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 -MERGER -REGISTRY@ec.europa.eu.   EUROPEAN COMMISSION  
Brussels, 10.3.2022  
C(2022)  1581 final  
PUBLIC VERSION 
 
Iliad S.A.  
Rue de l’Evêque 16  
75008, Paris  
France  
Subject : Case M. 10515 – ILIAD / UPC POLSKA  
Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/2004
1 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 3 February 2022, the European Commission (the “Commission”) received 
notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Iliad S.A. ( “Iliad”, France ) intends to acquire  indirect sole 
control of UPC Polska sp. z o.o. (“ UPC  Polska ”, Poland)  within the meaning of 
Article 3( 1)(b) of the Merger Regulation  (the “Transaction”) . Iliad is designated 
hereinafter as the “Notifying Party”, while Iliad and UPC  Polska  are jointly referred 
to as the “Parties”.  
                                                 
1  OJ L 24, 29.1.2004, page 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 
‘Com munity’ 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, page 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information omitted has been replaced by 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 1. THE PARTIES  
(2) Iliad is the parent company of the Iliad group, which is ultimately controlled by 
Mr. Xavier Niel  (together with Iliad; the “Xavier Niel Group”  or “XNG” ). XNG is 
active in telecoms, media, IT services, start -up businesses and real estate. In the 
sector of telecommunications, XNG is active in Ireland, Malta, Cypr us, France, Italy 
and Poland. In Poland, since the acquisition of Play Communications S.A. (“Play”) 
in 2020,3 Iliad is mainly active as a provider of retail mobile telecommunications 
services  (including mobile internet access services ) and, since 2020,4 of fixed 
internet access services and pay  audio -visual  services  (“Pay AV” or “pay -TV” 
services ). Play’s subsidiary P4 sp. z o. o. (“P4”), is one of the four Mobile Network 
Operators (“MNOs”) present on the Polish retail mobile market.  
(3) UPC  Polska  is a subsidi ary of Liberty Global Inc.  (through the holding UPC Poland 
Holding B.V.5), exclusively active in Poland as a provider of retail fixed internet 
services, retail pay -TV services and retail fixed telephony services.6 UPC Polska  is 
also active in business connectivity and mobile telecommunication services as a 
Mobile Virtual Network Operator (“MVNO”), hosted on P4’s mobile network.  
2. THE OPERATION  
(4) On 22 September 2021, UPC Poland Holding B.V., P4, Iliad and Liberty Global plc 
entered into a share purchase agreement , whereby  P4 will acquire 100% of the share 
capital and voting rights of UPC Pol ska from UPC Poland Holding  B.V. Xavier Niel 
holds […] of the  share capital and voting rights of Iliad indirectly  through its 
subsidiaries Il iad Holding S.A.S. and HoldCo II S.A.S . The rest of the share capital 
of Iliad is held by employees and managers of the Iliad Group.  
(5) The Transaction therefore consists in the acquisition of sole control over UPC 
Polska  by Iliad within the meaning of Article 3(1)(b) of the Merger Regulation. 
3. UNION  DIMENSION  
(6) The undertakings concerned have a combined aggregate worldwide t urnover of more 
than EUR 5 000 billion7 (Xavier Niel Group : EUR [… ] in 2020; UPC P olska : EUR 
[…] in 2020) . Each of them has a n EU-wide turnover in excess of EUR 250 million  
(Xavier Niel Group : EUR [ …] in 2020; UPC P olska : EUR  […] in 2020) , but they 
did not achieve more than two- thirds of their aggregate EU -wide turnover within one 
and the same Member State.  
(7) Therefore, the Transaction has an EU dimension within the meaning of Article 1(2) of the Merger Regulation. 
                                                 
3  Commission decision of 26 October 2020, in case M.9963 –  Iliad/Play Commun ications.  
4  Form CO, paragraph 270.  
5  UPC Poland Holding B.V. holds 100% of the share capital and voting rights of UPC Polska.  
6 At the wholesale level, UPC Polska is also active in Poland on the market for the supply of wholesale call 
termination servic es on individual fixed networks.  
7  Turnover calculated in accordance with Article 5 of the Merger Regulation.  
 
 
3 4. RELEVANT MARKETS  
(8) The Transaction will combine the complementary mobile telecommunication s 
business of Iliad’s subsidiary P4 and the fixed telecommun ications business  of UPC 
Polska  in Poland.  
(9) P4 is predominantly a mobile player. It does not have any fixed network 
infrastructure in Poland and has only very limited presence in fixed telecommunications services, based on a wholesale agreement with the cab le 
operator Vectra.  
(10) To the contrary, UPC P olska  owns cable infrastructure and focusses on fixed internet 
and pay -TV services , with a very limited presence in the retail mobile market. UPC 
Polska  operates as a light MVNO
8 based on a wholesale agreement wit h P4. 
(11) The Parties’ activities overlap in the following markets  in Poland: (i) retail supply of 
mobile telecommunications services; (ii) retail supply of fixed telephony services; 
(iii) retail supply of fixed internet access services; (iv) retail supply of audio- visual 
services; (v) retail supply  of multiple -play services; (vi) retail supply of business 
connectivity; (vii) wholesale supply of leased lines; ( viii) wholesale acquisition of 
TV channels ; and (ix) wholesale acquisi tion of TV content . 
(12) In addition, t he Transaction gives rise to vertical relationships in the EEA countries 
in which the Parties are present ( i.e., Cyprus, France, Ireland, Italy, Malta and 
Poland for XNG, and Poland for UPC P olska ) in connection to : 
At the upstream level : 
• The wholesale market for mobile call termination services on XNG’s mobile networks in Cyprus, France, Ireland, Italy, Malta , and Poland;  
• The wholesale market for fixed call termination services on (i) XNG’s networks 
in Cyprus, France, Ireland, and Malta , and on (ii) UPC P olska ’s network in 
Poland;  and 
• The wholesale access and call origination services on XNG’s mobile network in 
Poland. 
At the downstream level : 
• The retail market for mobile telecommunication services in (i) Cyprus, France , 
Ireland, Italy, Malta , and Poland (XNG) , and (ii) Poland ( UPC P olska ); and  
• The retail market for fixed telephony services in (i) Cyprus, France, Ireland, Malta and Poland (XNG) and (ii) Poland ( UPC Polska ). 
                                                 
8  Unlike “full” MVNOs, “light” MVNOs do not have their own infrastructure and rely entirely on the infrastructure 
of an MNO.  
 
 
4 4.1.Retail supply of mobile telecommunications serv ices 
(13) Retail mobile telecommunications services include services for national and 
international voice calls, SMS (including MMS and other messages), mobile internet with data services, access to content via the mobile network and retail international roamin g services.  
4.1.1. Product market definition 
4.1.1.1.Previous Commission ’s decisions  
(14) In previous decisions, the Commission has identified an overall retail market for mobile telecommunications services, distinct from retail fixed telecommunication s 
services. The Commissi on considered that the retail mobile telecommunications 
market does not need to be further segmented based on the type of service (voice 
calls, SMS, MMS, mobile Internet data services), or the type of network technology 
(2G, 3G, 4G).
9 The Commission  has considered a number of possible segmentations 
of the overall retail market for mobile telecommunication services (pre -paid vs post -
paid services;10 private customers vs. business customers;11 high-value vs low -value 
customers;12 sim-card only (“SIMO”) and hands et subscriptions;13 different 
distribution channels14), and  has taken the view  that they do not constitute separate 
product markets but rather segments of the same market.  
                                                 
9  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 66; 
Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 207; Commission 
decision of 1 September 2016 in case M.7758, Hutchison 3G Italy /Wind/JV, recitals 135 to 140; Commission 
decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraph 74; Commission 
decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , recitals 259 to 265 and 287; 
Commission decision of 02 July 2014 in case M.7018 –  Telefónica Deutschland/E -Plus , recitals 31 to55; 
Commission decision of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland , recital 141; 
Commission decision of 12 December 2012 in case M.6497 –  Hutchis on 3G Austria/Orange Austria , recitals 43 
to 58. 
10  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recitals 64 to 67; 
Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL , recital 202; Commission 
decision of 30 May 2018 in case M.7000 –  Liberty Global/Ziggo , paragraphs 200 to 207; Commission decision of 
1 September 2016 in case M.7758 –  Hutchison 3G Italy/Wind/JV, recitals 146 to 149; Commission decision of 3 
August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraphs 72 to 74; Commission decision of 
11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , recitals 266 to 270 and 287; Commission 
decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-Plus , recit als 37 to 39 and 65 to 71; 
Commission decision of 28 May 2014 I case M.6992 –  Hutchison 3G UK/Telefónica Ireland, recitals 141 to 143; 
Commission decision of 12 December 2012 in case M.6497 –  Hutchison 3G Austria/Orange Austria , recitals 38 
to 41 and 58.  
11  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recitals 64 to 67; 
Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraphs 200 to 2 07; Commission 
decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV , paragraphs 72 to 74; Commission 
decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , recitals 276 to 279; Commission 
decision of 2 July 2014 in c ase M.7018  – Telefónica Deutschland/E-Plus , recitals 30 to 36; Commission decision 
of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland, recitals 141, 149 and 150; Commission 
decision of 12 December 2012 in case M.6497 –  Hutchison 3G Austria/ Orange Austria , recitals 32 to 35.  
12  Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E- Plus, recitals 40 to 44.  
13  Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK , recitals 271 to 275.  
14  In Com mission decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , recitals 280 to 286, 
the Commission also took into account the segmentation between direct distribution and independent specialist 
retailers in view of the important role playe d in the retail market by independent specialist retailers and since direct 
distribution and independent specialist retailers account for the largest part of the market.  
 
 
5 (15) The Commission has considered that Over -the-top (“OTT”)15 services, whether 
provided over Wi -Fi or via mobile telecommunications data networks, are not part of 
the market for retail mobile telecommunications services, as OTT rely on mobile 
telecommunications (data) services and/or fixed broadband services to function.16 
Finally, the Commission has excluded Machine- to-Machine (“M2M” , such as  
energy metering or burglar alarm ) services from the overall retail mobile 
telecommunications market, due to the particular characteristics of the demand and 
supply of these ser vices.17 
4.1.1.2.The Notifying Party’s view  
(16) The Notifying Party identifies the overall market for the retail supply of mobile 
telecommunication services as the appropriate relevant product market in this case, without any further segmentations.  
4.1.1.3.The Commission’s as sessment  
(17) The results of the market investigation confirm that the conclusions adopted by the Commission in previous cases are also applicable to the Polish market. In fact, a 
majority of  MNOs and a vast majority of MVNO s agree that there is a separate 
mark et for retail mobile telecommunications services.
18 The majority of re spondents 
also considers that M2M19 services are not part of  the market for retail mobile 
telecommunications services.20 As to OTT services, the  replies  to the market 
investigation did not provide  enough elements to make  a conclusion as to whether 
they belong to the market of retail mobile telecommunications services or not.21 
(18) In light of the above  and for the purpose of this Decision, the Commission considers 
the relevant product market to be  the market for the retail supply of mobile 
telecommunication services, excluding M2M services. The question whether such 
product market should include OTT services can be left open, as neither party is 
active in the provision of OTT services and the Tran saction does not raise serious 
doubts as to its compatibility with the internal market or the functioning of the EEA 
Agreement under any plausible product market definition.   
                                                 
15  In the present context OTT services are understood to be telecommunications services that rely on an internet 
connection to function, such as instant messaging (e.g. WhatsApp, Facebook Messenger, Apple iMessage) and 
voice over IP ("VoIP" e.g. WhatsApp, Skype, Apple FaceTime).  
16  Commission decision of 18 July 2019 in case M.8864 –  Vodaf one/Certain Liberty Global Assets , recital 65 to 66; 
Commission decision of 27 November 2018 in case M.8792 –  T-Mobile NL/Tele2 NL , recitals 168 to 169;; 
Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/WIND/JV, recitals 138 to 1 45 
and 162, Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK , recitals 262 
to 265 and 286s.  
17  Commission decision of 15 July 2019 in case M.9370 – Telenor/DNA , paragraphs 39 to 42; Commission decision 
of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL , recitals 223 and 224.  
18  Replies to Q1 to Competitors MNOs, question 3 and to Q2 to competitors MVNOs, question 3.  
19  Replies to Q1 to Competitors MNOs, q uestion 4 and to Q2 to competitors MVNOs, question 4.  
20  These allow machines, devices and appliances to connect wirelessly to the internet via mobile networks, or other 
technologies, permitting the transmission and receipt of data to a central server  
21  Replies to Q1 to Competitors MNOs, questions 5 and 5.1. Replies to Q2 to com petitors MVNOs, questions 5 
and 5.1. 
 
 
6 4.1.2. Geographic market definition  
(19) In previous decisions, the Commission found that the market for the retail supply of 
mobile telecommunications services is national in scope.22 
(20) The Notifying Party considers that the overall market for the retail supply of mobile telecommunication s services is national in scope. Indeed, the telecommunications 
infrastructure of Poland is independent from that of other Member States and mobile 
telecommunications services in Poland (as well as in other Member States) are 
subject to a national regulator y regime. Licenses and general authorisations are 
granted on a national basis and all four MNOs and the main MVNOs provide mobile 
telecommunication s services at national level . Moreover, marketing and pricing 
policies are also developed at  national level.  
(21) A majority of the respondents to the market investigation indicated that it would be 
appropriate to consider that the geographic scope of the market for the retail supply of mobile telecommunications services is national in scope and encompasses Poland.
23 
(22) In light of the above, the Commission considers that, for the purpose of this Decision, the relevant geographic market for the retail supply of mobile telecommunication s services is Poland.  
4.2.Retail supply of fixed telephony services  
(23) Fixed telephony service s 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 receiving calls and related services.
24 
4.2.1. Product market definition 
4.2.1.1.Previous Commission ’s decisions  
(24) The Commission has  considered distinguishing  between local/national and 
international calls, as well as between residential and non- residential customers in 
the market for the retail supply of fixed telephony services ,25 but ultimately leaving 
the exact product market definition open.26   
                                                 
22  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 70; 
Commission decision of 2 October 2008 in case M.5148 – Deutsche Telekom/OTE , paragraphs 18 to 20.  
23  Replies to Q1 to Competitors MNOs, questions 6 and 6.1. and  Replies to Q2 to competitors MVNOs, questions 6 
and 6.1.  
24  Commission decisions of 18 July 2019 in case M.8864 – Vodafone/Certai n Liberty Global Assets, recital 33; of 
15 July 2019 in case M.9370 – Telenor/DNA , paragraph 47; of 30 May 2018 in case M.7000, Liberty 
Global/Ziggo , paragraph 147;of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraph 
21; of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital 69; of 20 September 2013 in case 
M.6990 – Vodafone/Kabel Deutschland, paragraph 131.  
25  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets, recitals 35 to 40; 
Commission decision of 8 October 2018 in case M.8842 – Tele2/Com Hem Holding , paragraphs 14 to 17.  
26 Commission decisions of 18 July 2019 in case M.8864, Vodafone/Certain Liberty Global Assets , paragraph 40; of 
15 July 2019 in case M.9370, Telenor/D NA, paragraph 52; 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 and 39; of 7 September 2005 in case M.3914, Tele2/Versatel , paragraph  10. 
 
 
7 (25) The Commission also recently considered that managed Voice over Internet Protocol 
(“VoIP”) services27 and traditional fixed telephony are interchangeable and therefore 
belong to the same market.28 However, i n Liberty Global /Ziggo the Commission left 
the exact market definition open .29 
4.2.1.2.The Notifying Party’s view  
(26) The Notifying Party identifies the overall market for the retail supply of fixed 
telephony services, including VoIP services, as the appropriate relevant product 
market.  The Notifying Party considers that it is not appropriate to segment this 
market between local/national and  international  calls or between residential and  non-
residential customers.30 According to the Notifying Party, c ustomers do not choose a 
particular fixed telephony provider based on whether its international call fees are 
competitive, and all providers are able to, and routinely do, serve both residential and non- residential customers.
31 
4.2.1.3.The Commission’s assessment  
(27) A majority of respondents to the mark et investigation indicated that an overall 
market for the retail supply of fixed telephony services , through both fixed telephony 
lines and VoIP is the relevant product market .32 
(28) With respect to a distinction between local/national and international calls, the results of the market investigation were mixed. While some  competitors suggested 
that such distinction would be appropriate due to the often significantly higher internationa l termination rates vis -à-vis national interconnection rates, other 
respondents indicated that there would be no significant distinctions between such calls from an end- user perspective and that both types of calls are covered by the 
same contract and tech nology .
33 
(29) With respect to a segmentation between residential and non -residential customers, 
the results of the market investigation were also inconclusive. C ertain competitors  
suggested  that such a distinction is warranted as the provision of services to non-
residential customers implies  higher network infrastructure costs, and because fixed 
telephony services are provided under different service parameters de pending on the 
type of customer. However, a  number of respondents considered that, despite some 
differences between the two types of customers, the suppliers often provide similar fixed telephony services to both residential and non- residential customers.
34 
                                                 
27  VoIP is a technology that allows users to make voice calls using a broadband internet connection instead of a 
regular (or analogue) phone line.  
28  Commission decision of 3 August 2016 in case M.7978, Vodafone/Liberty Global/Dutch JV, paragraph 26; Commission decision of 4 February 2016 in case M.7637, Liberty Global/BASE Belgium, paragraph 69; Commission decision of 20 September 2013 in case M.6990, Vodafone/Kabel Deutschland, paragraphs 130- 131.  
29  Commission decision of 30 May 2018 in case M.7000, Liberty Global/Ziggo, paragraph 147;  
30  Form CO, paragraph 83.  
31  Form CO, paragraph 83.  
32  Replies to Q1 to Competitors MNOs and Replies to Q2 to Competitors MVNOs, questions 7 and 7.1.  
33  Replies to Q1 to Competitors MNOs and Replies to Q2 to Competitors MVNOs, questions 8 and 8.1  
34  Replies to Q1 to Competitors MNOs and Replies to Q2 to Competitors MVNOs, questions 9 and 9.1.  
 
 
8 (30) In light of the above, the Commission considers that, for the purpose of this 
Decision, the relevan t product market is the market for the retail supply of fixed 
telephony services including VoIP services. The question whether the market should be segmented (i) between local/national calls on the one hand, and international calls on the other or (ii) by customer type (residential and non- residential) can be left 
open as the Transaction does not raise serious doubts as to its compatibility with the internal market under any plausible product market definition. 
4.2.2. Geographic market definition  
(31) In its decisional  practice, the Commission left the geographic market open, 
considering that the market for the retail provision of fixed telephony services could 
be national in scope or narrower (i.e. regional or limited to the coverage area of each 
operator).
35 In some  decisions, the Commission concluded that the retail market for 
the provision of fixed telephony services is national due to the importance of 
national regulation in the telecommunications sector, the supply of upstream wholesale services that work on a na tional basis, and the fact that the pricing policies 
of telecommunications providers are predominantly national.
 36 In relation to recent 
transactions taking place in Poland, t he Commission has also found that such market 
was national in scope and consisted  of Poland.37 
(32) The Notifying Party considers that the relevant geographic market for the retail supply of fixed telephony services is  Poland, as fixed telephony services are 
provided in its entire territory  and are becoming increasingly obsolete at the same 
rate across the national territory.
38 In addition, in reference to Discovery/Polsat/JV39,  
the Notifying Party notes that the importance of national regulation in the 
telecommunications sector, the supply of upstream wholesale services on a national 
basis, a nd the fact that the pricing policies of telecommunications providers are 
predominantly national, support the argument that the retail market for fixed telephony services is national in scope.
40 
(33) Certain respondents to the market investigation noted that the  geographic scope 
could be regional because of the  unequal fixed network coverage in Poland, and 
because the levels of competition vary  throughout Poland.41 Namely, as one 
respondent noted, denser city areas in Poland have better network coverage and higher level of competition.  While fierce competition exists in the urban centres , 
some regions ( particularly rural areas) have a lower network coverage (or lack  
access to the fixed network infrastructure ), and therefore  fewer operators providing  
                                                 
35  Commission decisi ons of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/ JV, paragraph 65; 
Commission decision of 18 October 2019 in case M.9433 –  MEIF 6 Fiber/KCOM Group , paragraphs 24 -25; and 
Commission decision of 4 February 2016 in case M.7637 –  Liberty Gl obal/BASE Belgium , paragraph 73;  
36  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets, recital  46; 
Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 150; Commission 
decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraph 29; Commission 
decision of 19 May 2015 in case M.7421 – Orange/Jazztel , recital 37; Commission decision of 3 July 2012 in case 
M.6584 – Vodaf one/Cable & Wireless , paragraph 13..  
37  Commission decision of 26 October 2020 in case M. 9963 –  Iliad/Play Communications , paragraph 26; 
Commission decision of 26 August 2020 in case M.9299 – Discovery/Polsat/JV, paragraph 102.  
38  Form CO, paragraph 85.  
39  Commission decision of 26 August 2020 in case M.9299 – Discovery/Polsat/JV, paragraph 101.  
40  Notifying Party’s response to RFI 5, question 5.  
41  Replies to Q1 to Competitors MNOs and Replies to Q2 to Competitors MVNOs, question 10.  
 
 
9 fixed telephony services.  In effect, “ the same competitors are not active throughout 
the whole of the territory of Poland and their strength varies strongly by regions .”42  
However, a  majority of respondents indicated that it is appropriate to consider that 
the geographic scope of the market for the retail supply of fixed telephony services 
in the present case is Poland.43  
(34) In light of the above, the Commission considers tha t, for the purpose of this 
Decision, the relevant geographic market for the retail supply of fixed telephony services is national in scope, covering Poland.  
4.3.Retail supply of fixed internet access services  
(35) Internet access services consist of the provision of a telecommunications link 
enabling customers to access the internet. Internet access may be provided as dial -up 
("narrowband") access , as higher bandwidth ("broadband") access via xDSL, as a 
cable modem or mobile broadband technology , or in the form of dedicated access 
involving leased lines linking one point to the internet and guaranteeing higher 
levels of performance and security.
44 
4.3.1. Product market definition 
4.3.1.1.Previous Commission ’s decisions  
(36) In its recent decision s, the Commission cons idered 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 fixed -wireless -acces s (“FWA”) , and it took the 
view that the retail market for fixed internet access services should not be segmented 
according to download speed.
45 
(37) The Commission also considered, but ultimately left open, possible segmentations as to customer type, distinguis hing between residential and small business customers, 
on the one hand, and larger business customers and public authorities, on the other 
hand.
46 As for large business customers  and public authorities , the Commission 
indicated that they belong to a separat e market for the retail supply of business 
connectivity services.47 
                                                 
42  Replies to Q1 to C ompetitors MNOs, question 10.  
43  Replies to Q1 to Competitors MNOs and Replies to Q2 to Competitors MVNOs, question 10.  
44  Commission decision of 29 January 2010 in case M.5730 –  Telefónica/Hansenet Telekommunikation , paragraph 7.  
45  Commission decisions  of 12 November 2019 in case M.9064 – Telia Company/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 
Deutschland, recital 194.  
46  Commission  decision of 19 May 2015 in case M.7421 –  Orange/Jazztel , recital 42; Commissi on decision of 
30 May 2018 in case M.7000 –  Liberty Global/Ziggo , paragr aph 165; Commission decision of 7 October 2016 in 
case M.8131 –  Tele2 Sverige/TDC Sverige, paragraph 32.  
47  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets, recitals  50 to 56; 
Commission decision of 30 May 2018 i n case M.7000 – Liberty Global/Ziggo , paragraphs 165 seq.; In 
Commission decision of 9 July 2018 in case M.8808 –  T-Mobile Austria/UPC Austria , paragraphs 39, 41, the 
Commission left the exact product market definition open in that regard; Commission decis ion of 26 June 2009 in 
case M.5532 –  Carphone Warehouse/Tiscali UK , paragraphs 21 to 27.  
 
