Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERG ER REGISTRY, 1049 Brussel,  BELGIË 
 
Tel: +32 229-91111. Fax: +32 229-64301. E-mail: COMP-MERGER-REGISTRY@ec.europa.eu . 
 EUROPEAN COMMISSION 
 
 
 
  
Brussels, 9.7.2018 
C(2018) 4535 final 
 
 
 
To the notifying party  
 
Subject: Case M.8808 – T-Mobile  Austria / UPC Austria 
Commission decision pursuant to Article 6(1)(b) of Council 
Regulation No 139/20041 and Article 57 of the Agreement on the 
European Economic Area2 
Dear Sir or Madam, 
(1) On 18.05.2018, the European Commission rece ived notification of a proposed 
concentration pursuant to Article 4 of the Merger Re gulation by which 
T-Mobile Austria Holding GmbH (" TMA-H", Austria), controlled by 
Deutsche Telekom AG ("DTAG", Germany) , intends to acquire sole control 
of the whole of UPC Austria GmbH (" UPC", Austria), cont rolled by Liberty 
Global Group ("LG", United Kingdom) with in the meaning of Article 3(1)(b) 
of the Merger Regulation, by way of pur chase of shares (the "Transaction").3 
TMA-H is a holding compan y which conducts its bu siness operations mainly 
through its subsidiary T-Mobile Au stria GmbH ("TMA" , Austria). DTAG, 
TMA-H and TMA are designated hereinaf ter as the 'Notifying Party' and, 
together with UPC, as the 'Parties'. 
(2) On 18 June 2018, after the Commission info rmed the Parties that it could not 
be excluded that the Transaction would raise serious doubts on a potential 
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the 'Merger Regulation'). With effect from 1 December 2009, the Treaty on 
the Functioning of the European Union ('TFEU') has introduced certain changes, such as the replacement of 'Community' by 'Union' and 'common ma rket' by 'internal market '. The terminology of 
the TFEU will be used throughout this decision. 
2  OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement'). 
3  Publication in the Official Journal of the European Union No C 179 , 25.05.2018 , p. 7. 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 Where possible the information omitted has been replaced by ranges of 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. PUBLIC VERSION 
2 market for home internet services, the Notifying Party submitted 
commitments pursuant to Article 6(2) w ith a view to removing these possible 
serious doubts. The commitments were subsequently amended on 20 June 2018. 
(3) Upon further investigation, the Commissi on then found that the Transaction 
would not raise serious doubt s on this potential market as further explained in 
this Decision, and informed the Notifying Party accordingly. The Notifying Party withdrew the commitments on 6 July 2018. For this reason, neither are the commitments proposed by the Notifying Party assessed in this Decision, 
nor is the authorisation of the Transaction condi tional upon compliance with 
the proposed commitments. 
1. T
HE PARTIES AND THE TRANSACTION  
(4) TMA is mainly a mobile network oper ator ("MNO") which owns a 2G, 3G 
and 4G network with nationwide coverage  in Austria and offers inter alia 
mobile telecommunications services to  private and business customers at 
retail level and to mobile virtual netw ork operators ("MVNOs") at wholesale 
level. TMA also offers retail internet access services. TMA is ultimately controlled by DTAG.  
(5) UPC owns and operates a hybrid fibre- coaxial cable network in parts of 
Austria, primarily in urban areas such as Vienna, Graz, Innsbruck and Klagenfurt. UPC offers cable TV, fixed internet and fixed telecommunications services to privat e and business customers over its cable 
network. In addition, UPC offers fixed internet and fixed telecommunications 
services on the basis of wholesale DSL pr oducts outside of th e footprint of its 
own cable network. UPC also offers voice, internet and data services to business customers and wholesale custom ers. UPC has minor activities in the 
area of retail mobile telecommunications  services as an MVNO, on the basis 
of a wholesale agreement with Hutchison 3G Austria ("H3A"). 
(6) On 22 December 2017, a Sale and Purchase Agreement was concluded 
between Liberty Global Europe Holdco  2 BV, an indirect wholly-owned 
subsidiary of LG, as the seller an d TMA-H as the purchaser, pursuant to 
which TMA-H would acquire the entire issued share capital of UPC. As a 
result, TMA-H will acquire sole control of UPC within the meaning of Article 3(1)(b) of the Merger Regulation. 
(7) The Transaction constitutes a concen tration within the meaning of 
Article 3(1)(b) of the Merger Regulation. 
2. EU
 DIMENSION  
(8) The undertakings concerned have a comb ined aggregate world-wide turnover 
of more than EUR 5 000 million4. Each of them has an EU-wide turnover in 
excess of EUR 250 million, but the Par ties do not achieve more than two-
                                                 
4  Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission 
Consolidated Jurisdictional Noti ce (OJ C95, 16.4.2008, p. 1). 
3 thirds of their respective aggregate EU -wide turnover within one and the same 
Member State. The notified operation therefore has an EU dimension. 
3. RELEVANT MARKETS  
(9) In Austria, the Parties' activities main ly overlap in the areas of: (i) retail 
internet access services; (ii) retail m obile telecommunications services; and 
(iii) wholesale leased lines.   
(10) Besides there are minor horizontal overlaps between the Parties' activities in: 
(i) retail internet hosting services in the EEA; (ii) wholesale internet connectivity services (worldwide), and (iii) global telecommunications 
services on retail level (worldwide).  
(11) In addition, TMA and/or UPC are pres ent upstream in: (i) wholesale access 
and call origination on mobile networks (TMA); (ii) wholesale mobile call 
termination services (TMA and UPC); (iii) wholesale fixed call termination 
services (TMA and UPC); (iv) wholes ale international roaming services 
(TMA); (v) and in wholesal e leased lines (TMA and UPC). Those services are 
vertically linked to (i) re tail mobile telecommunications services, (ii) retail 
fixed telephony services, (iii)  retail home internet ac cess services (including 
both fixed and mobile technologies), (iv)  wholesale end-to-e nd calls, (v) retail 
business connectivity services; (vi) wholesale broadband access, and (vii) global telecommunications services at  wholesale level. Further details on 
the vertical relationships between the Pa rties are in the table under section 4.3 
and in paragraph (324). 
(12) Finally, since UPC offers multiple-play packages in Austria and both Parties 
offer communications services that can be included in multiple-play offers, a potential multiple-play market is analysed as well. 
3.1. Internet access services 
3.1.1.  Retail internet access services 
(13) Retail internet access services consist of the provision of a 
telecommunications link enabling en d customers to access the internet. 
3.1.1.1.  Product market definition 
(a) The Notifying Party's views 
(14) The Notifying Party submits that the produc t market for retail fixed internet 
services is separate from mobile internet  (data) services which are part of the 
overall retail market for mobile telecommunications services in Austria. The Austrian market environment does not exhibit characteristics which would 
justify a deviation from the Commission' s definition of the relevant product 
4 market in previous cases.5 The Notifying Party refe rs to the following main 
reasons for this conclusion: 
i) The bandwidth, performance, quality a nd actual speed of mobile networks 
in Austria are supposedly inferior to t hose of fixed networks, in particular 
those of UPC's high-speed HFC cable network. This would be demonstrated by a network throughput analysis carried out by TMA which 
shows that the average download user  throughput of TMA's customers of 
unlimited data only tariffs (probably us ed together with routers ("cubes")) 
is only approximately […] Mbps. This is low compared to fixed networks in Austria. Considering this limited capacity of mobile broadband connections, TMA's mobile data-onl y product would face a high return 
rate of approximately […]% during the first two to four weeks after purchasing the product. 
ii) Customers of fixed internet connections and mobile customers show very 
different usage patterns in Austria. The average monthly data usage of 
fixed customers is substantially higher than the usage of mobile 
customers. 
iii) In Austria, fixed internet services are mostly purchased  in bundles with 
other services (e.g., fi xed telephony services or  retail TV services) 
whereas mobile internet (data) services are not. From a demand side perspective, mobile internet (data) services could not substitute those product bundles. 
iv) The volume of sales and prices of fixe d internet services on the one hand 
and those of mobile internet (data) services on the othe r hand in Austria 
develop independently of each other. 
v) Fixed internet services a nd mobile internet (data) services are typically 
used as complementary products in Austria. 
vi) Mobile data-only products offered in combination with a router are niche 
products. Due to the enormous increase in data consumption over the last years, [confidential information about the implications of the increase in 
data consumption for mobile data-only products]. 
(15) The Notifying Party submits that thes e arguments apply both to services 
offered to residential customers and to services offered to business customers. In any event, the Notifying Party submits that the precise definition of the relevant product market can be left open in the present case. 
(16) Finally, according to the Notifying Part y, no distinctions should be made 
within mobile internet (data) services as  mobile internet (data) services are all 
mobile data enabled SIM ca rds that can be used with  a multitude of various 
                                                 
5  Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria , 
recital 57; Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch 
JV, recital 38; Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE 
Belgium,  recitals 59 and 61; Commission decision of 19 May 2005 in case M.7421 – Orange/Jazztel , 
recitals 50-53; Commission decision of 29 June 2009 in case M.5532 – Carphone Warehouse/Tiscali 
UK, recital 20. 
5 mobile devices (hardware) such as routers (cubes), do ngles, tablets or 
smartphones. An MNO has no control ove r the actual use of a SIM card by a 
customer. According to the Notifying Pa rty, distinguishing mobile internet 
(data) services on the basis of the ha rdware product with which the mobile 
internet (data) services (i.e., the SIM card) have b een sold would, therefore, 
be meaningless. 
(b) The Commission's assessment 
(17) The Commission notes that in previous  cases, it has distinguished between 
fixed and mobile internet access servi ces (both for residential and business 
customers) as (i) mobile internet acce ss services often do not offer the same 
product functionalities as fixed services, specifically with respect to network 
quality (speed, bandwidth, security of the connection); and (ii) mobile and 
fixed data services are mainly aimed at di fferent customer needs, i.e. to access 
the internet whilst on the move for mob ile data services. In particular, the 
Commission found that in Spain fixed and mobile internet access services were not substitutable for a number of reasons, such as different uses (mobile broadband permits mobility but also access to mobile applications), different capacity and pricing models (mobile broadband unlike fixed broadband was almost always capped at a certain amount  of data transferred and was also 
invoiced per amount of data traffic) as well as diffe rent speeds (only 4G/LTE 
mobile technology could provide comparab le speeds to fixed broadband). In 
addition, customers demanded both m obile and fixed broadband which 
demonstrated the complementary characte r of the two services. Finally, it was 
considered that mobile internet access could in some cases substitute fixed 
internet access services bu t not the other way around.
6 
(18) The issue of substitution between fixed and mobile internet access services 
was analysed specifically for Austria in  another case, where the Commission 
found that there was only limited substituta bility for mobile data services by 
fixed internet access services.7 However, the question in that case was 
whether fixed internet access services were a substitute for mobile data services in general or for mobile internet access services specifically. 
(19) In the present case the question is the reverse, namely whether mobile internet 
access services for fixed connections can be a substitute for fixed internet access, i.e. whether mobile internet acce ss services can be used for accessing 
the internet at home, in the same wa y as fixed connections are used. The 
mentioned decision relating to Austria di d not assess the latte r question, as it 
was not relevant for the case at issue. However, that decision made express reference to an ordinan ce of the national Austrian  Regulatory Authority for 
Broadcasting and Tele communications ("RTR")
8 from 2003, which found that 
                                                 
6  Commission decision of 19 May 2005 in case M.7421 – Orange/Jazztel , recitals 50-53. 
7  Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria , 
recitals 54-57. 
8  Formally, the Telekom-Control-Commission (TKK ) is responsible for regulating the Austrian 
telecommunications market and the RTR provides operational support inter alia to TKK in the 
fulfilment of TKK's duties. For the purpose of this decision, the term RTR refers also to the TKK. 
6 for residential customers mobile intern et access was a substitute for fixed line 
internet services.9 
(20) Notably the RTR found in its ordinan ce that there existed a high degree of 
demand substitution between fixed inte rnet products and fixed-mobile 
substitution ("FMS") products10 (such as cubes) for re sidential customers, and 
defined a residential "home broadband" market that included both fixed and 
FMS products. 
(21) This market definition was recognised in 2009 by the Commission in the 
periodic review of market definitions in the telecommunications sector for the 
purposes of ex-ante regulation.11 In its position the Commission noted that 
"fixed and mobile retail broadband services are normally not belonging to the 
same market. However, on the basis of the following circumstances closely 
related to the specificity of the Austrian market, the Commission accepts the inclusion of mobile and broadband connect ions into the retail residential 
market for the purposes of the presen t notification […] according to the 
evidence submitted by RTR, product char acteristic differences as detailed 
above do not currently have a cons iderable impact on demand-side 
substitutability in Austria, as they ar e not preventing residential customers 
from using applications needing secure  connections, such as online banking. 
Moreover, RTR also provides evidence that the data transfer limits imposed 
by mobile operators would not preven t subscribers from using advanced 
multimedia services, such as streami ng media or downloading large files, as 
even low price packages currently offered already include rather high volumes, and attractive pre- and pos t-paid tariffs exist. Finally, the 
particularly high HSDPA network coverage in Austria should also be taken 
into account in this respect. In light of the above information regarding the 
similar use and pricing of fixed and mobile broadband products in Austria, 
the Commission considers that, despite th e different product characteristics, 
the information provided by RTR ade quately supports the conclusion that, on 
the basis of specific national circ umstances relating to demand-side 
substitutability in the Austrian market, mobile broadband connections can be considered as an adequate substitute to fixed broadband connections within 
the current review period. Thus, mobile broadband connections can be 
included in the residential custome rs' retail broadband access market. For 
those reasons the Commission considers that RTR has provided sufficient evidence supporting its conclusion that fixed and mobile broadband 
connections can be considered as substitutes in the residential customers' 
retail broadband access market in Austria ". 
(22) The analysis of the RTR in its ordi nance is confirmed in more recent 
documents. In an expert opinion from  February 2016 (the "2016 Opinion"), 
                                                 
9  Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria , 
recital 54. 
10  FMS products are mobile products that are con ceived and promoted to substitute fixed products. 
Currently hybrid products are emerging, i.e. broadband services offered on the basis of a hybrid router 
where the data transfer takes place both over a fixed connection (usually DSL) and a mobile 
connection. To be noted that not all mobile data-only products are FMS products, since some of them 
are conceived and used for connectivity on the move. 
11  Commission decision C(2009) 7720 of 7 December 2009 in case AT/2009/0970, Wholesale broadband 
access (WBA) in Austria. 
7 RTR found evidence that fixed and mobile internet access services are likely 
to be part of the same retail market for residential users but not for business 
users. This evidence was mainly based on survey data from January 2015 and 
data from the operators up to end 2014. The 2016 Opinion observed that with 
the introduction of 4G/LTE, the number of  mobile broadband lines increased, 
as mobile operators were aggressively  marketing FMS products for the use at 
home with unlimited data allowance.  
(23) Also, according to recent RTR documents, data from network/speed tests showed that mobile broadband on av erage performed be tter than fixed 
broadband (although bandwidths decreased somewhat in the last year as the 
networks were getting closer to capacity limits).
12  
(24) The Notifying Party claims that th e Commission cannot rely on the 2016 
Opinion, because it is base d on data of a survey conducted in 2015. According 
to the Notifying Party, RTR found indications in its opinion that the competitive pressure resulting from mobile broadband services was decreasing. 
(25) In this respect, the RTR has confirmed this market definition in a decision on the local access market of July 2017.
13 This market definition has also been 
accepted by the Commission in relation to Austria.14 
(26) As for the alleged indication found by the RTR of a decreasing competitive 
pressure exerted by mobile broadban d products on fixed, the RTR found that 
mobile broadband connections declined  in the years 2013 and 2014. However, 
with the introduction of 4G/LTE, the number of mobile broadband lines 
increased again, as mobile operators  were aggressively marketing FMS 
products for the use at home with un limited data allowance. Recently, the 
number of DSL lines even decreased (see Figure 1).  
                                                 
12  See RTR Telekom Monitor 2. Quartal 2017, p. 28 
(https://www.rtr.at/de/inf/TK Monitor Q2 2017/RTR Telekom Monitor Q2 2017.pdf ); 
13  Available on https://www rtr.at/de/tk/M 1 5 15 , see in particular pp. 34-37. 
14  Commission Decision C(2017) 4687 of 30 June 2017 in cases AT/2017/1987 and AT/2017/1988.   
8 Figure 1: Development of number of access lines by technology (residential segment, 
mobile BB without prepaid) - RTR15 
 
 
(27) The substitution trend is confirmed in 2017 by the Commission in the 2017 
Europe's Digital Progress Re port (EDPR) on Austria: " The area where 
Austria performs considerably lower is ta ke-up, which in the case of fixed and 
fast broadband may be attributed to a considerable mobile substitution trend. 
The Austrian telecommunications market  is characterised by price-driven 
competition and the prominent role of mobile services, on both voice and 
broadband markets ".16 
(28) The Notifying Party further maintains that in any case the results of the 
analysis in the 2016 Opinion cannot be re lied on in the present merger control 
proceedings, as the purpose of the analysis was to assess whether A1, the incumbent telecommunications provider in Austria and which mainly offered DSL broadband services, held  significant market power. As a consequence, 
DSL broadband services served as th e starting point of RTR's market 
definition and hypothetical monopolist test . On the contrary, the Parties are 
mainly active in the provision of cab le broadband services and mobile 
broadband services (and not DSL broa dband services), re spectively. In the 
present case, the starting point of the de finition of relevant markets and of any 
hypothetical monopolist test would need  to be the Parties' products. 
(29) In this respect, the Commission notes th at the market analysis carried out by 
the RTR involved explicitly DSL and cable and concluded that mobile 
internet access services were to be included in the relevant market. DSL 
broadband services are commonly include d in the internet access services 
                                                 
15  RTR database 
16  Available on https://ec.europa.eu/digital-single-market/en/news/europes-digital-progress-report-2017 , 
page 4. 0200,000400,000600,000800,0001,000,0001,200,0001,400,0001,600,000
1. Qu. 2012
2. Qu. 2012
3. Qu. 2012
4. Qu. 20121. Qu. 20132. Qu. 20133. Qu. 20134. Qu. 2013
1. Qu. 2014
2. Qu. 20143. Qu. 20144. Qu. 20141. Qu. 2015
2. Qu. 2015
3. Qu. 20154. Qu. 20151. Qu. 20162. Qu. 2016
3. Qu. 2016
4. Qu. 20161. Qu. 20172. Qu. 20173. Qu. 2017 DSL CATV FTTH mobile BB
9 market and compete directly with ot her fixed access technologies such as 
cable and FTTX, although they can differ in terms of performance, quality and speed. In general, even though di fferent services at the two opposite 
extremes of the spectrum may not be dire ct substitutes, they can belong to the 
same market as long as there is a chai n of substitution between them. It can be 
added that the conclusions of the documen ts mentioned in paragraphs (18) to 
(27) do not make any distinctions on  the basis of the fixed technologies. 
(30) A market definition covering both fixed and mobile technologies is supported 
by the submissions of a number of Aust rian telecom providers received by the 
Commission in the present case. Those pr oviders point out th at in Austria the 
mobile network is a viable alternative for residential customers to access the internet at home. According to them, in ternet access at home is often provided 
via mobile connections, e.g. through routers which are connected to the 
provider via mobile technology ("cubes"). Their performance is similar to the 
one of comparable fixed products; fixed a nd mobile internet tariffs are equally 
positioned in terms of pricing, data volumes and down-/ upload-speeds.  
(31) One Austrian telecom provider (Ventocom) has also submitted an economic 
study, based on RTR data, which in its view confirms that: 
- in Austria, differently than in othe r countries, mobile internet devices are 
used from a fixed (static) location; 
- mobile internet access is predominantly used as standalone home access 
solution; 
- fixed and mobile internet access tariffs  are equally positioned in terms of 
prices, included data volu mes and down-/ upload speeds; 
- network tests suggest that mobile in ternet access is of at least similar 
quality as fixed one. 
(32) The Notifying Party submits that the speed-test used by Ventocom is 
inappropriate to address the serious performance issues of mobile data 
services, as it provides monthly average speeds, not taking account of the time of the day and different tariffs, supplie rs and products; it is hence entirely 
undifferentiated. According to the Notif ying Party, the performance of mobile 
data services depends on a variety of factors and is particularly low during 
peak hours. The tool used in Ventoc om's study does not address these points 
nor does it take account of congested cells at many locations. Therefore, 
according to the Notifying Party, the resu lts of that study provide a distorted 
picture of the reality. 
(33) In any case, the Commission notes that  a number of the responses to the 
market investigation provide indicati ons that a market for home internet 
access services including both fixed and mobile solutions can be considered. The majority of respondents
17 have considered fixed internet access services 
                                                 
