiting the JV’s wholesale revenues). On the contrary, 
                                                 
162  BIPT, decis ion of 29 June 2018 , S9.4 (page 32).  
163  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 22.  
164  BIPT decision of 29 June 2018, paragraph 1496.  
165  Notifying Partie s’ response to RFI 8, question 2 and BIPT decisi on of 29 June 2018, paragraph 1500.  
166  Call with BIPT, 4 March 2021.  
167  Q1 – Questionnaire to market participants – telecommunications Belgium, response to questions 25 -27. 
 
 
31 Nexus is incentivized to maximise the JV’s wholesale revenues in light of the 
significant investments that the JV is expected to make, includi ng on the basis of 
equity investments from the Notifying Parties.168 
(147)  For the reasons set out above, the Commission concludes that the JV would not have 
the incentive to foreclosure rival operators by engaging in an input foreclosure 
strategy.  
(C) Impact on effective competition  
(148)  The Commission considers that due to the lack of ability and incentive , it is not 
needed to conclude on the question  whether any foreclosure strategy wo uld have a 
negative impact on effective competition.  
(149)  Most r espondents to the market investigation consider that th e Transaction will not 
have a negative impact on their business or on the relevant markets  (as set out in 
Section 4 above) .169 A majority of respondents agree that a potential positive impact 
from the JV’s entry on the market would depend on (i) the conditions that will apply 
to gain wholesale access to the JV’s infrastructure, and (ii) whether or not there is a 
risk that the d eployment of the JV’s network would lead to a de -regulation in the 
market. As set out above in paragraphs (137)  and (144) , it is clear that the JV will be 
subject to sector -specific regulation, and that the JV’s entry on the market will not 
lead to de -regulation.  
(D) Conclusion  
(150)  In light of the above, the Commission concludes that the  Transaction does not raise 
serious doubts as to the compatibility with the internal market with respect to 
possible input foreclosure practices under any of  the alternative product markets for 
the (i) wholesale resale broadband access and supply of leased  lines markets, and the 
(ii) retail telecommunications markets (retail mobile, fixed internet, fixed voice, 
business connectivity and a potential supply of multi -play services), irrespective of 
the geographic scope .  
5.4.2.  Customer foreclosure  
5.4.2.1.  The Notifying Parties’ views  
(151)  The Notifying Parties submit that there will be no customer foreclosure by restricting 
or limiting competing wholesale broadband access providers from their access to 
Proximus as a customer. The Notifying Parties confirm that Proximus curren tly does 
not purchase any wholesale broadband access services from other operators, and 
therefore a risk of customer foreclosure does not exist .170  
5.4.2.2.  Commission’s assessment  
(152)  For the reasons set out below, the Commission considers that the Transaction does 
not lead to credible customer foreclosure concerns in the upstream wholesale (local) 
                                                 
168  Form CO, paragraph 314.  
169  Q1 – Questionnaire to market participants – telecommunications Belgium, response to questions 29 -31. 
170  Form CO, paragraphs 320 -324. 
 
 
32 broadband access market. The Parties will not have the ability or the incentive to 
foreclose rival wholesale broadband access suppliers by restricting access to 
Proximus or the JV as a (potential) customer.  
(A) Ability to engage in customer foreclosure  
(153)  The JV and Proximus currently do not purchase any wholesale broadband access 
services from other operators in Belgium. As set out above (see paragraph (140) ), 
post-Transaction, the JV will constitute a new operator on the market, offering 
wholesale local broadband access services . The JV is currently not yet active on the 
market, as it will be c reated as a greenfield operation.171  
(154)  At the same time, Proximus does not purchase any wholesale broadband access 
services in Belgium.  [details regarding wholesale broadband access services] .172  
(155)  For the reasons set out above, the Commission concludes that the  JV would not have 
the ability to foreclose downstream operators by engaging in a customer foreclosure 
strategy.   
(B) Incentive to engage in customer foreclosure  
(156)  A majority of respondents to the market investigation  confirmed  that there is no 
scenario in whic h Proximus  would have started purchasing access from them, but 
would no longer have an incentive to do so post -Transaction.173  
(157)  Therefore, the Commission concludes that the JV would not have the incentive to 
foreclose downstream operators by engaging in a customer foreclosure strategy.  
(C) Impact on effective competition  
(158)  The Commission considers that due to the lack of ability and inc entive , it is not 
needed to assess whether any foreclosure strategy wo uld have a negative impact on 
effective competition.  
(159)  In any event, a s indicated in paragraph (149) , most respondents  to the market 
investigation consider that this Transaction will not have a negative impact on their 
business or on the relevant markets .  
(D) Conclusion  
(160)  In light of  the above, the Commission concludes that the Transaction does not raise 
serious doubts as to the compatibility with the internal market under any of the 
considered alternative product markets for wholesale broadband access, whether at 
national level or at the level of Telenet’s coverage area.  
 
 
                                                 
171  The Notifying Parties will not contribute assets or existing activities to  the JV.  
172  Notifying Parties’ response to RFI 8, question 1.  
173  Q1 – Questionnaire to market participants – telecommunications Belgium, response to question 28.  
 
 
33  
6. CONCLUSION  
(161)  For the above reasons, the European Commission has decided not to oppose the 
notified operation and to declare it compatible with the internal  market and with the 
EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the 
Merger Regulation and Article 57 of the EEA Agreement .  
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice-President