 
10 (38) Finally, the Commission previously considered that fixed internet access services 
provided through mobile network infrastructure (so- called FWA services) do not 
form part of the retail fixed internet access market.48  
4.3.1.2.The Notifying Party’s view  
(39) The Notifying Party considers that it is appropriate to define an  overall market for 
the retail supply of fixed internet services  (excluding FWA services) , without further 
segmentations  according to (i) product type, (ii) d istribution technology or 
(iii) customer type.  The Notifying Party submits  that the distinction according to 
product type is irrelevant as the difference between standard broadband and dedicated lines is captured in the distinction by certain categories of customers (only 
large business and government customers use dedicated lines), and that narrowband 
is virtually non- existent in Poland. The Notifying Party also considers that the 
distinction by distribution technology  is not appropriate , as consumers tend to select 
fixed internet services primarily based on price, speed and similar performance 
characteristics, while the distribution technology is not the determining factor.
49 
4.3.1.3.The Commission’s assessment  
(40) A majority of re spondents to the market investigation50 indicated that it would be 
appropriate to consider an overall retail market for the supply of fixed internet access 
services to residential and small business customers, including all product types, 
distribution techn ologies and speeds/bandwidths, but excluding FWA services .  
(41) With regard to FWA services , the market investigation results confirmed that FWA 
services do not form part of the retail fixed internet access market given the differences in their respective capacity and pricing models, different speeds and different uses .
51 In particular, FWA services have a lower connection quality and 
speed in comparison to a fixed line, resulting from the significant sensitivity of mobile technology to specific external factors (weather conditions, terrain/type of development, number of users within the range of the same transmitting/receiving station, amount of data sent/received by the user, distance between the user’s terminal and the transmitting/receiving unit, mobility of users or data transfer limitation).
52 As one market respondent observed “ Higher bitrates offered by the 
fixed network make this service priced differently (no data caps) and more stable than the service provided in the mobile network. It is not possible to replace the 
fixed service, at the current stage of technological development, with the mobile service while retaining some of the features of comfort of use of the service”.
53 In 
addition, the Polish Office of Electronic Communications (Urząd Komunikacji Elektronicznej; “UKE”) reported that “ 67% of individual users prefer to use fixed-
line access due to better connection quality and stability ”
54 as well as that the 
penetration of fixed- line access services has been growing: “In 2020, 56.7% of 
                                                 
48  Commission  decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , paragraph 56.  
49  Form CO, paragraphs 90- 93. 
50  Replies to Questionnaire  Q1 to competitors, question 11.  
51 Replies to Questionnaire Q1 to competitors, question 12 and Replies to Q2 to Competitors MVNOs, question 11.  
52  Form CO, paragraph 102.  
53  Replies to Q2 to Competitors MVNOs, question 11.1.  
54  UKE Report 2020, page 8.  
 
 
11 households used fixed- line internet”.55 A number of respondents consider that a 
limited substitution does exist between the two services given the unequal 
distribution of the fixed network coverage throughout Poland (“there is some and 
asymmetric competitive pressure exerted on providers of fixed Internet access 
services from mobile Internet access services pr oviders via a router or modem ”).56 
However, the Commission notes that  the availability of fixed -line internet  services is 
limited mainly to urban areas, while in the outside areas , fixed -line internet services 
are offered only to a limited extent . Moreover, large parts of Poland are not covered 
by any fixed network, or only have access to ADSL networks relying on extended copper lines providing s ingle digit downloading speeds.
57 Therefore,  FWA services 
are typically  used for locations where wireless internet is the only option for internet 
access due to Poland’s low urbanization level and relatively underdeveloped fixed-
line infrastructure .58 In conclusion, it appears that FWA services are likely to be 
compl ements rather than substitutes to internet services pr ovided through fixed 
infrastructure.  
(42) With respect to a possible distinction by customer type, the responses to the market investigation were mixed. A number of respondents confirmed that  fixed internet 
access services provided to residential and small busi ness customers , on the one 
hand, and large business and government customers , on the other hand,  belong to 
separate markets , given  significant differences in demand. In particular, the 
respondents note d that large business and government custome rs require a dedicated 
infrastructure and specialized services , which are rarely used by residential and 
small business customers , and therefore “[…] large business and government 
customers have different needs; they usually need internal networks and specialized services large business and government customers needs better QoS level,.”
59 
However , an equal  number of respondents considered that a distinction between 
different customer types  might not be warranted: “Although, there are some 
differences between these t ype of customers and hence the offered commercial terms 
for services provided, the supplied services are similar and may be provided by a similar range of suppliers ”.
60  
(43) When considering the supply -side substitutability , half of the market participants 
considered that switching from residential and small business customers to 
supplying large business and government customers , and vice versa , is possible 
within a short timeframe and without significant costs , noting that many suppliers 
cater to both customer categories . However,  some market participants remarked  that 
supplying  a non-standard fixed internet offer , customized to satisfy  a business 
customer’s needs , requires  significant time and investment. One respondent stated 
that “It seems to be quite impossible that supplier that is only active in the segment 
of residential and SOHO customers can provide services to B2B segment in a short timeframe ” in particular as “large business and governmental customers have 
                                                 
55  Ibid. 
56  Replies to Q2 to Competitors MVNOs, question 11.1.  
57  Form CO, paragraph 104.  
58  See C yfrowy Polsat, Annual Consolidated Report for the financial year ended December 31, 2020, 
https://grupapolsatplus.pl/sites/default/files/documents/2021/polsat_gr oup_report_2020.pdf, page 59.  
59  Replies to Questionnaire Q1 to competitors, question 13.1.  
60  Replies to Q2 to Competitors MVNOs, questions 12 and 12.1.  
 
 
12 different needs and services which are generally not available at B2C portfolio.”61 
Also, some respondents noted that switching from large business and government 
customers to residential and small business custo mers may even be more 
challenging , in particular  as the competitive conditions are different in each 
customer category. For instance, according to one respondent, the market for  retail 
fixed internet supply to residential and small business customers is characterized by 
lower margins and higher price competition.62 Accordingly, as per prior Commission 
practice, large business customers and public authorities are considered part of a different market for business connectivity.
63 
(44) In light of the above, the Commission considers that, for the purpose of this 
Decision, the relevant product market  is the market for the retail supply of fixed 
internet access services, including all product types, distributi on modes, and 
speeds/bandwidth, excluding FWA . The question whether the market should be 
segmented by customer type (residential and small busine ss customers, on the one 
hand, and large business and government customers , on the other) can be left open as 
the Transaction does not raise serious doubts as to its compatibility with the internal 
market under any plausible product market definition.  
4.3.2. Geographic market definition  
(45) In previous decisions, the Commission has found the market for the retail supply of 
fixed internet access services to be national in scope,64 including for Poland. 65 
In Liberty Global/BASE Belgium , the Commission considered whet her the 
geographic scope of the market should be defined on a regional basis or by reference 
to the footprint of the operators’ networks, but ultimately left the question open.66 
(46) The Notifying Party considers that the relevant geographic market for the retail supply of fixed internet access services is national in scope  for the following 
reasons .
67 First, the Notifying Party submits  that the regulatory conditions for the 
retail supply of fixed internet services are the same in the entire country . Second, the 
Notifying Party submits that all major providers of fixed internet services are active across the major urban centres throughout Poland. Third, the Notifying Party submits that the general pricing policy and commercial strategy of fixed internet services p roviders  (including price lists, main promotions and marketing campaigns)  
is uniform throughout the national territory . The Notifying Party notes  that some 
operators may run targeted, special promotions limited to certain local areas.
68 
                                                 
61  Replies to Q1 to Competitors MNOs, question 14 and 14.1.  
62  Replies to Q2 to Competitors MVNOs, que stion 14 and 14.1.  
63  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recitals 50 to 56; 
Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraphs 165 seq.; In 
Commission decision of 9  July 2018 in case M.8808 –  T-Mobile Austria/UPC Austria , paragraphs 39, 41, the 
Commission left the exact product market definition open in that regard; Commission decision of 26 June 2009 in 
case M.5532 –  Carphone Warehouse/Tiscali UK, paragraphs 21 to 27.  
64  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting Holding , 
paragraph 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 , paragraph 38; of 20 September 2013 in case M.6990 - 
Vodafone/Kabel Deutschland, paragraph 194.  
65  Commission decision of 26 August 2020 in case M.9299 – Discovery/Polsat/JV, paragraph 109.  
66  Commission decision of 4 February 2016 in case M.7637 –  Libert y Global/BASE Belgium , paragraph 62 -64 
67  Notifying Party’s response to RFI 5, question 3.  
68  Notifying Party’s response to RFI 5, question 3.  
 
 
13 Fourth, the Notifyin g Party submits that while the coverage of fixed internet 
infrastructure in Poland is  currently  fragmented, there is a continuous fixed 
infrastructure development process aimed at harmonizing the infrastructure levels in 
Poland. In particular, the EU funded infrastructure is rapidly being deployed in 
Poland,69 and in line with these broader rollout efforts, individual operators continue 
to upgrade their fixed infrastructures with the view of increasing their top services 
levels.  According to the Notify ing Party, while there remain some discrepancies in 
the quality of access offered to customers in different regions, it would be reasonable to predict that  geographic differences in fixed network coverage  will dissipate within 
the next 3 to 5 years.  
(47) As for the geographic scope of the market for retail fixed internet services, the 
responses to the market investigation we re mixed. A n equal number of respondents 
considered that the geographic scope is either national or regional , or limited to the 
footprint of the services provider. S ome respondents noted that it would be more 
appropriate to treat the market as  national , in particular  given that “ there are 
important national regulations that govern the telecommunications sector ” and that  
“The pricing policies of telecommunication providers are predominantly national in 
scope in Poland.”
70 Other respondents  argued that the geographic market is narrower  
in scope  (i.e. regional or limited to the footprint of the service provider) given that 
levels of competition vary depending on the local area ( “The same competitors are 
not active throughout the whole of the country and their strength varies strongly by regions ”), because of the fragmented coverage of fixed infrastructure in  Poland , with 
some rural areas lack ing access to broadband telecommunications infrastructure .
71 In 
consequence, while the levels of competition are  high in urban area s, only  a few 
players are present outside of large cities.   
(48) In addition, the Commission observes  that the  Polish Competition Authority ( Office 
of Competition and Consumer Protection, “UOKiK”) has previously analysed the 
market for retail fixed internet services at  a local level (e.g. in individual 
municipalities or in the local foo tprint of the service provider).72 
(49) In light of the above, the Commission considers that, for the purpose of this Decision, the question whether the geographic market should be defined as national or narrow er (i.e. regional  or limited to the footprint of the services provider) ca n be 
left open as the Transaction does not raise serious doubts as to its compatibility with 
the internal market under any plausible geographic market definition.  
                                                 
69  Subsidies from European Union funds stimulate investments in fiber optic technologies under the governmental 
program “Operating Program Digital Poland” (Program Operacyjny Polska Cyfrowa –  POPC). One of the 
priorities is to eliminate differences in access to fast broadband networks between rural and urban areas, resulting in obtaining access to fast broadband connection by all Polish households. Orange Polska and Inea, among others, executed investments in broadband networks under the POPC program. Form CO, footnote 45. The Notifying 
Party submits that already ca. 700,000 households in Poland have been reached by t he fiber networks rolled out 
within the POPC program since 2015, and the aim is to reach ca. 2 million households by the end of 2022. See Notifying Party’s response to  RFI 5, question 3.
 
70  Replies to Q2 to Competitors MVNOs, question 15.1.  
71  Form CO, paragraph 104.  
72  Decision of the President of UOKiK of 5 September 2011, DKK2 -421/52/10/AI.  
 
 
14 4.4.Retail supply of audio -visual services  
(50) In the retail supply of audio- visual services, retail providers distribute to end -users  
linear TV channels  or other audio- visual content that they have purchased in the 
wholesale upstream market for TV channel s or from holders of broadcasting rights . 
In some cases, retail providers of audio- visual services pr oduce  in-house  the 
channels or content they distribute to their audience .  
4.4.1. Product market definition 
4.4.1.1.Previous Commission decisions  
(51) The Commission has previously identified a relevant product market for the retail 
supply of audio- visual (“AV”) services, in cluding suppliers of linear and non- linear 
AV services and AV content to end customers. The Commission considered possible 
segmentations between (i) Free -to-Air (“FTA”) and Pay AV services; (ii) within Pay 
AV services, between linear and non -linear service s (Pay -Per-View (“PPV”), Video -
on-Demand (“VOD”) , Subscription Video- on-Demand (“SVOD”), Transactional 
Video -On-Demand (“TVOD”) ); (iii) between distribution technologies (cable, 
satellite, digital terrestrial television  (“DTTV”)  and Internet Protocol Television 
(“IPTV”)); and (iv) premium and basic P ay AV services, ultimately leaving the exact 
product market definition open. 73 
4.4.1.2.The Notifying Party’s views  
(52) The Notifying Party submits that the relevant market is the national market for the 
retail supply of AV services encompassing all distribution technologies, as there is 
little to no differentiation between providers , and that all operators have access to 
similar contents.  The Notifying Party considers that the question of whether the 
market for the retail su pply of AV services should be further segmented can be left 
open given the Parties’ moderate combined share and P4’s marginal position on this 
market.74  
4.4.1.3.The Commission’s assessment  
(53) The majority of respondents to the market investigation indicated that Pay AV 
services fall into a separate product market  from FTA AV services . For instance, one 
respondent noted that  FTA and Pay AV services have different content sales 
strategies, and different revenue sources. Also, the content is usually made available first on a Pay AV service and aired only subsequently through FTA AV services. 
Another respondent considered that  “Although both services meet similar customer 
expectations, they differ in the content offered”, in particular as “FTA channels are the most popular , but also most common and most basic channels . Pay-TV offers 
                                                 
73  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets, recitals 76 to 83; 
Commission decision of 30 May 2018 in case M.700 0 – Liberty Global/Ziggo , paragraphs 70 to 79; Commission 
decision of 6 February 2018 in case M.8665 –  Discovery/Scripps,  paragraphs 31 to 33; Commission decision of 
7 April 2017 in case M.8354 –  Fox/Sky,  paragraphs 97 to 102; Commission decision of 3 August 2016 in case 
M.7978 – Vodafone/Liberty Global/Dutch JV , paragraphs 55 to 62; Commission decision of 24 February 2015 in 
case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , recitals 117 to 12 7; In Commission decision of 
25 June 2008 in case M.5121 –  News Corp/Premiere , paragraphs 21 to 22, the Commission only distinguished 
between FTA TV on the one hand and Pay TV on the other; Commission decision as of 18 July 2007 in case 
M.4504 – SFR/Télé 2 Franc e, recitals 37 to 44.  
74  Form CO, paragraphs 127-129.  
 
 
15 basic, extended basic and premium content, not present in FTA form ”.75 However, 
some respondent s noted that Pay AV and FTA services are substitutable from a 
customer’s perspective as well as that customers in Poland usually receive FTA 
channels as part of the pay AV packages.76 
(54) With respect to a possible distinction between linear and non- linear AV se rvices, t he 
majority of respondents consider ed that such a distinction was not warranted . In 
particular, the respondents noted that  “All kind of services delivering content 
compete for viewers attention and time. Linear or non- linear is just a method, in 
which content is made available to clients ” and that “Non- linear services exert a 
significant competitive pressure against other audio- visual services, especially pay 
TV. […] The non- linear services are becoming more and more often the additional 
element of  pay TV offer. ”77 One respondent also noted that non- linear AV services 
can be an alternative to linear AV services only in some cases, e.g., when the content 
from linear channels is available simultaneously on OTT platforms on a non- linear 
basis.78 
(55) With res pect to distribution technologies, from a demand -side perspective,  the 
majority of AV service operators responded that that there is substitutability for end -
customers between all technical forms of AV distribution.79 For instance, one 
respondent noted that  “From the customer’s perspective, the most important is 
service availability, quality and content, not the technology by which services are delivered ”.
80 
(56) Finally, the majority of respondents considered that , in line with the Commission’s 
findings in Telia Company/Bonnier Broadcasting Holding81, SVOD over -the-top 
(“OTT”) services exert significant competition pressure on linear premium P ay TV 
films and series channels  and are complementary to FTA and basic P ay TV 
channels . 82 
(57) In light of the above, the Commiss ion considers  that the relevant product market for 
the purpose of this Decision is  the market for the retail supply of AV services 
encompassing all distribution technologies. Moreover, the Commission considers that, in any event , the question whether the r etail supply of AV services should be 
further segmented between (i) FTA and P ay AV services, as well as the question 
whether in turn the retail supply of P ay AV services should be segmented according 
to (ii) linear and non- linear Pay AV services, and (iii)  premium and basic P ay AV 
services  can be left open , as the Transaction does not raise serious doubts as to its 
compatibility with the internal market under any plausible product market definition.  
                                                 
75  Replies to Q2 to Competitors MVNOs, questions 17 and 17.1.  
76  Replies to Q2 to Competitors MVNOs, question 17.1.  
77  Replies to Q2 to Competitors MVNOs, questions 18 and 18.1.  
78  Reply to Questionnair e Q1, question 19.  
79  Replies to Q1 to Competitors MNOs, questions 20 and 20.1.  
80  Reply to Questionnaire Q2, question 29.  
81  Commission decision of 12 November 2019 in case M.9064 - Telia Company/Bonnier Broadcasting Holding, 
paragraph 192.  
82  Replies to Q2 to Competitors MVNOs, questions 20 and 20.1 and Replies to Q1 t o competitors, questions 21 
and 21.1.  
 
 
16 4.4.2. Geographic market definition  
(58) In its previous decisions, the Commission concluded that the market for the retail 
supply of AV  services is national in scope or at most corresponds to linguistically 
homogenous areas.83 Moreover, in a previous case, the Commission has concluded 
that the national market for the retail supply of AV services constitutes Poland.84 In 
other recent cases, t he Commission has also considered the coverage of a service 
provider’s (cable) network as the  potentially appropriate  geographical scope of the 
market but ultimately left the exact geographic market definition open.85   
(59) The Notifying Party considers that the relevant geographic market for the retail 
supply of AV  services is national in scope  for the following rea sons.86 First, the 
Notifying Party submits that the general pricing policy in the markets for the retail 
supply of AV services is determined at the national level. T he commercial strategy  
and in particular major marketing camp aigns, are e xecuted at the national level. 
Second, the Notifying Party submits that all major retail suppliers of AV services are 
active at the national level, and t he activity of the main market players covers almost 
the entire territory of Poland. According to the Notifying Party, i n areas where there 
is no reliable fixed infrastructure, at  least two satellite operators are available .87 
Therefore, in view of the continued presence of multiple technologies and operators at the national level, the Notifying Party considers that the geographic market for the retail provision of AV services to en d-customers is national in scope.  
(60) While some respondents noted that in some cases, the market could be considered regional, due to the fragmented cable network coverage in Poland and levels of competition that vary throughout individual regions in Poland,
88 a majority of 
respondents to the market investigation indicated that the geographic scope of the 
                                                 
83  Commission decision of 30 May 2018 in case M.7000 –  Liberty Global/Ziggo, paragraph 89; Commission decision 
of 24 February 2015 in case M.7194 –  Liberty Global/Corelio/W&W/De Vijver Media , recital 139; In Commission 
decision of 15 April 2013 in case M.6880 – Liberty Global/Virgin Media , paragraphs 51 to 54, the Commission 
found a respective geographic market to be national in scope or, at most, to comprise the United Kingdom and 
Ireland; Commission decision of 21 December 2011 in case M.6369 –  HBO/Ziggo/HBO Nederland , paragraph 42; 
Commission decision of 21 December 2010 in case M.5932 – NewsCorp/BSkyB , paragraph 110; In Commission 
decision of 25 Januar y 2010 in case M.5734 – Liberty Global Europe/Unitymedia, paragraph 40, the Commission 
found the market for the retail supply of Pay TV services to be national in scope; In Commission decision of 25 June 2008 in case M.5121 – News Corp/Premiere , paragraph 27, the Commission found the respective markets 
for the retail supply of Pay TV to be national in scope; In Commission decision of 26 February 2007 in case 
M.4521 – LGI/Telenet , paragraph 25, the Commission considered the respective market for the retail s upply of 
audio-visual services to be either limited to the coverage of each cable operator and national in case other platforms 
are included but ultimately left the exact geographic market definition open.  
84  Commission decision of 26 August 2020 in case M .9299 – Discovery/Polsat/JV, paragraph 86.  
85  Commission decisions of 6 November 2019 in case M.8785 -  Disney/Fox, recital 100; of 6 February 2018 in case 
M.8665 - Discovery/Scripps , paragraph 21; of 15 June 2018 in case M. 8861 - Comcast/Sky , paragraph 63; of 
7 April 2017 in case M.8354 - Fox/Sky, paragraph 106; of 24 February 2015 in case M.7194 -  Liberty 
Global/Corelio/W&W/De Vijver Media , paragraph 139; Commission decision of 26 February 2007 in case M.4521 
– LGI/Telenet , paragraph 25; Commission decisi on of 15 June 2004 in case M.3355 – 
Apollo/JPMorgan/Primacom , paragraph 10.  
86  Notifying Party’s response to RFI 5, question 5.  
87  Form CO, paragraph 128. In response RFI 5, question 5, the Notifying Party explained that “ Cyfrowy Polsat and 
Canal+ […] provide TV services based on satellite technology, which by its very nature is not subject to any 
territorial limitations. There are also no territorial limitation to the activities of the actively growing OTT players 
(Netflix, Amazon Prime, Viaplay) and I PTV operators (including Orange, the incumbent, and Netia, which are 
increasingly active in this field, as well as P4). ” In addition, “ all major cable -TV operators, including UPC, 
Vectra, and Inea operate at the national level and have operations in most m ajor metropolitan areas throughout 
Poland .” 
88  Replies to Q2 to Competitors MVNOs , question 22.  
 