17  Throughout this decision, when the Commission refers to the (number of) respondents in relation to a 
given question of the market investigation this excludes all respondents that have not provided an 
answer to that question or replied "I do not know",  unless stated otherwise. For example, "a majority 
 
10 and FMS internet access services to a ce rtain extent compar able in terms of 
product characteristics.18 It is to be noted that some respondents pointed out 
that the differences were mainly rele vant for customers having specific needs 
(in particular for business customers). In  general, respondents have stated that, 
from a technical perspective, quality, reliability and steadiness of dedicated, 
high-speed fixed internet services is s till difficult to reach for FMS products. 
However, due to the good performance of mobile networks in recent years, customers with the need of access to st andard internet services (as most 
residential customers) do not experien ce significant disadvantages in using a 
mobile technology where transmission capac ity is shared. In any case, hybrid 
internet access solutions are gaining importance. 
(34) In terms of price, the result is mixe d, with some respondents considering the 
two categories of products comparable to each other, while some other 
respondents consider that FMS products can be cheaper than purely fixed ones.
19 
(35) The Commission notes that in general ev en if the different products in the 
spectrum are not perfectly similar in te rms of price and quality, they may still 
be considered substitutes for many customers and that also different 
products/services which are not direct substitutes can belong to the same market as long as there is a ch ain of substitution between them. 
(36) This market definition also appears to  be supported, as regards residential 
customers, by the Parties' internal doc uments regarding the Transaction and 
recent developments in the Austrian telecommunications market. Some of these documents define a "BB@home" (broadband at home) market, where both mobile and fixed operators are activ e and compete directly. In internal 
documents, it is also pointed out that th e Austrian market differs from other 
mature markets within the EU: in particular, the mobile networks in Austria 
are of very high quality, while the fixe d networks have low penetration and 
quality.
20 According to a document, th ese circumstances favoured the 
emergence of FMS products, such as cubes or hybrid solutions. A document 
dated January 2017 expressly refers to mobile broadband providers as a rising 
threat to fixed-line operators, pointing out that in Austria 16% of households 
only had mobile connections, compared  to the 8% EU average. Several 
documents highlight the relevance of  mobile 4G/LTE offers as home 
solutions, directly competing with fixed offers. Market shares of the main actors in this market are reported in  some documents, where both fixed and 
mobile offers are included. 
(37) In order to provide the Commission with further information on the possible 
home internet access services ma rket, the Notifying Party conducted a 
specific customer survey in Austria in May 2018. This consumer survey was 
                                                                                                                                                 
of respondents" means a majority of respondents having replied to a given question and not having 
ticked "I do not know".  
18  Questionnaire Q2, reply to question B.A.6; Questionnaire Q3, reply to question B.A.4. 
19  Questionnaire Q2, reply to question B.A.7; Questionnaire Q3, reply to question B.A.5. 
20  The Commission notes that, partially in contradi ction to the content of these internal documents, 
according to DG Connect's  2018 EDPR/DESI report, Austria ranked 11th for 4G Convergence, 9th for 
NGA coverage and 18th in ultrafast broadband coverage, abov e the EU average (see https://digital-
agenda-data.eu/). 
11 designed to reveal diversion ratios be tween the Parties, but also included 
questions about whether fixed and mobile  internet access services are in the 
same relevant market. However, the No tifying Party has unde rlined that the 
survey has important limitations and that the results are distorted and biased. In particular, a substantial number of  respondents submitted implausible 
second-preferred choices. The Notifying Pa rty concludes that in light of these 
limitations, the Commission should interpre t the results of the survey with 
great caution. 
(38) The Commission considers that the evid entiary value of the survey is 
substantially undermined by a number of  flaws (see paragraph (250) below). 
The results appear to be of limited us e, primarily because, looking at the 
replies in detail, those can be interpre ted in several different ways due to a 
significant number of respondents choosi ng counterintuitive answers that are 
difficult to reconcile. As a consequence, it is difficult to dr aw any meaningful 
conclusion on market definition or divers ion ratios on the basis of the survey.  
(39) In conclusion, the Commission considers that a series of elements, mentioned 
above, seems to indicate that in Austri a a relevant product market for home 
internet access services, including both  fixed and mobile technologies, could 
be defined as far as residential cust omers are concerned. In any case, the 
question of the inclusion of mobile in ternet access services in this home 
internet services market can be left open, as the assessment would not change 
irrespective of the de finition of the market  in this respect. 
(40) Also the question as to whether all pr e-paid and post-paid  mobile data-only 
access services should be included in th e relevant market, or only post-paid 
mobile data-only access services, or just services based on cubes (i.e. on 
devices specifically designed for home mobile connection), can be left open, 
as the assessment would not change i rrespective of the definition of the 
market in this respect. 
(41) Finally, the Commission notes that market participants seem to agree that the 
specific needs of business customers in terms of stability, performance, quality and speed of the connections are better satisfied by (high quality) fixed connections and that FMS products do not exert a sufficient competitive constraint for this customer group. The el ements gathered also indicate that, 
with respect to business customers, the degree of substitutability between fixed and mobile internet access serv ices appears to be rather low.
21 However, 
it can be left open whether internet access services for business customers are part of the same market as those for re sidential customers, as the assessment 
would not change irrespective of the defi nition of the market in this respect. 
3.1.1.2.  Geographic market definition 
(a) The Notifying Party's views 
(42) The Notifying Party considers that the retail market for the provision of 
internet access services is national in  scope. The Notifying Party points out 
                                                 
21  See above, paragraphs (22) and (33) and Questionnaire Q1, replies to questions B.A.4., B.A.5. 
and B.A.6. 
12 that the Commission has in the past found that the geographic scope of the 
retail market for fixed internet services  is national, including in cases which 
concerned the acquisition of a provider of  fixed internet services not active on 
a nationwide level. 
(43) The Notifying Party submits that the arguments used in past Commission 
decisions would also be fully applicab le to the geographic scope of a retail 
market for the supply of home internet  services including fixed internet 
services and mobile internet services. In this respect, the Notifying Party points out that the providers of mob ile internet connections (MNOs and 
MVNOs) compete at national level. Mo reover, mobile te lecommunications 
services providers would have no cont rol over how and where its customers 
use a mobile data-only SIM card in Austria. 
(44) The Notifying Party further submits that  TMA offers its mobile and hybrid 
broadband services on the basis of a national pricing and marketing policy. 
Occasional regional campaigns are only ai med at [description of objective of 
occasional regional campaigns], but th ey are not based on the competitive 
conditions in the area concerned and pri ces and conditions that are promoted 
in such regional campaigns are ava ilable nationally throughout Austria. 
Similarly, UPC sets prices for fixed internet services at the national level and does not differentiate per region or location of customers, the only exception being occasional short-term localised promotion campaigns targeted at [description of UPC's sales strategy]. 
(b) The Commission's assessment 
(45) The majority of respondents to the mark et investigation in  the present case 
submitted that the market for the provision of retail internet services is national in scope. Most respondents, in pa rticular fixed operat ors, stated that 
there are no relevant pr ice differences for internet access services across 
different regions in Austria.
22 With specific regard to the internet services 
provided by mobile operators, although some of them pointed to price 
differences in some regions, all of them  are active at national level and one 
respondent highlighted that MNOs ope rate nationwide high quality mobile 
networks and are subject to covera ge obligations re quired under their 
licenses.23 
(46) A1 submitted that decisions by the Belgian, Polish and Hungarian authorities 
support the view that the geographic ma rket should be defined locally on the 
basis of the footprint of the network in question. In A1's view, a regional 
market definition is also supported by the technological differences between 
rural and urban areas, mainly served  respectively by DSL networks and by 
cable networks. In addition, different pl ayers are active in the various regions, 
with alternative pl ayers holding a strong position in  urban areas. Finally, there 
is regional price differentiation. A1 also submitted (i) an economic study pointing to a regional segmen tation of the market, with particular reference to 
the urban area of Vienna, where UPC's presence is particularly relevant and 
                                                 
22  Questionnaire Q3, reply to question B.B.2. 
23  Questionnaire Q2, reply to question B.B.1 and questionnaire Q5, reply to question 11.1. 
13 (ii) a few examples of promotions a ddressed exclusively to customers in 
Vienna. 
(47) The Commission considers that the market  for the provision of internet access 
services is national in scope. 
(48) First of all, the Commission notes that  the RTR has expressly qualified as 
national the internet access service market in Austria and this definition has been accepted by the Commission.
24 
(49) Moreover, in line with previous Commi ssion decisions related to the market 
for the provision of fixed internet access services and with the result of the market investigation in the present case, the Commission considers that although operators of cable networks ha ve sometimes a presence limited to a 
certain part of the national territory, they compete with nationwide providers 
of other fixed internet se rvices which offer their services on the basis of a 
national strategy across the national territory.
25 
(50) In the present case, it has to be added that mobile operators normally offer 
their services at national level and th at mobile connections – including FMS 
products – can usually be used in th e whole territory of Austria. The 
penetration of FMS products does not appe ar to be substantially different in 
areas covered by cable networks (such as the UPC one) compared to other 
areas. 
(51) In particular, with respect to the argume nt that operators such as UPC provide 
telecommunications services via a cable  network only in certain areas, the 
Commission notes that UPC interacts with in its footprint with providers of 
fixed internet services su ch as A1 and mobile operators such as TMA that 
operate nationally. Moreover, UPC offe rs internet access services to 
residential customers also outside of its HFC footprint mainly based on A1’s 
regulated wholesale access. Hence, UPC ultimately competes on the basis of 
nation-wide dynamics. 
(52) The Commission also did not  find material geographi c price discrimination. 
In particular, the Partie s appear to charge larg ely uniform prices among 
different locations. TMA does not engage  in regional or local pricing. Where 
TMA runs occasional marketing campaigns that target certain regions, these do never involve any regional /local pricing or conditions
26. UPC sets prices 
for fixed internet services at the nati onal level and does not differentiate per 
region or location of customers. UPC harmonises prices and quality to ensure a consistent product offeri ng throughout its footprint.
27  
(53) Most fixed (cable) operators have also  confirmed that pricing is generally 
uniform in Austria and all mobile op erators (including MVNO) are active at 
nationwide level. This element indicates that the market should be defined to 
                                                 
24  Commission decision C(2009)7720 of 7 December 2009 in case AT/2009/0970. 
25  Commission decision of 2 July 2014 in Case M.7231 - Vodafone/Ono , recitals 19-22. 
26  Reply of the Notifying Party to RFI 8 of 26 June 2018. 
27  [Description of UPC's sales policy and strategy]. 
14 be nationwide. Occasional local promo tions cannot call into question this 
conclusion. 
(54) As for the different number and size of  competitors in densely populated areas 
compared to rural areas, the Commission considers that the availability of 
competitors as a supply source is more relevant for market definition purposes than the extent of their current sale s presence. Accordingly, the Commission 
has consistently defined the market for retail internet access services to be national in scope.
28 Moreover, the two main technologies (DSL vs. cable) 
available in the different areas (rural vs. urban) are included in the same product market(s) because they compete directly (see above paragraph (29)) 
and the Commission does not see how, c onversely, they could justify the 
definition of different geographic markets.  
(55) Therefore, the Commission concludes that the retail market for the provision 
of internet access services  is national in scope. 
3.1.1.3.  Affected market 
(56) In the market for retail home internet access services including both fixed and 
mobile connections in Austria the Part ies have a combined market share of 
[20-30]% (UPC [10-20]% and TMA [10- 20]%), according to data provided 
by the Notifying Party.
29 The market in question is horizontally affected. 30 
(57) Should the market be defined as the reta il market for fixed internet access 
services (excluding mobile connections ) in 2017 UPC had a market share of 
[20-30]% in terms of revenues and of [20-30]% in terms of subscribers 
(residential and business). TMA was not active in 2017 in the fixed internet 
sector and only in January 2018 la unched a hybrid broadband product for 
residential customers on the basis of its 4G/LTE mobile network in combination with a DSL component based on wholesale access provided by 
A1. Should this offer be cons idered as part of  the retail fixed internet access 
market, TMA's market share would be marginal, in any case inferior to 
                                                 
28  Commission decision of 20 September 2013 in Case M.6990 - Vodafone/Kable Deutschland , 
recital 197. 
29  The market shares are based on data including fixed internet services and all mobile data-only services 
– pre paid and post paid – in Austria. The Notifying Party has also provided data (i) on a market including fixed internet services and only Mobile Cubes – post paid – in Austria, and (ii) on a market 
including fixed internet services and mobile data-onl y services – post paid – in Austria. The market 
shares of the Parties and of the competitors would not substantially change in the three different scenarios and therefore the question on which exact mobile data services have to be included in the 
market can be left open (s ee above paragraph (40)).  
30  Where this Decision makes reference to "affected ma rkets", it refers to instances where: for horizontal 
overlaps, both Parties are engaged in business activities in the same relevant market and where the 
concentration will lead to a combined market share of 20% or more; for vertical overlaps, where one 
or more of the Parties are engaged in business activities in a relevant market, which is upstream or 
downstream of a relevant market in which any other party to the concentration is engaged, and any of 
their individual or combined market shares at either level is 30% or more, regardless of whether there is or is not any existing supplier/customer relationship between the Parties. See section 6.3. of Annex I 
(Form CO relating to the notificati on of a concentration pursuant to regulation (EC) No 139/2004) of 
Commission Implementing Regulation (EU) No 1269/2013 of 5 December 2013 amending 
Commission Regulation (EC) No 802/2004 implementing Council Regulation (EC) No 139/2004 on 
the control of concentrations between undertakings. Official Journal OJ L 336, 14.12.2013, p. 1-36. 
15 [0-5]% (limited to residential customers) . In any case, this market would be 
horizontally affected. 
(58) In addition, the market for retail internet access services in Austria is 
vertically affected also insofar as th ere is a vertical link to the wholesale 
leased lines market if defined on th e level of communes. In 24 communes 
where TMA is active and the Parties combined market share is equal or larger than 30%. 
3.1.2.  Retail internet hosting services 
(59) Internet hosting service providers operate Internet servers and offer 
organisations and individuals to serve cont ent to the Internet via these servers. 
By using internet hosting services, orga nisations outsource their internal IT 
applications and infrastructure. 
3.1.2.1.  Product market definition 
(60) In the KPNQWEST / EBONE / GTS  decision, the Commission considered four 
market segments within the general web-hosting sector, based on the range of different services and products offered: (a) the local (limited to the area where 
the web-hosting centre is loca ted) supply of basic co-loc ation services such as 
connectivity, power, and the facilities; (b ) the national supply of shared and 
dedicated hosting consisting of hosti ng a customer's web-site on the web 
host's servers and providing the nece ssary support applications; (c) the 
national, possibly cross-border regiona l, supply of managed services to 
outsource complex enterprise applic ations and support infrastructure, 
including "front-end" and "back-office" applications  hosted on the providers' 
platforms (so-called ASP), and (d) th e national supply of content delivery 
services (CDS) such as Streaming C ontent Delivery Services and Static 
Content Delivery Products.
31 However, the Commission did not conclude on 
the exact market definition. 
(61) The Commission agrees with the Notifyi ng Party that, for the purpose of the 
present decision, there is no need to take a definitive view on the precise product market definition, as the Transaction does not raise serious doubts as to its compatibility with the intern al market under any possible market 
definition. 
3.1.2.2.  Geographic market definition 
(62) The Notifying Party submits that for the purposes of this Transaction, the 
retail market for internet hosting services is wider than national in scope, although the precise market definition can be left open. In previous decisions, 
the Commission did not conclude on th e exact definition of the geographic 
market for retail internet hosting services, whether it is national, EEA-wide or worldwide.
32 As the Transaction does not raise serious do ubts as to its 
compatibility with the internal market under any geographic market 
                                                 
31  Commission decisions of 20 September 2013 in case M.6990 – Vodafone/Kable Deutschland , recital 
201; and of 16 January 2002 in case M.2648 Kpnqwest / Ebone / GTS , recitals 19 and 20. 
32  Commission decisions of 20 September 2013 in case M.6990 – Vodafone/Kable Deutschland , 
recital 205; and of 16 January 2002 in case M.2648 Kpnqwest / Ebone / GTS , recital 23. 
16 definition, it is not necessary to conclude on the precise definition for the 
purpose of the current decision. 
3.1.2.3.  Affected markets 
(63) The retail market for internet hosting se rvices is horizontally  not affected. The 
Transaction only leads to a potential mi nor horizontal overlap (if any) on the 
retail market for internet hosting servi ces, whether in Aust ria or in the EEA. 
Both Parties have only minor activiti es on this market. According to the 
Notifying Party's estimates UPC achieved revenues of approximately EUR […] in Austria
33 from retail internet hos ting services in 2017 which 
would amount to a market share of on ly approximately [0-5]% in Austria and 
to less than [0-5]% in the EEA. DTAG sold its subsidiary Strato, which used to be DTAG's dedicated subsidiary for internet hosting activities, in the first half of 2017. DTAG's remaining activities in  the wider area of  internet hosting 
services are very limited,
34 and consequently, also the overlap between UPC's 
and DTAG's activities in the ar ea of internet hosting services. 
(64) The retail market for internet hosting services is vertically not affected either. 
There is a potential vertical link between  the Parties' minor activities on the 
retail market for internet hosting services  in the EEA and the Parties' activities 
on the upstream worldwide wholesale market for internet connectivity 
services which, however, does not constitu te an affected market due to the 
Parties' negligible market shares on the worldwide wholesale market for internet connectivity services (TMA: approx. [0-5]% UPC: below [0-5]%). 
3.1.3.  Retail business connectivity services  
(65) The retail market for business connectiv ity includes fixed telecommunications 
services purchased by large busine sses, enterprises and public sector 
customers in order to provide data connectivity between multiple sites.  
3.1.3.1.  Product market definition 
(66) The Notifying Party considers that re tail business connectivity services 
constitute a separate product market . In its decisional practice, the 
Commission
35 considered potential  subdivisions into: (i ) broadband access for 
large business customers;36 (ii) leased lines;37 and (iii) VPN services.38 The 
Notifying Party does not take  a view with regard to  these sub-segmentations 
of the market. It considers that, in any event, the exact definition of the 
                                                 