 
17 market for the retail supply of AV services in the present case is national , in 
particular given that the pricing policies of AV service providers are predomi nantly 
national.89  
(61) In light of the above, the Commission considers that, for the purpose of this 
Decision, the relevant geographic market for the retail supply of AV services is 
national in scope , covering Poland.  
4.5.R etail supply of m ultiple play services  
(62) The term "multiple play" relates to product offerings comprising two or more of the 
following services provided to retail consumers on the basis of a single or multiple contracts by the same provider: mobile telecommunications services, fixed telephony services, fixed internet access, and audio -visual services. Multiple play offers 
comprising two, three or four of these services are referred to as dual play ("2P"), triple play ("3P") and quadruple play ("4P") respectively.
90 
(63) Three of the four services, namely  fixed telephony services, fixed internet access, 
and AV services, are fixed services as they are provided over a fixed network such 
as cable, copper or fibre infrastructure. Multiple play offers comprising any 
combination of two or more of these fixed ser vices without a mobile component are 
referred to as "fixed multiple play" products. Multiple play offers comprising one or 
more of these fixed services in combination with a mobile component are referred to as "fixed -mobile multiple play" or "fixed -mobile convergence" ("FMC") products. 
FMC products may involve a single mobile subscription or more than one mobile subscription combined with the fixed services.
91  
4.5.1. Product market definition 
4.5.1.1.Previous Commission decisions  
(64) In its previous decisions, the Commission considered , but ultimately left open , the 
question whether  there exist one or more multiple play markets which are distinct 
from each of the underlying individual telecommunications services.92 Due to 
different services being delivered over different infras tructures (fixed for 2P and 3P 
or fixed and mobile for 4P), that can be included in the different multiple play 
bundles, the Commission  also noted that instead of one possible market for multiple 
play, there could be several multiple play markets: a market for fixed bundles (dual 
play and triple play) and another separate market for FMC bundles. The possibility 
                                                 
89  Replies to Q1 to Competitors MNOs, questions 22, 22.1 and 23; and Replies to Q2 to Competitors MVNOs, 
questions 21, 21.1 and 22.  
90  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 146.  
91  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 147.  
92  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recitals 152 
to 161; Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV , 
paragraph  108; Commission decision of 4 February 2016 in case M.7637 –  Liberty Global/BASE Belgium , 
recitals  74 to 98; Commission decision of 19 May 2015 in case M.7421 –  Orange/Jazztel , recitals 72 to 86; 
Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , 
recitals 130 to 132.  
 
 
18 for several mobile subscriptions to be included in a n FMC  bundle provides for 
potential additional differentiation .93  
4.5.1.2.The Notifying Party’s view  
(65) The Notifying Party submits that no separate markets exist for multiple play bundles 
(whether fixed -mobile or fixed only), notably due to demand- side substitutability 
between multiple play offerings and their separate component services. Indeed, the 
Notifying  Party argues  that customers are able to “unbundle” their purchases and do 
regularly purchase communications services that can be included in a multiple play bundles on a standalone basis. The Notifying Party  notes that the take up of fixed -
mobile bundles in Poland is in any event relatively limited (17% in 2019) – in 
particular compared with certain other European markets (e.g. , 44% in Belgium, 
39% in the Netherlands, 45% in Portugal and 76% in Spain).
94 
(66) In light of the Parties’ respective bundle portfolios  and of the rationale of the 
Transaction, the Notifying Party submits that, should a multiple -play market be 
defined  as a separate market , the relevant segmentation would be between (i) fixed 
bundles, and (ii) fixed- mobile bundles.95 
(67) In any event, the Notifying Party considers that in light of the Parties’ limited presence on this market, the exact product market definition can be left open in the present case, as the T ransaction cannot raise serious doubts as to its compatibility 
with the internal market under any plausible market definition.  
4.5.1.3.The Commission’s assessment  
(68) The majority of the respondents to the market investigation have indicated that Polish customers favour multiple -play offers over standalone services
96, mainly due 
to th e lower price of bundled offers.97 Some respondents have indicated that 
contracts signed with providers of multiple -play services may represent a barrier to 
switching to standalone services.98 At the same time, one of the main factor s in 
selecting services o n the telecommunications market in Poland is the price and, 
considering that bundled services are generally cheaper than stand -alone services, 
customers may be reluctant to switch from a bundle to a  stand alone offer , regardless 
of any existing barrier .99 The replies provided to the market investigation, however, 
remain mixed.  
(69) In fact, respondents to the market investigation have also indicate d that bundled 
offers are sold both as “hard”  and as “soft”  bundles , depending on the providers .100 
                                                 
93  Commission decisi on of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraph 107.  
94  Form CO, paragraph 135 and Annex 6.3.5, page 19.  
95  Form CO, paragraph 138.  
96  Replies to Q1 to Competitors MNOs, question 24 and Replies to Q2 to Competitors MVNOs, question 23.  
97  Replies to Q2 to Competitors MVNOs, question 23.1.  
98  Replies to Q1 to Competitors MNOs, question 25.1. and Replies to Q2 to Competitors MVNOs, question 24.1.  
99  Replies to Q1 to Competitors MNOs, question 25.1.  
100  Replies to Q1 to Competitors MNOs, question 26 andReplies to Q2 to Competitors MVNOs, question 25. Multiple 
play services can be sold as “soft bundles”, where a discount is offered to consumers only when they subscribe to 
multiple eligible services, and th erefore where customers are entirely free to discontinue part of the bundle but 
 
 
 
19 Soft bundles leave customers free to ch oose any set of services, including standalone 
solutions, with no additional restriction, but considering only the most favourable 
price.  The market investigation, therefore, is not conclusive as to whether there are 
separate markets fo r standalone services and multiple -play service or, rather, a single 
market exists.  
(70) In light of the above, the Commission considers that the question whether there is a 
separate product market(s) for the retail supply of multiple -play services , as opposed 
to a single market including both bundled offers and standalone services, and 
whether there are separate markets for fixed bundles and FMC bundles can be left open as the Transaction does not raise serious doubts as to its compatibility with the internal market under any possible product market definition. 
4.5.2. Geographic market definition  
(71) In its previous decisions, the Commission considered that the geographic scope of 
any possible retail market for multiple -play services would be (either regional or) at 
most n ational in scope.
101 In a recent decision concerning Poland, the Commission 
concluded that the retail market for multiple -play services is national in scope.102 
(72) The Notifying Party considers that this market and its potential segments would be national in scope.
103 
(73) Some respondents to the market investigation have indicated that, although the major 
providers are active nation -wide, there are some providers who are market leaders 
only at local level and that , in some cases,  competition takes place within the 
geogr aphic scope of a given infrastructure.104 The majority of the respondents to the 
market investigation , however, has  indicated that the hypothetical market for 
multiple -play services is indeed national.105 
(74)  In particular, a MVNO has explained “ (…) the same competitors are active 
throughout the whole of the country and they account for the vast majority of the market. The pricing policies of providers are predominantly national. Operators’ offers usually are not addressed per region (…) . Entities wishing to conduct 
telecommunications activities, both standalone and via multiple play services, are 
                                                                                                                                                      
might lose the discount. Multiple play services can also be sold as “hard bundles”, where customers cannot opt -out 
of one service of the bundle and must terminate the entire mu ltiple -play offer and re -subscribe to another offer.  
101  In Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 232, Commission 
decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraphs 109 to 112 and 
Commission decision of 19 May 2015 in Case M.7421 –  Orange/Jazztel , recitals 89 to 90, the respective market 
investigation suggested such possible markets would be national in scope; In Commission decision of 24 February 
2015 in case M.7194 –  Libert y Global/Corelio/W&W/De Vijver Media , recital 132, the Commission found the 
geographic market to be the footprint of the operator in question; In Commission decision of 20 September 2013 in 
Case M.6990 - Vodafone/Kabel Deutschland, paragraphs 263 to 265, t he Commission considered such possible 
markets for bundles would be national in scope; In Commission decision of 16 June 2011 in Case M.5900 - 
LGI/KBW , paragraphs 183- 186, the Commission considered such possible markets to be at most national in scope.  
102  Case M.9299 – Discovery/Polsat/JV , paragraph 117.  
103  Form CO, paragraph 138.  
104  Replies to Q1 to Competitors MNOs, question 28.1. and Replies to Q2 to Competitors MVNOs, question 27.1.  
105  Replies to Q1 to Competitors MNOs, question 27. and Replies to Q2 to Competitors MVNOs, question 26.  
 
 
20 required to obtain a number of permits authorizing them to take up and conduct 
business activities only in the territory of Poland” .106 
(75) In light of the above, the Commission considers that, for the purpose of this 
Decision, any potential market for multiple -play services could be considered 
national in scope .  
4.6.Wholesale provision of TV channels (acquisition side)  
4.6.1. Product market definition 
(76) In the wholesale marke t for TV channels, TV broadcasters supply linear channels 
that retail TV providers either purchase or carry in order to provide audio- visual 
services to end -users. In particular, TV broadcasters package the TV content that 
they have acquired or produced in- house in order to create linear TV channels. 
Subsequently, retailers of TV services incorporate those TV channels in their TV offerings to final viewers.
107 
4.6.1.1.Previous Commission decisions  
(77) In its previous decisions, the Commission has identified a market for the wholesale 
supply and acquisition of TV channels.108 Within that market, the Commission has 
identified separate product markets for: (i) FTA TV cha nnels; and (ii) Pay TV 
channels109 and more recently left the exact product market def inition open.110  
(78) In addition, the Commission has found that within the Pay TV channels marke t, 
there are different segments111 or, more recently, pr oduct markets112 for (i) premium 
Pay TV channels and (ii) basic Pay TV channels. In certain cases, the Commission  
has considered FTA channels to be part of the market for basic Pay TV channels.113   
                                                 
106  Replies to Q2 to Competitors MVNOs, question 27.1.  
107  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 267.  
108  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recitals 269 
to 276; Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraphs 99 to 115; 
Commission decision of 7 April 2017 in case M.8354 –  Fox/Sky, paragraphs 76 t o 85; Commission decisi on of 
20 September 2013 in case M.6990 – Vodafone/Kabel Deutschland, paragraphs 30 to 41.  
109  Commission decision of 24 February 2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver Media , 
recital  101; Commission decision of 20 September 2013 in case M.6990 – Vodafone/Kabel Deutschland, 
paragraph  41. 
110  Commission decision of 6 October 2020 –  PPF Group/Central European Media Enterprises , paragraph 39; 
Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 2 73; In 
Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 111, the Commission left 
open the question as to whether FTA and Pay TV belong to separate markets, because of peculiarities of the Dutch 
TV market; In Commission de cision of 7 April 2017 in case M.8354 – Fox/Sky, paragraph 85, the Commission left 
open the question whether the market for the wholesale supply of TV channels should be further segmented among 
FTA, basic Pay TV and premium Pay TV. In Commission decision o f 18 August 2014 in case M.7194 – Liberty 
Global/Corelio/W&W/De Vijver Media , recital 91, the Commission considered that wholesale supply of premium 
Pay TV constitutes a product market that is separate from the wholesale supply of basic Pay TV/FTA channels . 
111  Commission decision of 18 August 2014 in case M.7194 –  Liberty Global/Corelio/W&W/De Vijver Media , 
recital  89. 
112  Commission decision of 12 November 2019 in case M.9064 - Telia Company/Bonnier Broadcasting Holding, 
recital 157; Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 113.  
113  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 273; 
Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 111; Commission 
 
 
 
21 (79) Further, the Commission has also examined a number of other potential 
segmentations, including: (i) by genre or thematic content (such as films, sports, 
news, youth, and ot hers);114 (ii) between linear and non- linear;115 and (iii) between 
the different means of infrastructure used to deliver channels to the viewer (cable, satellite, terrestrial or IPTV) ,
116 but ultimately left the exact market definition open. 
In the recent Discov ery/Polsat/JV decision  involving the Polish market ,117 the 
Commission left the market definition  open.    
4.6.1.2.Notifying Party’s views  
(80) The Notifying Party considers that, in line with the Commission’s findings in Discovery/Polsat/JV decision, the definition of this market and its potential sub -
segments can be left open, as, regardless of the market definition ult imately retained, 
the Transaction  cannot give rise to competition concerns in relation to the wholesale 
market for the supply of TV channels (and all the more so as the Parties are only active on the demand side of the market and hold a very limited purchase position).
118 
4.6.1.3.The Commission’s assessment  
(81) In light of the findings as set out in the recent Commission decision Discovery/Polsat/JV ,
119 and in line with the Notifying Party’s arguments , the 
Commission considers that the relevant product market , for the purposes of this 
Decision , is the market for wholesale TV channels (including ancillary services, such 
as catch -up services, and covering all types of distr ibution infrastructures).  
(82) In addition, the Commission considers that the questions whether FTA channels 
belong to a market distinct from that for pay TV channels, whether pay TV channels should be divided in basic pay TV  channels and premium pay TV channels or further 
divided by genre can be left open  in the present case, as the Transaction does not 
                                                                                                                                                      
decision of 7 April 2017 in case M.8354 –  Fox/Sky, paragraph 80, 81 and 85; Commission decision of 18 August 
2014 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , recitals 90 and 91.  
114  Commission decision of 18 July  2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 273; 
Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 112; Commission 
decision of 7 April 2017 in case M.8354 – Fox/Sky, paragraphs 82 to 85; Commissi on decision of 24 February 
2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , recital 92; Commission decision of 
21 December 2010 in case M.5932 –  News Corp/BskyB,  paragraph 81; Commission decision of 26 August 2008 in 
case M.5121 – News Cor p/Premiere , paragraph 35; Commission decision of 18 July 2007 in case M.4504 –  
SFR/Télé 2 France , recitals 41 and 42; Commission decision of 2 April 2003 in case M.2876 – Newscorp/Telepiù , 
recitals 74 to 76.  
115  Commission decision of 18 August 2014 in cas e M.7194 –  Liberty Global/Corelio/W&W/De Vijver Media , 
recital  94. 
116  In Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 273, the 
Commission left such question open for Romania and discussed it further f or Germany in section VIII.2.11; In 
Commission decision of 30 May 2018 in case M.7000, Liberty Global/Ziggo , paragraph 114, the Commission 
considered that at least cable, IPTV over DSL, fiber and possibly satellite (DTH) are part of the same product 
market ; In Commission decision of 7 April 2017 in case M.8354 –  Fox/Sky, paragraphs 84 and 85 Commission 
decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , recital 98 and 
Commission decision of 18 July 2007 in case M.4504 – SFR/Télé 2 France , recital 44, the Commission left a 
segmentation by infrastructure open.  
117  Commission decision of 26 August 2020, in case M.9299, Discovery/Polsat/JV , paragraph 67.  
118  Notifying Party’s response to RFI 4, question 6.  
119  Commission decisi on of 26 August 2020, in case M.9299, Discovery/Polsat/JV , paragraph 67  
 
 
22 raise serious doubts  as to its compatibility with the internal market, under any 
plausible market definition . 
4.6.2. Geographic market definition  
(83) In its previous decisions, the Commission considered that the wholesale supply and 
acquisition of TV channels is either national in scope or comprises a broader (or 
narrower) linguistically homogeneous area.120 
(84) The Notifying Party argues that  the definition can be left open, as, regardless of the 
market definition ultimately retained, the Transaction  cannot give rise to competition 
concerns in relation to the wholesale market for the supply of TV channels.121 
(85) In light of the findings as set out in the recent Commission dec ision 
Discovery/Polsat/JV ,122 and in line with the Notifying Party’s arguments, the 
Commission considers that the geographic scope of the market for the purposes of this decision is national.  
4.7.Wholesale supply of access and call origination services on mobile  networks  
(86) MNOs provide wholesale access and call origination services which enable operators without their own network, namely MVNOs, to have access to one or more of the MNOs’ networks in order to provide mobile telecommunications services to end customer s. “Full” MVNOs maintain their own core infrastructure and use MNOs 
only for access to a radio network. By contrast, “light” MVNOs do not have their own infrastructure and rely entirely on the infrastructure of an MNO.  
4.7.1. Product market definition 
(87) In its previous decisions,
123 the Commission considered network access and call 
origination to be part of the same product market as both services are considered as key elements required for non- MNOs to be able to provide retail mobile 
telecommunications services and are generally supplied together.  
(88) The Notifying Party considers that the relevant product market to be taken into account is the market for the wholesale supply of access and call origination services on mobile networks.
124 
(89) In light of the  findings as set out in the recent Commission decision Orange/Telekom 
Romania Communications ,125 and in line with the Notifying Party’s arguments,  the 
                                                 
120  Commission decision of 21 December 2010 in case M.5932 –  NewsCorp/BSkyB , paragraphs 72 to 75; Commission 
decision of 2 April 2003 in case M.2876 –  Newscorp/Telepiù , recitals 62 and 63.  
121  Notifying Party’s response to RFI 4, question 6.  
122  Paragraphs 70 -71. 
123  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 248; 
Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraphs 185 
to 187; Commission decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , recitals 296 
to 300; Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E -Plus , recitals 77 to 79; 
Commission decision of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland , recital 156; 
Commission decision of 12 December 2012 in case  M.6497 –  Hutchison 3G Austria/Orange Austria, recitals 61 
to 63; Commission decision of 1 March 201 0 in case M.5650 – T Mobile/Orange UK , paragraphs 27 to 30; 
Commission decision of 27 November 2007 in case M.4947 – Vodafone/Tele2 Italy/Tele2 Spain, paragraph 15.  
124  Form CO, paragraph 157.  
 
 
23 Commission  considers, for the purpose of this Decision, the relevant product market 
to be  the market for t he wholesale supply of access and call origination services on 
mobile netw orks.  
4.7.2. Geographic market definition  
(90) In its previous decisions,126 the Commission has concluded that the geographic scope 
of the market for the wholesale supply of access and call origi nation services on 
mobile networks is  national due to regulatory barriers .  
(91) The Notifying Party considers that the relevant geographic market for the wholesale 
supply of access and call origination services on mobile networks corresponds to the territory o f Poland.  
(92) The results of the market investigation did not provide reasons to depart from the 
Commission’s decisional practice.  
(93) In light of the findings as set out in the recent Commission decision Orange/Telekom 
Romania Communications ,
127 and in line with the Notifying Party’s arguments , the 
Commission considers, for the purpose of this Decision, the relevant geographic market for the wholesale supply of access and call origination services on mobile networks to be national in scope, covering  Poland.  
4.8.Whole sale market for mobile and fixed call termination services  
(94) Call termination is the service provided by a network operator on the supply side to other network operators on the demand side, whereby a call originating in a demand side operator’s network is delivered to a user in the supply side operator’s network. This service is required by every originating operator, as it is necessary for its customers to be able to communicate with the customers located on other networks. Call termination is therefore a w holesale service that is resold or used as an input for 
the provision of downstream retail telephony and mobile services.
128 In previous 
decisions, the Commission has identified relevant markets for the provision of wholesale call termination on mobile and f ixed networks.
129 
                                                                                                                                                      
125  Commission decision on 28 July 2021, in case M.10153 – Orang e/Telekom Romania Communications , 
paragraph  197. 
126  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recitals 249 
to 251; Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV , 
paragraphs  188 to 190; Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK , 
recitals 302 to 305; Commission decision of 12 December 2012 in case M.6497 –  Hutchison 3G Austria/Orange 
Austria , recitals 74 to 77.  
127  Commission deci sion on 28 July 2021, in case M.10153 – Orange/Telekom Romania Communications , 
paragraph  201. 
128  Commission decision of 26 October 2020 in case M.9963 –  Iliad/Play Communications , paragraphs 35 to 36.  
129  Accordingly, the 2003 Commission’s  Recommendation on  the relevant product and service markets within the 
electronic communications sector susceptible to ex ante regulation in accordance with the Framework Directive 
(Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory fr amework for 
electronic communications networks and services) has distinguished call termination on individual networks, 
mobile or fixed as separate markets. A distinction between termination on these networks is further justified by the 
characteristics of the terminals themselves such as the different functionalities and the mobility guaranteed by the 
mobile service.  
 
 
24 4.8.1. Wholesale market for mobile call termination services  
4.8.1.1.Product market definition  
(95) In previous decisions , the Commission has concluded that each individual network 
(both in mobile and in fixed networks) constitutes a separate market for termination, 
as there is no substitute for call termination in each individual network as the intended recipient can only be reached by the operator transmitting the outbound call 
through the operator of the network to which the recipient is connected.
130 Therefore, 
each individual network, either fixed or mobile, constitutes a separate market. 131 
(96) The Notifying Party, in accordance with the Commission’s decisional practice, does 
not object to this product market definition.132 
(97) In light of the findings as set out  in Iliad / Play Communications133, and in line with 
the Notifying Party’s arguments, the Commission considers for the purposes of this Decision that wholesale call termination services on each individual mobile network constitutes a separate product market.  
4.8.1.2.Geographic market definition  
(98) In previous decisions, the Commission considered that the market for wholesale mobile call termination services is national in scope, as each wholesale market for call termination corresponds to the dimensions of the operator’ s network and is 
limited to the national territory of the operator's network.
134 This is primarily due to 
regulatory barriers as the geographic scope of a network licence is, in principle, limited to areas that do not extend beyond the borders of a Member St ate. 
(99) The Notifying Party does not object to this geographic market definition.
135 
(100)  In light of the findings as set out in Iliad / Play Communications136, and in line with 
the Notifying Party’s arguments,., the Commission considers for the purposes of this Decision that  the geographic market  for wholesale mobile call termination services is 
national in scope . 
                                                 
130  Commission  decision of 26 October 2020 in case M.9963 –  Iliad/Play Communications , paragraphs 42 to 44; 
Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recitals 190 
to 193; Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV , 
paragraphs  206 to 208; Commissi on decision of 3 July 2012 in case M.6584 –  Vodafone/Cable & Wireless , 
paragraphs 47 to 48; Commission decision of 3 July 2012 in case M.5650 – T-Mobile/Orange UK , paragraphs 36 
and 37.  
131  Commission decision of 27 November 2018 in case M.8792, T-Mobile N L/Tele2 NL , para. 259; Commission 
decision of 15 July 2019 in case M.9370, Telenor/DNA ; Commission decision of 27 July 2018 in case M.8883, 
PPF/Telenor Target Companies ; Commission decision of 12 December 2012 in case M.6497, Hutchison 3G 
Austria/Orange Au stria, para. 68.  
132  Form CO, paragraph 149.  
133  Commission decision of 26 October 2020 in case M.9963 –  Iliad/Play Communications , paragraphs 45 to 47  
134  Commission decisions: of 27 November 2018 in case M.8792, T -Mobile NL/Tele2 NL , para. 263; of 15July 2019 in 
case M.9370, Telenor/DNA , para. 73; of 27 July 2018 in case M.8883, PPF/Telenor Target Companies,  para. 28; 
of 3 August 2016 in case M.7978, Vodafone/Liberty Global/Dutch JV , para 196.  
135  Form CO, paragraph 148.   
136  Commissi on decision of 26 October 2020 in case M.9963 –  Iliad/Play Communications , paragraphs 45 to 47.  
 
 
25 4.8.2. Wholesale market for fixed call termination services  
4.8.2.1.Product market definition  
(101)  As in the case of wholesale mobile call terminat ion services, in past de cisions, the 
Commission has established that there are no potential substitutes for call 
termination on each fixed network since the operator transmitting the call can reach 
the intended recipient only through the operator of the network to which the recipient 
is connected .137  
(102)  Further, in previous decisions, the Commission considered wholesale call termination services on fixed network to be a distinct market from the market for the 
wholesale supply of international voice carrier services.
138 
(103)  The Notifying Par ty, in accordance with the Commission’s decisional practice, does 
not object to this product market definition.139 
(104)  In light of the findings as set out in I liad / Play Communications140, and in line with 
the Notifying Party’s arguments , the Commission considers  for the purposes of this 
Decision that the relevant product market is the market for wholesale supply of call 
termination services on fixed networks , distinct from the market for the wholesale 
supply of call termination services on mobile networks. Consequently, for the 
purpose s of this D ecision, as regards wholesale call termination services, termination 
on each individual fixed network constitutes a separate product market. 
4.8.2.2.Geographic market definition  
(105)  In previous decisions, the Commission considered that the geographic market for the 
wholesale supply call termination services in fixed networks is  national in scope .141  
(106)  The Notifying Party does not object to this geographic market definition.142 
                                                 
137  Commission  decision of 26 October 2020 in case M.9963 –  Iliad/Play Communications , paragraphs 42 to 44; 
Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recitals 190 
to 193; Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV , 
paragraphs  206 to 208; Commission decision of 3 July 2012 in case M.6584 –  Vodafone/Cable & Wireless , 
parag raphs 47 to 48; Commission decision of 3 July 2012 in case M.5650 – T-Mobile/Orange UK , paragraphs 36 
and 37.  
138  Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets, recitals 217 
to 219, Commission  decision of 4 February 2016 in case M.7637 – Liberty Global/Base Belgium , recitals 131 
to 133; Commission decision of 3 July 2012 in case M.6584 –  Vodafone/Cable & Wireless , paragraph 26. In 
Commission decision of 14 April 2014 in case M.7109 – Deutsche T elekom/GTS , paragraphs 75 to77, the 
Commission considered that, in the specific circumstances of the case, the exact definition of the relevant market 
for the provision of wholesale domestic call transit services of fixed networks could be left open, as th e transaction 
did not give rise to competition concerns on the basis of any alternative plausible market definitions.  
139  Form CO, paragraph 153.  
140  Commission decision of 26 October 2020 in case M.9963 –  Iliad/Play Communications , paragraphs 45 to 47  
141  Commission decision of 26 October 2020 in case M.9963 –  Iliad/Play Communications , paragraphs 45 to 47; 
Commission decision of 18 July 2019 in case M.8864 –  Vodafone/Certain Liberty Global Assets , recital 195; 
Commission decision of 3 August 2016 in case M.7 978 – Vodafone/Liberty Global/Dutch JV , paragraph 210; 
Commission decision of 20 September 2013 in case M.6990 –  Vodafone/Kabel Deutschland , paragraph 121; 
Commission decision of 4 February 2016 in case M.7637 – Liberty Global/Base Belgium , recitals 128; 
Commission decision of 3 July 2012 in case M.6584 –  Vodafone/Cable & Wireless , paragraph 48; Commission 
decision of 3 July 2012 in case M.5650 – T-Mobile/Orange UK , paragraph 38.  
142  Form CO, paragraph 152.  
 
 
26 (107)  In light of the findings as set out in Iliad / Play Communications143, and in line with 
the Notifying Party’s arguments, the Commission considers for the purposes of this 
Decision  that the geographic market for wholesale fixed call termination services is 
national in scope.  
5. COMPETITIVE ASSESSMEN T 
5.1.Identification of affected markets  
5.1.1. Horizontally affected markets  
(108)  The Transaction gives rise to the following horizontally affected markets : 
• Retail market for mobile telecommunication services in Poland;  
• Retail market for fixed telephony services in Poland, with respect to the  segment 
for residential customers; 
• Retail market for fixed internet access services: (i) on UPC P olska ’s network 
footprint; (ii) on regional markets (Małopolskie, Mazowieckie and Pomorskie); and (iii) in Poland with respect to  (a) th e segment for larger business and 
government customers and (b) the segment for cable as distribution technology;  
• Retail market for AV services : (i) on UPC P olska ’s network footprint;  and 
(ii) on regional markets ( Mazowieckie, Pomorskie and Śląskie ); 
• Potential market for multiple play services in Poland , with respect to  the 
segment for  fixed bundles ; 
• Wholesale provision of TV channels (acquisition side) in Poland, with respect to the segment for premium pay TV sports channels.  
5.1.2. Vertically affected marke ts 
(109)  In addition, the Transaction gives rise to the following vertically affected markets :  
• Upstream market for wholesale supply of access and origination services on 
mobile networks in Poland (Iliad/P4 ) with the d ownstream market for retail 
supply of mobile  telecommunication services in Poland ( UPC P olska ); 
• The u pstream  market  for w holesale provision of call termination services on its 
fixed network in Poland (UPC Polska)  with the downstream  markets for retail 
provision of mobile telecommunications services in Cyprus, France, Italy, 
Ireland, Malta, and Poland (XNG) ; 
• The u pstream  markets for w holesale provision of call termination services on its 
fixed network in (i) Poland (UPC Polska) ,  and (ii) in Cypru s, France, Ireland , 
and Malta (XNG)  with the  downstream  markets for retail provision of fixed 
                                                 
143  Commission  decision of 26 October 2020 in case M.9963 – Iliad/Play Communications , paragraphs 45 to 47  
 
 
27 telephony services (i) in Cyprus, France, Ireland, and Malta  (XNG) ; and (ii) in 
Poland (both UPC Polska and XNG).  
• The u pstream  market for w holesale provision of c all termination services on 
mobile networks in Cyprus, France, Ireland, Italy, Malta and Poland (XNG)  
with the downstream markets for retail provision of fixed telephony services in 
Poland (UPC Polska). 
(110)  The Commission considers that there are no new conglomerate effects resulting from the Transaction.
144 The Commission notes that both Parties already offer all 
telecommunications and AV services that are typically offered in bundles to end -
customers and the Parties already offer fixed -mobile convergent bundles : 
• P4 relies on Vectra’s fixed network to offer all three components of the fixed 
part of a fixed -mobile bundle (fixed telephony, fixed internet and TV) and on its 
own mobile network to provide the mobile part.  
• UPC P olska  relies on its own fixed network to offer all three components of the 
fixed part of a fixed -mobile bundle (fixed telephony, fixed internet and TV) and 
on P4’s mobile network to provide the mobile part. 
5.2.Assessment of horizontal non -coordinated effects  
5.2.1. Intro duction 
(111)  Under Article 2(2) and (3) of the Merger Regulation, the Commission must assess whether a proposed concentration would significantly impede effective competition in the internal market or in a substantial part of it, in particular through the creation or strengthening of a dominant position. In this respect, a merger may entail horizontal and/or vertical effects.
145  
(112)  Horizontal effects 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. The Commission appraises such effects in accordance with the Horizontal Merger Guidelines.
146 
(113)  The Horizontal Merger Guidelines describe horizontal non- coordinated effects as 
follows: " A merger may signi ficantly impede effective competition in a market by 
removing important competitive constraints on one or more sellers who 
consequently have increased market power. The most direct effect of the merger will 
be the loss of competition between the merging fi rms. For example, if prior to the 
merger one of the merging firms had raised its price, it would have lost some sales 
to the other merging firm. The merger removes this particular constraint. Non-
merging firms in the same market can also benefit from the r eduction of competitive 
                                                 
144  The Transaction does not result in affected conglomerate relationships between the Parties. The Parties’ combined 
market shares are below 30% in all closely related markets (retail mobile telecommunication services, retail fixed 
telephony, retail fixed internet access and retail AV services).  
145  Vertical effects are those deriving from a concentration where the undertakings concerned are active on different or 
multiple levels of the supply chain. A concentration may involve both types of effects.  
146  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations 
between undertakings ("Horizontal Merger Guidelines"), OJ C 31,05.02.2004.  
 
 
28 pressure that results from the merger, since the merging firms’ price increase may 
switch some demand to the rival firms, which, in turn, may find it profitable to increase their prices. The reduction in these competitive constraint s could lead to 
significant price increases in the relevant market ".
147 
(114)  Generally,  a merger that gives  rise to such non- coordinated effects would 
significantly impede effective competition by creating or strengthening of the 
dominant position of a single fir m post -merger.  
(115)  However, under the substantive test set out in Article 2(2) and (3) of the Merger 
Regulation, mergers that do not lead to the creation or the strengthening the dominant position of a single firm may create competition concerns in oligopolistic 
markets. Indeed, the Merger Regulation recognises that in oligopolistic markets, it is 
all the more necessary to maintain effective competition.
148 This is in view of the 
more significant consequences that mergers may have on such markets. For this 
reason , the Merger Regulation provides that: " under certain circumstances, 
concentrations involving the elimination of important competitive constraints that the merging parties had exerted upon each other, as well as a reduction of 
competitive pressure on the r emaining competitors, may, even in the absence of a 
likelihood of coordination between the members of the oligopoly, result in a 
significant impediment to effective competition. "
149 
(116)  Paragraph 24 of the Horizontal Merger Guidelines, which sets out the economi c 
rationale underlying non -coordinated anti -competitive effects in horizontal mergers, 
states that a merger may significantly impede effective competition in a market by removing important competitive constraints on one or more firms. This paragraph furthe rmore clarifies that the most direct effect of the merger will be the loss of 
competition between the merging firms. In order to assess whether a notified merger will result in a significant impediment of effective competition on the basis of non -
coordinat ed effects, the Commission therefore needs to analyse primarily the extent 
of the competitive constraint imposed pre -merger by each of the merging parties on 
each other. P aragraph 24 of the Horizontal Merger Guidelines also clarifies that the 
removal of the rivalry between the parties may have consequences on the other players, who may find it profitable to increase their prices. The ultimate effect would thus typically be price increases by the merging parties but also by competitors in the relevant market . 
(117)  The Commission carries out an overall assessment of the likely effects of the Transaction arising from the elimination of important competitive constraints, taking into consideration the overall body of evidence in its file. The conclusion that a transaction leads to a significant impediment of effective competition is reached 
taking into account the degree to which all the relevant factors, including the ones 
listed in paragraphs 27 -  38 of the Horizontal Merger Guidelines, are present in the 
case under consideration.  
                                                 
147  Horizontal Merger Guidelines, paragraph 24.  
148  Merger Regulation, recital 25.  
149  Merger Regulation, recital 25. Similar wording is also found in paragraph 25 of the Horizontal Merger Guidelines. 
See also Commission decision of 2 July 2014 in case M.7018 –  Telefónica Deutschland/E- Plus, recital 113; 
Commission decision of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland , recital 179; 
Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria , recital 88.  
 
 
29 (118)  The Horizontal Merger Guidelines list a number of factors , which may influence 
whether or not significant horizontal non- coordinated effects are likely to result from 
a merger. However, not all of these factors need to be present to make sig nificant 
non-coordinated effects likely and it is not an exhaustive list.150 
(119)  Among the factors listed in the Horizontal Merger Guidelines are: the large market 
shares of the merging firms; the fact that the merging firms are close competitors; 
the limited po ssibilities for customers to switch suppliers; the fact that the merged 
entity would be able to hinder expansion by competitors; and the fact that the merger would eliminate an important competitive force.
151 
(120)  As regards the elimination of an important compet itive force, according to the 
Horizontal Merger Guidelines, some firms have more of an influence on the competitive process than their market share would suggest. A merger involving such 
a firm may change the competitive dynamics in a significant anticompe titive way, in 
particular in a market that is already concentrated.
152 In this respect, paragraph 37 of 
the Horizontal Merger Guidelines refers to the example of a firm that is a recent 
entrant on the market, and is expected to exert significant competitive pressure in the 
future. However, t here may  be other situations where a merger may also lead to 
significant non- coordinated effects by removing an important competitive force.  
(121)  Finally, the Horizontal Merger Guidelines describe a number of factors, which could 
counteract the harmful non- coordinated effects of the merger on competition, that is, 
the likelihood of buyer power, entry, efficiencies and the fact that one of the merging parties is a failing firm ("failing firm defence").
153  
5.2.2. Horizontal non-coordinated effects in the market for the retail supply of mobile 
telecommunication services  
5.2.2.1.The Notifying Party’s view  
(122)  The Notifying Party submits that the Transaction would not give rise to any competitive concerns in relation to the retail market fo r the supply of mobile 
telecommunication services in Poland for the following reasons.
154 
(123)  First, the Notifying Party submits that the market share increment resulting from the 
Transaction is extremely limited ( [0-5]% at most, regard less of the segment 
considered), as  UPC Polska  has only a de minimis  presence in the mobile retail 
market.  
(124)  Second , the Notifying Party argues that UPC Polska  does not own any mobile 
infrastructure or spectrum and is one of the smallest Polish MVNOs currently active on the market. U PC Polska  is predominantly a fixed player, and is active on the 
market for retail mobile telecommunications services as a light MVNO, dependent on P4 for wholesale access. UPC Polska ’s business focuses on marketing mobile 
                                                 
150  Horiz ontal Merger Guidelines, paragraph 26.  
151  Horizontal Merger Guidelines, paragraphs 27 et seq.  
152  Horizontal Merger Guidelines, paragraph 37.  
153  Horizontal Merger Guidelines, paragraphs 64- 91. 
154  Form CO, paragraphs 206-223.  
 
 
30 services to its fixed customer bas e, and has until recently155 been offering mobile 
subscriptions only as an add- on to its fixed- mobile multiple play bundle , i.e., only to 
its existing or new customers of fixed services .156  
(125)  The Notifying Party further argues that the Parties are not close competitors, because 
P4 is an established MNO, with its own network infrastructure, while UPC Polska  is 
a small MVNO hosted on such network. For the same reason, UPC Polska  has less 
autonomy in controlling the quality of its services,157 as it has to rely on P4, as its 
wholesale network provider , for any network -related issues.  
(126)  Finally , the Notifying Party argues that Polish mobile users are very price sensitive. 
The Polish market for retail supply of mobile telecommunica tions services is 
characterised by a very high level of price competition resulting in prices in Poland 
being among the lowest in the European Union.158   
5.2.2.2.The Commission’s assessment  
(127)  The Commission considers that the Transaction does not raise horizontal 
competition concerns in the market for retail supply of mobile telecommunication s 
services  in Poland for the following reasons . 
(128)  First, while both Parties are active in the retail market for mobile 
telecommunications services, the Commission observes that the increment brought about by UPC Polska  to P4 is negligible ( [0-5]% on the overall market for retail 
mobile services and [0 -5]% at most, regardless of the market segment considered).  
(129)  Second , the Parties’ combined market shares on the retail mobile 
telecommun ication s market and its potential segments will be limited. The Parties  
will have a combined market share  of slightly above 25% ( [20-30]% in volume or 
value in 2020) on the overall retail market and its potential segments (i) for private customers  (approx.  [20-30]% in volume and value)  and (ii) post -paid customers  
([20-30]% in volume and approx. [20-30]% in value) .
159 160 The Parties’ combined 
share on a potential segment for business customers will be below 25%. On a retail supply of mobile telecommunications  services at the network level, Iliad’s P4 market 
                                                 
155 UPC Polska launched a stand -alone mobile offer on 5 November 2021, i.e., on the date when UPC Polska 
introduced 5G (NSA) plans. The details of the plans offered by UPC Polska are set out at: 
https://www.upc.pl/telefon/uslugi -komorkowe/ . UPC Polska’s stand -alone mobile services are available only in 
UPC Polska’s fixed footprint.  
156 At the end of 2020, UPC Polska had […] mobile subscribers, among which only […]  had subscribed to standalone 
offers. F orm CO, paragraph 667. In addition, the Notifying Party submits that mobile stand-alone services are 
available only in UPC Polska’s fixed footprint.  
157  Form CO, paragraph 211.  
158 See Annex 4 of the Form CO, slide 3; Orange Polska’s Integrated report for 2020, page 48 (available at 
https://www.orange -ir.pl/wp -content/uploads/2021/06/Raport -zintegrowany -2020-en.pdf); and Cyfrowy Polsat 
Annual Consolidated Report for the financial year ended December 31, 2020, page 55 (available at https://grupapolsatplus.pl/s ites/default/files/documents/2021/polsat_group_report_2020.pdf).  
159 The Parties’ activities do not overlap with respect to the potential segment for pre-paid customers, as UPC Polska does not offer any pre -paid mobile services.  
160 The Notifying Party submit ted that it is unable to provide market share estimates on the following retail supply of 
mobile telecommunication services market segments: (i) high -value vs low -value customers; and (ii) SIM -only v. 
handset segments. However, the Notifying Party consider ed that shares for these segments should correspond to 
more or less [0-5]% of the market shares on the overall market for the retail supply of mobile telecommunication 
services.  
 
 
31 share is slightly above 25%.161 In all cases, therefore, the Parties’ combined market 
share is either around or slightly above the 25% threshold which presumes that the 
Transaction is compatible with the internal market.162 
(130)  Third , the Transaction will not affect the number of MNOs active on the market, 
which will remain four (Orange, Polkomtel, T -Mobile and P4).163 The market shares 
of the merged entity’s three main competitors will be around or in excess of 20%, 
both in volume and in value: Orange ( [20-30]% by volume, [20- 30]% by value); 
Polkomtel ( [20-30]% by volume, [20-30]% by value); and T -Mobile ( [10-20]% by 
volume, [20-30]% by value) and approximately 80 MVNOs will continue to 
compete with the Parties.164 
(131)  Fourth, based on the results of the market investigation, the Commission considers that the Parties do not compete closely on the market . When asked to rank the best 
mobile services providers on a number of parameters, none of the respondent s has 
ranked th e Parties close to each other.
165 The Commission considers that, in general, 
the perceived distance between the Parties reflects the general difference existing 
between MNOs and MVNOs , which excludes close competition between the Parties, 
but not the fact that MVNOs compete with MNOs .166 In fact, the results of the 
market investigation indicate that the  Polish market is defined as “ very competitive”, 
where “prices are the cheapest in Europe ”.167 In addition, the market investigation 
further indicates that the MVNOs, present in a large number in Poland, are able to 
compete with the MNOs ,168 and that Premium Mobile, Viking Mobile, Inea, and 
Vectra are the most successful MVNOs in recent years.169 
(132)  Fifth,  the market investigation indicates that Polish users of retail mobile 
telecommunications services are  very price sensitive.170  Respondents  to the market 
investigation , in fact, point out that Poland has one of the lowest mobile average 
revenue per user (ARPU) in the European Union as users ’ price sensitivity was and 
is still very high.171 Users usually focus on price level and actively seek best offers in 
terms of costs.172 A MVNO explain ed that  “Any information on a planned change in 
price, especially price increases, results in an increase in all types of contact from dissatisfied customers to the operator and a multitude of negative opinions on various forums and under articles in industry portals; for some subscribers, this 
                                                 
161 The Notifying Party is unable to provide market shares estimates, based on a split between A -brand and B -brand 
for the four MNOs.  
162  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings 
(the EC Merger Regulation), recital 32.  
163 Although Aero2 owns spectrum and therefore qua lifies as a MNO, Aero2 is controlled by Cyfrowy Polsat, the 
mother company of Polkomtel, and cannot therefore be considered an independent MNO.  
164  In that respect, the global telecoms media and technology consultancy Analysys Mason reports that “The mobile  
telecoms market is very competitive; each of the key operators surpasses 20% connection share .”, and that “Four 
of them (Orange, Play, Polkomtel and T -Mobile) compete intensely, also with 80 virtual network operators 
(MVNOs) ”. See Analysis Mason, Poland t elecoms market report 2020 (Form CO, Annex 5.4.E), slide 3.  
165  Reply to Q2 to Competitors MVNOs, question 28.  
166  Reply to Q2 to Competitors MVNOs, questions 30 and 30.1.  
167  Reply of a competitor to Q2 to Competitors MVNOs, question 29.  
168  Reply to Q1 to Competitors MNOs, question 32. Reply to Q2 to Competitors MVNOs, question 30.  
169  Reply of a competitor to Q2 to Competitors MVNOs, question 30.1.  
170  Reply to Q1 to Competitors MNOs, question 33. Reply to Q2 to Competitors MVNOs, question 31.  
171  Reply to Q1  to Competitors MNOs, question 33.1 and 37.1.  
172  Reply to Q1 to Competitors MNOs, question 33.1.  
 