33  [Confidential information on UPC's revenues]. 
34  DTAG offers a website builder as well as e-co mmerce solutions enabling customers to set up their 
own web shops. Its subsidiary T-Systems offers various cloud solutions such as IT-infrastructure 
solutions (IaaS/PaaS) and cloud soft ware (SaaS) for SMEs. UPC does not offer services similar to the 
services of T-Systems. 
35  Commission decisions of 14 April 2014 in case M.7109 – Deutsche Telekom / GTS  recital 26; and of 
29 January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation , recital 6 and subsequent. 
36  Retail broadband access to business customers with significant needs which require higher 
performance in terms of security, bandwidth and functionality. 
37  Leased lines are part-circuits that allow communi cation providers to connect their own networks to 
end user sites for the supply of business connectivity (Commission decision of 3 July 2012 in case 
M.6584 – Vodafone/Cable & Wireless , recital 28 and subsequent). 
38  An encryption technology en abling to secure shared access as if it were a dedicated one. 
17 product market can be left open in this case as the Transaction does not raise 
any competitive concern under any plausible market definition. 
(67) In previous decisions, the Commissi on noted that the requirements and 
purchase processes of larger busine ss customers with respect to the 
combinations of fixed or fixed-mobile  services for business connectivity are 
different than those of SMEs and S OHOs, but left the market definition 
open.39 
(68) In any event, for the purposes of the present decision the exact product market 
definition for the retail provision of busin ess connectivity services can be left 
open as the Transaction does not raise se rious doubts as to its compatibility 
with the internal market under any al ternative product market definition.  
3.1.3.2.  Geographic market definition 
(69) In its decisional practice, the Commissi on has found that the retail market for 
business connectivity was national in scope.40 The Notifying Party agrees that 
the geographic scope of the retail market  for business connectivity services is 
national and corresponds to th e territory of Austria.  
(70) The Commission considers that in the present case there is no reason to depart 
from the geographic market definition a dopted in its past decisional practice. 
3.1.3.3.  Affected markets 
(71) The Transaction does not lead to a horizontal overlap on the retail market for 
business connectivity services in Austria: Only UPC has some activities on this market whereas TMA is not ac tive on this fixed telecommunications 
market.  
(72) However, the retail market for business connectivity services is vertically 
affected with regard to the Partie s' activities on the upstream wholesale 
market for leased lines if defined loca lly, at the level of communes. Based on 
the data submitted by the Austrian regulator RTR, there are 24 communes
41 
where, based the overall leased lines market but also on the various technological sub-segmentations thereof, the Parties' combined market shares 
in the wholesale upstream market, in terms of number of terminating segments, are equal or above 30%. 
3.1.4.  Wholesale broadband access  
(73) Wholesale broadband access includes di fferent types of access to fixed 
connections that allow internet service providers to provide services to end 
                                                 
39  Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , 
recital  126. 
40  Commission decisions of 14 April 2014 in case M.7109 – Deutsche Telekom / GTS  recital 30 and of 
3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , recital 10 and of 29 January 2010 in case 
M.5730 - Telefónica/Hansenet Telekommunikation , recital 28. 
41  Please see footnote 62 below. 
18 consumers. It comprises physical acce ss at a fixed location, such as LLU42; 
non-physical or virtual network access, such as bitstream access, at a fixed 
location; and resale of a fixed provider's internet access services.43 
3.1.4.1.  Product market definition 
(74) The Notifying Party does not take a view on the exact definition of the market 
for wholesale broadband access. 
(75) In previous decisions44, the Commission defined a separate market for 
wholesale broadband access and left open the question of whether it should be 
sub-divided per type of access (LLU, bitstream or resale of the incumbent's offering). 
(76) For the purposes of this Decision, the Commission considers that the question 
of the exact scope of the wholesale ma rket for broadband access with respect 
to its possible segmentations (standalone  access to DSL, standalone access to 
cable, access to cable for TV and internet together) can be left open, as the Transaction does not raise serious doubts as to its compatibility with the 
internal market under any product market definition.  
3.1.4.2.  Geographic market definition 
(77) The Notifying Party does not take a vi ew on the exact geographic definition 
of the wholesale market for broadband access. 
(78) In Carphone Warehouse/Tiscali UK , while there were indications supporting 
a national scope of the market, the Commission ultimately left open the exact geographic market definition.
45 
(79) For the purposes of this Decision, the Commission considers that the question 
of whether the geographic scope of the wholesale broadband access is national (that is to say Austria) or limited to the footprint of UPC's cable network can be left open, as Transacti on does not raise serious doubts as to its 
compatibility with the internal market under any geographic market 
definition. 
3.1.4.3.  Affected markets 
(80) The market for wholesale broadband access is horizontally not affected. Only 
UPC is active on this market. Moreover,  the market for wholesale broadband 
access is not vertically affected with respect to the vertical link with the 
                                                 
42  LLU (local loop unbund ling): unbundled (shared) access to metall ic loops of the local access network 
in a number of local telecommunications exchanges (in particular in urban areas), as this is the most 
cost-efficient way for alternative operators to provide differentiated retail broadband services.   
43  Even assuming that at the reta il level, the internet access servi ce market includes both mobile and 
fixed technologies, at wholesale level the relevant markets are considered as separate for the purpose 
of the present decision, in line w ith previous Commission decisions. 
44  Commission decision of 20 September 2013 in Case M.6990 - Vodafone/Kabel Deutschland , 
recital 161; Commission decision of 29 June 2009 in Case M.5532 - Carphone Warehouse/Tiscali UK , 
recitals 28- 34. 
45  Commission decision of 29 June 2009 in Case M.5532 - Carphone Warehouse/Tiscali UK , 
recitals 48-53. 
19 downstream market for internet access se rvices since UPC's market share in 
the upstream market for wholesale broadband access is below 30% and the combined market share of the merged entity in the downstream market for 
internet access services woul d be similarly below 30%.  
(81) Some operators need wholesale leased lines as an input for their network 
based on which wholesale broadband access is provided. The market for wholesale broadband access could hence be vertically affected insofar as the 
Parties' combined market shares on the wholesale leased lines market if defined on the level of communes, in 24 communes
46 are equal or larger 
than 30%. 
3.1.5.  Wholesale leased lines 
(82) Wholesale leased lines are part-cir cuits that allow telecommunications 
providers to connect their own networks  to end user sites for the supply of 
business connectivity services . In addition, wholesale le ased lines are an input 
for the provision of telecommunications services. 
3.1.5.1.  Product market definition 
(a) The Notifying Party's views 
(83) The Notifying Party submits that that th e relevant market definition may be 
left open, as the Transaction will not gi ve rise to any competition concerns 
under any possible segmentation of the w holesale market for leased lines.  
(84) The RTR segments the wholesale leased lines between the element that can be 
considered to be customer access or backhaul ( terminating segments ) and that 
which can be considered pa rt of the core network ( trunk segments ).47 In its 
recommendation on market definitions in the electronic communications 
sector, the Commission cons iders a separate market for terminating segments 
for leased lines48.  
(b) The Commission's assessment 
(85) In previous decisions, the Commission considered that the market for 
wholesale leased lines could be fu rther segmented be tween trunk and 
terminating segments but ultimately left the market definition open.49 The 
                                                 
46  See footnote 62 below. 
47  TKK decision of 28 July 2014, M 1.5/2012-135. Wh olesale trunk segments of leased lines are leased 
lines between the 28 trunk cities in which A1 installed the points of interconnection of its telephony 
network. These are the following 28 cities: Wien, Graz, Linz, Salzburg, Innsbruck, Klagenfurt, 
Villach, Wels, Sankt Pölten, Dornbirn, Steyr, Wiener Neustadt, Feldkirch, Baden, Amstetten, Mödling, 
Spittal an der Drau, Bruck an der Mur, Telfs, Lienz, Vöcklabruck, Ried im Innkreis, Eisenstadt, 
Korneuburg, Wörgl, Hollabrunn, Judenburg, Bruck an der Leitha. 
48  No. 6 in Annex to Recommendation of 17 Decembe r 2007 on relevant product and service markets 
within the electronic communications  sector susceptible to ex an te regulation in accordance with 
Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services, Official Journal of the European 
Union L 344/65. 
49  Commission decision of 3 July 2012 in case M.6584 - Vodafone/Cable & Wireless , recital 30; 
Commission decision of 4 February 2016 in case M.7637 - Liberty Global/BASE Belgium , recital 146; 
Commission decision of 14 April 2014 in case M.7109 - Deutsche Telecom/GTS , recital 70.  
20 market investigation carried out for the assessment of the Transaction was not 
conclusive as to whether the market for wholesale leased lines should be further segmented between trunk and terminating segments. 
(86) In the past the Commission has also c onsidered a further segmentation of the 
wholesale leased lines market into te rminating leased lines with bandwidth 
above and below 2 Mbps respectively but ultimately left the exact product market definition open.
50 Respondents to the market investigation indicated 
that terminating segments of leased lines with bandwidth below 2 Mbps may 
not be substitutable with terminating se gments of leased lines with bandwidth 
above 2 Mbps in Austria because bandwidth below 2 Mbps would be legacy services and not of interest anymore.  
(87) The Commission has not yet considered a segmentation of the wholesale 
leased lines market into terminati ng leased lines with bandwidth above 
10 Mbps versus terminating leased lines with bandwid th below 10 Mbps. 
Respondents to the market investigati on indicated that terminating leased 
lines with bandwidth below 10 Mbps and terminating leased lines with 
bandwidth above 10 Mbps may not be substitutable since bandwidth above 
10 Mbps is not available everywhere in Austria. 
(88) In past decisions, the Commission has considered a further segmentation of 
the wholesale leased lines market into passive (dark fibre) and active infrastructure (traditional managed leas ed lines, Ethernet services with 
guaranteed bandwidth) but finally left  the exact product market definition 
open.
51 Responses to the market investig ation were not conclusive on the 
question whether passive infrastructure (d ark fibre) and active infrastructure 
(leased lines with tradi tional interfaces, Ethernet services with guaranteed 
bandwidth) are substitutable for each other.52 UPC primarily offers Ethernet 
services and currently supplies only [0-5 ] dark fibre connections at wholesale 
level. TMA supplies wholesale trunk segments and wholesale terminating 
segments of leased lines on the basis of  Ethernet services and currently only 
supplies [5-10] dark fibre connections at wholesale level. 
(89) The Commission has not yet considered whether the wholesale leased lines 
market should be further divided into leased lines with traditional interfaces 
and Ethernet services with guarantee d bandwidth. The market investigation 
was not conclusive as to whether leased  lines with traditional interfaces and 
Ethernet services with guaranteed bandwidth are substitutable. There were 
however indications that traditional interfaces are outdated. [UPC's sales 
policy regarding leased lines with traditional interfaces]. 
(90) The Commission considers that in the pr esent case the exact definition of the 
product market can be left open as th e Transaction does not raise serious 
doubts as to its compatibility with the internal market under any plausible market definition. 
                                                 
50  Commission decision of 14 April 2014 in case M.7109 – Deutsche Telekom/GTS , recital 70. 
51  Commission decision of 14 April 2014 in case M.7109 – Deutsche Telekom/GTS , recital 70. 
52  Questionnaire Q6, reply to question B.A.1.4. and B.A.1.4.1. 
21 3.1.5.2.  Geographic market definition 
(a) The Notifying Party's views 
(91) The Notifying Party considers that th e geographic scope of the wholesale 
market for leased lines is national and corresponds to the territory of Austria 
irrespective of the precise defi nition of the product market.  
(92) The Notifying Party submits that the definition of narrower geographic 
markets would not reflect the actual market realities since negotiations 
between providers of wholesale leased lines (including Ethernet services and 
dark fibre) and wholesale customers often take place on a project basis and 
concern a larger number of customer site s across the whole of Austria or at 
least across a larg e number of regions in Aust ria. In addition, prices and 
conditions of contracts ag reed on a project basis depend on the number of 
customer sites and lines included in the project (and not on the theoretical competitive conditions at the level of single communes). 
(b) The Commission's assessment 
(93) In previous decisions, the Commission considered that the market for 
wholesale leased lin es irrespective of its precise  product market definition is 
nationwide in scope.
53 
(94) With regard to terminating segments  of wholesale leased lines and its 
potential sub-segments the RTR disti nguishes in principle two broad sub-
markets within Austria by grouping t ogether on the one hand communes in 
Austria where A1 was found to hold significant market power and on the 
other hand communes where the market was found to be competitive with no 
suppliers having single or jo int significant market power.54 The market 
investigation suggests that regional differences in competitive conditions may exist in Austria.
55 Some respondents indicated that competitive conditions 
(including pricing) are bette r in urban areas like Vie nna where there are more 
competitors present than in rural areas.56  
(95) For terminating segments of leased lines and its potential sub-segments the 
Commission considers that in the pres ent case the exact definition of the 
geographic market can be left open as the Transaction does not raise serious 
doubts as to its compatibility with the internal market even under the narrowest market definition that is  on the level of single communes. 
(96) As regards wholesale trunk segments of l eased lines, (i.e. leased lines between 
the 28 trunk cities in which A1 installe d the points of in terconnection of its 
                                                 
53  Commission decision of 3 July 2012 in case M.6584 - Vodafone/Cable & Wireless , recital 31; 
Commission decision of 4 February 2016 in case M.7637 - Liberty Global/BASE Belgium , recital 148; 
Commission decision of 14 April 2014 in case M.7109 - Deutsche Telecom/GTS , recital 74. 
54  RTR decision of 28 July 2014, M 1.5/2012-135; TKK Draft Decision of 16 April 2018, M 1.8/15-61. 
55  Questionnaire Q6, reply to question B.B.1; Questionnaire to MNOs reply to question 36, 36.1, 37, 
37.1. 
56  Questionnaire Q6, reply to question B.B.1.1. 
22 telephony network)57 the Commission recalls that in previous cases the market 
for wholesale leased lines irrespective of its precise  product market definition 
was found by the Commission to be nationa l as described in paragraph (93) 
above.  
(97) Past decisions of the RTR also suggest that the wholesale trunk market is  
national. In particular, in its latest re gulatory review of th is market (dating 
back in 2006, before the market was de regulated), the RTR found this market 
to be national in scope, which was not objected to by the Commission.58  
(98) The market investigation carried out in  the present case did not provide any 
indication in relation to w holesale trunk leased lines that would clearly point 
to a sub-national geographical dimension. 
(99) The Commission, hence, considers that in the present case the definition of 
the geographic market for trunk segments of leased lines and its potential sub-
segments is national in scope. 
3.1.5.3.  Affected market 
(100)  Both Parties have activities in the area of wholesale leased lines. UPC 
achieved revenues of approximately EU R […] in 2017 from wholesale leased 
lines in Austria. It achieved ap proximately […] from wholesale trunk 
segments and approximately EUR […] from wholesale terminating segments of leased lines (including leased lines with traditional inte rfaces and Ethernet 
services with guaranteed bandwidth) in  2017. UPC has neglig ible activities 
regarding dark fibre; it currently s upplies [0-5] dark fibre connections at 
wholesale level.
59  
(101)  TMA, which provides wholesale leased lines services on the basis of the 
backbone infrastructure of its mob ile network, generated revenues of 
approximately EUR […] with wholesale leased lines services in Austria 
in 2017. According to TMA's estimates , approximately [60-80]% of its 
wholesale leased lines re venues originated from th e lease of wholesale trunk 
segments and the rest [30-40]% from the lease of wholesale terminating 
segments (including leased lines with traditional interfaces and Ethernet 
services with guaranteed bandwidth).60  
(102)  At the national level, the wholesale le ased lines market and its potential 
product segments are not horizontally aff ected. In the overall wholesale leased 
lines market the Parties have a combined market share in terms of revenues of [0-5]% in Austria (UPC with [0-5]% and TMA with [0-5]%). As regards wholesale trunk segments the Parties have a combined share of [10-20]% 
(UPC with [0-5]% and TMA with [10-20] % in terms of revenues) in Austria. 
Regarding wholesale terminating segmen t the Parties have a combined share 
                                                 
57  These are the following 28 cities: Wien, Graz, Li nz, Salzburg, Innsbruck, Klagenfurt, Villach, Wels, 
Sankt Pölten, Dornbirn, Steyr, Wiener Neustadt, Fel dkirch, Baden, Amstetten, Mödling, Spittal an der 
Drau, Bruck an der Mur, Telfs, Lienz, Vöcklabruck, Ried im Innkreis, Eisenstadt, Korneuburg, Wörgl, Hollabrunn, Judenburg, Bruck an der Leitha. 
58  See Commission decision of 28.8.2006 in Case AT/2006/0467. 
59  Form CO, paragraph 417. 
60  Form CO, paragraph 418. 
23 of [0-5]% (UPC with [0-5]% and TMA w ith [0-5]% in terms of revenues) in 
Austria. In relation to terminating leas ed lines with bandwidth above 2 Mbps 
the Parties have a combined market  share of [0-5]% (UPC: [0-5]%; 
TMA: [0-5]% in terms of revenues). In relation to terminating leased lines with bandwidth equal and below 2 Mbps, the Parties have a combined market 
shares of [0-5]% (UPC: [0-5]%; TMA:  [0-5]% in terms of revenues). As 
regards terminating leased lines with bandwidth above 10 Mbps the Parties have a combined market share of [0-5]% (UPC: [0-5]%; TMA: [0-5]% in terms of revenues). In relation to term inating leased lines with bandwidth 
equal and below 10 Mbps the Parties have  a combined market share of [0-5]% 
(UPC: [0-5]%; TMA: [0-5]% in term s of revenues). As regards passive 
infrastructure (dark fibre) the Parties ha ve a combined market share of [0-5]% 
(UPC: [0-5]%; TMA: [0-5]% in te rms of revenues). Regarding active 
infrastructure (traditional managed leas ed lines and Ethernet services with 
guaranteed bandwidth) the Parties have a combined market share of [0-5]% 
(UPC: [0-5]%; TMA: [0-5]% in terms of revenues).  
(103)  At the commune level, based on data submitted by the RTR on the number of 
terminating segments leased per te chnology in each commune in 2015, and 
data submitted by the Parties on the term inating segments per technology they 
currently (2017Q4) lease, a single potentially horizon tally affected market 
exists in the sub-segment of Ethernet services with guaranteed bandwidth  in a 
single commune
61 representing less than 0.1% of the Austrian population 
where each of the Parties leases […] of the […] Ethernet base d leased lines in 
total (thus [20-30]%; TMA: [10-20]% and UPC:[10-20]%) of total Ethernet 
lines. When considering the sub-segment of Ethernet services with 
guaranteed bandwidth with bandwidth above 10Mbit/s ) in this commune the 
combined market share increases  to [40-50]% (TMA: [20-30]% and 
UPC: [20-30]%).  
(104)  According to the Notifying Party, th e Parties' activities on the wholesale 
market for leased lines are vertical ly related (as a necessary input to 
telecommunications service providers  that do not own their own fixed 
network infrastructure or only own a fixed network that covers specific 
geographic locations) to (i) the Partie s' activities on the downstream retail 
market for retail mobile telecommunications services, (ii) TMA's activities on the downstream wholesale market for access and call origination on mobile 
networks, (iii) UPC's activities on th e downstream retail market for fixed 
telephony services, (iv) UPC's activities on the downstream retail market for 
business connectivity services, (v) DTAG's activities on the downstream worldwide wholesale market for globa l telecommunications services, and 
(vi) the Parties' activities on the dow nstream worldwide retail market for 
global telecommunications services. The Commission further notes that to the 
                                                 