 
32 accelerates the decision to change operator ”.173 As a consequence, user s frequently 
switch operator s174, with price being the main reason for switching.175 The majority 
of the respondents to the market investigation has not identified any barriers to 
switching.176 
(133)  Sixth, while o ne of the respondents to the market investigation has raised a concern 
that the Transaction will result in growth of the market for multiple play services, at 
the expense of the solo services market, which will consequently shrink/decrease177, 
the Commission considers that such concern is not merger -specific and ultimately 
amounts to an efficiency offense.  
(134)  According to that  respondent, the Transaction will lead to a situation where 3 out of 
4 MNOs would focus on convergent offers sales. They would then increase the 
prices of standalone services (in particular retail mobile services, retail fixed internet access services and retail audio -visual services) as a strategy to steer customers 
towards converged offers .
178 
(135)  However, a s the market investigation has indicated, Polish customers are already 
transitioning from standalone services to multiple -play services  as the latter are 
already more convenient and cheaper than the former.179 If anything , the Transaction  
might improve  the economic efficiency of P4 and UPC Polska which, instead of 
offering multiple -play services based on wholesale access agreements (to fixed and 
mobile infrastructure respectively), will become a full- fledged convergent operator, 
with its own infrastructure and all the associated benefits, in terms of greater commercial flexibility and dynamism and  direct control of quality and performance 
of the network.  
(136)  In light of the above, the Commission concludes  that the Transaction does not raise 
serious doubts  as to its compatibility with the internal market as a consequence of 
horizontal  non-coordinated effects in the retail market for mobile 
telecommunications services.  
5.2.3. Horizontal non- coordinated effects in the market for the retail supply of fixed 
telephony services  
5.2.3.1.The Notifying Party’s view  
(137)  The Notifying Party submits that the Transaction would not gi ve rise to any 
competitive concerns in relation to the retail market for the supply of fixed telephony 
services in Poland for the following reasons.  
                                                 
173  Reply by a MVNO to Q2 to Competitors MVNOs, question 31.1.  
174  Reply to Q2 to Competitors MVNOs, questions 32 and 32.1.  
175  Reply to Q2 to Competitors MVNOs, question 33.  
176  Reply to Q1 to MNOs, question 36. Reply to Q2 to Competitors MVNOs, question 34.  
177  Reply to Q1 to Competitors MNOs, question 66.  
178  Reply to Q1 to Competitors MNOs, questions 67.1.1, 67.3.1 and 67.4.1.  
179  Reply to Q2 to Competitors MVNOs,  question 23.1. According to a respondent: “ Services purchased in bundles 
are preferred by customers mainly because of payment facilities (one invoice, one payment term) and price 
discounts compared to services purchased separately. Also important from the  customer's point of view is the 
uniform termination date of contracts, enabling a possible change of supplier. An additional benefit is the ability to 
control the amount of tax credits or deductions for Internet access, telephone and non- deductible services. ” 
 
 
33 (138)  First, the Notifying Party argues that the Parties are not  each other’s closest 
competitors. UPC P olska  focusses  on the fixed telecommunication services, while 
P4 is predominantly a mobile player. P4 does not have any fixed network 
infrastructure in Poland and has only very limited presence in the fixed telecommunication services, based on a wholesale agreement  with the cable operator 
Vectra.
180 
(139)  Second , the Notifying Party argues that the importance and customer base of fixed 
telephony services in Poland is shrinking . Referencing recent reports of the  UKE , the 
Notifying Party notes that the  fixed telecommunication s penetration rate has been 
declining steadily since 2016, with an average yearly drop above 10% between 2016 and 2020.
181 In 2020, the market decreased by 12% in volume (number of 
subscribers) and by 11% in value compared to the previous year.182  
5.2.3.2.The Commission’s assessment  
(140)  The Commission considers that the Transaction does not raise horizontal concerns in the market for  retail supply of fixed telephony services for the following reasons. 
(141)  First, the Parties’ combined market share on the overall market for the retail 
provision of fixed telephony services is low ( [10-20]% in volume and [5-10]% in 
value in 2020, with marginal increments by P4). The Parties’ combined market share will exceed  20% only in the segment of retail fixed telephony services for res idential 
customers .
183 In any event,  the Parties’ combined market share on that potential 
market segment will remain  modest ([20-30]%) in volume , or even lower when 
considering market shares in value ( [10-20]%). Therefore, regardless of the market 
segmentati on, the merged entity’s combined market share is below the 25% 
threshold, which provides an indication that the Transaction is compatible with the 
internal market.184 
(142)  Second, in all market segments, the increment brought about by P4 is very limited 
(less than [0 -5]% at most), due to P4’s focus on the mobile telecommunications 
market.  
(143)  Third, on the overall market for fixed telephony services, as well as on the potential 
market segment for res idential customers, Orange will remain the leading  
                                                 
180  Form CO, paragraph 236.  
181 UKE, Report on the state of the telecommunications market in Poland in 2020 (Form CO, Annex 7.5.1.)  (the “UKE 
2020 report”), Chart 25. Form CO, paragraph 257.  
182 UKE 2020 report (page 33) and UKE 2019 report (page 42).  
183 On a potential segment for business customers, the Parties will have [0 -5]% by volume and [0-5]% by value. The 
Notifying Party submitted that it was unable to provide market share estimates for the potential segments: 
local/national vs international fixed te lephony services. However, in alternative to market shares, the Notifying 
Party provided the number of minutes for international calls with respect to (i) the outgoing fixed international calls 
in Poland (the Parties’ combined share is [0 -5]%) and (ii) the  total outgoing fixed calls in Poland (the Parties’ 
combined share is [10-20]%). 
184  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations 
between undertakings OJ C 31, 5.2.2004, paragraph 18.  
 
 
34 competitor, with market shares around or in excess of [50- 60]% in volume and value 
(market shares in the range of [45- 55]% in volume, [50- 60]% in value).185 
(144)  Furthermore, the Commission notes that UKE has found that “ Fixed -line telephony 
services are becoming less popular among users of telecommunication services in 
Poland year on year.”186; that “ In 2020, more than 3.1 million subscribers used 
fixed -line telephony services, 12% less than in the previous year.”187; and that  the 
penetration of fixed- line telephony services declines with each year.188 In addition, 
UKE recognizes that Orange is a strong competitor on the market  noting that, “ In 
2020, almost half (46.9%) of the fixed- line telephony market, in terms of numbers of 
users, was still in the hands of Orange Polska” .189 
(145)  Finally, the Commission notes that it has not received any competition related 
complaints from the respondents to the market investigation regarding the market for 
the retail supply of fixed telephony services.  In addition, a number  of competing 
operators confirmed that the fixed telephony market in Poland and particularly its 
segment for residential customers is declining.190 
(146)  In light of the above , the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market as a consequence of 
horizontal non- coordinated effects  in the retail market for the supply of fixed 
telephony services .191 
5.2.4. Horizontal non- coordinated effects in the market for retail supply of fixed 
internet services  
5.2.4.1.The Notifying Party’ s view  
(147)  The Notifying Party submits that the Transaction would not give rise to any 
competitive concerns in relation to the retail market for the supply of fixed internet services  in Poland for the following reasons.  
(148)  First, the Notifying Party argues  that P4 is a marginal su pplier of fixed internet 
services ( [0-5]% market share  at most, when considering all plausible product 
markets) and that the market share increment on the market for the retail supply of 
fixed internet services is negligible . While UPC P olska  is an established cable 
operator in Poland, P4 has only recently (2020) entered the market and serves a 
                                                 
185  The Notifying Party estimates that competitors’ market shares on the residential segment of the retail fixed 
telephony services deviate [0 -5]% of the market shares for the overall market for the retail supply of fixed 
telephony services. Form CO, paragraph  249. 
186  UKE 2020 report, page 33.  
187  Ibid. 
188  Ibid., page 34.  
189  Ibid. 
190  Replies to Q1 to Competitors MNOs, question 67.2. Replies to Q2 to Competitors MVNOs, question 67.2.  
191  As to coordinated effects, the Commission considers that a number of factors make coordination unsustainable, and 
therefore unlikely. First, the market shares of the Parties and of the competitors remaining on the market are asymmetric, which makes it difficult for them to align their interests and reach a common strategy. In parti cular, 
Orange currently leads the Polish market for the retail supply of fixed telephony services with market share of [50 -
60]% (volume) and the Parties including the competing operators Netia, Vectra/Multimedia have strong incentives 
to challenge Orange’s  incumbent position. The cost structures and the commercial strategies of the market players 
therefore are likely to diverge. In addition, customers are price-sensitive and willing to switch and there are no 
significant barriers that would prevent them fro m switching operator.  
 
 
35 limited amount of customers , through a wholesale agreement with the fixed operator 
Vectra.192 The Notifying Party notes that , at the end of 2021, P4 provided fixed 
internet services to only approximately [… ] subscribers through its partnership with 
Vectra.193 P4 thus remains a marginal supplier of fixed internet services. Given t hat 
P4 is dependent on the wholesale agreement  with Vectra , it does not enjoy the same 
flexibility in relation to pricing  of its fixed internet services  as its competitors 
owning a fixed internet infrastructure. The Notifying Party considers that this 
hamp ers P4’s ability to effectively compete on the retail market, execute promotions 
and more generally, respond to competitive challenges.194 
(149)  Second, the Parties do not compete closely. The Notifying Party submits that UPC 
Polska ’s and Vectra’s networks  through which P4 provides its services  are largely 
complementary, as Vectra is present in a number of areas that UPC P olska  is unable 
to serve.195 In particular, the Notifying Party estimates that [… ] of Vectra’s network 
is not  overlapping with UPC  Polska ’s network.196 
(150)  Furthermore, the Notifying Party refers to UKE’s 2020 report, which notes  that the 
market for  fixed internet services in Poland is highly competitive and steadily 
growing.197 In addition, the Notifying Party notes that the  Polish fixed internet 
services market is one of the three  national markets of fixed internet access services  
with the lowest prices in the EU  in 2020.198 
5.2.4.2.The Commission’s assessment  
(151)  The Commission considers that the Transaction does not raise horizontal concerns in the market for re tail supply of fixed internet services for the following reasons. 
(152)  First, the overall market for retail internet access in Poland is not affected by the Transaction , as the Parties’ combined market shares are low ( [10-20]% in volume 
and [10-20]% in value) . The overlap between the Parties ’ activities leads to an  
affected market only  if a distinct market segment for larger business and government 
customers  in Poland is considered , where the Parties’ combined market share in 
value  exceeds 20% but remains modest  ([20-30]%), while the market share in 
volume in 2020 is significantly lower  ([10-20]%).
199 In any event , the increment 
                                                 
192  Form CO, paragraph 305.  
193  For a revenue of approximately EUR […] . Form CO, paragraph 271.  
194  Form CO, paragraph 272.  
195  Form CO, paragraph 307.  
196  Notifying Party’s response to RFI 5, question 8.  
197  UKE 2020 Report, page 8.  
198  UKE 2020 Report, page 22.  
199  In line with the Commission decision of 18 July 2019, case M.8864 – Vodafone / Certain Liberty Global Assets , 
paragraph 49, the Notifying Party’s market share estimate for fixed internet services covers only the provision of 
subscriptions enabling customers to access the internet through a fixed telecommunications connection. (Notifying 
Party’s response to RFI 7, question 1) As per prior Commission practice, a separate market for retail business 
connectivity exists that comprise s large business and government customers. 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. The market for business connectivity 
in Poland is not affected by the Transaction, as the Parties’ combined shares are well below 20% ( [0-5]% in 
volume, [0-5]% in value). The discrepancy between the Parties’ market shares in fixed internet services to large 
business and government customers, and business connectivity relates to the differences in the types of services 
provided to large business customers in these two markets. Business connectivity services include in particular: (i) 
broadband access for large business customers; (ii) retail leased lines; and (iii) VPN services. In addition, 
 
 
 
36 brought about by P4 is negligible and well below [0 -5]% in both value and volume. 
This assessment would not change  if the market were segm ented by distribution 
technology , notwithstanding UPC P olska ’s significant market share in the segment 
of internet access via cable ( [40-50]% in volume and [30- 40]% in value in 2020) , 
where P4 has [0 -5]% at most in volume and value . 
(153)  Second, the Parties are not close competitors. P4 is a recent entrant with a limited 
amount of customers and operating through a wholesale agreement with the fixed 
operator Vectra, while UPC P olska  is an established  cable operator focused on fixed 
internet  and Pay AV services. The results of the market investigation confirmed that 
the Polish market for fixed internet services is fragmented and that the Parties’ main 
competitors include the leading operator Orange, as well as other larger players 
(Vectra and  Netia) and a number of smaller providers (the largest of which are I nea, 
Toya, Plus, and T -Mobile).200 201 
(154)  Third, t he overall market for fixed internet services, as well as the potential market 
segment for larger business customers and public authorities , hosts credible 
competitors in Poland, such as Orange ( [20-30]% in volume and [20- 30]% in value 
in 2020) and Multimedia/Vectra ( [10-20]% in volume and [10- 20]% in value in 
2020).202  Furthermore, the Commission notes that UKE reports that  “The internet 
access market in Poland is a highly competitive one, with a wide range of 
entrepreneurs and provided services ”.203  The assessment does not change, even 
when considering  the market segment of inter net access via cable, where 
Multimedia/Vectra is a significant compe titor following closely behind  the merged 
entity ( [30-40]% in volume and [20- 30]% in value in 2020). Moreover, a s noted in 
paragraph 149 above, UPC’s and Vectra’s networks are largely complementary, and  
Vectra is present in a number of areas that UPC is un able to serve.204 Post-
Transaction, Vectra would thus remain a strong competitor to the merged entity , as 
well as any other operator that would have  wholesale access to Vectra’s fixed 
network in the future .205 
                                                                                                                                                      
according to the Notifying Party, a very large number of internet service providers in Poland do not supply retail 
business connectivity services, while many operators active on the retail market for business connectivity services 
are not active on the market for the retail supply of fixed internet services (e.g., Exatel, ATM, TK Telekom or 
Emitel.). Similarly, only P4’s subsidiary 3S offers business connectivity se rvices, and [Description of P4’s activity 
in the provision of fixed internet and retail business connectivity services.] . (Notifying Party’s  response to RFI 7, 
question 1)   
200  Replies to Q1 to Competitors MNOs, question  39. Replies to Q2 to Competitors MVN Os, question 37.  
201  Some respondents to the market investigation expressed concerns that the merged entity would restrict wholesale access to UPC Polska ’s fixed infrastructure to the detriment of UPC Polska ’s competitors. However, UPC Polska  is 
currently n ot providing wholesale access to its fixed network. Therefore, any concerns regarding UPC Polska ’s 
wholesale access are not merger -specific. In addition, the Notifying Party confirmed it is considering (following 
the closing of the Transaction) [Iliad’s po st-transaction plan as regards UPC Polska’s network.] . See Notifying 
Party’s response to RFI 5, question 10.  
202  The Notifying Party estimates that competitors’ market shares on the business segment of the retail fixed internet 
services deviate [0 -5]% of the market shares for the overall market for the retail supply of fixed internet services. 
Form CO, paragraph 288.  
203  UKE 2020 Report, page 8.  
204  Form CO, paragraph 307.  
205  The Notifying Party confirms that the terms of P4’s wholesale agreement with Vectra  [Description of certain rights 
and obligations of P4 and Vectra under their wholesale agreement] . In addition, the agreement with Vectra 
[Description of certain rights and obligations of P4 and Vectra under their wholesale agreement] . The acquisition 
of UPC Polska [Impact of the Transaction on certain rights and obligations of P4 and Vectra under their wholesale 
agreement] . The Notifying Party’s response to RFI 5, question 7.  
 
 
37 (155)  In addition, the footprint of UPC P olska and Vectra (through which P4 provides 
fixed internet services) is limited compared to the coverage of the two largest fixed 
telecommunication providers Orange and Polsat’s Netia. Orange’s network footprint 
reaches a large majority of Polish households (approximately […], i.e., […] 
households), while Netia’s network covers approximately […] of Polish households 
(approximately […] households).  
Table 1 : Reach of UPC Polska’s and its competitors’ respective networks206 
Operator  # of HH reached by own 
network (i n mil.)  % of Polish HH reached 
by network  
UPC  […] […]% 
Vectra  […] […]% 
Orange  […] […]% 
Netia  […] […]% 
Other  […] […]% 
TOTAL  […] - 
Source  UPC’s internal data  
 
(156)  In this respect, the Commission notes a concern raised by a market respondent  that 
the merged entity’s combined use of Vectra’s and UPC Polska’s network (fixed infrastructure which is yet unavailable to the Parties’ competitors on a wholesale basis) will result in high entry barriers to the retail fixed internet market.
207 However, 
the Commission has assessed P4’s market position through its wholesale access to 
Vectra’s network and found that P4 remains  a marginal competitor in the retail fixed 
internet services market and any segments thereof  ([0-5]% market share at most, 
irrespectiv e of the product market concerned) . Therefore,  the Transaction will not 
result in a significant increase in market power on this market. As shown in paragraphs 160-161 below, this conclusion would not change irrespective of the 
geographic scope of the market for fixed internet services.  
(157)  Fourth, a majority of respondents to the market investigation confirmed that fixed internet services customers in Poland are moderately to very price sensitive. As one operator noted, the main reason for customer switching i s “Better price offered by 
other operator or a significant price increase by the operator during the contract renewal .”
208 In addition, UKE reports that the Polish fixed internet services market is 
one of the three EU markets with the lowest prices in 2019 and 2020 (EUR 16.91 lower than the EU average).
209 Therefore, customers can and do consider switching 
to a more competitive offer at the end of the contract period with their current supplier.
210  
(158)  Finally, one respondent  to the market investigation considered that the Transaction 
would deter investments in the deployment of fibre infrastructure (“Fibre To The 
                                                 
206  Form CO, Table 47. “HH” stands for households.   
207   Replies to Q1 to Competitors MNOs, question  67.3.1. ; Replies to Q2 to Competitors MVNOs, question 68.   
208  Replies to Q2 to Competitors MVNOs, question 41.  
209  UKE 2020 report, page 22.  
210  Replies to Q1 to Competitors MNOs, question 41.1. Replies to Q2 to Competitors MVNOs, questions 40 and 41.  
 
 
38 Home”; “FTTH”) particularly in specific local Polish areas where the merged entity 
would be a single provider of fixed internet access via its cable netwo rk.211 However, 
the Commission  first notes the UKE report for 2020 according to which the majority 
of revenues in retail market for the provision of fixed internet services (26.7% in 2020) is generated from services provided via FTTH. Moreover, UKE reports t hat 
FTTH has been steadily growing over the past few years , and is expected to further 
grow, on average by 13% per year in the future.
212 Also , some respondents to the 
market investigation confirmed  that retail fixed internet market in Poland is 
characterized by “ fast expansion of FTTH coverage via commercial and EU 
sponsored investments ” and that  “(t)hese factors are generating strong growth as 
users are migrating from mobile solutions or copper based services to FTTH.”.213 In 
particular, Orange is currently t he main company active in the deployment of FTTH 
network in Poland and is likely to continue to lead on FTTH deployment in the future.
214 In addition, EU funded infrastructure is rapidly being deployed in Poland, 
which is expected to lead to a significant in crease in FTTH connections in Poland 
(from approx. 2.4 million in 2020 to approx. 4.2 million in 2025). 215 
(159)  The Transaction does not raise serious concerns, even if the geographic market for 
retail internet access  would be defined as  narrower th an national. 
(160)  First,  when considering a geographic market  consisting of single regions , the market 
share increment brought about by the Transaction on an overall market for retail internet access is marginal  (i.e. less than [0 -5]%, in volume and value, in all regions 
where the combined market share exceeds 20%) or UPC P olska ’s network  footprint 
(P4 has a market share of [0 -5]% in volume and [0 -5]% in value ).
216  
(161)  Second, the Parties’ combined market shares are modest.217 At regional level, the 
Parties’ combined market shares would exceed 20% in only three regions: Małopolskie ( [20-30]% in volume and [10- 20]% in value), Mazowieckie ( [30-40]% 
                                                 
211   Replies to Q1 to Competitors MNOs, questions  67.3.1. and 66.   
212  UKE 2020 report, page 10 and 13, citing Analysys Mason.  
213  Replies to Q1 to Competitors MNOs, question 46.1.  
214  Orange announced a partnership with APG to deploy FTTH  network to additional 1.7 million households over the 
next five years in 2021. The JV established by Orange and APG will offer wholesale access to third party 
operators. Notifying’s Party response to RFI 4, question 31  
215  Notifying’s Party response to RFI  4, question 31, referencing the 2020 UKE report, page 13.  
216  As to possible coordinated effects, the Commission considers that a number of factors make coordination 
unsustainable, and therefore unlikely. First, the market shares of the Parties and of the competitors remaining on 
the market are asymmetric, which makes it difficult for them to align their interests and reach a common strategy. In particular, P4 and UPC have a combined market share of [10 -20]% % in volume in 2020 and P4’s position as a 
supplie r of fixed internet services is marginal ( [0-5]% in volume in 2020 at most). Many significant players are 
also active on this market (in particular, Orange which market share is [20 -30]% (in volume), Vectra/Multimedia, 
which market share is [10- 20]% (volum e), Netia, at [5 -10]% (in volume), Inea at [0-5]% (in volume) and Toya at 
[0-5]% (in volume)). The cost structures and the commercial strategies of the market players therefore are likely to 
diverge. In addition, customers are price -sensitive and willing t o switch and there are no significant barriers that 
would prevent them from switching operator. In addition, in its most recent report, the UKE noted that the market 
for fixed internet services in Poland is highly competitive and steadily growing. Even tho ugh the penetration rate of 
the fixed internet services in Poland is increasing, it remains to date at the lowest level among EU countries and amounted to 20.8% in 2020, i.e. 13.5 points below the EU average rate. (See 2020 UKE report, pages 8 and 21).   
217  Even if the geographic market would be limited to individual cities in Poland, the Transaction would not raise 
serious doubts. The increment resulting from the Transaction would be minimal in any individual city in Poland where the Parties overlap ( [0-5]% in volume and value at most). See Notifying Party’s response to RFI 5, Annex 5. 
In individual cities where the Parties’ combined share would exceed 20% in volume and/or value, P4’s share is 
even lower ( [0-5]% in volume and [0-5]% in value, at most). See Notifying Party’s response to RFI 6.   
 
 
39 in volume and [20- 30]% in value) and Pomorskie ( [30-40]% in volume and 
[20-30]% in value). At the level of UPC P olska ’s network footprint, the Parties’ 
combined market share in value is [20- 30]% in volume and significantly lower in 
value ( [10-20]%). 
(162)  For the above reasons, the Commission concludes  that the Transaction does not raise 
serious doubts as to its compatibility with the internal market as a consequence of 
horizontal non- coordinated effects in the retail market for fixed internet access.  
5.2.5. Horizontal non- coordinated effects in the market for retail provision of audio-
visual services  
5.2.5.1.The Notifying Party’s view  
(163)  The Notifying Party submits that the Transaction would not give rise to any 
competitive concerns in relation to the retail market for the supply of AV services in 
Poland for the following reasons.  
(164)  First, the Notifying Party argues that the Parties are not close competitors as P4’s 
position on the overall market for AV services and any potential segment thereof is 
negligible. P4's supplied less than [ …] subscribers in 2020 and generated EUR [… ], 
a fraction compared to the total market size ( EUR […]).218 
(165)  In addition , the Notifying Party submits that P4 and UPC P olska  are not active on a 
potential segment of FTA AV services, given that they do not supply FTA A V 
services on a standal one basis, but distribute some F TA services as part of their 
respective P ay A V packages (i.e. against payment of the subscription fee). In Poland, 
FTA channels are distributed free of charge through DTTV.219 
(166)  Second , the Notifying Party considers that the new merged entity will face 
competitive pressure from numerous operators, including Cyfrowy Polsat, the market leader, CANAL+, Orange, Vectra, etc.
 220 
5.2.5.2.The Commission’s assessment  
(167)  The Commission considers that the Transaction does not raise horizontal concerns in 
the market for retail supply AV services for the following reasons.  
(168)  The Parties’  overlap in the overall market for the retail provision of AV services on 
the national territory in Poland does not lead to an affected market  (the Parties’ 
combined share is [10- 20]% in value, and even lower in volume – [10-20]%). This 
conclusion does not change even if retail AV services were further segmented to  Pay 
AV services or, more narrowly, linear P ay A V services.221 According to the best 
estimates of the Notifying Party, the Parties’ combined market shares would also 
                                                 
218  Notifying Party’s response to RFI 4, question 31.  
219  Form CO, paragraph 339.  
220  Form CO, paragraph 356.  
221   The Parties’ combined market share in linear Pay AV services is [10- 20]% in volume and [10 -20]% in value. The 
Parties do not overlap on a potential market for non-linear AV services. While UPC Polska  includes SVOD/ 
TVOD offerings as part of its cable TV packages, UPC Polska  is only active in the linear pay AV segment and 
does not market IPTV/ SVOD services on a stand -alone basis, i.e., without a cable TV subscription. See Notifying 
Party’s response to RFI 4, question 19.  
 