61  That is the Commune of […] (TMA: [10-20]%; UPC: [10-20]% in the sub-segment of Ethernet 
services with guaranteed bandwidth ); (TMA: [20-30]%; UPC: [20-30]% in the sub-segment of 
Ethernet services with guaranteed b andwidth with bandwidth above 10Mbit/s ). No recent market data 
at the commune level was available from the RTR distinguishing leased lines with a bandwidth of less than or equal to 2 Mbit/s and those with a bandwidth of more than 2 Mbit/s. However, given that TMA 
does not have any leased line with a bandwidth of less than or equal to 2 Mbit/s and because 
terminating segments with a guarant eed bandwidth of less than or equal to 2 Mbit/s account for only 
roughly 10% of the terminating segments in Austri a, the results would not significantly change when 
considering such a split. 
24 extent that the retail internet access se rvices market includes both mobile and 
fixed offerings it follows from point (i) that a vertical relationship exists also between the wholesale market for leased lines and the Parties' activities in the 
downstream retail internet access se rvices market. Finally, a vertical 
relationship exists between the wholesal e market for leased lines and UPC's 
activities in the wholesale broadband acce ss services market for which leased 
lines can also be an input.   
(105)  Based on these vertical relationships, the market for wholesale leased lines is 
vertically affected both at the national level as well as the level of communes. 
(106)  At the national level, there is no pl ausible segmentation of the wholesale 
leased lines market where the Parties have a market share exceeding 30% (see 
paragraph (102)). However, this is sti ll a vertically affected market on account 
of the Parties' combined shares on the downstream wholesale mobile access and call originations services market, which are [70-80]% in terms of revenue, 
in Austria (TMA: approx. [70-80]%; UPC: [0-5]%).  
(107)  At the commune level, and based on recent (2017Q4) data submitted by the 
Parties and the 2015 RTR data , there exist 24 communes
62 where, based on 
the overall leased lines market and on sub-segmentations thereof based on 
technology and bandwidth speed, the Part ies' combined market shares, in 
terms of number of terminating segm ents, are above 30%. The wholesale 
leased lines market is ther efore vertically affected in these 24 communes with 
respect to the vertical relationship to all the downstream markets described in 
paragraph (104) for which access to leas ed lines is potentially necessary for 
the provision of tel ecommunication services. 
3.1.6.  Wholesale internet connectivity services  
(108)  Internet connectivity services allow corporate customers to be present on the 
internet by providing access to the entire r outing table of the global internet or 
to a subset of the same, in which case the customer will need to cover the totality of its needs by means of a mu lti-homing strategy. Connectivity to the 
internet can be achieved (i) by the purcha sing of transit services, (ii) by means 
of peering with selected networks, or (iii) by means of a combination of the 
two. Entities which do not connect directly  to the internet may also call upon 
hosting providers, who aggregate hosting needs and procure in turn internet 
connectivity for their customers.
63 Whilst global cove rage is a primary 
requirement, more specific performance cr iteria also enter into a customer's 
                                                 
62  Based on data of the RTR in combination with data provided by the Parties, in terms of numbers of 
leased lines the merged entity would hold a market share equal or larger than 30%  (i) in a total of 
13 communes in the sub-segment of Ethernet services with guaranteed bandwidth : […]; (ii) in a total 
of 4 communes in the sub-segment of Ethernet services with guaranteed bandwidth with bandwidth 
below 10Mbit/s : […]; (iii) in a total of 13 communes in the sub-segment of Ethernet services with 
guaranteed bandwidth with bandwidth above 10Mbit/s : […];  (iv) in a total of 3 communes in the sub-
segment of Dark Fibre : […]; and (iv) in a total of 11 communes in the overall leased lines market, not 
segmented per technology: […]. For the reasons explained in footnote 61, no analysis was made for a split of 2 Mbit/s because of the lo w number of terminating segments  of the Parties in Austria the 
results would not materially differ. 
63  Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , 
recital 260; see also Commission decision of 14 April 2014 in case M.7109 - Deutsche Telecom/GTS , 
recital 19. 
25 internet connectivity strategy such as latency, reliability, speed and 
minimization of traffic-related costs. 
(109)  Transit is a service whereby a customer pa ys for access to all or a large part of 
the internet, with performance characteristics which may vary according to the destination of the traffic. Peering,  on the other hand, whether settlement-
free or paid, provides access to indivi dual networks but no further onward 
connectivity. Providers of transit services will in their turn use a combination of peering relationships a nd paid commercial relations hips with other transit 
providers in order to provi de global internet cove rage. A transit provider 
which does not purchase transit services from other providers because it is able to reach the entire internet merely  by means of peering relationships is 
referred to as "Tier 1". 
(110)  Operators of retail internet access networks, sometimes called "eyeball 
networks", procure intern et connectivity in the same way as any other 
corporate customer, and may themselves  also provide wholesale internet 
connectivity services. Certain internet access providers ("IAPs") offer transit 
services, whereas many offer direct c onnectivity to thei r own network and 
subscribers. To the extent that the IA P purchases transit services, these may 
also be used to reach its users. The end users of a given IAP can also be 
reached by means of relationships with those networks which peer with the 
IAP in question. 
3.1.6.1.  Product market definition 
(111)  In previous Commission decisions, th e Commission considered a market for 
wholesale internet connectivity se rvices. In additi on, the Commission 
considered a possible segmentation between peering a nd transit, but 
ultimately left the exact product market definition open.
64 In MCI/Verizon  the 
Commission identified a separate ma rket for Tier 1 transit providers. 65 
(112)  In line with the Notifying Party's view, in the present case, the exact definition 
of the product market can be left ope n as the Transaction does not raise 
serious doubts as to its compatibility with the internal market under any plausible market definition. 
3.1.6.2.  Geographic market definition 
(113)  
The Commission  has in the past considered that markets for internet connectivity 
were global in scope but ultimately left the exact market definition open.66  
(114)  The Notifying Party submits that the ma rket for internet connectivity is 
worldwide in scope.67  
                                                 
64  Commission decisions of 7 October 2015 in Case M.3752 - MCI/Verizon ; and of 14 April 2014 in case 
M.7109 – Deutsche Telekom / GTS , recital 21. 
65  See Commission decision of 7 October 2015 in Case M.3752 - MCI/Verizon , recital 24. 
66  See Commission decisions of 7 October 2015 in Case M.3752 - MCI/Verizon ; and of 14 April 2014 in 
Case M.7109 – Deutsche Telekom / GTS , recital 24. 
67  According to the Notifying Party, both the demand and the supply side for internet connectivity 
services are fundamentally global: Content provider and commercial internet service providers want to 
 
26 (115)  In the present case, the precise geogra phic market definition can be left open, 
since the Transaction does not raise serious doubts as to its compatibility with 
the internal market regardless of the market definition considered. 
3.1.6.3.  Affected markets 
(116)  The market for wholesale internet conn ectivity services and its potential sub-
markets are not horizontally affected. Bo th Parties have only minor activities 
on this market. DTAG achieved worl dwide revenues of approximately 
EUR […] from wholesale internet c onnectivity services in 2017 which 
corresponds to an estimated market share of approximately [0-5]%. UPC has only very limited activities in the ar ea of wholesale internet connectivity 
services. It achieved revenues of a pproximately EUR […] from wholesale 
internet connectivity serv ices in 2017 which corre sponds to an estimated 
market share of below [0-5]%. Based on the Parties' estimates the Parties' 
combined market share in each potential segment of worldwide wholesale internet connectivity services woul d be in any event below 20%.  
3.2. Mobile services 
3.2.1.  Retail mobile telecommunications services 
(117)  Mobile telecommunications services to  end customers include services for 
national and international voice calls
68, SMS (including MMS and other 
messages), mobile internet data services and retail international roaming services.  
3.2.1.1.  Product market definition 
(118)  The Notifying Party submits that there is  a single retail market for mobile 
telecommunications services and that " over-the-top" ("OTT" ) services should 
be considered as part of the retail market for mobile telecommunications 
services. The Notifying Part y also considers that it is not appropriate to 
distinguish between residential and busin ess customers, notably because of a 
high level of supply-side substitutabil ity between the services provided to 
business and private customers. 
(119)  The Notifying Party also submits that it is not appropriate to further segment 
the retail mobile telecommunications services market on the basis either of post-paid and pre-paid customers, or of network technology. A company 
offering only pre-paid or post-paid servic es could start offering the other type 
of services without incurri ng significant a dditional cost, as the network used 
for both services is the same. Moreover, all MNOs active in Austria could offer 4G services in parallel with 2G  and 3G services at no extra cost.  
                                                                                                                                                 
reach as many end customers (eyeballs) as they can . On the other hand, tel ecommunications operators 
such as DTAG need connectivity to all IP addresses in the public domain in order to satisfy their end 
customers' demand. This requires enabling any-to-any  connections across the Internet that virtually all 
network providers may offer anywhere. Thus, numerous global carriers such as AT&T, Verizon, NTT, Cogent, Level 3, Telefónica and DTAG provide global internet connectivity services in various 
locations (e.g. internet exchanges) all over the world. 
68  The term international voice calls is used for calls that are made by a domestic user when in its home 
country, but that term inate at destinations which are abroad such  as if the receiving number is a foreign 
one. 
27 (120)  The Commission considers that, in line with its previous practice,69 the 
product market for retail mobile teleco mmunications includes mobile services 
such as voice, SMS/MMS, data a nd international roaming services. 
(121)  The Commission has also considered whether the product market can be 
further segmented between residential and business customers. The market investigation in the present case is not conclusive in this regard.
70 
(122)  As for the inclusion of OTT services in  the relevant market, the majority of 
respondents consider that OTT services are not part of the market for the 
provision of mobile tele communications services.71 
(123)  For the purpose of the present decision, the exact product market definition in 
relation to the provision of retail mob ile telecommunications services can be 
left open as the Transaction does not  raise serious doubts as to its 
compatibility with the internal mark et under any possible market definition. 
3.2.1.2.  Geographic market definition 
(124)  The Notifying Party considers that the market should be considered national 
in scope in line with prev ious Commission's decisions. 
(125)  The Commission has consistently found th at the markets for retail mobile 
services provided to end consumers are national in scope.72 
(126)  The majority of respondents to the mark et investigation in  the present case 
indicated that the market for the provision of retail mobile telecommunications services is national in scope.
73 Licenses are granted on a 
nation-wide basis and the competitive conditions existing in each Member 
State are still different.  
(127)  The Commission considers the retail ma rket for mobile telecommunications 
services to be national in scope. 
3.2.1.3.  Affected markets 
(128)  The retail market for mobile telecomm unications services in Austria and its 
potential segments for private and for business customers are horizontally affected. In the overall retail market  for mobile teleco mmunications sector 
(excluding OTT services), the Parties ha ve a combined shar e of [20-30]% in 
Austria (UPC with [0-5]% and TMA with  [20-30]% in terms of subscribers). 
On the potential segment for residential customers the Parties have a combined share of [20-30]% (UPC with  [0-5]% and TMA with [20-30]% in 
                                                 
69  For example Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G 
Austria/Orange Austria ; Commission decision of 11 May 2016, in case M.7612 - Hutchison 3G UK / 
Telefónica , Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch 
JV. 
70  Questionnaire Q2, reply to question C.A.2. 
71  Questionnaire Q2, reply to question C.A.4. 
72  Commission decisions of 26 April 2006 in case COMP/M.3916 – T-Mobile Austria/Tele.ring , 
recital 19; Commission decision of 20 September 2013 in case COMP/M.6990 – Vodafone/Kabel 
Deutschland , recitals 218-219. 
73  Questionnaire Q2, reply to question C.B.1. 
28 terms of subscribers) and on the poten tial segment for business customers the 
Parties have a combined share of [20- 30]% (UPC with [0-5]% and TMA with 
[20-30]% in terms of revenues) in Austria.74 
(129)  The retail market for mobile telecomm unications services in Austria and its 
potential segments for private and fo r business customers are vertically 
affected insofar as they are related to the upstream wholesale market for mobile access and call origination on which TMA has a market share of 
approximately [70-80]% in terms of s ubscribers and [80-90]% in terms of 
revenues. In addition, the retail ma rket for mobile telecommunications 
services in Austria and its potential s ub-segments for private and for business 
customers are also (technical ly) vertically affected due  to a vertical link with 
(i) the upstream wholesale markets for in ternational roaming services in other 
Member States in which DTAG offers international roaming services (provided that DTAG has a market shar e of more than 30% on such national 
wholesale market for international roam ing services), and (ii) the upstream 
markets for call termination services on mobile and fixed networks on which 
TMA, UPC and DTAG (outside Austria)  are active. Finally, the Parties' 
activities on the retail market for m obile telecommunications services in 
Austria are vertically affected insofar as there is a vertical link to the Parties' 
activities on the wholesale market for l eased lines to the extent that this 
market is defined locally and the combined market shares of the Parties are equal or more than 30% in the respective commune
75. 
3.2.2.  Wholesale access and call origination services on mobile networks 
(130)  MNOs, such as TMA, provide wholesal e access and call orig ination services, 
which enable operators without their own mobile network, MVNOs, to 
provide retail mobile services to end customers. There is a wide variety of 
MVNOs, ranging from MVNOs that have a fully operational proprietary core 
network and that purchase access to the radio access network of MNOs on the 
one end, to pure re-sellers of a MNO services on the other end.  
3.2.2.1.  Product market definition 
(131)  The Notifying Party submits that there is an overall wholesale market for 
access and call origination on mobile  networks, without any further 
segmentation by type of service (i.e. acces s and call origination) or by type of 
MVNO (i.e. full MVNOs, light MVNOs or br anded resellers). In any case, the 
Notifying Party submits that the exact pr oduct market definition in this case 
can be left open. 
(132)  The Commission has previously defined a single wholesale market including 
both access and call origination on mobile  networks without segmenting the 
market by type of services on mobile networks, since MNOs generally supply 
                                                 
74  The market data include also mobile data-only services, which may be also included in the possible 
market for home internet access service. The issue of  whether those services should be included in the 
mobile telecommunications market does not have a material impact on the assessment, considering 
that with any market definition UPC's market share would be very limited. 
75  See footnote 62 above. 
29 these services jointly to MVNOs and both services are essential to MVNOs.76 
The Commission sees no reason to depart from this approach in the present 
case. 
(133)   The Commission has also considered th at branded resellers should not be 
regarded as buyers of wholesale access to  a network as they  merely resell SIM 
cards and services of an MNO under a different brand.77 For the purpose of 
the present decision, the question wh ether branded resellers should be 
included as buyers of wholesale access to  a network can be left open as the 
Transaction does not raise serious doubts as to its compatibility with the 
internal market under any possible market definition. 
3.2.2.2.  Geographic market definition 
(134)  In line with previous Commission d ecisions, the Notifying Party considers 
that the relevant geographic scope of the market for wholesale access and call 
origination on mobile networks is national, limited to the territory of Austria.
78 
(135)  The Commission considers that the rele vant geographic market is national. 
3.2.2.3.  Affected markets 
(136)  The wholesale market for access and ca ll origination services on mobile 
networks is not horizontally  affected since only TMA is  active on this market. 
However, since TMA's market share on the wholesale market for access and call origination services on mobile ne tworks is approximately [70-80]% in 
terms of subscribers and approximately  [80-90]% in terms of revenues and 
UPC is active on the downstream retail mobile market as MVNO, this market is vertically affected.  
3.2.3.  Wholesale mobile call termination services 
(137)  When someone calls a mobile phone connect ed to a different network that call 
is terminated on the network of the receiving mobile phone. In order for a 
retail mobile service provider to be able to provide calls to a different network, it must purchase wholesale te rminations services on these other 
networks. This is done through interconnect ion agreements between the 
various network operators. 
3.2.3.1.  Product market definition 
(138)  The Notifying Party submits that each i ndividual mobile network constitutes a 
separate market for call termination because the operator transmitting the call can reach the intended recipient only through the operator of  the network to 
which the recipient is connected. There is thus no substitute for call termination on each individual network. 
                                                 
76  Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/ JV , 
recitals 170-175. 
77  Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/ JV , recital 174.  
78  Commission decisions of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK  and of 12 
December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria . 
30 (139)  The Notifying Party submits that also full MVNOs (such as UPC) provide 
wholesale call termination services gi ven that full MVNOs own certain parts 
of the mobile core network.79 
(140)  The Commission considers that there is no substitute for call termination on 
each individual network since the oper ator transmitting the outgoing call can 
reach the intended recipient only through the operator of the network to which 
the recipient is connected.  
(141)  The Commission concludes, in line with  previous decisions , that termination 
on each individual mobile network constitutes a separate product market.80 As 
for the question whether full MVNOs also  provide wholesale call termination 
services, for the purpose of the presen t decision it can be left open as the 
Transaction does not raise serious doubts as to its compatibility with the 
internal market under any possible market definition. 
3.2.3.2.  Geographic market definition 
(142)  In line with previous Co mmission decisions, the Notifying Party submits that 
the market for mobile call termination services should be considered national 
in scope.  
(143)  The Commission concludes, in line with previous decisions81, that the market 
for mobile call termination services is national in scope. 
3.2.3.3.  Affected markets 
(144)  The wholesale market for mobile call te rmination services is horizontally not 
affected since each network constitutes a separate relevant market. However, 
since each of the Parties has a 100% ma rket share on the wholesale market for 
mobile call termination services on its own mobile networks and each of the 
Parties is active in the downstream  retail markets (mobile and fixed 
telecommunications services), the wholesale markets for mobile call 
termination services where the Parties are active, in Austria and in other 
Member States (for TMA/DTAG)82, are vertically affected. 
3.2.4.  Wholesale market for international roaming 
(145)  For a provider of retail mobile services to be able to provi de its end customers 
with telecommunicatio n services outside their home  countries, it enters into 
                                                 
79  Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium . The 
Notifying Party also mentions that the Austrian Telekom-Control Kommission (" TKK ") found in a 
decision issued in 2015 that UPC, through its subsidiary UPC Telekabel Wien GmbH, provides call termination services on its mobile core network. The TKK identified a separate relevant market for 
wholesale call termination services on UPC's mobile core network and imposed various regulatory 
obligations regarding price and quality of the service on UPC Telekabel Wien GmbH (TKK Decision of 15 June 2015, M 1/14-50, as amended by TKK Decision of 21 Decem ber 2015, M 1.1/15-51). 
80  Commission decision of 1 September 2016 in case M.7758, Hutchison 3G Italy / Wind / JV , 
recital 192. 
81  Commission decision of 1 September 2016 in case M.7758, Hutchison 3G Italy / Wind / JV , 
recital 196. 
82  Notably Croatia, the Czech Republic, Germany, Greece, Hungary, the Nether lands, Poland, Romania 
and Slovakia. 
31 wholesale roaming agreements with pr oviders of wholesale international 
roaming on other national markets. Roami ng consists of both terminating calls 
and originating calls. 
(146)  Retail mobile service providers sometimes  have preferred roaming partners in 
certain countries. This means that the preferred partners' network will be used in the first instance when it has c overage and the mobile user has not 
manually chosen a different network. A home network will normally have 
multiple agreements with operators in a particular county in order to provide 
optimal coverage. 
3.2.4.1.  Product market definition 
(147)  In line with previous Co mmission decisions, the Notifying Party submits that 
there is a relevant product market for wholesale international roaming 
services. 
(148)  Wholesale international roam ing services are regulated.
83 Mobile network 
operators must meet all reasonable requests for wholesale roaming access 
under a reference offer and wholesale charges for the making of regulated 
roaming services (voice, message and data roaming) are capped.  
(149)  The Commission concludes, in line with previous decisions, that the market 
for international roaming comprising bot h terminating calls and originating 
calls constitutes a separate product market. 84 
3.2.4.2.  Geographic market definition 
(150)  In line with previous Co mmission decisions, the Notifying Party submits that 
the relevant geographic scope of the market for the supply of wholesale 
international roaming services is national.  
(151)  In previous decisions, the Commission found that the wholesale market for 
international roaming is national in sc ope, given that whol esale international 
agreements can be concluded only w ith companies which have an operating 
licence in the relevant  country and the licences to provide mobile services are 
restricted to a national territory.85  
(152)  The Commission concludes that the markets for international roaming are 
national. 
                                                 