 
40 remain below the threshold of 20% even on potential markets for basic and premium 
Pay AV services.222 
(169)  In Poland, t he Parties are only active in the retail provision of P ay A V services . The 
Parties do not supply FTA AV services on a stand- alone basis as these FTA services 
are only available as p art of a subscription for a pay A V package (against payment of 
the subscription fee). Therefore, irrespective of  whether retail FTA offerings are 
considered part of the same market as P ay A V services , the outcome of the  
assessment  would not change , as in an overall market, the Parties would compete 
with a number of FTA retail services and their combined market share would be 
diluted.  
(170)  The Transaction would not raise concerns even if the geographic market was defined more  narrow ly than national in scope.  
(171)  First, if a geographic market definition consisted  of UPC P olska ’s network footprint , 
the overall market for AV services  would be affected . However, even when 
following a conservative approach  pursuant to which all P4's subscribers and 
revenues are attributed to the footprint of UPC P olska 's network, the overlap 
between the Parties is  minor. The Parties’ combined market share would amount to 
[10-20]% in volume and the Transaction would result in a negligible  incremen t 
([0-5]%). In addition, while UPC P olska  holds significant market share of [40-50]% 
in value, the Transaction will have a negligible impact due to a limited increment resulting from P4’s market share of [0 -5]%. Moreover, the merged entity will 
continue to face meaningful competitive pressure from the leading operator Polsat ([30-40]% in volume, [10 -20]% in value), and other notable competitors such as 
Canal+ ( [10-20]% in volume, [10- 20]% in value), and Vectra ( [10-20]% in v olume, 
[5-10]% in value) . The competitive assessment does  not significantly differ if retail 
AV services were further segmented to P ay AV services. The Parties’ market share 
is modest in volume ( [20-30]%) and, while the combined market share in value is 
substantial ( [40-50]%), the increment resulting from the Transaction minor ( [0-5]% 
in volume and [0-5]% in value).  In addition, the Notifying Party confirms that it is 
reasonable to assume that  the Parties’ market shares  in any other plausible  
overlapping  sub-segments (basic and premium AV services, linear AV services) in 
volume and value on the network footprint level would not significantly depart from their share in such segments on a national level ,
223 i.e. below 20%.  
(172)  Second , if a geographic market for AV services was defined as regional in scope, the 
Parties’ combined shares on the overall market for AV services would lead to  three  
regionally affected mark ets in Poland: Mazowieckie ( [20-30]% in volume and 
[30-40]% in value), P omorskie (exceeding 20% in value only, [20-30]%) and Slaskie 
(exceeding 20% in value only, [20- 30]%). However, the Transaction will have a 
negligible impact through P4’s activity  ([0-5]% in volume and [0-5]% in  value) .224 
                                                 
222  The Notifying Party assumes that the Parties’ combined market share in premium Pay AV and basic Pay AV (in 
volume and value) to be broadly in line with the shares on the overall Pay AV market segment on a national level, 
i.e. [10-20]% in volume and [10-20]% in value. Notifying Party’s response to RFI 4, question 17.  
223  Notifying Party’s response to RFI 4, question 22.  
224  The Notifying Party e stimates that P4’s regional shares in volume and value would not significantly depart from its 
share in the overall AV market on a national level.  P4’s audio -visual services offer is not linked to a particular 
geographic area and can be used anywhere in P oland, in combination with a fixed internet connection, often 
belonging to a third party. Even assuming that all of P4’s subscribers/revenues are achieved within UPC Polska ’s 
 
 
 
41 The competitive landscape on a regional level does not significantly differ from the 
one described for on the  network footprint  level . In all three affected regions, Polsat 
is the leading operator in volume, and is competing closely with the Parties in value ([30-40]% in volume, [20- 30]% in value), while Canal+ holds higher market shares 
than the Parties in volume ( [10-20]% in volume, [20- 30]% in value).  The 
competitive assessment  does not significantly differ if retail AV services were 
further segmented to P ay AV services. The same regions are affected also when 
considering the Parties’ combined shares in P ay AV  services : Mazowieckie 
([20-30]% in volume and [30- 40]% in value), Pomorskie ( exceeding 20% in value 
only, [20-30]%) and Slaskie ( exceeding 20% in value only, [20- 30]%), and the 
increment resulting from the Transaction is negligible ( [0-5]% in volume and value). 
In addition, the Notifying Party confirms that it is reasonable to assume that the 
Parties’ market shares in any other plausible overlapping sub- segments (basi c and 
premium AV services, linear AV services) in volume and value on the regional level 
would not significantly depart from their share in such segments on a national level
225, i.e. below 20%.  
(173)  Third , the Parties do not appear to be close competitors. The Parties overlap in the 
provision of retail P ay AV services, although UPC P olska  and P4 use different 
technologies to distribute the services to their customers ( UPC Polska  through cable 
and P4 via IPTV). In addition, the market investigation results have con firmed that 
the Parties do not compete closely . Indeed, none of the respondents to the market 
investigation consider ed UPC Polska  and P4 as close competitors, but two of many 
already competing in this space, together with Orange, Canal+, Polsat, T -Mobile, 
Toya, Netia and others . Also, when ranking providers of AV services according to 
various criteria (i.e. price, quality of network, quality of content, discounts and availability of bundled offers), none of the respondents ranked the Parties close to 
each other.  In fact, UPC Polska  usually ranks high for prices, discounts, availability 
of content and channels and availability of bundled offers . In that respect, it was 
considered to be competing close ly with Orange, Polsat (Plus) and Canal +. To the 
contrary, o nly one respondent rank ed P4 high for price, discounts and availability of 
bundled offers, and as competing close with Vectra.
226 
(174)  Fourth, global OTT platforms such as Netflix, Amazon Prime, HBO GO or Viaplay 
have gained significant traction in the market, and the market investigation confirm ed that OTT players exert significant competitive pressure on AV service 
providers  in Poland.
227 One respondent noted that “Customers are looking for new 
price, quality and recently product offers (such services as Netflix, YouTube, HBO, Viaplay, and own VOD services are becoming more and more important).”
228 In 
addition, the majority of market respon dents perceived OTT providers as aggressive 
                                                                                                                                                      
network, resulting in conservative estimates, the increment remains extremely lim ited ( [0-5]%). Notifying Party’s 
response to RFI 4, question 20.  
225  Notifying Party’s response to RFI 4, question 22. The Notifying Party submitted that UPC Polska 's market shares 
in the overall pay AV market vary from region to region and, thus, are not necessarily in line with UPC Polska 's 
market share at the national level.  However, according to the Notifying Party, UPC Polska 's relative strength 
(i.e., accounting for the differences in the shares in the overall Pay AV market at the regional/ network fo otprint 
level) in the relevant segments of the Pay AV markets at the regional level roughly corresponds with UPC Polska 's 
position in those segments at the national level.  
226  Replies to Q1 to Competitors MNOs, question 45; Q2 to Competitors MVNOs, question 48. 
227  Replies to Q2 to Competitors MVNOs, question 48.  
228  Replies to Q2 to Competitors MVNOs, question 48.1.  
 
 
42 competitors that have been persistently growing their customer base , and that will 
continue expanding together with the growing fibre network coverage. 229 
(175)  Therefore, for the reasons set out above, the Commission concludes that the 
Transaction does not raise serious doubts as to its compatibility with the internal market as a result of horizontal  non-coordinated effects in the retail market for AV  
services.
230 
5.2.6. Horizontal non- coordinated effects in the potential market for retail provision of 
multiple -play services  
5.2.6.1.The Notifying Party’s view  
(176)  The Notifying Party argues that the Transaction does not raise competition concerns  
in the market for multiple -play services.  
(177)  The Notifying Party argues that P4 has been providing fixed internet access services 
since 2020 and audio- visual services since 2019. Consequently, P4 entered the 
potential market for the retail supply of multiple play bundles only in 2019. Since 2019, P4’s position on the market for the retail supply of mult iple play services, at 
national level, has been negligible, between 0- 5% (volume), on all the sub- segments 
considered. P4’s highest market share is on the FMC segment where it amounted to [0-5]% (volume) in 2020. Therefore, P4 does not play a significant r ole on the 
market for multiple play services and as such, the Transaction does not result in an overall change in the structure of the market.  
5.2.6.2.The Commission’s assessment  
(178)  The Commission considers that the Transaction does not raise competition concerns  
in the retail market for multiple -play services, for the following  reasons.  
(179)  First, the market for multiple -play services is affected mainly  due to the established 
position of UPC P olska  in retail fixed internet access and in cable TV  which, when 
sold in bundles, increase s UPC P olska ’s market share. P4 entered the market only in 
2019. Its market shares, in the various market segments are close to negligible. In 
fact, its market share in the provision of overall bundled offers is [0 -5]% in volume 
in 2020. It s market share in the provision of fixed bundles is just [0 -5]% in volume 
in 2020 (UPC P olska  has approx. [40-50]% in volume in 2020) . P4’s market share in 
the provision of all 3P bundles is [0 -5]% in volume in 2020 ( UPC P olska  has approx. 
[60-70]% in volume in 2020) . Its market share in the provision of the 3P bundle 
including mobile telephony, fixed internet and AV services is a mere [0-5]% in 
volume in 2020 (UPC P olska  has approx. [50-60]% in volume in 2020) . If the 
market segment for 2P (fixed internet and AV services) is considered, P4 has a 
market share of [0 -5]% in volume in 2020 ( UPC P olska  has approx. [30- 40]% in 
                                                 
229  Replies to Q2 to Competitors MVNOs, question 48; Q1 to Competitors MNOs, questions 49.1 and 52.1.  
230 As to possible coordinated effects, the Commission considers that a number of factors make coordination 
unsustainable, and therefore unlikely. First, as mentioned in the UKE’s report, the market for the retail provision of 
audio-visual services to end customers in Poland is highly competitive and the Parties face competitive pressure 
from numerous operators, including Cyfrowy Polsat, the market leader, CANAL+, Orange, Vectra/Multimedia, 
Netia, Inea and Toya. The cost structures and the commercial strategies of the market players therefore are likel y to 
diverge.  In addition, P4’s position on this market is marginal, at [0-5]% in volume in 2020, and the Transaction 
will have a negligible impact on the structure of the market.  
 
 
43 volume in 2020). The Commission therefore consider s that the market share 
increment brought a bout by the Transaction is not sufficient to alter the market 
structure and competition in the retail market for multiple -play services.  
(180)  Second, P4 is not a growing competitor or an important competitive force, whose 
removal would hinder competition. In fa ct, with the majority of respondents to the 
market investigation has not identified P4 has an aggressive market player.231 In 
addition, with very limited exceptions, namely in relation to the quality of its mobile 
network, P4 is not ranked among the top providers of multiple play services on any 
parameter.232 
(181)  Third, the Commission considers that P4 is currently mainly a mobile operator. It does not own a fixed infrastructure and is only able to provide multiple -play services 
due to a wholesale agreement entered  into in 2019 with fixed operator Vectra. Such 
business arrangement puts P4 at disadvantage, compared to other providers of multiple play services. In fact, the Commission considers that, due to this dependence on  the wholesale agreement for having access to the fixed network, P4 is 
not in a  position to quickly react to a change in market conditions, launch aggressive 
commercial offers, improve the quality of the fixed services included in the bundle or even just addres s quality issues arising in connection to the fixed infrastructure . 
(182)  Fourth, the Commis sion considers that the Transaction might have  a pro -competitive 
impact on the growing market for multiple -play services, by favouring the 
emergence of a third provider ( in addition to Polsat/Polkomtel and Orange) which 
owns its mobile infrastructure and therefore, will be able to compete more dynamically.  Such potential pro-competitive development wa s acknowledge d also 
by one respondent to the market investigation, according to wh om “(…) the 
potential merger between P4 and UPC will strengthen the multiple -play market, 
which can quickly result in a large number of customers transferring to cross -
subsidized bundled offers or bundled offers with aggressive promotions for the initial months  (…)”.
233 
(183)  The Commission acknowledges that the combination of P4’s mobile network and UPC P olska ’s fixed network has raised some concerns among competitors active in 
the retail market for multiple -play services . Such concerns, however, do not a ppear 
substantiated from a competition standpoint, but rather reflect the fact that the 
merged entity will have a greater ability to compete, due to network ownership. Only one respondent to the market investigation has expressed a substantiated concern that the merged entity will no longer have an interest in granting wholesale access  to P4’s 
mobile network, in order to protect its multiple -play business.
234 The Commission 
considers that such concern is unfounded, as it is explained in detail in the dedica ted 
section of the vertical assessment  (section 5.3.2. below) . 
(184)  In light of the foregoing considerations, the Commission considers that the Transaction does not raise serious doubts as to its compatibility with the internal 
market in the retail market for multiple -play services .  
                                                 
231  Replies to Q1 to Competitors MNOs, question 55.1. Replies to Q2 to Compet itors MVNOs, question 53.1.  
232  Replies to Q1 to Competitors MNOs, question 54. Replies to Q2 to Competitors MVNOs, question 52.  
233  Reply to Q2 to Competitors MVNOs, question 53.1.  
234  Replies to Q2 to Competitors MVNOs, questions 67.1, 67.5.1 and 67.6.1.  
 
 
44 5.2.7. Horizontal non- coordinated effects in the wholesale provision of TV channels 
(acquisition side)  
5.2.7.1.The Notifying Party’s view  
(185)  The Notifying Party argues that the market for the wholesale supply of TV channels, 
acquisition side, is in principle not affected, except for the segment for the wholesale acquisition of premium P ay TV sports channels. In fact, in such segment, both 
parties are active with a combined market share in excess of 20%, but P4 has a very 
limited position  (not exceeding [0 -5]% in value in 2020) , due to the limited size of 
its business in the retail market for audio -visual services  (approx. [0-5]% by volume 
and [0-5]% by value in 2020) .
235 For the same reason – the small size of P4’s 
business at retail level –  the N otifying Party argues that the T ransaction does not 
raise any competition concerns in the wholesale market for the acq uisition  of 
premium P ay TV sports c hannels . 
5.2.7.2.The Commission’s  assessment  
(186)  The overall market for the wholesale acquisition of TV channels is not affected as the Parties’ combined market share on such market, as well as on any segment 
thereof is below 20%.
236  
(187)  Only if the specific segment for the wholesale acquisition o f premium pay TV sports 
channels is taken into consideration, the combined market share of the Parties 
exceeds 20%, although, even in such case, the market share increment brought about 
by P4 remains extremely limited  (below [0-5]% in the overall market an d in any 
segment thereof)237.  
(188)  The Commission considers that the Transaction does not raise competition concerns 
in the wholesale market for the acquisition of premium P ay TV sports channels for 
the following reasons . 
(189)  First, both Parties are active in the market for the acquisition of premium Pay TV 
sports  channels, but while UPC P olska  has a market share of approx imately  
[20-30]% in value in 2020, P4’s market share does not exceed [0 -5]%. Therefore, the 
market share in crement brought about by the Transaction is negligible.  
(190)  Second, the wholesale market for the acquisition of premium P ay TV sports 
channels, on the acquisition side, is rather fragmented. In fact, while two large 
channels acquirers, Polsat and Canal+, accou nt for [50- 60]% of the market , the 
remaining [50-60]% of the market is split between numerous players, including 
Orange, Vectra, UPC P olska , Inea, Toya, P4 and other operators active in the retail 
audio- visual market.238 
(191)  Third, both Polsat and Canal+ are ver tically integrated and not only purchase 
premium (and basic) P ay TV channels on a wholesale market, but also produce such 
channels in -house and offer them to other TV operators (including P4 and UPC 
                                                 
235  Notifying Party’s response to RFI 5, question 14, paragraph 13(b).  
236  Notifying Party’s response to RFI 4, Annex Q4.  
237  Notifying Party’s response to RFI 5, question 14, paragraph 13(a).  
238  Notifying Party’s response to RFI 5, question 14, paragraph 13(a).  
 
 
45 Polska ). Polsat and Canal+ are present at both the demand  and supply side of the 
market. Therefore, Polsat and Canal+ competitive strength is even greater in 
comparison to other P ay TV operators active at the wholesale level only as 
purchasers. With respect to premium Pay TV sports channels  specifically , Polsat 
produces a wide range of sport channels, including Polsat Sport Extra, Polsat Sport News, Polsat Sport Fight, Polsat Sport Premium 1 and Polsat Sport Premium 2.
239 
Canal+ offers four in -house sport channels, including CANAL+ SPORT, CANAL+ 
SPORT 2, CANAL+ SPORT 3 HD, and CANAL+ SPORT 4 HD. Additionally, it purchases premium P ay TV sports channels from other content providers and offers 
these channels to Canal+ users.
240 
(192)  Fourth, all P ay TV sports channels are provided on a non- exclusive basis in 
Poland.241 As a con sequence, even if  the merged entity attempted to exercise buyer 
power vis -à-vis providers of such channels, the Commission considers that such 
attempt would be defeated by the business practice of licencing such channels on a non-exclusive basis.  
(193)  Canal+, w hich currently has business relations with P4 and UPC P olska  for the 
distribution of its channels, has expressed concern that , after the Transaction, the 
new entity may  use its stronger position in negotiations with Canal+ Polska.
242 
(194)  The Commission does not consider that, after the Transaction, the merged entity will be in a position to exercise buyer power in its negotiations for the acquisition of TV 
channels. In the first place, the addition of P4 to UPC P olska  in terms of market 
share (approx. [0 -5]%) does not support the conclusion that the merged entity would 
be in a stronger position than that enjoyed by the two Parties before the Transaction.  
Second, in addition to the merged entity, there would be a sufficient number of 
alternative providers of ret ail audio -visual services to whom Canal+ could sell its 
channels , should the negotiations with the merged entity have a negative outcome. 
Third, Canal+ is vertically integrated  on the upstream wholesale market for the 
provision of TV channels, as it produc es sports channels in- house , and on the 
downstream market, where it is the second largest provider of retail P ay TV in 
Poland (with a market share of approx. [20- 30]% in volume and approx. [20 -30]% in 
value in 2020) .
243 Therefore, the Commission considers that Canal+ would have an 
advantage, in terms of both channels production and distribution, should the merged entity seek to apply any pressure to the negotiations.    
(195)  In light of  the above, the Commission considers that the Transaction does not raise 
seriou s doubts as to its compatibility with the internal market, in relation to non -
coordinated horizontal effects in the wholesale market for the provision of TV channels.  
                                                 
239  Notifying Party’s response to RFI 5, question 14, paragraph 13(a).  
240  Notifying Party’s response to RFI 5, question 14, paragraph 13(a).  
241  Notifying Party’s response to RFI 5, question 14, paragraph 13(a).  
242  Notifying Party’s response by Canal+ to Q2 to Competitors MVNOs, question 66.  
243  Form CO, tables 79 and 80.  
 
 
46 5.3.A ssessment  of vertical effects  
5.3.1. Introduction 
(196)  In this Section, the Commission will assess whether the Transaction would give rise 
to foreclosure in any of the markets that are vertically affected. A merger is said to result in foreclosure where actual or potential rivals' access to supplies or markets is hampered or eliminated as a result of th e merger, thereby reducing these companies' 
ability and/or incentive to compete.
244 
(197)  Two forms of foreclosure can be distinguished. The first is where the merger is likely to raise the costs of downstream rivals by restricting their access to an 
important inp ut (input foreclosure). The second is where the merger is likely to result 
in foreclosure of upstream rivals by restricting their access to a sufficiently large customer base (customer foreclosure).  
(198)  Customer foreclosure may occur when a supplier integrate s with an important 
customer in the downstream market. Because of this downstream presence, the merged entity may foreclose access to a sufficient customer base to its actual or 
potential rivals in the upstream market (the input market) and reduce their ab ility or 
incentive to compete.
245 
(199)  In assessing the likelihood of an anticompetitive customer foreclosure scenario, the 
Commission examines the three following cumulative elements: first, whether the merged entity would have the ability to foreclose access to  downstream markets by 
reducing its purchases from its upstream rivals; second, whether it would have the 
incentive to reduce its purchases upstream; and third, whether a foreclosure strategy 
would have a significant detrimental effect on consumers in the downstream market intertwined.
246 
5.3.2. Wholesale provision of mobile network access and the downstream market for 
retail mobile telecommunications services  
(200)  As mentioned in the horizontal assessment of the retail market for multiple -play 
services  (section 5.2.6 ab ove), a MVNO has raised concerns as to the fact that, post -
transaction, the merged entity might, in order to consolidate its position on the retail market for multiple -play services, decide to terminate or degrade wholesale access to 
its mobile network, wh ich third parties use in order to provide retail mobile 
telecommunications services they include in their offer of multiple -play services .  
(201)  The vertical relationship between the upstream  market for the wholesale supply of 
mobile network access and call or igination  services  and the downstream market for 
retail mobile telecommunications services  is not affected by the Transaction, because 
P4’s market share on the upstream market is below the threshold of 30%  ([20-30]% 
in volume, [20- 30]% in value in 2020)
247 and UPC P olska  is not active upstream .248 
The Parties’ combined market share on the downstream market is also below 30%. 
                                                 
244   Non-Horizontal Merger Guidelines, paragraph 29.  
245   Non-Horizontal Merger Guidelines, paragraph 58.  
246   Non-Horizontal Merger Guidelines, paragraph 59.  
247  Form CO, Table 113.  
248  Form CO, Table 113. 
 
 
47 For completeness, however, the Commission assesses the merged entity’s ability and 
incentive to foreclose wholesale access to its mobile network. For the reasons explained below, the Commission considers that the merged entity will have neither 
the ability  nor the incentive to engage into a foreclosure strategy of that kind. 
(202)  As regards the ability to foreclose wholesale access to its mobile network, the Commission considers that P4 does not have market power in the upstream market. 
First, only P4 and Polkom tel provide wholesale access to their mobile network. In 
such market , P4 has less than 30%  ([20-30]% in volume and [20- 30]% in value in 
2020)  of the  market and  Polkomtel has [70- 80]% in volume and [70- 80]% in value 
in 2020.
249 While there is a large number of MVNOs active in Poland (between 70 
and 80) , only approximately [ …] are currently hosted by P4 . The fact that, 
Polkomtel hosts many more MVNOs than P4 seems to indicate  that Polkomtel has a 
large hosting capacity and that P4’s infrastructure is not neces sarily an important 
input. This aspect wa s acknowledged by a respondent to the market investigation: 
“due to the (…) competitive access offered by Polkomtel, we do not foresee 
significant changes in ability of P4 to host additional MVNOs in Poland.”250 In 
addition, while only P4 and Polkomtel currently offer wholesale mobile access, a 
third MNO, Orange, has already publicly announced its intention to start offering wholesale mobile network access.
251 The Commission therefore considers that , in 
addition to P4’ s network not being an important input  or a source of market power , 
the offer of wholesale network access will increase in the future.   
(203)  As regarding the merged entity’s incentive to engaging in a foreclosure strategy , the 
Commission considers that  P4 is al ready providing wholesale network access to a 
number of MVNOs, including UPC P olska  (which provides wholesale fixed access 
to P4) and some respondents to the market investigation indicate d that, so far, the 
partnership between P4 and UPC P olska  has not aff ected P4’s willingness to provide 
wholesale access to other MVNOs.252 Concerning the post -merger scenario, 
respondents to the market investigation consider ed that the Transaction will not 
negatively affect P4’s incentive to provide wholesale access to its ne twork. A 
competitor submitted , in this respect, that P4 already hosts approx. [… ] MVNOs and 
that MVNO hosting remains one of the possible business areas for P4.253   
(204)  While MVNOs have provided mixed replies in this respect, most MNOs agree that 
P4’s incentive  to provide wholesale access to its network will not change.254 
Concerning replies from MVNOs, the Commission observes that one of the largest MVNOs has expressed the view that the merged entity’s incentive to provide wholesale access will not change after the Transaction.
255 The Commission therefore 
considers that P4 would not have the incentive to engage in a foreclosure strategy  
after the Transaction . 
                                                 
249  Form CO, Table 113.  The Notifying Party also mentions that T -Mobile is hosting a single MVNO (Move 
Telecom, accounting for 20 000-30 000 retail customers), see paragraph 543 of the Form CO.  
250  Replies to Q2 to Competitors MVN Os, question 61.1.  
251  Replies to Q2 to Competitors MVNOs, question 63.1. Replies to Q1 to Competitors MNOs, question 65 and 65.1.  
252  Replies to Q1 to Competitors MNOs, question 61. Replies to Q2 to Competitors MVNOs, question 60.1.  
253  Reply to Q1 to Competitors MNOs, question 61.1.  
254  Replies to Q1 to Competitors MNOs, question 63. Replies to Q2 to Competitors MVNOs, question 62.  
255  Replies to Q2 to Competitors MVNOs, question 62.  
 