83  Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on 
roaming on public mobile communications network within the Union (OJ 2012 L 172/10), last 
amended by Regulation (EU) 2017/920 of the European Parliament and of the Council of 17 May 2017 (OJ 2017 L 147/1). 
84  Commission decision of 1 September 2016 in case M.7758, Hutchison 3G Italy / Wind / JV , 
recitals 182-184. 
85  Commission decision of 28 May 2014 in case M. 6992 – H3G/Telefónica Ireland, recital 151; 
Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria , 
recital 78; Commission decision of 1 March 2010 in case M.5650 – T-Mobile/Orange , recital 35; 
Commission decision of 20 August 2007 in case M.4748 – T-Mobile/Orange Netherlands , recital 27; 
Commission decision of 26 April 2006 in case M.3916 – T-Mobile Austria/Tele.ring , recital 28; 
Commission decision of 20 September 2013 in case M. 6990 – Vodafone/Kabel Deutschland , 
recital 252.   
32 3.2.4.3.  Affected markets 
(153)  The wholesale market for international roaming is horizontally not affected 
since UPC is not active in this market . However, since DTAG is active in the 
wholesale market for international ro aming in Member States other than 
Austria86 and UPC is active in the downstream  retail market for the provision 
of mobile telecommunications services in Austria, the wholesale markets for international roaming in other Member States where DTAG is active and has 
a market share of more than 30%, are vertically affected. 
3.3. Fixed telephony and related services 
3.3.1.  Retail market for the supply of fixed telephony services 
(154)  On the market for retail supply of fi xed telephony services , operators provide 
fixed voice services to end-customers.  In line with previous Commission 
decisions, fixed voice services include th e provision of connection services or 
access at a fixed location or address to the public telephone network for the purpose of making and receiving calls and related services.
87 
3.3.1.1.  Product market definition 
(155)  The Notifying Party submits that there is an overall retail fixed telephony 
services market, which includes managed VoIP services, in line with recent 
Commission decisions. 
(156)  In previous decisions, th e Commission considered th at a distinction between 
local / national and international calls as well as between residential and business customers may not be relevant.
88 The Commission did not take a 
definitive view with regard to these possible further segmentations of the 
retail fixed voice services market. Th e Commission concluded however that 
traditional fixed voice services and managed VoIP services are interchangeable within a single market for the retail supply  of fixed voice 
services.
89 
(157)  For the purpose of the present decisi on, the exact product market definition 
can be left open as the Transaction does not raise serious doubts as to its 
compatibility with the internal market  under any possible market definition.  
3.3.1.2.  Geographic market definition 
(158)  The Notifying Party considers the market to be national in scope, based on the 
Commission's precedents. 
(159)  The Commission considers the market  for the supply of fixed telephony 
service to be national in scope. 
                                                 
86  Notably Croatia, the Czech Republic, Germany, Greece, Hungary, the Nether lands, Poland, Romania 
and Slovakia. 
87  Commission decision in case M.6584 – Vodafone/Cable&Wireless , recital 11. 
88  Commission decision in case M.5532 – Carphone Warehouse/Tiscali UK , recital 37. 
89  Commission decision in case M.6990 – Vodafone/Kabel Deutschland , recital 130-131. 
33 3.3.1.3.  Affected markets 
(160)  The market for retail supply of fixed telephony services is horizontally not 
affected since only UPC is active on th is market, with a market share of 
[10-20]% in revenue and [10-20]% in subscribers.90 However, since TMA has 
a 100% market share on the upstream wholesale market for mobile call 
termination services on its own mobile  network in Austria and DTAG has a 
100% market share on the upstream whol esale markets for mobile and fixed 
call termination services in other Member  States, the market for retail supply 
of fixed telephony services in Austria is vertically affected. In addition, the 
market for retail supply of fixed tele phony services in Aust ria is vertically 
affected also insofar as there is a vert ical link to the wholesale leased lines 
market if defined on the level of co mmunes, in 24 communes where TMA is 
active and the Parties combined market share is equal or larger than 30%.91 
3.3.2.  Wholesale market for fixed call termination services 
(161)  Call termination is the service provi ded by a network operator on the supply 
side to other network op erators on the demand side, whereby a call originating 
in a demand side operator's network is de livered to a user in the supply side 
operator's network. This serv ice is required by  every originati ng operator, as it 
is necessary for its customers to be ab le to communicate with  the customers of 
other networks. Call termination is therefore a wholesale service that is resold or used as an input for the provision  of downstream retail telephony services.  
3.3.2.1.  Product market definition 
(162)  In line with previous Co mmission decisions, the Notifying Party submits that 
the relevant product market is the whol esale market for call termination on 
each individual fixed network. 
(163)  The Commission considers that there is no substitute for call termination on 
each individual network since the oper ator transmitting the outgoing call can 
reach the intended recipient only through the operator of the network to which 
the recipient is connected. 
(164)  The Commission considers that, as regards wholesale call termination 
services, termination on each individual fixed network constitutes a separate product market. 
                                                 
90  TMA offers a product referred to as "All in Communication Mobile" ("AIC Mobile") to business 
customers. This product is marketed as "mobile fixed network" or "fixed to take away" but is provided 
via TMA's mobile network. The AIC Mobile service requires  a router with an integrated SIM card 
which technically serves as a fi xed termination point and to which a geographic number can be 
allocated. The router can be connect ed to a telephone. In particular , the AIC Mobile service enables 
business customers to receive calls on their mobile de vice also when they receive calls to their fixed 
(geographic) number. The Notifying Party submits th at the AIC Mobile servi ce does not qualify as 
fixed telephony service as it is provided via TMA's mobile network. In any case, the hypothetic market share of TMA would be below [0-5]%. 
91  See footnote 62 above. 
34 3.3.2.2.  Geographic market definition 
(165)  In line with previous Commission decisi ons, the Notifying Party considers the 
relevant geographic market for call termin ation services on fixed networks to 
be national in scope. This is primarily due to regulatory barriers as the geographic scope of licenses is in pr inciple limited to areas which do not 
extend beyond the borders of a Member State. 
(166)  In previous decisions, the Commission considered the geographic market to 
be national in scope.
92 
(167)  The Commission conclude s that the wholesale market for fixed call 
termination services is national in scope. 
3.3.2.3.  Affected markets 
(168)  The wholesale market for fixed call term ination services is horizontally not 
affected since each network constitutes a separate relevant market. However, 
since UPC has a 100% market share on the wholesale market for fixed call termination services on its own fixed ne twork in Austria and TMA is active in 
the downstream retail mobile market, the wholesale market for fixed call 
termination services in Aust ria is vertically affected. 
3.3.3.  Wholesale market for end-to-end calls 
(169)  Fixed network operators p ackage origination and termination services and 
provide communication providers without their own networks with a package 
which they can use to offe r retail fixed voice servic es to consumers without 
the need to invest in network infrastructure. 
3.3.3.1.  Product market definition 
(170)  In previous decisions, the Commission c onsidered the existence of a separate 
wholesale market for end-to-end calls, which is separate from the wholesale 
markets for call origination, transit and termination, but left the exact market 
definition open.
93 
(171)  The Notifying Party submits that the preci se product market definition can be 
left open as the Transaction does not give rise to competition concerns under any alternative market definition. 
(172)  In the present case, the exact definition of the product market can be left open, 
notably whether the wholesale market for end-to-end calls is a separate market from call origination and call termination and transit, as the Transaction does not raise serious doubts as to its compatibility with the 
internal market under any possible market definition. 
                                                 
92  Commission decision of 20 September 2013 in case M. 6990 – Vodafone/Kabel Deutschland , 
recital 121. 
93  Commission decision of 3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , recital 20. 
35 3.3.3.2.  Geographic market definition 
(173)  In line with previous decisional pract ice of the Commission, the Notifying 
Party considers that the ge ographic scope of the wholesale market for end-to-
end calls is national.94 
(174)  The Commission considers for the purpos e of the present decision that the 
geographic scope of the wholesale market  for end-to-end calls services is 
national. 
3.3.3.3.  Affected markets 
(175)  The wholesale market for end-to-end cal ls in Austria is horizontally not 
affected since only UPC is active in this market. However, since TMA and DTAG have a 100% market share on the upstream wholesale markets for 
fixed and mobile call termination services on their respective networks in Austria and in other Member States where DTAG is active, the wholesale 
market for end-to-end calls in Au stria is vertically affected. 
3.3.4.  Global telecommunica tions services 
(176)  Global telecommunications services  (GTS) are telecommunications services 
linking a number of different customer  locations, generally in at least two 
different continents and across a larger number of different countries. They 
are generally purchased by multinationa l companies with presence in many 
countries and a number of continents. The services provided are enhanced 
services to provide customers with p ackage solutions including virtual private 
networks ("VPN") for both voice a nd data services and advanced 
functionalities.
95  
(177)  Global telecommunications se rvices are supplied at re tail level and wholesale 
level. In the latter case, they can also be referred to as "international carrier 
services". Wholesale global telecommuni cations services comprise (i) the 
lease of transmission capacity and (ii) the provision of related services to third 
party telecommunications traffic carrier s and service providers and are an 
input for retail global tel ecommunications services. 
3.3.4.1.  Product market definition 
(178)  The Notifying Party submits that the exact  market definition may be left open, 
as the Transaction does not raise any competitive concern under any plausible market definition due to the Parties' negligible activities on that market. 
(179)  In Vodafone/Cable&Wireless ,
96 the Commission considered a possible 
distinction between retail GTS and intern ational carrier services but ultimately 
left the exact product market defi nition open. While the Commission 
considered a possible distinction betw een the lease of transmission capacity 
                                                 
94  Commission decision of 3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , recital 21. 
95  Commission decisions of 28 June 2000 in case M.1741 – Verizon / MCI , recital 70; and of 
14 April 2014 in case M.7109 – Deutsche Telekom / GTS, recital 10.   
96  Commission Decision of 3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , recital 33. 
36 and the provision of services to third-party carriers, it ultimately left open the 
exact product market definition. 97 
(180)  In the present case, the exact definition of the product market can be left open, 
as the Transaction does not raise serious doubts as to its comp atibility with the 
internal market under any plausible market definition. 
3.3.4.2.  Geographic market definition 
(181)  The Notifying Party submits that the exact  definition of the geographic market 
can be left open, as the Transaction does not raise any competitive concern 
under any plausible market definition. 
(182)  In past decisions, the Commission ha s considered both the wholesale and 
retail global telecommunications services markets to be worldwide in scope.98 
The Commission considered that from a demand-side perspective, retail 
global telecommunications services customers are mainly internationally active multinational companies. It also c onsidered that most suppliers have an 
international portfolio of customers and are in a position of rendering global 
telecommunications services on a worldwide basis.
99 
(183)  While the Commission's past decisional practice indicates that global 
telecommunication services are worldwid e in scope, in the present case, the 
exact definition of the geographic market  can be left open, as the Transaction 
does not raise serious doubts as to its co mpatibility with the internal market 
under any plausible market definition.  
3.3.4.3.  Affected market 
(184)  The global telecommunications services market is horizonta lly not affected, 
either at wholesale or at retail leve l. However, the globa l telecommunications 
services market – either on wholesale or on retail level – is vertically affected 
insofar as there is a vertical link to  the Parties' activities on the upstream 
wholesale market for leased lines if  defined on the level of communes. 
Wholesale global teleco mmunication services 
(185)  There is no horizontal overlap betw een the Parties on wholesale global 
telecommunications services. UPC is not  active in the area of wholesale 
global telecommunications services . DTAG provides wholesale global 
telecommunications services across nationa l borders on a global  scale to other 
international carriers and the Notif ying Party estimates based on the Deutsche 
Telekom / GTS  decision that DTAG has a ma rket share of approximately 
[0-5]% worldwide and around [5-10]% on a hypothetical EEA-wide market.  
(186)  The global telecommunications servic es market on wholesale level is 
vertically affected insofar as there is a vertical link to the Parties' activities on 
the upstream wholesale market for leas ed lines if defined on the level of 
                                                 
97  Commission Decision of 3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , recital 33. 
98  Commission Decision of 3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , recital 34. 
99  Commission Decision of 3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , recital 19 et seq. 
37 communes, in 24 communes where the Pa rties' combined market share is 
equal or larger than 30%.100 
Retail global telecommunication services 
(187)  The retail market for gl obal telecommunications serv ices is horizontally not 
affected. Both parties have only mi nor activities in this market. In Deutsche 
Telekom/GTS , the Commission noted that in 2012 the combined market share 
of DTAG and GTS on the retail ma rket for global telecommunications 
services was approximately [0-5]% worldwide and approximately [5-10]% on a hypothetical EEA-wide market. UPC occasionally offers, to a very limited extent, Austrian customers which also have locations abroad telecommunications services linking th eir Austrian and foreign locations. 
UPC can only offer such services [confidential information on how UPC offers its services]. In 2017, UPC achieved revenues of approximately 
EUR […] from this type of services wh ich would translate into a market share 
of below [0-5]%  
(188)  The retail market for global telecommunica tions services is ve rtically affected 
only in so far as there is a vertical lin k to the Parties' activities on the upstream 
wholesale market for leased lines if defined at the leve l of communes, in 
24 communes where the Parties' combined market share are equal or larger than 30%.
101 
3.4. Multiple-play bundles 
(189)  The term "multiple-play" relates to o ffers comprising two or more of the 
following services provided to retail consumers: mobile telecommunications 
services, fixed telephony, fixed internet  access and TV services. Multiple-play 
comprising two, three or four of these se rvices is referred to as double play, 
triple play and quadruple play respectively.102 
3.4.1.  Product market definition 
(190)  The Commission has analysed potential multiple-play markets in earlier cases, 
in light of some specific features and conditions of the national market 
involved.103  The Notifying Party submits that those conditions are not 
fulfilled in Austria (inter alia pointing to a study that shows that only 2% of 
all consumers of fixed broadband services have a fixed-mobile bundle) and that in any event it would not be necessary for the Commission to make an ultimate determination, since the Trans action would not raise concerns even 
based on this market definition. 
                                                 
100  See footnote 62 above. 
101  See footnote 62 above. 
102  Multiple play comprising any combination of two or more of fixed services without a mobile 
component is referred to as "fixed multiple play". Multiple play comprising one or more of these fixed 
services in combination with a mobile component (including either voice or data, or both together) is 
referred to as "fixed-mobile multiple play". Fixed-mobile multiple play may involve a single mobile 
subscription (SIM card) or more than one mobile subscription combined with the fixed subscription. 
103  Commission decisions of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , 
recitals 77- 108, and of 19 May 2005 in case M.7421 – Orange/Jazztel , recitals 72-86. 
38 (191)  The results of the market investigation seem to confirm the limited relevance 
of bundled offers in Austria, especially  fixed-mobile bundles. The majority of 
respondents have stated that the ability to also provide fixed telecommunication services (fixed internet servic es, fixed telephony) is 
currently not essential in order for mobile providers to compete effectively on the mobile market in Austria.
104 The response is less clear with regard to TV 
services, which according to some respondents are relevant in order to 
differentiate the mobile offers and to reduce the churn rate. 105 
(192)  In any event, for the purpose of the pr esent decision, the question whether the 
different types of multiple play constitut e separate relevant markets from each 
of the markets of their components can be left open, as the Transaction does 
not raise serious doubts as to its compa tibility with the in ternal market under 
either product market definition. 
3.4.2.  Geographic market definition 
(193)  The Notifying Party submits that the ge ographic scope of any potential retail 
market for multiple-play services is national and corresponds to the territory of Austria, since the components of the multiple-play bundles are offered 
individually at national level and th e bundling of the services would not 
change the geographic scope of the components. 
(194)  In previous decisions, the Commission considered that the geographic scope 
of any possible retail market for multiple-play could be national since the components of the multiple play offers  are offered individually at national 
level and the bundling of the services would not change the geographic scope 
of the components. It nevertheless u ltimately left the question of the exact 
geographic delineation of the possible multiple-play market open.
106  In 
Liberty Global/Ziggo and in Vodaf one/Liberty Global/Dutch JV, the 
Commission considered the geographic scope of the possible market for 
multiple-play products to be national.107 
(195)  For the purpose of the present decision, the ex act geographic market 
definition can be left open as the Tran saction does not raise serious doubts as 
to its compatibility with the intern al market under any possible market 
definition. 
3.4.3.  Affected markets 
(196)  TMA is not active in the provision of mu ltiple-play offers that include retail 
fixed services.108 
                                                 
104  Questionnaire Q2, reply to question C.C.1. 
105  Questionnaire Q2, reply to question C.C.2. 
106  Commission decision of 19 May 2005 in case M.7421 – Orange/Jazztel , recitals 87-90. 
107  Commission decisions of 10 October 2014 in Case M.7000 - Liberty Global/Ziggo , recitals 152-153 
and of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , recitals 110-112. 
108  TMA offers existing customers of a mobile subscription a discount on their additional (second, third, 
etc.) mobile subscriptions with TMA. This means that a customer of a combined mobile voice-and-
data subscription can purchase another subscription for mobile-data only serv ices, at a discounted 
price. Should the retail market fo r internet access services include both fixed and mobile connections, 
this discounted offer could be considered a "double play" offer, mobile-(mobile) internet. In any case, 
 
39 (197)  UPC offers fixed dual and triple play services in Austria. Its main bundled 
product offerings are (i) dual play servic es including fixed internet and fixed 
telephony, and (ii) triple play  services including fixe d internet, TV and fixed 
telephony. In addition, it offers (iii) dual pl ay services including fixed internet 
and TV, and (iv) dual play services  including TV an d fixed telephony. 
According to the Parties' estimates, UPC would have a market share of 
[10-20]% as regards dual play offers  including fixed Internet and TV, 
[10-20]% as regards dual play offers  including fixed internet and fixed 
telephony, and [50-60]% regardi ng fixed triple play offers (Internet, telephony 
and TV). 
(198)  UPC has also a marginal number of fi xed/mobile customers. Notably from 
October 2015 to November 2017, UPC offe red existing customers of its fixed 
telecommunications services a discount  on its mobile products. Then in 
November 2017, UPC launched a new product offering on the basis of which it offers new customers a discount on a m obile subscription if they purchase 
UPC's fixed telephony, fixed internet and ca ble TV services at the same time. 
On the basis of these two offers, at pr esent the number of UPC fixed/mobile 
customers is extremely limited.  
(199)  Since TMA essentially does not offer fixe d/fixed or fixed/mobile bundles, this 
potential market is not horizontally a ffected. However, both Parties are active 
in at least some of the product com ponents of multiple-play bundles and UPC 
has a market share of more than 30% in the possible market of fixed triple play offers. The Commission will ther efore assess whether the Transaction 
may have a significant competitive impact in the potential multiple-play market in Austria through conglomerate effects.
109 
4. COMPETITIVE ASSESSMENT  
(200)  The Transaction gives rise to the foll owing horizontally affected markets for 
(i) home retail internet access services including both fixed and mobile technologies in Austria; fo r (ii) retail mobile tel ecommunications services in 
Austria and for (iii) the wholesale market  for leased lines in one commune in 
Austria, if the relevant geographic mark et was defined at the commune level. 
(201)  In addition, the Transacti on gives rise to a number of vertically affected 
markets in Austria as set out in Table 1 in Section 4.3. below. 
(202)  Finally, since both Parties offer communica tions services that can be included 
in multiple-play offers, the Commission will assess whether the Transaction 
could potentially give rise  to conglomerate concerns. 
                                                                                                                                                 
considering that UPC has a marginal number of fixed mobile bundles and in particular of fixed 
internet/mobile bundles, the question can be left open as the horizontal overlap would be irrelevant.  
109  It could be argued that there is a vertical li nk between (i) wholesale leased lines (upstream) and 
multiple play bundles (downstream) as well as ( ii) wholesale access and call origination services on 
mobile networks (upstream) and multiple play bundles (downstream). For the reasons set out in sections 3.1.5.3 and 3.2.2.3, the potential markets for multiple play bundles would then be vertically 
affected. However, the Transaction does not raise serious doubts as to its compatibility with the 
internal market with regard the potential markets for multiple play bundles, for essentially the same reasons as those provided in sections 4.3.1 and 4.3. 2 respectively. Therefore, the potential market for 
multiple play bundles is not explicitly mentioned in section 4.3.  
40 4.1. Analytical framework  
(203)  Under Article 2(2) and (3) of the Me rger 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 strengthen ing of a dominant position. 
(204)  In this respect, a merger may enta il horizontal and/or non-horizontal 
(i.e. vertical or conglomerate) effects.  Horizontal effects are those deriving 
from a concentration wher e the undertakings concerne d are actual or potential 
competitors of each other in one or more of the relevant markets concerned. Vertical effects are those derivi ng from a concentration where the 
undertakings concerned are active on diffe rent or multiple levels of the supply 
chain. Conglomerate effects are those de riving from a concentration where the 
undertakings concerned are in a relati onship which is neither horizontal nor 
vertical. A concentration may involve all th ree types of effects.  In such a case, 
the Commission will appraise horizo ntal and non-horizont al effects in 
accordance with the guidance set out in the relevant notices, that is to say the 
Horizontal Merger Guidelines
110 and the Non-horizontal Merger 
Guidelines111.  
4.1.1.  Horizontal effects 
(205)  The Horizontal Merger Guidelines describe horizonta l non-coordinated 
effects as follows: 
“A merger may significantly impede effective competition in a market by 
removing important competitive constr aints on one or more sellers who 
consequently have increased market pow er. The most direct effect of the 
merger will be the loss of competition between the merging firms. For example, if prior to the merger one of th e merging firms had raised its price, 
it would have lost some sales to the ot her merging firm. The merger removes 
this particular constraint. Non-merging firms in the same market can also 
benefit from the reduction of competit ive 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 cons traints could lead to  significant price 
increases in the relevant market. ”
112 
(206)  Therefore, a merger giving rise to  such non-coordinated effects might 
significantly impede effective competi tion by creating or strengthening the 
dominant position of a single firm, one which, typically, would have an appreciably larger market share than the next competitor post-merger. 
(207)  However, under the substantive test set out in Article 2(2) and (3) of the 
Merger Regulation, also mergers that do not lead to the creation or the 
strengthening of the dominant pos ition of a single firm may create 
                                                 