 
48 (205)  In light of the above considerations, the Commission concludes that the Transaction 
does not raise serious doubt s as to its compatibility with the internal market in 
relation to a possible foreclosure of wholesale mobile network access  and call 
origination services .   
5.3.3. Wholesale call termination on fixed network  
5.3.3.1.Wholesale markets for fixed  call termination services – Retail market for mobile  
telecommunication  services  
(206)  The wholesale markets for termination services on fixed networks are upstream to the markets for the retail supply of mobile telecommunication services. UPC Polska  
is active on the upstream market f or termination services on its individual fixed 
network in Poland.
256 XNG is active on the market for the retail supply for mobile 
telecommunication services in Cyprus, France, Italy, Ireland, Malta and Poland. 
(207)  The vertical relationship between the Parties consists, upstream , of UPC Polska ’s 
wholesale provision of call termination services on its fixed network (where UPC Polska  has a market share of 100%  on its own network)
257 and, downstream , of 
XNG’s activities on the market for retail mobile telecommunications services in 
France (17.7%), Italy (9.3%), Ireland (21.8%), Malta (36.9%), Cyprus (35.3%) and Poland ( [20-30]%).
258 This vertical relationship is affected within the meaning of the 
Merger Regulation, as the Parties exceed the 30% threshold on the upstream market for the wholesale provision of call termination services on UPC  Polska ’s fixed 
network.  
(a) The Notifying Party’s view  
(208)  The Notifying Party submits that the Transaction will not result in any anticompetitive forec losure concerns for the reasons set out below. 
(209)  First, the Notifying Party submit s that the Transaction does not raise any concerns in 
these markets because they are heavily regulated and termination rates are capped by EU regulation.  
(210)  The market for provision of wholesale fixed call termination services is subject to ex ante regulation in Poland through both non -tariff and price control obligations for 
the call termination on their respective fixed networks .
259 These regulatory 
obligation s include access to specific network facilities, transparency (including 
publication of draft interconnection agreements on the network operator’s website), 
non-discrimination and price control.260 
(211)  Moreover, on 18 December 2020, the Commission adopted a regulation, setting the 
maximum termination rate that operators are allowed to charge each other for mobile 
                                                 
256   UPC Polska does not purchase fixed call termination  services. Form CO, paragraph 476.  
257  P4 does not provide termination services on fixed networks even though P4 is active on the market for retail fixed 
telecommunication services in Poland, because P4 operates on this market as a Fixed Virtual Network Operator 
(“FVNO”). Form CO, paragraph 511.  
258  All in volume. Form CO, Table 107.  
259  As regards UPC Polska, see UKE decision of 4 March 2009, DART -SMP -6043- 6/08 (8). Form CO, paragraph 485.  
260  Case M.8883 – PPF Group/Telenor Target Companies , paras. 50 and 56.  Form CO, paragraph 485.  
 
 
49 and fixed termination services (the “Delegated  Regulation”) ,261 already applicable in 
Poland since 1 July 2021. The Delegated  Regulation sets maximum termination 
rates, directly applicable to EU operators. Therefore, the rates set out in the 
Delegated  Regulation supersede the maximum termination rates applicable in 
Poland.262 Accordingly, the Notifying Party explains, the new merged entity would 
not have the ability to discriminate against the Parties’ competitors for access to fixed call termination services in Poland.
263  
(212)  Second, the Notifying Party asserts that in essence, any attempt by the merged entity to foreclose XNG’s competitors in Cyprus , France, Italy, Ireland, Malta and Poland  
is unlikely to be effective, since neither Party can influence the cost structure of XNG companies’ downstream competitors in a significant manner.
264 The Notifying 
Party considers that the costs of fixed call termi nation services in question are well 
below […] of the total costs incurred for the provision of retail mobile 
telecommunications services in Cyprus, France, Italy, Ireland  and Malta, and around 
[…] of that total cost in Poland.265 Third, the Notifying Party argues that fixed call 
termination in Poland is only of minor importance to XNG and their competitors in 
the respective countries.266 International mobile -to-fixed voice calls between Cyprus , 
France, Italy, Ireland, Malta and Poland represent extremely limited traffic flows, 
according to the Notifying Party.267 The same is true for domestic mobile to fixed 
voice traffic flows in Poland, which represent only about [ …] of all domestic 
traffic.268 
(213)  In addition, t he Notifying Party considers that the Parties represent  less than [ …] of 
the overall demand on the upstream market for fixed call termination services in 
Poland.269 Any attempt, therefore, by the Parties to increase their termination charges 
would only have little or no impact on the cost structure of their competitors in Cyprus, France, Italy, Ireland, Malta and Poland.  
(214)  Therefore, the Notifying Party considers that any risk of foreclosure can be ruled out. 
(b) The Commission’s assessment  
(206)  In the first place, the Commission considers that the Transaction does not raise any 
input foreclosure concerns in the market for the retail supply of mobile communication services in Cyprus, France, Ireland, Italy, Malta and Poland by means of discrimination against the Parties’ competitors for access to fixed call 
termination services in Poland or by degrading terms and conditions for access to these services, for the following reasons.  
                                                 
261  Commission Delegated Regulation (EU) 2021/654 of 18 December 2020 supplementing Directive (EU) 2018/1972 
of the European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate and a si ngle maximum Union -wide fixed voice termination rate, OJEU L 137, 22.4.2021, page 1-9.  
262  Delegated Regulation, Art. 5.  
263  Form CO, paragraphs 487 and 488.  
264  Form CO, paragraph 489.  
265  Form CO, paragraph 496.  
266  Form CO, paragraph 501.  
267  Form CO, paragraph 490. The same is true for domestic mobile to fixed voice traffic flows in Poland, which represent only about […] of all domestic traffic. Form CO, paragraph 495.  
268  Form CO, paragraph 499.  
269  Form CO, paragraph 500.  
 
 
50 (207)  First, the Commission notes that  on 18 December 2020, the Commission adopted the 
delegated act Delegated  Regulation, setting single maximum EU -wide voice 
termination rates ,270 already  applicable in Poland since 1 July 2021. As a result,  the 
upstream market for the provision of wholesale call termination services on fixed 
netw ork in Poland  will be subject to ex ante  regulation . The merged entity therefore 
will have to comply with such rates and will be limited in its  ability to raise the 
prices for the wholesale call termination services to XNG’s competitors in Cyprus, France, Ireland, Italy, Malta and Poland. In addition, the Commission notes that the 
upstream market for wholesale fixed call termination services in Poland is subject to ex ante regulation through both non- tariff and price control obligations for the call 
termina tion on their respective fixed networks, which include access to specific 
network facilities, transparency (including publication of draft interconnection agreements on the network operator’s website), non- discrimination and price 
control.
271 Accordingly, th e Commission also considers that the merged entity will 
not have significant ability to otherwise degrade terms and conditions for the 
provision of wholesale fixed call termination services . 
(208)  Second, the Commission considers  that the provision of wholesale fixed call 
termination services, originating from Cyprus, France, Ireland, Italy , Malta  and 
Poland (mobile networks) and terminating in Poland are limited , in comparison to 
the traffic flow originating on  XNG’s  mobile networks in the respective countries 
and terminating on any international fixed network.272 In addition, the Notifying 
Party estimates that the domestic mobile to fixed voice traffic flows in Poland represent only about [ …] of all domestic traffic.
273 In this regard, the Commission 
considers that any potential  increase by the merged entity of its termination charges 
would have only a limited impact on the cost structure of XNG’s competitors in 
Cyprus, France, Ireland, Italy , Malta  and Poland.  
(209)  In view of  the small traffic volume, the Transaction is not expected to have a 
detrimental effect on competition in the downstream market for the supply of retail mobile telecommunication services in Cyprus, France, Ireland, Italy , Malta  and 
Poland.  
(210)  Therefore, the Commission concludes that the merged entity is unlikely to have the 
ability and the incentive to engage in an input foreclosure strategy, and even if it did, 
there would be no significant detrimental effect on competition on the markets concerned.  
                                                 
270  Commission Delegat ed Regulation (EU) 2021/654 of 18.12.2020 supplementing Directive (EU) 2018/1972 of the 
European Parliament and of the Council by setting a single maximum Union-wide mobile voice termination rate 
and a single maximum Union-wide fixed voice termination rate  (C(2020)8703).  
271  Form CO, paragraph 485.  
272  In line with the Notifying Party’s submission, the traffic flow originating from Cyprus, France, Ireland, Italy and 
Malta (XNG) and terminating in Poland (UPC) represented (in million of minutes): […] (Cyprus), […] (France), 
[…] (Ireland), […] (Italy) and […] (Malta) (Form CO, paragraphs 491 -494). The Notifying Party estimates that in 
2020, the volume of traffic originating on the XNG’s French mobile network and terminating on a fixed network in 
Poland amounted  to around […] of the traffic volume originating on XNG’s French mobile network and 
terminating on any international fixed network (Form CO, paragraph 492). Similarly, in 2020, the volume of traffic 
originating on the XNG’s Italian mobile network and terminating on a fixed network in Poland amounted to less than […] of the traffic volume originating on XNG’s Italian mobile network and terminating on any international 
fixed network. (Form CO, paragraph 493)  
273  Form CO, paragraph 495.  
 
 
51 (211)  In the s econd place, the Commission considers that the Transaction does not lead to 
any customer foreclosure concerns in the market for the provision of wholesale fixed 
call termination services in Poland where UPC Polska  operates for the following 
reasons.  
(212)  First,  XNG’s presence on the downstream market for retail mobile 
telecommunication services is relatively limited ( [20-30]% in Poland, and even 
lower 17.07% in France, 21.8% in Ireland, and 9.3% in Italy , all in volume ) and only 
exceeding 30% in volume in Malta and Cyprus.  
(213)  Second, the Commission considers that to the extent that each network operator holds a 100% market share in its individual network in the upstream market for wholesale fixed call termination services, and regulatory obligations will exist in 
Poland as explained above, foreclosure of rivals in the upstream market cannot be 
effective.  Additional obligations such as non- discrimination or price control are 
likely to reduce the merged entity’s incentive to reduce purchases from UPC’s rivals 
in the upstream Polish market, since the merged entity will not have the possibility to benefit fro m higher prices in the upstream market.  
(214)  Therefore, the Commission concludes that the merged entity is unlikely to have the 
ability or the incentive to engage in a customer foreclosure strategy, and even if they 
did, there would be no significant detrimental effect on competition on the markets concerned.  
5.3.3.2.Wholesale markets for fixed call termination services – Retail market for fixed  
telephony  services  
(215)  The wholesale markets for termination services on fixed networks are upstream to the markets for the retail supply of fixed telephony services. XNG is active on the market for wholesale fixed call termination services on its own network in Cyprus, France, Ireland and Malta. UPC P olska  is also active on the market for wholesale 
fixed call termination s ervices on its own network in Poland.
274 XNG is active on the 
downstream market for the retail supply of fixed telephony services in Cyprus, 
France, Ireland, Malta and Poland.  UPC P olska  is also active on the downstream 
market for the retail supply of fixed  telephony services in Poland. 
(216)  The vertical relationship between  the Parties consists, upstream  (i) of UPC  Polska ’s 
wholesale provision of call termination services on its  fixed network in Poland 
(where UPC  Polska  has a market share of 100%  on its own netw ork); and (ii) XNG’s 
wholesale provision of call termination services on its fixed network in Cyprus, 
France, Ireland  and Malta (with respect to which XNG holds a market share of 100%  
on its own network), and, downstream , (i) of XNG’s  activities in the retail market 
for fixed telephony in France (18.3%), Irelan d (40.3%), Malta (4.1%), 
Cyprus  (7.7%)275 and (ii) of Parties’ activities in Poland ( [10-20]% in volume and 
[5-10]% in value ). This vertical relationship is affected within the mea ning of the 
Merger Regulation, as the Parties exceed the 30% threshold on the upstream market 
                                                 
274  P4 does not provide termination services on fixed networks even though P4 is active on the market for retail fixed 
telecommunication services in Poland, because P4 operates on this market as a FVNO.  
275  All in volume. Form CO, Table 109.  
 
 
52 for the wholesale provision of call termination services on UPC  Polska ’s fixed 
network in Poland and XNG’s fixed networks in Cyprus, France, Ireland and Malta . 
(a) The Notifying Party’s views  
(217)  The Notifying Party submits that the Transaction will not result in any 
anticompetitive foreclosure concerns for the reasons set out below. 
(218)  First, in addition to the arguments in paragraphs 206- 207 above,276 the Notifying 
Party explained that the markets for fixed call termination services in Cyprus, 
France, Ireland, and Malta are subject to an ex ante regulation , which makes it 
technically impossible to refuse access to (or price discriminate against) other network operators. Ne twork operators are subject to ex ante  regulations through both 
non-tariff and price control obligations for the call termination on their respective 
fixed networks. Therefore, the new merged entity would not have the ability to 
discriminate against the Pa rties’ competitors for access to fixed call termination 
services.
277 
(219)  Second, t he Notifying Party  further submits  that any attempt by the merged entity to 
foreclose XNG’s and UPC’s competitors in Cyprus , France, Ireland, Malta and 
Poland is unlikely to be eff ective, since neither Party can influence the cost structure 
of XNG and UPC’s  companies’ downstream competitors in a significant manner.278 
By reference to several Commission’s precedents279, the Notifying Party argues that 
fixed call termination for fixed -to-fixed calls in Cyprus, France, Ireland, Malta and 
Poland is only of minor importance to respective downstream competitors.280 By 
reference to Iliad / Play Communications281, the Notifying Party explains that the 
provision of wholesale fixed call termi nation services in Cyprus, France, Ireland , 
Malta to Poland (fixed networks)  is limited .282  The same remains valid for domestic 
fixed traffic flows in Poland (fixed networks). The Notifying Party notes that the vertical relationship between P4 and UPC  Polska  represents less than [ …] of the 
overall demand on UPC  Polska ’s fixed network in Poland.
283 Therefore, the Parties 
cannot influence the cost structure of their competitors and would not have the incentive to discriminate against the Parties’ competitors for  access to fixed call 
termination services in Cyprus , France, Ireland, France or Poland.  
(220)  Therefore, the Notifying Party considers that any risk of foreclosure can be ruled out. 
(b) The Commission’s assessment  
(221)  In the first place, the Commission considers that the Transaction does not raise any 
input foreclosure concerns in the market for the retail supply of fixed telephony 
services in Cyprus, France, Ireland, Malta and Poland by means of discrimination 
                                                 
276  Form CO, paragraph 523.  
277  Form CO, paragraph 521.  
278  Form CO, paragraph 526.  
279  Case M.9963 –  Iliad/Play Communications , para. 116 and Case M.8883 –  PPF Group/Telenor Target Companies  
with respect to fixed call termination services in Czech Republic, Slovakia, Hungary and Bulgaria, see para. 57.  
280  Form CO, paragraph 526.  
281  Case M.9963 – Iliad/Play Communications , para. 136  
282  Form CO, paragraph 528.  
283  Form CO, paragraph 531.  
 
 
53 against the Parties’ competitors for access to fixed call t ermination services in 
Cyprus, France, Ireland, Malta and Poland or by degrading terms and conditions for 
access to these services, for the following reasons.  
(222)  First, in line with what has been discussed in paragraphs  206-207 above , the merged 
entity will not have the ability to discriminate against (i) XNG’s competitors in 
Cyprus, France, Ireland, Malta and Poland,  for access to fixed call termination 
services in Poland and (ii) UPC  Polska ’s competitors in Poland, for access to fixed  
call termination services  in Cyprus, France, Ireland and Malta. The Delegated  
Regulation is already applicable in France, Ireland, Malta, Cyprus  and Poland. In 
addition, national regulators, in each of Cyprus, France, Ireland, Malta and Poland 
have impose d a number of regulatory obligations ,284 including access to specific 
network facilities, transparency (including publication of draft interconnection agreements on the network operator’s website), non- discrimination and price 
control.
285 Accordingly, the Comm ission also considers that the merged entity will 
not have the ability to degrade terms and conditions for the provision of wholesale fixed call termination services.  
(223)  Second, the Commission observes that the provision of wholesale fixed call termination se rvices in Cyprus, France, Ireland and Malta to Poland (fixed networks) 
is limited , when comparing the Parties’ fixed -to-fixed traffic volumes against the 
overall market size for  fixed  termination services in Cyprus, France, Ireland, Malta 
and Poland.
286 In this regard, the Commission considers that any increase by the 
                                                 
284  For fixed termination services see : Décision n°2017 -1453 de l’Autorité de régulation des communications 
électro niques et des postes en date du 12 décembre 2017 portant sur la détermination des marchés pertinents 
relatifs à la terminaison d’appel vocal sur les réseaux fixes en France et à la terminaison d’appel vocal sur les 
réseaux mobiles en France, la désignation  d'opérateurs exerçant une influence significative sur ces marchés et les 
obligations imposées à ce titre pour la période 2017-2020 ( France ), Commission for Communications Regulation, 
Decision D11/19 of 23 May 2019, Price Control Obligations for Fixed and Mobile Call Termination Rates, 
supplemented by Commission for Communications Regulation, Decision D09/20 of 15 October 2020, Market 
Review - Fixed Voice Call Termination Markets Further Review concerning 0818 Numbers and Additional Fixed 
Service Providers (Ireland ), Malta Communications Authority, 18 December 2018, decision MCA/D/18- 3411, 
The provision of call termination on individual public telephone networks at a fixed location in Malta - Definition, 
assessment of SMP & regulation of relevant markets ( Malta). For Poland , the relevant decision as regards UPC is 
UKE decision of 4 March 2009, DART -SMP -6043 -6/08 (8). For Cyprus , the relevant decisions are: ΓΕΡΗΕT, 
Απόφαση αναφορικά με την εξέταση της Αγοράς χονδρικής παροχής σε σταθερή θέση τερματισμού κλήσεων στο 
μεμονωμένο δημόσιο τηλεφωνικό δίκτυο της Primetel PLC και την επιβολή ρυθμιστικών υποχρεώσεων σε αυτήν, 
ως Οργανισμό με Σημαντική ισχύ στη σχετική (Αγορά 1 της Σύστασης της 9ης Οκτωβρίου 2014), ΓΕΡΗΕT, 
Απόφαση αναφορικά με την εξέταση της Αγορά ς χονδρικής παροχής σε σταθερή θέση τερματισμού κλήσεων στο 
μεμονωμένο δημόσιο τηλεφωνικό δίκτυο της MTN (Cyprus) Ltd και την επιβολή ρυθμιστικών υποχρεώσεων σε αυτήν ως Οργανισμό με Σημαντική Ισχύ στην σχετική Αγορά (Αγορά 1 της Σύστασης της 9ης Οκτωβρίου 2014), 
ΓΕΡΗΕT, Απόφαση αναφορικά με την εξέταση της Αγοράς χονδρικής παροχής σε σταθερή θέση τερματισμού κλήσεων στο μεμονωμένο δημόσιο τηλεφωνικό δίκτυο της ΑΤΗΚ και την επιβολή ρυθμιστικών υποχρεώσεων σε αυτή ως Οργανισμό με Σημαντική Ισχύ στην σχετική Αγορά (Αγορά 1 της Σύστασης της 9 ης Οκτωβρίου 2014), 
ΓΕΡΗΕT, Απόφαση αναφορικά με την εξέταση της Αγοράς χονδρικής παροχής σε σταθερή θέση τερματισμού 
κλήσεων στο μεμονωμένο δημόσιο τηλεφωνικό δίκτυο της Callsat International Telecommunications Ltd και τη ν 
επιβολή ρυθμιστικών υποχρεώσεων σε αυτήν ως Οργανισμό με Σημαντική ισχύ στην σχετική Αγορά (Αγορά 1 της 
Σύστασης της 9ης Οκτωβρίου 2014), ΓΕΡΗΕT, Απόφαση αναφορικά με την εξέταση της Αγοράς χονδρικής 
παροχής σε σταθερή θέση τερματισμού κλήσεων στο μεμονω μένο δημόσιο τηλεφωνικό δίκτυο της Cablenet 
Communications Systems Ltd και την επιβολή ρυθμιστικών υποχρεώσεων σε αυτήν ως Οργανισμό με Σημαντική ισχύ στη σχετική Αγορά (Αγορά 1 της Σύστασης της 9ης Οκτωβρίου 2014), ΓΕΡΗΕT, Απόφαση αναφορικά με την εξέταση  της Αγοράς χονδρικής παροχής σε σταθερή θέση τερματισμού κλήσεων στο μεμονωμένο δημόσιο 
τηλεφωνικό δίκτυο της MYTELCO Ltd και την επιβολή ρυθμιστικών υποχρεώσεων σε αυτήν, ως Οργανισμό με 
Σημαντική ισχύ στην σχετική Αγορά (Αγορά 1 της Σύστασης της 9ης Οκτωβρίου 2014).  
285  Case M.8883 – PPF Group / Telenor Target Companies , paras. 50 and 56.  
286  By way of proxy, the Notifying Party provides a ratio between the Parties’ respective outbound fixed telephony 
traffic to the Member States where the other party prov ides fixed termination services and the overall market size 
for termination services on fixed networks in the Member States concerned. UPC Polska’s fixed to fixed traffic 
 
 
 
54 merged entity of its termination charges would have only a limited impact on the 
cost structure of the merged entity ’s competitors in these countries. Therefore, a 
possible input foreclosure str ategy is unlikely to be profitable for the merged entity. 
In addition, in view of the small traffic volume, the Transaction is not expected to have a detrimental effect on the downstream retail market for fixed telephony services in Poland.  
(224)  Therefore, the Commission concludes that the merged entity is unlikely to have the 
ability or the incentive to engage in an input foreclosure strategy, and even if they 
did, there would be no significant detrimental effect on competition on the markets concerned.  
(225)  In the second place, the Commission considers that the Transaction does not lead to 
any customer foreclosure concerns in the market for the provision of wholesale fixed 
call termination services in the countries where XNG (Cyprus, France, Ireland and 
Malta) and U PC Polska (Poland) operate for the following reasons.  
(226)  First, the Parties’ presence in the downstream markets for the retail supply of fixed telephony services is limited and well below 30% in Cyprus, France, Poland and  
Malta . Only  in Ireland will the merged entity have a sizable market share (40.3%). 
Based on the Commission’s findings in Iliad/Play Communications  and information 
provided by the Notifying Party, the merged entity will continue competing with a number of similarly sized or stronger alternative operators  in the downstream 
markets for the retail supp ly of fixed telephony services in Cyprus, France, Malta, 
Ireland  and Poland.
287 In particular, two strong competitors are active in Ireland 
(Vodafone: 38.3%, Three Ireland: 35.3%).288 
(227)  Secon d, the Commission considers that, to the extent that each network operator 
holds a 100% market share in its individual network in the upstream market for 
wholesale fixed call termination services and that regulatory obligations applicable 
to the upstream m arket for wholesale fixed call termination services exist in Cyprus , 
France, Ireland , Malta and Poland as explained in paragraph 222 above, foreclosure 
of rivals in the upstream market would not be effective. Additional obligations such 
as non- discrimination or price control are therefore likely to reduce the merged 
entity’s incentive to reduce purchases from the Parties’ rivals in the upstream 
Cypriot, French, Irish, Maltese or Polish market, since the merged entity will not 
have the possibility to benefit  from higher prices in the upstream market.  
                                                                                                                                                      
originating in Poland and terminating in France and Ireland amounted to […] and […] of the overall market for 
fixed termination services on fixed networks in France and Ireland, respectively. XNG’s fixed to fixed traffic 
originating in France, Ireland, Malta and Cyprus, and terminating in Poland amounted to respectively […] , […], 
[…], and […] of the overall market for fixed termination services on fixed networks in Poland. Percentages derived 
from Form CO, Table 111. See also Commission decision of 26 October 2020 in Case M.9963 –  Iliad / Play 
Communications , paragraph 116, where the Commis sion found that the provision of wholesale fixed call 
termination services in Cyprus, France, Ireland and Malta to Poland (fixed networks) is limited, when comparing 
the incoming traffic flow to France, Ireland and Malta originating from Poland against total international traffic which terminates in XNG’s networks in Cyprus, France, Ireland and Malta.  
287  See Commission’s findings in case M.9963 – Iliad / Play Communications , paragraph 88: “ in 2019 in volume, in 
France, Orange: [30 -40]%, SFR: [20 -30]%, Bouyg ues Tel.: [10 -20]%; (…); in Ireland, Vodafone: 38.3%, Three 
Ireland: 35.3%; in Malta, GO: 37%; in Cyprus, Cytamobile -Vodafone: [40-50]%, in Poland, Orange: [20 -30]%, 
Polkomtel (Plus): [20 -30]%”. 
288  Ibid. The Notifying Party also considers Virgin Media and Sky Ireland as notable competitors in Ireland. Form CO, 
paragraph 535.  
 