110 Guidelines on the assessment of horizontal merg ers under the Council Regul ation on the control of 
concentrations between undertakings ("Horizontal Merger Guidelines"), OJ C31, 5.2.2004, p. 5.  
111  Guidelines on the assessment of  non-horizontal mergers under the Council Regulation on the control 
of concentrations between undertakings ("Non-Horizontal Merger Guidelines"), OJ C 265, 18.10.2008.  
112  Horizontal Merger Guidelines, paragraph 24.  
41 competition concerns. Indeed, the Merger Regulation recognises that in 
oligopolistic markets, it is all the mo re necessary to maintain effective 
competition.113 This is in view of the significant consequences that mergers 
may have on such markets. For this reason, the Merger Regulation provides 
that " under certain circumstances, concentra tions involving the elimination of 
important competitive constraints t hat the merging parties had exerted upon 
each other, as well as a reduction of competitive pressure on the remaining 
competitors, may, even in the absence of a likelihood of coordination between the members of the oligopoly, result in a significant impedime nt to effective 
competition ".
114 
(208)  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, such as the large market shares of the merging 
firms, the fact that the merging firms are close competitors, the limited possibilities for customers to switch s uppliers, or the fact that the merger 
would eliminate an important competitive force.
115 That list of factors applies 
equally regardless of whethe r a merger would create or strengthen a dominant 
position, or would otherwise significantly impede effective competition due to non-coordinated effects. Furthermore, not  all of these fact ors need to be 
present to make significant non-coordina ted effects likely and it is not an 
exhaustive list.
116 Finally, the Horizontal Merg er Guidelines describe a 
number of factors, which could counteract the harmfu l effects of the merger 
on competition, including the likelihood of buyer power, entry and efficiencies. 
(209)  A merger in a concentrated market ma y also significantly impede effective 
competition due to horizontal coordinate d effects where, through the creation 
or the strengthening of a collectiv e dominant position, it increases the 
likelihood that firms are able  to coordinate their be haviour and raise prices, 
even without entering into an agreemen t or resorting to a concerted practice 
within the meaning of Article 101 TFEU. A merger may also make 
coordination easier, more st able or more effective fo r firms that were already 
coordinating before the merger, eith er by making the coordination more 
robust or by permitting firms to c oordinate on even higher prices.
117 
(210)  To assess whether a merger gives rise to horizontal coordinated effects, the 
Commission should examine, first, whet her it would be possible to reach 
terms of coordination and, second, whet her the coordination would be likely 
to be sustainable.118 
                                                 
113  Merger Regulation, recital 25.  
114  Merger Regulation, recital 25. Similar wording is also found in paragraph 25 of the Horizontal Merger 
Guidelines. See also Commission decisi on 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.  
115  Horizontal Merger Guidelines, paragraphs 27 et seq.  
116  Horizontal Merger Guidelines, paragraph 26.  
117  Horizontal Merger Guidelines, paragraph 39.  
118  Horizontal Merger Guidelines, paragraph 42.  
42 (211)  As regards the possibility of reaching terms of coordination, coordination is 
more likely to emerge in markets wher e it is relatively simple to reach a 
common understanding on th e terms of coordination.119 Coordination may 
take various forms, including keeping pr ices above the competitive level, or 
dividing the market, for instance by cust omer characteristics or by allocating 
contracts in bidding markets.120 
(212)  As regards the sustainability of coordination, three conditions are necessary 
for coordination to be sustainable.121 First, the coordinating firms must be able 
to monitor to a sufficient degree whethe r the terms of coordination are being 
adhered to.122 Second, discipline requires that  there is a credible deterrent 
mechanism that can be activated  if deviation is detected.123 Third, the 
reactions of outsiders, such as current and future competitors not participating in the coordination, as well as customers, should not be able to jeopardise the results expected from the coordination.
124 
(213)  Moreover, in examining the possibility and sustainability of coordination, the 
Commission should specifically consider  the changes that the Transaction 
brings about.125 The reduction in the number of fi rms in a market may in itself 
be a factor that f acilitates coordination. 
4.1.2.  Vertical effects 
(214)  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 the 
merger, thereby reducing these compan ies' ability and/or incentive to 
compete.126 Such foreclosure may discourage en try or expansion of rivals or 
encourage their exit. Such foreclosure is regarded as anti-competitive where 
the merging companies — and, possibly, some of its competitors as well — are as a result able to profitably incr ease the price charged to consumers.
127 
(215)  Two forms of foreclosure can be dis tinguished. The first – which is of 
particular relevance for the present case – is where the merger is likely to raise the costs of downstream rivals by restri cting their access to an important input 
(input foreclosure). The second is where the merger is likely to result in 
foreclosure of upstream riva ls by restricting their access to a sufficiently large 
customer base (customer foreclosure). 
(216)  Input foreclosure arises where, post-me rger, the new entity would be likely to 
restrict access to the products or se rvices that it would have otherwise 
supplied absent the merger, thereby ra ising its downstream rivals' costs by 
making it harder for them to obtain supp lies of the input under similar prices 
                                                 
119  Horizontal Merger Guidelines, paragraph 41.  
120  Horizontal Merger Guidelines, paragraph 40.  
121  Horizontal Merger Guidelines, paragraph 42.  
122  Horizontal Merger Guidelines, paragraph 42.  
123  Horizontal Merger Guidelines, paragraph 42.  
124  Horizontal Merger Guidelines, paragraph 42.  
125  Horizontal Merger Guidelines, paragraph 42.  
126  Non-horizontal Merger Guidelines, paragraph 29. 
127  Non-horizontal Merger Guidelines, paragraph 29. 
43 and conditions as absent the merger.128 This may lead the merged entity to 
profitably increase the price charged to consumers, resulting in a significant impediment to effective competi tion. As indicated above, for input 
foreclosure to lead to consumer harm , it is not necessary that the merged 
firm's rivals are forced to exit the ma rket. The relevant benchmark is whether 
the increased input costs would lead  to higher prices for consumers.
129 Any 
efficiencies resulting from the merger may, however, lead the merged entity 
to reduce price, so that the overall like ly impact on consumers is neutral or 
positive.130 
(217)  In assessing the likelihood of an antic ompetitive input fore closure scenario, 
the Commission examines, first, whethe r the merged entity would have, post-
merger, the ability to substantially fo reclose access to inputs, second, whether 
it would have the incentive to do so, and third, whether a foreclosure strategy would have a significant detrimental effect on competition downstream.
131 In 
practice, these factors ar e often examined together since they are closely 
intertwined.132  
4.1.3.  Conglomerate effects 
(218)  In the majority of circumstances, congl omerate mergers do not lead to any 
competition problems but in certain sp ecific cases there may be harm to 
competition.133 The main concern in the cont ext of conglomer ate effects is 
that of foreclosure. 134 Conglomerate mergers may allow the merged entity to 
combine products in related markets and this may confer on the merged entity 
the ability and incentive to leverage a strong market position from one market 
to another by means of tying or bund ling, or other exclus ionary practices. 135 
(219)  In assessing the likelihood of congl omerate effects, the Commission 
examines, first, whether the merged firm  would have the ab ility to foreclose 
its rivals, second, whether it would have  the economic incentiv e to do so and, 
third, whether a foreclosure strategy would have a significant detrimental 
effect on competition, thus causing harm  to consumers. In practice, these 
factors are often examined together  as they are closely intertwined. 136 
4.2. Assessment of horizontal effects 
(220)  Considering that TMA does not practical ly offer pure fixed internet access 
services, no significant horizontal overla p would arise if separate markets for 
fixed and mobile internet access services  were to be defined. Therefore, the 
following assessment focuses on a possible market for retail internet access services for residential customers in Au stria as defined above, including both 
                                                 
128  Non-Horizontal Merger Guidelines, paragraph 31. 
129  Non-Horizontal Merger Guidelines, paragraph 31. 
130  Non-Horizontal Merger Guidelines, paragraph 31. 
131  Non-Horizontal Merger Guidelines, paragraph 32. 
132  Non-Horizontal Merger Guidelines, paragraph 32. 
133  Non-horizontal Merger Guidelines, paragraph 92. 
134  Non-horizontal Merger Guidelines, paragraph 93. 
135  Non-horizontal Merger Guidelines, paragraph 93. 
136  Non-horizontal Merger Guidelines, paragraph 94. 
44 fixed and mobile broadband connections,137 as this is the market configuration 
where the horizontal overlap would be largest.138   
4.2.1.  Retail internet access services 
4.2.1.1.  Horizontal non-coordinated effects 
(a) The Notifying Party's views 
(221)  The Notifying Party submits that the Transaction will not lead to competition 
concerns on the retail market for the provision of internet access services to 
residential customers in Austria. 
(222)  First, the Notifying Party submits that even when considering a market for 
retail home internet access services in cluding mobile and fixed products, the 
Parties' estimated combined shares w ould only slightly exceed [20-30]% in 
this market. The Parties' combined mark et shares would not be significant in 
UPC's footprint either, where they woul d have a combined market share of 
[30-40]%. The merged entity would be just  the third largest player in Austria, 
in terms of market shares, behind A1 ([40-50]%) and H3A ([20-30]%). In 
UPC's footprint, A1 would have a [3 0-40]% market share and H3A [20-30]%. 
(223)  Second, UPC's fixed broadband offering on the one hand and TMA's mobile 
data-only services would not be close substitutes, because of significant 
differences in technology, use, speed, quality of service, and mobility. UPC 
currently offers high and stable da ta download speeds of up to 300 Mbit/s 
which significantly exceeds the performa nce, quality and actual speed which 
TMA can offer via its mobile network.  
(224)  According to the Notifying Party, this conclusion is confirmed by the survey 
conducted by TMA (see paragraph (37)), in accordance to which (i) the diversion ratio from TMA to UPC w ould be significantly lower than the 
diversion ratios from TMA to the other MNOs (A1 and H3A), and (ii) the 
diversion ratio from UPC to TMA w ould be significantly lower than the 
diversion ratio from UPC to A1 (that is also a fixed internet  access provider).  
(225)  The Notifying Party has also submitted a paper which examines competitive 
actions (such as launches of new produc ts, improvements of existing offers, 
price promotions, etc.) of each of the Parties. According to the Notifying 
Party, the analysis shows that TMA’s acti ons that resulted in significant gross 
adds increases did not ha ve any visible impact on UPC’s sales, confirming 
that TMA cannot be qualified as a close competitor of UPC. 
                                                 
137  Unless otherwise specified in th e text, the analysis is based on a market for retail internet access 
services including all mobile data-only connections. In any case, the outcome of the assessment would 
not change irrespective of the market definition (mobile data-only services pre-paid and post-paid; mobile data-only services post-paid; mobile cubes post-paid) as the market shares are similar.  
138  The competition assessment is limited to residential customers, considering that business customers 
are probably not included in this market. In any case the Parties' ma rket shares in the market for 
business customers including fixed and mobile internet connections are lower than the ones in the 
residential segment: TMA [10-20]% and UPC [0-5]% (considering only cubes TMA [5-10]% and UPC 
[5-10]%). Hence, the Parties' combined market sh ares would be even more limited in a potential 
overall market including internet access services to both residential and business customers or in a 
potential separate market for internet access services to business customers. 
45 (226)  Third, most of UPC's residential customer s of internet services purchase these 
services in a bundle with either UPC's TV services or UPC's fixed telephony 
VoIP services. Only approximately [10-20]% of UPC's fixed internet 
customers have purchased UPC's fixed internet services on a stand-alone 
basis. Therefore, TMA's st and-alone mobile data-only services could not exert 
a competitive constraint on UPC's cable broadband services. 
(227)  The Notifying Party submitted the replies to  a questionnaire that is routinely 
sent to fixed internet customers who can cel their contract with UPC, asking 
why they had decided to terminate their contract. According to this analysis, 
only [0-5]% of UPC customers ending th eir fixed internet subscription 
explained that they had decided to te rminate their contract because they 
wanted to sign up to mobile internet service instead. 
(228)  According to the Notifying Party, th e two major players in the Austrian 
telecommunications sector (A1 and H3A), as well as other competitors will continue to constrain the merged entity  on this retail market. This would be 
the case also because these competitors offer very close substitutes to the products of UPC and TMA. On the cont rary, the degree of substitutability 
between the internet services offere d by the merging parties would be 
negligible. 
(229)  The Notifying Party further submits that new market participants can easily 
enter the home internet access services market on the basis of A1 regulated 
wholesale virtual unbundled local access ("VULA") offe r in the fixed segment 
or on the basis of a wholesale access ag reement with any MNO in the mobile 
segment. 
(230)  According to the Notifying Party, potential entry and expansion on the basis 
of the H3A Retail-Minus Offer and th e A1 regulated VULA offer will impose 
a significant competitive constraint on the merged entity despite being based 
on a "retail-minus" wholesale access o ffer, because any alleged merger-
induced increase of the retail prices of  A1 and H3A would be small, and any 
effect on their wholesale access prices as  a consequence of the “retail-minus” 
mechanism would also be small. 
(231)  In particular, the Notifying Party submits that H3A's retail-minus offer for 
mobile broadband services would enable  MVNO market entry at large scale: 
MVNOs could viably offer home mobile  broadband services on the basis of 
the existing H3A retail-minus offer whic h forms part of H3A's commitments 
to the Commission in the Hutchison 3G Austria/Orange Austria  case 
(M.6497). The Notifying Party has submitted an analysis showing that H3A would still have availabl e capacity allowing for fu rther mobile data-only 
services and has presented some evid ence demonstrating that MVNOs hosted 
on H3A's network already offer home m obile broadband services and compete 
effectively in this market segment. The Notifying Party has submitted elements showing that MVNOs can actually compete in the home internet market using both the H3A Retail-Minus Offer and/or the unit-based pricing 
option, also offered by H3A on the basi s of the commitments in case M.6497. 
In this last respect, the current unit-base d MB rates offered by H3A, subject to 
RTR's monitoring, would enable an M VNO to offer very aggressive, even 
unlimited home broadband packages in the market, regardless of whether the H3A retail price increased or decreased. 
46 (232)  With respect to the A1 regulated whol esale VULA offer, the Notifying Party 
submits that the RTR ensures that it s conditions are margin-squeeze free by 
requiring the incumbent A1 to allow for a minimum retail margin, which increases with the bandwidths offered. The Notifying Party submitted data showing that the VULA wholesale costs leave a sufficient margin to a wholesale customer to compete with UP C's current standard retail prices for 
its cable broadband services, including in  the segments for higher bandwidths 
(although the Notifying Party concedes that A1's fixed infrastructure is less 
performant than UPC's cable infrastructure ). In any event, th e relevance of the 
A1 wholesale offer would be confir med by the fact that TMA launched a 
fixed/mobile (hybrid) broadband product on the basis of A1's offer and there 
would be no reason why other mobile opera tors should not be able to do the 
same and launch a hybrid broadband product. According to the Notifying Party, H3A is preparing a hybrid broa dband product on the basis of the A1 
wholesale offer as well.  
(233)  The Notifying Party further submits that in  any case market entry/expansion is 
taking place and additional players ar e highly likely to enter soon. In 
particular, TMA had some advanced nego tiations with [name of third party], 
and has ongoing discussions with [name of third party]. 
(234)  Finally, the Notifying Party submits that the Transaction will establish TMA 
as a fixed-mobile convergent operator which will be able to offer converged 
products and to challenge the incumbent A1, which wi ll create more choice 
for consumers.
139 According to the Notifying Party, the Transaction allows the 
merged entity to significantly invest into fixed infrastructure which is underdeveloped in Austria compared to  other Member States. The Notifying 
Party further submits that the Transaction will also incentivize the incumbent 
A1 to invest more in fixed infrastructure in competition with the merged 
entity. A1 has so far not been willi ng to invest sufficiently due to its 
entrenched market power. The Notifying Party claims that the Transaction is, therefore, clearly pro-competitive. 
(b) The Commission's assessment 
(235)  First of all, the Commission recalls the analysis carried out in previous 
paragraphs (17) to (41), where it is e xplained that, in the specific case of 
Austria, the relevant product market  potentially includes both fixed and 
mobile retail access services fo r residential customers.  
                                                 
139  TMA submission on the Austrian broadband sector of 12.06.2018. 
47 (i) Market structure 
(236)  In the possible market for retail internet access services for residential 
customers in Austria the Notifying Pa rty has provided the following market 
shares for 2017: 
Table 1:  2017 market shares in retail internet  access services for residential 
customers in Austria (in terms of subscribers) 
 Fixed internet 
services and mobile broadband services (pre- and post-paid) Fixed internet 
services and mobile  cubes only Fixed internet 
services and mobile broadband services (post-paid only) 
TMA [10-20]% [5-10]% [5-10]% 
UPC [10-20]% [10-20]% [10-20]% 
Combined [20-30]% [20-30]% [20-30]% 
A1 [40-50]% [40-50]% [40-50]% 
H3A [20-30]% [20-30]% [20-30]% 
Other Fixed 
operators [5-10]% [10-20]% [5-10]% 
Other mobile 
operators [0-5]% [0-5]% [0-5]% 
Source: Form CO, Tables 7C(2)(a), (b) and (c) 
(237)  Following the Transaction, the market shar e of the merged entity will increase 
from [10-20]% to [20-30]% (considering all mobile da ta-only products), with 
an increment of approximately [10-20]%. 
(238)  The market presence of the Parties is more significant in the area 
corresponding to UPC's footprint, where the Parties have a joint market share 
of more than [30-40]%. In particular in the city of Vienna, the Parties together 
have a market share of more th an [30-40]%. Although the market 
investigation has shown the national di mension of the relevant market, the 
strong position held by UPC (and consequently by the merged entity) in its footprint and notably in th e most densely populated areas  of Austria is further 
assessed in paragraph (267) below. 
(ii) Closeness of competition 
(239)  The Commission has assessed in detail th e Notifying Party's claim that there 
is only limited substitutability between the respective products of the Parties. 
(240)  While it appears that there is some degree of substitutability between the 
Parties’ products,
140 it should be noted that TMA and UPC use different 
technologies for their main internet  access services: TMA relies mainly on 
                                                 
140  This is supported by the internal documents of the Parties. In some of these documents, as already 
reported in paragraph (33), the Parties mention "F MS" (fixed-mobile substitution) products, such as 
cubes or hybrid solutions, expressly aimed to "substitute" (i.e. compete with) pure fixed products for 
the provision of home internet access services to residential customers. M obile broadband providers 
are qualified as a rising threat to fixed-line operators and several documents highlight the relevance of 
mobile 4G/LTE offers as home solutions, directly competing with fixed offers. 
48 mobile technologies while UPC on fixe d connections, largely based on its 
coaxial cable network. 
(241)  The underlying technology has important im plications on the user experience. 
UPC's HFC cable network offers particul ar high speeds of up to 300 Mbps on 
the basis of the DOCSIS 3.0 standard. Although DOCSIS uses a shared medium between several households, UPC guarantees to the customers of its 
300 Mbps offering that a minimum downl oad speed of 135 Mbps is available 
to the customer during 95% of the da y. UPC’s HFC cable network can also 
achieve much higher download speeds co mpared to other fixed internet access 
technologies, such as in XDSL. 
(242)  In contrast, the actual speed of mob ile broadband services is much more 
dependent on the number of concurrent users and their usage pattern in each cell. The actual speed of mobile inte rnet (data) services may hence vary 
considerably and is generally substantially lower than the theoretically possible maximum speed. In this regard, TMA submits that its actual speed is 
often as low as [0-5] Mbps and that it  does not provide speed  guarantees to its 
mobile broadband customers similar to those offered by UPC. 
(243)  These differences in terms of (guarant eed) download speed also translate into 
differences in usage patterns. Whereas  the average monthly data download 
usage of TMA's customers of mobile broadband services was approximately 
[40-60] GB ([60-100] GB for cubes with fixed monthly payment) in 
December 2017, the average monthly dow nstream data usage of UPC's HFC 
internet customers was approximate ly [130-170] GB in Q1/2018. UPCs 
figures of data usage do however ex clude the consumption of cable TV 
services and, therefore, underestimat e the throughput differences between 
cable broadband connections and mobile internet connections.  
(244)  The Commission also notes that only a limited percentage of UPC’s fixed 
internet customers have purchased fixed internet access services on a standalone basis,
141 whilst TMA’s mobile data serv ices are not available with 
retail TV or fixed telephony services. This also suggests that mobile 
broadband services may not be direct substitutes to those product bundles for 
a significant part of UPC’s customers. 
(245)  These differences in terms of user expe rience suggest that the products of the 
Parties are differentiate d. Moreover, all MNOs in  Austria offer mobile 
broadband products and in particular m obile cubes. This provides a first 
indication that the degree of substitutability between the Parties’ main products may be limited, in particular compared to the degree of substitutability between the (rather si milar) mobile broadband products of the 
three Austrian MNOs.
142 
                                                 
141  According to data provided by the Notifying Party, only [0-20]% of UPC's current fixed internet 
customers have purchased UPC's fixed internet  services on a stand-alone basis (Form CO, 
paragraph 735). 
142  To be noted that this limited substitutability between mobile and cable connections is confirmed by 
A1, according to which although cube s should be in general consider ed substitutes to fixed broadband 
access, on the other hand they may not be with respect  to to true high speed internet such as UPC's 
own network features. 
49 (246)  The Commission has further examined closeness of competition based on a 
survey prepared by the Parties. Th e Commission considers that generally 
customer surveys can be a useful tool  for eliciting dive rsion ratios between 
competing products. In particular, surveys can be used to elicit user preferences and are hence suited to  assess how differences in product 
characteristics translate into substitution patterns.  
(247)  However, with respect to the survey carried out by TMA, the Commission 
first recalls that the Notifying Party su bmits that (i) the survey suffers from 
significant limitations and that only limited evidentiary weight can be given to its results, and (ii) if anything, the survey shows that UPC is not a close 
competitor of TMA and that TMA is not a close competitor of UPC (see paragraph (224)). 
(248)  The reliability of any survey results de pends inter alia on the survey design 
and on the selection of the participants to the survey. In the case at hand, in 
order to determine the degree of substitu tability between the merging Parties' 
products the views of the Parties' subs cribers are particularly important. By 
selecting the Parties' products, these customers expressed their preference for the Parties' products. Moreover, the su rvey should be focused on customers 
that are familiar with the various offerings currently in the market.
143  
(249)  The survey carried out by the Notifying Party was addressed to an online 
panel in co-operation with Market mind, a marketing research company.144 
Such panels are usually de signed to make up a repres entative sample of the 
underlying population, in this case Austri an households. However, reaching a 
sufficient number of respondents of th e narrowly defined focus groups of 
interest, in this case inter alia rece ntly acquired TMA subscribers of mobile 
cubes and UPC subscribers of fixed products, through th e use of online panels 
is generally challenging since the proba bility of those specific individuals 
being members of such panels is low.  
(250)  The Commission considers that the su rvey submitted by the Notifying Party 
suffers from a number of limitations. First, the online panels used for the survey fall in the category of so-called "non-probability panels", that is, the panellists are not recruited in a statistic ally controlled manner and, hence, are 
likely to be unrepresentative of the overall population.
145 Second, the number 
of respondents with TMA cubes or UPC fixed pure internet products as their 
preferred choice was very low. Third, of these respondents, only few stated 
that they switched or screened the market  in the last 12 months, indicating that 
many respondents were not familiar with the products on the market. Fourth, many respondents expressed choices that  are at odds with the offers on the 
market, casting further doubt on the re liability of the survey results.  
                                                 
143  A practical way to achieve this is to carry out a targeted survey addressed to those customers of 
respective telecom operator that acquired (or modifi ed) their subscription in the recent past, for 
example within the last 6 or 12 months, and presumably carried out a comparison of the various 
offerings available in the market at the time of the purchase.  
144  Marketmind has developed a consumer online access pa nel together with its partner Talk Online Panel 
GmbH ("Talk"). For the purpose of the current survey, Talk's panel was supplemented through the use 
of several other providers.  
145  Commission decision of 1 September 2016 in case M.7758, Hutchinson 3G Italy / Wind / JV , 
recitals 1498 and seq. 
50 (251)  In light of these shortcomings, the Commission considers that only limited 
evidentiary weight can be given to the results of the survey.146  
(252)  As for the relevance of the UPC intern al questionnaire alle gedly showing that 
only [0-5]% of UPC customers terminati ng their contracts w ould sign up to a 
mobile internet service instead, the Comm ission notes that the results of such 
a questionnaire provide only a limited in dication that the Parties may not be 
close competitors, if considered in combin ation with other elements in the file 
pointing to such conclusion. 
(253)  Finally, the Commission takes note of the event study submitted by the 
Notifying Party, mentioned in paragraph (225). The study seeks to identify promotional events that had a signifi cant (positive) impact on TMA’s  and 
UPC's respective number of gross adds and asks whether these events had a 
measureable (negative) impact on the cu stomer base of th e other party. The 
Commission notes that such studies must be interpreted with caution since promotional events are only one of many  factors that can affect relative 
changes in the demand of competing pr oducts. However, the Commission also 
considers that the results of the event study are consistent with the remaining 
qualitative evidence available suggesting that the Parties ar e not particularly 
close competitors in this market.     
(254)  Therefore, while a certain degree of  substitution between the different 
technologies offered respec tively by TMA and UPC appears to exist, on the 
basis of the above considerations, the Commission concludes that TMA's and UPC's respective home internet access products do not closely compete.  
(iii)Potential loss of competition 
(255)  Certain respondents to the market inves tigation consider that the Transaction 
could have negative effects on the reta il internet access services market 
(including mobile broadband services).
147 Some respondents have pointed to 
possible price increases, due to the reduced competition and the increased market power of the merged entity.  
(256)  In particular H3A pointed out that the reduction in the number of players will 
result in reduced competition on the releva nt market that in turn will lead to 
consumer harm through potential pri ce increases, reduction of choice and 
reduction in the levels of market innova tion. H3A added that it will be […], 
because of [mobile network related issues]. According to H3A, the A1 regulated wholesale VULA access to its fixed network would be economically 
unfavourable: on average, wholesale acce ss prices see an advantage for low 
and a disadvantage for high bandwidths, which means that […]. According to 
H3A, the situation will be particularly problematic in Vienna, due to the significant position of UPC.  
                                                 
146  The Commission also notes that the Notifying Part y's conclusion on the closeness of competition 
between the Parties depends on disregarding as irrational a significant number of choices that are at 
odds with the observed popularity of the relevant products. This opens up the results of the survey to 
multiple interpretations, only one of which is the one  ascribed to the results by the Notifying Party.  
147  Questionnaires Q2, reply to question F.1.2; Q3, reply to question D.1.2; Q4, reply to question 41.2 and 
Q5, reply to question 42.2. 
51 (257)  Similarly Ventocom stated that the Transaction would eliminate UPC as 
important competitive force in the retail market for home internet access services that is already characteri zed by high concentration and high entry 
barriers.  
(258)  A1 pointed to the merged entity's str ong position in the UPC footprint and in 
particular in Vienna, thanks to the pe rformance of its cable network and […]. 
A1 further submitted that the merged en tity will have a dominant position in 
Vienna and in other areas of UPC's foot print. According to A1, UPC's actual 
behaviour points already today to a dom inant position, as UPC has been able 
to implement annual price increases si nce 2013 without any relevant loss of 
customers, while overall broadband prices have generally decreased. 
Moreover, other competitors would not be  able to upgrade their structure to a 
level that would be comparable to UPC's network. 
(259)  The RTR considers that the Transaction may potentially have some positive 
effects for consumers as TMA may better compete with the market leader A1. 
In particular, by relying on UPC infrastructure, TMA will become more independent from (regulated) wholesal e access services of A1. This might 
give to the merged entity more room for technical and/or product innovation 
and also more flexibility with regard to prices. However, the RTR also expressed concerns on the consequences  of the Transaction in the retail 
internet access services market. In particular, considering the limited efficiencies and cost savings, the RTR submitted that the Transaction could lead to price increases. RTR's concern is linked to the high market concentration after the Transaction, as the three main operators would have a 
combined and stable market share close to [90-100]%.  
(260)  The Austrian Competition Authority ("BWB") emphasised that the 
Transaction concerns a mob ile network operator (with virtually no presence in 
fixed telecommunications markets) and a fixed telecommunications provider 
(with minimal presence in mobile telecommunications markets). The Parties' business activities are to a large de gree complementary, with few horizontal 
overlaps and some potential (technical) ve rtical links. Therefore, according to 
the BWB, the Transaction is procompetitive as it will enable TMA to effectively compete with the incumbent A1 and with H3A. 
(261)  First, the Commission notes that the combined market share of the Parties 
does not exceed 25%.
148  
(262)  Second, as explained in paragraphs ( 239) to (254) above, the two products, 
although part of the same product market , have a different positioning and are 
not closely competing. Therefore, the competitive constraint imposed by the 
Parties on each other is likely smaller than suggested by their market shares. 
(263)  Third, following the Transaction, two str ong alternative providers will remain 
active on the market and will continue to exercise signif icant competitive 
pressure on the merged entity. These providers include the incumbent operator, A1, with a [40-50]% market sh are. The other competitor, H3A, has a 
                                                 
148  Merger Regulation, recital 32, and Horizontal Merger Guidelines, paragraph 18. 
52 market share ([20-30]%) comparable to the one of the merged entity. Other 
smaller competitors will remain active as well. 
(264)  Despite the arguments submitted by H3A c oncerning its alleged difficulties to 
compete, the Commission considers that, H3A will remain a strong 
competitor in the potential market of retail market for internet access services to residential customers. Firstly, as regards H3A’s claim of […], the Commission considers that, a numb er of expected technological 
improvements should significantly expa nd the available mobile capacity in 
the foreseeable future.
149 Moreover, further spectrum will be made available 
by the RTR in upcoming spectrum auctions. Secondly, as regards H3A’s claim that A1’s regulated wholesale offer would not be viable […], the 
Commission notes that based on this regulated wholesale offer TMA currently offers competitive hybrid internet acce ss products. Given that  H3A also owns 
a mobile infrastructure, it could also  offer hybrid products at a competitive 
price. In addition, A1 has to allow for a minimum retail margin, which increases with the bandwidths offered
150, therefore potentially allowing 
commercially viable offers also in the segments for higher bandwidths.  
(265)  In this context, the RTR notified the wholesale regulation to the Commission 
and the Commission issued comments in 2017.151 In its comments, the 
Commission listed the VULA rates and commented inter alia on the economic replicability test applied by the RTR to determine these rates. However, the Commission did not voice any doubts that those rates would not be 
commercially viable for pot ential access seekers. 
(266)  Moreover, the mere observation that outside of its cable footprint UPC 
provides internet access to its retail customers on the basis of the regulated 
wholesale access to A1’s fixed network suggests that the terms of this 
wholesale offer are viable. 
(267)  As for the alleged serious negative  effects stemming from a loss of 
competition in UPC's footprint, in Vie nna in particular, the Commission notes 
that in all local areas that  form part of the UPC f ootprint, the merged entity 
will continue to face strong competitive pressure from A1. Also H3A has a 
significant presence in those areas, w ith market shares around [20-30]%. In 
this respect, the Commission notes that  TMA's market position and hence the 
overlap tends to be somewhat smaller in  the UPC footprint (overlap [5-10]%) 
and in Vienna (overlap [5-10]%) compar ed to the Austrian territory as a 
whole. Moreover, at present H3A has a much stronger market presence than 
TMA in UPC's footprint (H3A [ 20-30]% vs. TMA [5-10]%) and in 
Vienna ([10-20]% vs. [5-10]%). 
(268)  As for an economic submission by A1 acco rding to which the merged entity's 
market shares, in terms of subscribers, in this market are significantly higher 
than those reported by the Parties, the Commission notes that during the 
market investigation it scrutinised al l reported market share data by carrying 
                                                 
149  Commission decision of 11 May 2016, in case M.7612 - Hutchison 3G UK / Telefónica, Annex C . 
150  See TKK Decision M 1.5/15-115 of 24 July 2017, page 16. 
151  See Commission Decision C(2017) 4687 of 30.6.2017 pursuant to Article 7(3) of Directive 
2002/21/EC concerning Case AT/2017/1987 and Case AT/2017/1988.   
53 out a market reconstruction exercise addressed to the four main market 
participants (A1, H3A, TM A and UPC) as well as requesting data from the 
RTR. Despite minimal inconsistencies li nked to different de finitions of active 
and residential subscriber s, the Commission was able to conclude that the 
market shares reported in the Form CO  are representative of the various 
participants' market position and suitable for basing the Commission's competitive assessment on. 
(269)  [In particular, the figures reported by th e Parties are quite close to the national 
level market share data provided to the Commission by RTR]. Concerning  
the cities of Vienna, Graz, Innsbruc k and Klagenfurt, for which the RTR 
could not provide data, the market shares reported by A1 are driven, 
[description of assumption], a fact th at is not supported by the Commission's 
investigation and market reconstruction.
152     
(270)  As for A1's allegation that UPC would already enjoy a dominant position in 
Vienna, as shown by the price increases in recent years, the Commission notes 
that A1 has not provided any element to support this thesis, but only a short article in a local web-magazine poin ting to some not quantified and not 
circumstantiated price incr eases in 2017. This elemen t alone, confronted with 
the market analysis and the market  reconstruction carried out by the 
Commission, cannot justify a conclusion of a dominant position by UPC in a 
part of the relevant geographic market. The alleged price increase also appears 
not to be limited to Vienna, and as su ch the allegation of […] is similarly 
unsubstantiated. Moreover, even if UP C gained […], this would not be 
merger-specific and already reflec ted in UPCs market shares.  
(271)  In light of the above, the Commission c onsiders that the Transaction is not 
likely to result in a significant loss of competition. 
(iv) Potential entry  
(272)  As regards potential entry, H3A submits  that the A1 regulated wholesale 
access to DSL does not allow for a suitable entry in the home internet access services market, because the term s of this access are economically 
unfavourable. On average, wholesale acce ss prices see an advantage for low 
and a disadvantage for high bandwidths, which means that an  operator cannot 
compete with either A1 or the merged entity in the provision of fixed broadband access services to households. 
(273)  The RTR submits that alternative operato rs can offer fixed services in the 
entire area of Austria based on physical  unbundling, bitstream services, and in 
particular virtual unbundli ng (with local and regiona l handover), since access 
to A1’s nationwide network is regulated. RTR considers this regulated access 
as sufficient to lower the entry barriers in the fixed segment. 
(274)  The RTR submits that MVNO access is currently offered by all three MNOs 
and a number of new MVNOs (MVNEs and service providers) have entered the market in the last years. Theref ore, the entry barriers in the mobile 
segment can currently also be considered to be low. However, according to 
                                                 
152  Reply of 23.05.2018 to RFI 1 to H3A. 
54 the RTR, there is considerable uncertainty  as to whether this will also be the 
case in the medium to long run, because several developments have weakened or may weaken further the competitive  position of MVNOs relative to MNOs 
in the future. In particular, the RTR submits that: 
- the increasing data volumes, in particular in the residential segment, can 
make it difficult for MVNOs to compete (in particular for flat rate offers) as they have to pay a per- unit price at the wholesale level; 
- it is uncertain if or when MVNOs  will get access to new technologies, 
in particular to 5G, to wholesale offers for IoT, etc.; 
- The commitments from the Hutchison/Orange  merger will expire in a 
few years. This will weaken the bargaining position of MVNOs versus MNOs. 
(275)  In this respect, the Commission notes th at the material relevance of the 
regulated wholesale DSL offers is dem onstrated by the fact that in 2017, 
about [10-20]% of UPC's customers were still served by the DSL connection, mainly outside of the UPC footprint,  although the figure is declining. 
Moreover, A1's DSL wholesale offer is at the basis of TMA's new offer of 
hybrid broadband products, which in April 2018 accounted for roughly [10-20]% of TMA’s gross adds  of home broadband products. 
(276)  Furthermore, A1 wholesale DSL offer ap pears relevant for the provision of 
hybrid broadband products, where DSL is mainly used for network-offload 
and as a consequence low bandwidths  are requested. Hybrid offers are 
relevant for the present analysis also because they alleviate potential capacity constraints related to purely mobile of fers, as the mobile network capacity 
needed by the hybrid broadband product is only approximately 30 to 50% of the capacity used by a mobile cube.  
(277)  The Commission further notes that accord ing to the Notifying Party, if A1 
wants to terminate the standard wholesale offer contract and increase wholesale charges, the w holesale customer can object to the termination and 
the change of wholesale conditions in which case the existing standard 
wholesale offer remains valid. A1 w ould then be required to initiate a 
procedure with TKK and it is ultimately for TKK to decide if the price changes proposed by A1 may be implemented or not. This mechanism reduces the risk of wholesale price increases. 
(278)  With specific regard to the H3A commitment in case M.6497, to offer 
wholesale access on a retail-minus basis implies that the wholesale price could increase if the retail prices of H3 A were to increase as a consequence of 
the Transaction. On the other hand, th e Commission found that […] based on 
the commitments.
153  
(279)  In light of the above considerations, th e Commission is of the view that, on 
the basis of the evidence in the file, barriers to entry in the home internet 
                                                 