 
55 (228)  Therefore, the Commission concludes that the merged entity is unlikely to have the 
ability and the incentive to engage in a customer foreclosure strategy, and even if it 
did, there would be no significant detrime ntal effect on competition on the markets 
concerned.  
5.3.4. Wholesale call termination on mobile network  
5.3.4.1.Wholesale markets for mobile call termination services – Retail market for fixed 
telephony services  
(229)  The wholesale markets for termination services on mobile networks are upstream to the markets for the retail supply of fixed telephony services. XNG is active on the upstream markets for termination services on its individual mobile networks in 
Cyprus, France, Italy, Ireland, Malta and Poland. UPC  Polska  is active in Poland on 
the market for the retail supply of fixed telephony services.
289 
(230)  The vertical relationship between the Parties consists , upstream , of XNG’s  wholesale 
provision of call termination services on its mobile network s in Cyprus, France, 
Ireland, Italy, Malta and Poland (where XNG holds 100%  on each of its networks ); 
and, downstream, of UPC  Polska ’s activities in the retail market for the provision of 
fixed telephony  services  in Poland (where the Parties’ combined share  is [10-20]%  
in volume and [5 -10]% in value) . This vertical relationship is affected within the 
meaning of the Merger Regulation, as the Parties exceed the 30% threshold on the upstream market for the wholesale provision of call termination services on XNG’s mobile networks in Cyprus, France, Ireland, Italy, Malta and Poland. 
(a) The Notifying Party’s view  
(231)  The Notifying Party submits that the Transaction will not result in any 
anticompetitive foreclosure concerns for the reasons set out below. 
(232)  First, in additio n to the arguments in paragraphs  206-207 above, the Notifying Party 
explained that the markets for mobile termination services in Cyprus, France, Ireland, Italy, Malta and Poland are subject to an ex ante regulation, which makes it 
technically impossible to refuse access to (or price discriminate against) other network operators.
290 The rates set out in the Delegated  Regulation supersede the 
maximum termination rates previously defined by the national regula tors. For 
mobile calls, the single maximum termination rate provided for by the Delegated  
Regulation is EUR 0.2 per minute and will be achieved gradually by 2024.291 
Therefore, in the Notifying Party’s view, the merged entity would not have the ability to discriminate against the Parties’ competitors for access to mobile call termination services in Cyprus, France, Ireland, Italy , Malta  and Poland.  
                                                 
289  Even though UPC Polska is active on the market for the retail supply of mobile services in Poland, UPC Polska 
does not provide termination services on mobile networks. Form CO, parag raph 451. Also, the Notifying Party 
explained that the Transaction does not result in a vertical link between the wholesale provision of call termination 
services on mobile network in Poland (where P4 is present) and the retail mobile telecommunication ser vices 
market in Poland (in which UPC is present through its MVNO business). In the current light MVNO model, UPC 
relies on its host network operator P4 to conduct the interconnection handling and the practical settlement of 
termination revenues and costs. However, both termination revenues and costs are ultimately borne by UPC. Form  CO, paragraph 18.  
290  Form CO, paragraph 459.  
291  Form CO, paragraph 461.  
 
 
56 (233)  The Notifying Party further submits that, like the market for wholesale call 
termination on fixed networks, the  markets for provision of wholesale call 
termination services on mobile networks are subject to ex ante regulation in the 
Member States through both non- tariff and price control obligations for the call 
termination on their respective networks.292 This national regulation imposes on each 
network operator an obligation to provide termination services to competing operators. It also ensures that access to call termination is granted on reasonable conditions and that rates remain reasonable and non- discriminator y. Therefore, the 
new merged entity would not have the ability to discriminate against the Parties’ competitors for access to mobile call termination services.  
(234)  Second, the Notifying Party asserts, in essence, that any attempt by the Parties to 
foreclose th eir competitors in Cyprus, France, Ireland, Italy and Poland, by means of 
wholesale mobile call termination services is unlikely to be effective, since neither XNG or UPC can influence the cost structure of their competitors in a significant 
manner.
293 Furth ermore, according to the Notifying Party, this vertical relationship 
concerns mainly international fixed calls to mobile voice calls originating in Poland, which are extremely limited traffic flows.
294 In addition, the Notifying Party submits 
that traffic fl ows originating from UPC Polska’s fixed network and terminating in 
France, Italy, Ireland, Malta and Cyprus  are limited  ([…] million of minutes in 
2020) .295 Any attempt, therefore, by the Parties to increase their termination charges 
                                                 
292  For mobile termination services see : Décision n°2017 -1453 de l’Autorité de régulation des communicati ons 
électroniques et des postes en date du 12 décembre 2017 portant sur la détermination des marchés pertinents 
relatifs à la terminaison d’appel vocal sur les réseaux fixes en France et à la terminaison d’appel vocal sur les 
réseaux mobiles en France, la désignation d'opérateurs exerçant une influence significative sur ces marchés et les 
obligations imposées à ce titre pour la période 2017- 2020 ( France), AGCOM, delibera n°599/18/CONS, 
Identificazione e analisi dei mercati dei servizi della terminazione del le chiamate vocali su singola rete mobile 
(mercato n°2/2014) ( Italy ), Commission for Communications Regulation, Decision D11/19 of 23 May 2019, Price 
Control Obligations for Fixed and Mobile Call Termination Rates ( Ireland ), Malta Communications Authority,  
decision MCA/D/18 - 3409, 19 December 2018, Wholesale voice call termination on individual mobile networks in 
Malta - Definition, assessment of SMP & regulation of relevant markets ( Malta). For Cyprus , the relevant 
individual decisions are: ΓΕΡΗΕT, Α.Δ.Π. 598/2015, ΕΕ. 4684, 25 Σεπτεμβρίου 2015, Απόφαση  αναφορικά με την 
εξέταση  της Αγοράς  (Απόληξης ) Τερματισμός  φωνητικών  κλήσεων  σε μεμονωμένα  δίκτυα  κινητής  τηλεφωνίας  σε 
επίπεδο  χονδρικής , και την επιβολή  Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με ΣΙΑ (ΜΤΝ ), Α.Δ.Π. 598/2015, 
ΓΕΡΗΕ T, Α.Δ.Π. 597/2015, Ε.Ε. 4684, 25 Σεπτεμβρίου 2015, Παράρτημα  Τρίτο  Μέρος  Απόφαση  αναφορικά με 
την εξέταση  της Αγοράς  (Απόληξης ) Τερματισμός  φωνητικών  κλήσεων  σε μεμονωμένα  δίκτυα  κινητής  
τηλεφωνίας  σε επίπεδο  χονδρικής , και την επιβολή  Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με ΣΙΑ (ATHK), 
Α.Δ.Π. 597/2015, ΓΕΡΗΕ T, Α.Δ.Π. 596/2015, Ε.Ε. 4684, 25 Σεπτεμβρίου 2015, Παράρτημα  Τρίτο  Μέρος  ΙΙ 
Απόφαση  αναφορικά με την εξέταση  της Αγοράς  (Απόληξης ) Τερματισμός  φωνητικών  κλήσεων  σε μεμονωμένα  
δίκτυα  κινητής  τηλεφωνίας  σε επίπεδο χονδρικής , και την επιβολή  Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με 
ΣΙΑ (CABLENET), Α.Δ.Π. 596/2015 and ΓΕΡΗΕ T, Α.Δ.Π 595/2015, ΕΕ 4684, 25 Σεπτεμβρίου 2015, 
ΠΑΡΑΡΤΗΜΑ ΤΡΙΤΟ  ΜΕΡΟΣ  ΙΙ Απόφαση  αναφορικά με την εξέταση  της Αγοράς  (Απόληξης ) Τερματισμός  
φωνητικών  κλήσεων  σε μεμονωμένα  δίκτυα  κινητής  τηλεφωνίας  σε επίπεδο  χονδρικής , και την επιβολή  
Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με ΣΙΑ (PRIMETEL), Α.Δ.Π. 595/2015. For Poland , the relevant 
decisions are: UKE, 14 grudnia 2012, No. DART –SMP -6040 -4/12(34) (Aero2 sp. z o.o.), Decision No. DART -
SMP -6040 -10/11(49) (P4 sp. z o.o.), Decision No. DART -SMP-6040- 8/11(65) (Polk omtel sp. z o.o.), Decision 
No. DART –SMP– 6040 -7/11(82) (T -Mobile Polska S.A.), Decision No. DART -SMP-6040 -9/11(58) (Orange 
Polska  S.A.)  
293  Form CO, paragraph 463.  
294  The Notifying Party further submitted that, i n 2019, the volume of international fixed to mobile traffic originating 
in Poland represented less than […] of the total fixed to mobile traffic volume originating in Poland. Form CO, 
paragraph 464 and footnote 228.  
295  UPC Polska considers that the traffic originating from its fixed network and terminating on mobile networks in 
France, Italy, Ireland, Malta and  Cyprus is extremely limited (it amounted to […] million of minutes in 2020). This 
figure includes both the volume of fixed traffic originating on UPC Polska’s fixed network and terminating on 
mobile networks in Poland and includes fixed calls terminating on foreign mobile networks. Form CO, 
paragraph  466. 
 
 
57 would only have little or no impact on the cost structure of their competitors. 
Therefore, the Parties cannot influence the cost structure of their competitors and would not have the incentive to discriminate against the Parties’ competitors for access to mobile call termination services in Poland, France, Italy, Ireland, Malta and Cyprus.
296 
(235)  Therefore, the Notifying Party considers that any risk of foreclosure can be ruled out. 
(b) The Commission’s assessment  
(236)  In the first place, the Commission considers that the  Transaction does not raise any 
input foreclosure concerns in the market for the retail supply of fixed telephony 
services  Poland by means of discrimination against the Parties’ competitors for 
access to mobile call termination services in Cyprus, France, Ireland, Italy, Malta  
and Poland or by degrading terms and conditions for access to these services, for the following reasons.  
(237)  First, in line with paragraph s 206-207, the merged entity will not have the ability to 
discriminate against the Parties’ competitors in Poland, for access to mobile call 
termination services in Cyprus, France, Ireland, Italy, Malta and Poland. In addition, 
national regulators, in each of Cyprus, France, Ireland, Malta and Poland have 
imposed a number of regulatory obligations,
297  including access to specific network 
facilities, transparency (including publication of draft interconnection agreements on the network operator’s website), non- discrimination and price control.
298 Therefore, 
the merged entity will not have the ability to discr iminate against XNG’s 
competitors in France, Ireland, Malta and Cyprus, as well as against the Parties’ 
                                                 
296  Form CO, paragraph 467.  
297  For mobile termination services see: Décision n°2017 -1453 de l’Autorité de régulation des communications 
électroniques et des postes en date du 12 décembre 2017 portant sur l a détermination des marchés pertinents 
relatifs à la terminaison d’appel vocal sur les réseaux fixes en France et à la terminaison d’appel vocal sur les 
réseaux mobiles en France, la désignation d'opérateurs exerçant une influence significative sur ces mar chés et les 
obligations imposées à ce titre pour la période 2017- 2020 ( France), AGCOM, delibera n°599/18/CONS, 
Identificazione e analisi dei mercati dei servizi della terminazione delle chiamate vocali su singola rete mobile 
(mercato n°2/2014) ( Italy ), Commission for Communications Regulation, Decision D11/19 of 23 May 2019, Price 
Control Obligations for Fixed and Mobile Call Termination Rates ( Ireland ), Malta Communications Authority, 
decision MCA/D/18 - 3409, 19 December 2018, Wholesale voice call termi nation on individual mobile networks in 
Malta - Definition, assessment of SMP & regulation of relevant markets ( Malta). For Cyprus , the relevant 
individual decisions are: ΓΕΡΗΕT, Α.Δ.Π. 598/2015, ΕΕ . 4684, 25 Σεπτεμβρίου 2015, Απόφαση  αναφορικά με την 
εξέταση της Αγοράς  (Απόληξης ) Τερματισμός  φωνητικών  κλήσεων  σε μεμονωμένα  δίκτυα  κινητής  τηλεφωνίας  σε 
επίπεδο  χονδρικής , και την επιβολή  Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με ΣΙΑ (ΜΤΝ ), Α.Δ.Π. 598/2015, 
ΓΕΡΗΕ T, Α.Δ.Π. 597/2015, Ε.Ε. 4684, 25 Σεπτεμβρίου 2015, Παράρτημα  Τρίτο  Μέρος  Απόφαση  αναφορικά με 
την εξέταση  της Αγοράς  (Απόληξης ) Τερματισμός  φωνητικών  κλήσεων  σε μεμονωμένα  δίκτυα  κινητής  
τηλεφωνίας  σε επίπεδο  χονδρικής , και την επιβολή  Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με ΣΙΑ (ATHK), 
Α.Δ.Π. 597/2015, ΓΕΡΗΕ T, Α.Δ.Π. 596/2015, Ε.Ε. 4684, 25 Σεπτεμβρίου 2015, Παράρτημα  Τρίτο  Μέρος  ΙΙ 
Απόφαση  αναφορικά με την εξέταση  της Αγοράς  (Απόληξης ) Τερματισμός  φωνητικών  κλήσεων  σε μεμονωμένα  
δίκτυα  κινητής  τηλεφωνίας  σε επίπεδο χονδρικής , και την επιβολή  Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με 
ΣΙΑ (CABLENET), Α.Δ.Π. 596/2015 and ΓΕΡΗΕ T, Α.Δ.Π 595/2015, ΕΕ 4684, 25 Σεπτεμβρίου 2015, 
ΠΑΡΑΡΤΗΜΑ ΤΡΙΤΟ  ΜΕΡΟΣ  ΙΙ Απόφαση  αναφορικά με την εξέταση  της Αγοράς  (Απόληξης ) Τερματισμός  
φωνητικών  κλήσεων  σε μεμονωμένα  δίκτυα  κινητής  τηλεφωνίας  σε επίπεδο  χονδρικής , και την επιβολή  
Ρυθμιστικών  Υποχρεώσεων  στον  οργανισμό  με ΣΙΑ (PRIMETEL), Α.Δ.Π. 595/2015. For Poland , the relevant 
decisions are: UKE, 14 grudnia 2012, No. DART –SMP -6040 -4/12(34) (Aero2 sp. z o.o.), Decision No. DART -
SMP -6040 -10/11(49) (P4 sp. z o.o.), Decision No. DART -SMP-6040- 8/11(65) (Polk omtel sp. z o.o.), Decision 
No. DART –SMP– 6040 -7/11(82) (T -Mobile Polska S.A.), Decision No. DART -SMP -6040 -9/11(58) (Orange 
Polska S.A.). 
298  Case M.8883 – PPF Group / Telenor Target Companies , paras. 50 and 56.  
 
 
58 competitors in Poland for access to mobile call termination services in Cyprus, 
France, Ireland, Malta and Poland.  
(238)  Second , the Commission observes that the provision of wholesale mobile call 
termination services originating from Poland and terminating in Cyprus, France, 
Ireland, Italy or Malta, to XNG’s  competitors are limited.299 300 In particular, the 
proportion of the fixed to mobile traffic originating on UPC Polska’s fixed network 
in the total market for mobile termination services in Poland is small (approximately 
[…] of the total fixed to mobile traffic volume originating in Poland ).301 In this 
regard, the Commission considers that any increase by the merged entity of its 
termination charges upstream would have only a limited impact on the cost structure 
of the merged entities’ competitors in the relevant countries. Therefore, a possible 
input foreclosure strategy is unlikely to be profitable for the me rged entit y. 
(239)  Third , in view of the small traffic volume of mobile calls originating from Poland 
and terminating in Cyprus, France, Ireland, Italy or Malta302, the Transaction is not 
expected to have a detrimental effect on competition in the downstream marke t for 
the retail supply of fixed telephony services in Poland. 
(240)  Therefore, the Commission concludes that the merged entity is unlikely to have the 
ability and the incentive to engage in an input foreclosure strategy, and even if it did, 
there would be no si gnificant detrimental effect on competition on the markets 
concerned.  
(241)  In the second place, the Commission considers that the Transaction does not lead to 
any customer foreclosure concerns in XNG’s  mobile  networks in Cyprus, France, 
Ireland, Italy, Malta an d Poland. 
(242)  First, the Commission observes that the Parties’ presence in the downstream market 
for the retail supply of fixed telecommunication services is limited (estimated below 
20% in Poland: [10- 20]% in volume and [5 -10]% in value.)  
(243)  Second, in view of t he regulatory obligations applicable to the upstream market for 
the wholesale mobile call termination services, described in paragraphs  232-233 
                                                 
299  According to the Notifying Party, this vertical relationship concerns mainly international fixed calls to mobile 
voice calls originating in Poland. The Notifying Party submits that in 2019, the volume of inter national fixed to 
mobile traffic originating in Poland represented less than […] of the total fixed to mobile traffic volume originating 
in Poland. Form CO, paragraph 464.  
300  UPC Polska considers that the traffic originating from its fixed network and term inating on mobile networks in 
France, Italy, Ireland, Malta and Cyprus is extremely limited ( […] million of minutes in 2020). Based on the 
information submitted by the Notifying Party, it represented only approx. […]  of the total volume of fixed to 
mobile traffic originating on UPC Polska’s fixed network, and approx. […] of the total  traffic volume originating 
on a fixed network in Poland and terminating on a non- Polish fixed or mobile network ( […] million of minutes in 
2019). See Form CO, paragraphs 465 and 466.  
301  Based on the information submitted in the Form CO, paragraph 466. According to the Notifying Party, the volume of fixed to mobile traffic originating on UPC Polska’s fixed network is also limited. It amounted to […] million of 
minutes in 2020. This figure includes both the volume of fixed traffic originating on UPC’s fixed network and 
terminating on mobile networks in Poland and includes fixed calls terminating on foreign mobile networks. In 
reference to case M.9963 – Iliad / Play Communications , the Notifying Party estimated the size of the Polish 
market for mobile termination services to be […] million of minutes.
 
302  The Notifying Party submitted that the vertical relationship concerns mainly international fixed calls to mobile 
voice calls origin ating in Poland . According to the Notifying Party, i n 2019, the volume of international fixed to 
mobile traffic originating in Poland represented less than […] of the total fixed to mobile traffic volume originating 
in Poland. Form CO, paragraph 464 and footnote 228.  
 
 
59 above , applicable to the upstream market for wholesale mobile termination services,  
foreclosure of UPC ’s and XNG’s  competitors in the upstream market, would not be 
effective.  Additional obligations such as non- discrimination or price control are 
likely to reduce the merged entity’s incentive to reduce purchases from XNG’s rivals 
in the upstream Cypriot, French, Iris h, Italian, Maltese or Polish market, since the 
merged entity will not have the possibility to benefit from higher prices in the upstream market.  
(244)  Third, as explained in paragraphs  141 and 143 above on the horizontal non-
coordinated effects assessment  of th e Polish market for retail supply of fixed 
telephony service s, downstream , a number of competitors are active on such market 
with market shares around or in excess of 20%, both in volume and in value: Orange 
([20-30]% by volume, [20- 30]% by value); Polkomtel ( [20-30]% by volume, 
[20-30]% by value); and T -Mobile ( [10-20]% by volume, [20- 30]% by value). In 
view of this, the Proposed Transaction is not expected to have detrimental effects on 
the upstream market for the provision of wholesale mobile call  termination services 
in Cyprus, France, Ireland, Italy, Malta and Poland. 
(245)  Therefore, the Commission concludes that the merged entity is unlikely to have the 
ability and the incentive to engage in a customer foreclosure strategy, and even if it 
did, there would be no significant detrimental effect on competition on the markets 
concerned . 
6. C
ONCLUSION  
(246)  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 th e 
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