153  Reply of 25.06.2018 to RFI 2 to H3A. 
55 access services market are sufficiently low as to constrain to some extent the 
behaviour of the merged entity in Austria. 
(c) Conclusion on horizontal non-coordinated effects 
(280)  Based on all the above, the Commission concludes that the Transaction does 
not raise serious doubts as to its compatib ility with the internal market by way 
of horizontal non-coordinated effects, in  the market for retail internet access 
services for residential customers in Austria. 
4.2.1.2.  Horizontal coordinated effects 
(a) The Notifying Party's views 
(281)   The Notifying Party submits that the Transaction will not  give rise to 
coordinated effects on a hypothetical reta il market for internet services 
including fixed internet services and mobile internet (data) services irrespective of the geogra phic scope of this hypothet ical market. Coordinated 
effects can, in particular, be ex cluded for the following reasons: 
- Substantial asymmetries between firm s in terms of technology and cost 
structure: the differences in term s of technology and cost structure 
between the firms active on this ma rket (A1, H3A and TMA/UPC) make 
it impossible for them to reach an y terms of coordination and would 
undermine any hypothetical coordination; 
- Lack of transparency due to differen tiated services and tariffs: the market 
is characterized (i) by differentiate d services and tariffs, and (ii) by 
standalone and bundled offers. This ex treme heterogeneity implies that the 
market lacks the degree of transparency which would be necessary to reach terms of coordination and to  monitor deviations from any 
hypothetical coordination; 
- Substantial growth in demand: this  current relevant growth in demand 
prevents any coordinati on, irrespective of the ge ographic scope of the 
market; 
- Market presence of various fixed and mobile operators: In addition to A1, 
H3A and TMA/UPC, various fixed and mobile operators are active on the 
home internet access services market, with a combined market share of approximately [10-20]%; 
- Highly asymmetric market positions: A1  would be the clear market leader 
with an estimated share of about [40-50]%. H3A and TMA/UPC are significantly weaker with estimated shares at ar ound only [20-30]%. Such 
a high asymmetry suggests that it woul d be impossible to reach terms of 
tacit coordination between firms.  H3A and TMA/UPC have strong 
incentives to fiercely compete with A1  and to challenge A1's incumbent 
position.  
(282)  The Notifying Party submits that coordina ted effects are also excluded if one 
assumed that the geographic scope of a hypothetical retail market for internet 
services were the UPC's footprint or lo cal (city level), for the same reasons 
mentioned above. 
56 (b) The Commission's assessment 
(283)  As set out in the case law154 and the Horizontal Merger Guidelines,155 to find 
coordinated effects evidence is needed th at the horizontal merger changes the 
nature of competition in such a way that firms that previously were not coordinating their behaviour are now si gnificantly more likely to coordinate 
and raise prices or otherwise harm e ffective competition. A merger may also 
make coordination easier, more stable or  more effective for firms which were 
coordinating prior to the merger.
156 
(284)  The following aspects are particularly re levant for the assessment of whether 
coordination is likely to emerge:157 (i) the ability to reach terms of 
coordination; (ii) the ability to m onitor deviations from the terms of 
coordination; (iii) the existence of a cr edible deterrent mechanism if deviation 
is detected; and (iv) the reaction of outsiders such as current and future 
competitors not participa ting in the coordination, as well as customers. 
(285)  The Commission notes that the RTR and some of the Parties' competitors 
pointed to the risk of  coordinated effects. 
(286)  H3A submits that the Transaction will be conducive to coordinated effects 
between TMA/UPC and A1, which would be collectively dominant. One key 
effect of the Transaction will be to remove the current asymmetry between TMA (so far only mobile) and A1 (mob ile/fixed): post-merger, the merged 
entity will control the only significant fixed line network in Austria other than 
that of A1. As a result, the merged en tity will have aligned interests with 
respect to its market strategy concerni ng the mobile market and fixed/mobile 
offerings. The merged entity will no l onger pursue a mobile-only strategy but 
will, like A1, consider what market conduct is most profitable for its 
combined mobile and fixed line activiti es. The merged entity and A1 will be 
incentivised to act in coordination. H3A claims that in light of uncompetitive 
regulated wholesale offers for fixed acce ss and because of capacity limitations 
in its mobile network, […]. H3A adds  that pricing has a high degree of 
transparency, as it is a main marketing tool. Finally, according to H3A there is a history of structural a nd contractual links alrea dy established between A1 
and TMA, 
(287)  Ventocom submits that the Transaction will increase the risks of coordinated 
effects, as it will result in a reduction of market pa rticipants in an already 
concentrated market, the removal of a strong competitive force, the increase 
in symmetry between the remaining players. The market is transparent, product differentiation in pa rticular between MNOs is  limited, and the MNOs 
                                                 
154  Case C-413/06 P , Bertelsmann AG and Sony Corporation of America v Independent Music Publishers 
and Labels Association (Impala)  [2008] ECRI-4951, and in particular paragraphs 122-123 regarding 
the conditions for tacit coordination; Case T-342/99, Airtours v Commission  [2002] ECR II-2585, and 
in particular paragraphs 58 and 82 regarding the fact that “[i] f there is no significant change in the 
level of competition obtaining previously, the merger should be approved because it does not restrict 
competition ”. 
155  Horizontal Merger Guidelines , paragraphs 22, 39 et seq. 
156  Horizontal Merger Guidelines, paragraph 22(b). 
157  Horizontal Merger Guidelines, paragraph 41. 
57 already cooperate in wholesale/ro aming agreements. Significant price 
increases are to be expected due to further concentration in the market.  
(288)  The feedback of the market investiga tion suggests that the market for home 
internet services in Aust ria has a certain degree of transparency. The prices 
and the product offerings are publicly av ailable, for instance from the MNOs' 
websites and from retail shops. 
(289)  As a preliminary remark, on the basis of  the market investigation and of the 
analysis of the internal documents the Commission has not found any element pointing to coordination already ongoing between the main market players – 
or some of them in the market for reta il internet access services for residential 
customers in Austria. This might sugge st that the market conditions are 
currently not likely to be  conducive to coordination. 
(290)  In this context, the retail market for home internet services in Austria appears 
to be characterised by a rather high de gree of transparency as regards prices 
and product offerings of the MNOs, the MVNOs and of the fixed operators. 
Nevertheless, this is appare ntly not sufficient for coordi nation to arise, as also 
a number of further factor s need to be met.  
(291)  The Commission considers that also post- Transaction the risk of coordination 
remains limited. The Commission has analysed in particular two potential scenarios of coordination. First, A 1, the merged entity and H3A could 
hypothetically coordinate. Second, A1  and the merged entity could 
coordinate, with H3A remaining outside  of the hypothetical coordination. 
(i) Hypothetical coordination of A 1, the merged entity and H3A  
(292)  The Commission considers that there is a limited risk that A1, the merged 
entity and H3A would coordinate post Transaction, mainly because it appears 
unlikely for them to reach terms of coordination.  
(293)  In this regard, the Commission notes th at although the Transaction will reduce 
the current asymmetry between TMA (so far mainly mobile) and A1 (mobile/fixed), the offers of the three main operators will remain relatively differentiated: A1's offer is main ly based on DSL, TMA/UPC on cable 
networks and mobile, and H3A mainly on mobile. The technical differences 
also translate into differences in te rms of user experience (see e.g. 
paragraphs (241) to (245)). Coordination is generally more difficult in market 
with differentiated products.
158 The asymmetry is also relevant on a 
geographic perspective, w ith TMA/UPC's presence more prominent in UPC's 
footprint and the other tw o operators generally activ e in the whole national 
territory with similar technologies/cos t structures. Moreover, the market 
shares of the three main operators will not be similar, considering that A1 will hold a market share roughly double of th at of the merged entity and H3A. 
(294)  The Commission considers that changes in demand and supply are an element 
to be taken into consideration in th e assessment of any possible coordinated 
effects. In particular, there has been a significant growth in demand of mobile 
                                                 
158  Horizontal Merger Guidelines, paragraph 45. 
58 cubes, which is the main product for mobile home connections: from 2015 
to 2017, the number of subscribers of TMA and A1 cubes increased by about 
[…]% and the respective market shares more than doubled. The recent introduction of hybrid offers and the futu re launch of the 5G mobile network 
will probably introduce further instabili ty in the market. Therefore, demand 
conditions do not look sufficiently st able to make coordination likely.
 159 
(295)  Whereas it is true that the Transaction would change the market structure by 
reducing the number of operators and by causing a higher degree of 
concentration, the three MNOs woul d remain differentiated and demand 
unstable, implying a limited risk of coordination. 
(296)  There is also no evidence to suggest th at the Transaction would significantly 
alter the existing degree of transparen cy on the Austrian telecommunications 
markets, and therefore the Commission c onsiders that any possible impact of 
the Transaction on transparency will not materially change the existing ability 
of firms to monitor deviations. 
(ii) Hypothetical coordination of A1 and the merged entity 
(297)  The Commission also considers that there is a limited risk that A1 and the 
merged entity could reach terms of coordination and sustain such coordination over time, mainly because this would be undermined by outsiders of the coordination, in particular by H3A. 
(298)  First, although A1 and the merged entity  will become more symmetric (both 
will be fixed/mobile operators), there remain significant differences: A1 will maintain a market share nearly twice as large as the one of the merged entity 
and the respective offers will remain relatively differentiated: A1's offer is mainly based on DSL, while the merged en tity's offer will be mainly based on 
cable networks and mobile. 
(299)  Moreover, although A1 and TMA cooperate with respect to certain activities 
such as mobile infrastructure rollou t and operation, this does not in itself 
imply that coordination on the distinct market for retail internet access services would be facilitated.  
(300)  Second, the issue of changes in de mand and supply as set out in 
paragraph (294) is equally relevant for reaching terms of coordination in this scenario. 
(301)  Third, contrary to H3A's claims, the Commission considers that H3A would 
have both the ability and the incentiv e to undermine any coordination on the 
part of the merged entity and A1, as  it will be able to compete with 
mobile/hybrid offers and it is also expanding in fixed offers, following the 
recent acquisition of a fixed operator with the explicit intention to offer a complete set of telecommunications services and to compete with the incumbent operator (see be low paragraph (389)).  
                                                 
159  Horizontal Merger Guidelines, paragraph 45. 
59 (c) Conclusion on horizontal coordinated effects 
(302)  The Commission concludes that the Tran saction does not raise serious doubts 
as to its compatibility with the internal market in relation to horizontal coordinated effects on the market for retail internet access services for 
residential customers. 
4.2.2.  Retail mobile telecommunications services 
(303)  Both Parties provide mobile telecommunications services to end customers in  
Austria . In the overall retail market for mobile telecommunications services, 
the Parties have a combined share of [20-30]% in Austria (UPC with [0-5]% 
and TMA with [20-30]% in terms of s ubscribers). On the potential segment 
for private customers the Parties have  a combined share of [20-30]% (UPC 
with [0-5]% and TMA with [20-30]% in  terms of subscribers) and on the 
potential segment for business customers the Parties have a combined share of 
[20-30]% (UPC with [0-5]% and TMA w ith [20-30]% in terms of revenues) 
in Austria. 
4.2.2.1.  The Notifying Party's views 
(304)  The Notifying Party submits that the Transaction will not lead to competition 
concerns on the retail market(s) for m obile telecommunications services in 
Austria. 
(305)  First, the Notifying Party submits that the Transaction involves only a minor 
horizontal overlap between an MNO a nd a very small MVNO. UPC's market 
share has remained very limited since its market entry in December 2014. The 
increment resulting from the Transaction is negligible. 
(306)  Second, UPC is not an important comp etitive force on the Austrian retail 
market for mobile telecommunications se rvices. UPC's retail mobile activities 
are limited also when compared to other MVNOs one of which has an 
estimated market share of approximately [5-10]%. 
(307)  Third, the Austrian mobile market is characterized by extremely low barriers 
to entry and, consequently, an ongoi ng wave of MVNO entry over the past 
three years. These MVNOs entered the re tail mobile market on the basis of 
H3A's reference offer, offered as a commitment in connection with the merger control clearance in the Hutchison 3G Austria/Orange Austria
160 case, and 
also with A1 and TMA. 
(308)  Austrian mobile customers can current ly choose between almost 40 mobile 
brands on the Austrian retail mobile market (this includes brands of MNOs and MVNOs). Approximately 25 MVNO bran ds (including branded resellers) 
are present on the Austrian market most  of which have entered the market 
over the past few years. Further market players are expected to enter the market in the course of 2018. 
                                                 
160  Commission decision of 12 Dece mber 2012  in case M.6497 – Hutchison 3G Austria/Orange Austria . 
60 (309)  Coordinated effects can be excluded, as UPC is a negligible player on the 
market and its elimination has no impact on the hypothetical ability or incentives of the remaining market part icipants to engage in coordination. 
4.2.2.2.  The Commission's assessment 
(310)  Based on the results of the market investigation, the Commission has not 
identified specific competition concerns arising from the Transaction in relation to the retail mark et for the supply of mob ile telecommunications to 
end customers in Austria on  a standalone basis, as regards either horizontal 
non-coordinated or horizontal coordi nated effects. Few respondents have 
expressed some concerns with respect to the retail mobile market, making 
reference to fixed-mobile converg ence and the possibility to offer 
fixed/mobile bundles.
161 This issue is analysed below in paragraphs (372) 
to (394), in the section 4. 4 on conglomerate effects. 
(311)  A1 voiced the concern that the Transact ion would lead to the elimination of 
the remedy taker in case M.6497 and one of the few full-MVNO active on the market. 
(312)  The Commission notes, first, that UPC acts as an MVNO and its presence on 
the market is extremely limited (less th an [0-5]% market share by revenues). 
The increment brought about by the Transaction is not higher than [0-5]% (in 
terms of subscribers) in the overall ma rket and in any market segment. The 
Transaction will therefore have a very  marginal impact on TMA's position in 
the market. The combined market share of the Parties remains below 30% on all possible market segments regardless of whether it is measured by subscribers or revenue, with the excep tion of the private customer post-paid 
segment, where it is [30-40]%. However, in this segment the merged entity will remain the third operator, after A1 ([30-40]%) and H3A ([30-40]%).  
(313)  Second, after the Transaction, the merged  entity will c ontinue to face 
competition from the two remaining MNOs in Austria, namely A1 ([30-40]% market share by subscribers) and H3A ([20-30]% by subscribers) as well as from other MVNOs such as HoT, which has a market share of [5-10]% in terms of subscribers. 
(314)  As for the fact that UPC was th e remedy taker in case M.6497, the 
Commission notes that following the adop tion of that decision other MVNOs 
also started operating in the Austrian  market, both on the basis of the 
commitments offered by H3A and on other MNOs' networks. In particular the reference offer provided by H3A as part of its commitments is open to all MVNOs, not just to UPC. Currently, MVNOs represent about [5-10]% of the Austrian market, in term s of subscribers.   
4.2.2.3.  Conclusion 
(315)  In the light of the above, and in part icular given the small increment brought 
about by the Transaction, as well as the presence of relevant competitors on this market, the Commission concludes that the Transaction does not raise 
                                                 
161  Questionnaire Q2, reply to question F.1.4.1 and Questionnaire Q5, reply to question 42.4.1. 
61 serious doubts as to its compatibility w ith the internal market in relation to 
horizontal effects on the retail market fo r mobile telecommunications services 
and its possible segments in Austria. 
4.2.3.  Wholesale leased lines 
4.2.3.1.  The Notifying Party's views 
(316)  The Notifying Party submits that the Transaction will not lead to competition 
concerns on the wholesale leased lines market irrespective of the precise definition of the relevant product and geographic market. 
4.2.3.2.  The Commission's assessment 
(317)  If the relevant geographic market was c onsidered nationwide, that is to say 
limited to the territory of Austria, the ma rket for wholesale leased lines and its 
potential sub-segments would not be hor izontally affected, since the Parties' 
combined market shares are far belo w 20% (see section 3.1.5.3 above). The 
Commission agrees with the Notifying Part y's view that the Parties' are small 
players in the wholesale leased lines ma rket if defined nati onwide, that there 
are sufficient alternative suppliers (e.g. energy utilities companies) in this 
market, thereof the incumbent A1 who is subject to access and price regulation in large pa rts of Austria.  
(318)  If the relevant geographic market was lo cal (limited to individual communes), 
and if at a product level a distinction be tween different technologies was made 
(distinguishing also between services w ith a guaranteed bandwidth above or 
below 10 Mbit/s), the Transaction would give rise to one horizontally affected market, namely, the potential market for the provision of Ethernet services of 
guaranteed bandwidth with bandwidth  above 10 Mbit/sin the commune of 
[…] (representing less than 0.01% of th e Austrian population). Based on data 
submitted by the RTR and the Parties, in this potential market the combined 
market share of the merged entity would be [40-50]% (TMA: [20-30]%. 
UPC: [20-30]%).  
(319)  The Commission notes that (i) despite th is commune being an affected market 
the merged entity's combined market shares would not exceed 40% in this narrowest possible sub-segment of Ethern et services of guaranteed bandwidth 
with bandwidth above 10Mbit/s;  (ii) post Transaction in this commune there 
will still exist four alte rnative suppliers of leased lines including the 
incumbent A1; (iv) Ethernet services w ith guaranteed bandwidth of less than 
or equal 10 Mbit/s would be available; (iv) Ethernet services of guaranteed 
bandwidth are not the only leased line s available in this commune but two 
traditional interface lines and one dark fibre  line are also available
162; and 
(v) during the market investigation none of the respondents raised any 
concerns with regard to this  specific potential market.  
(320)  The findings would not materially change  if a distinction at 2 Mbit/s were 
considered, given that TMA does not ha ve any leased line with a bandwidth 
of less than or equal to 2 Mbit/s and becau se the share of the merged entity in 
                                                 
162  In the overall wholesale leased  lines product market in the commune of […], which includes all 
possible sub-segments the merged entity would hold a market share of approximately only [10-20]%. 
62 […] (in terms of the number of term inating segments) amounts to [20-30]% 
(TMA: [10-20]%. UPC: [10-20]%) if no distinction concerning the minimum 
guaranteed bandwidth is made. In the latter case, the share also remains 
below 25%, providing a first indication th at a concentration is not able to 
impede effective competition.163 
(321)  Finally, except for two respondents to the market investigation that were 
generally pointing to the fact that a fu rther concentration in the market for 
wholesale leased lines would not be be neficial to competition since prices 
may increase, the majority of responde nts was neutral or positive towards the 
Transaction and its effects on their co mpany. Only one respondent feared 
price increases while two other responde nts indicated that the transaction 
would not have a material impact or would even lead to price decreases.164 
4.2.3.3.  Conclusion 
(322)  In light of the analysis above the Co mmission concludes th at the Transaction 
does not raise serious doubts as to its compatibility with the internal market in relation to horizontal effects either on a possible nationwide market for 
wholesale leased lines and its potential sub-segments, or on potential markets 
for wholesale leased lines at the le vel of the single communes and their 
potential sub-segments.  
                                                 
163  Merger Regulation, recital 32, and Horizontal Merger Guidelines, paragraph 18. 
164  Questionnaire Q6, Section C.  Impact of the Transactions 
63 4.3. Assessment of vertical effects 
(323)  The Transaction also gives rise to a numb er of vertically affected markets, as 
can be seen from the following table.165 
Upstream market  Downstream market  
 
  Wholesale access and call origination 
services on mobile network 
TMA: [70-80]% (revenues) 
UPC: not active  Retail supply of mobile 
telecommunication services in Austria 
TMA: [20-30]% (subscribers) 
UPC:  [0-5]% (subscribers) 
 
Retail supply of internet access 
services in Austria 
including both fixed and mobile connections in 
Austria: 
TMA: [10-20]% 
UPC:  [10-20]% 
 
Including fixed but excluding mobile 
connections: TMA: <[0-5]% 
UPC: [20-30]% (subscribers) 
 
                                                 
165 As explained in paragraph (80) above, the vertical relationship between the market for wholesale 
broadband access and the market for retail internet access does not give rise to vertically affected 
markets. Nevertheless, the Commission notes that A1 submitted that the merged entity could foreclose 
its competitors on high speed internet access and po inted out that UPC is not under any regulated 
access obligations. However, the Commission notes th at already pre-Trans action, UPC does not 
provide wholesale access to its HFC network (but only to its LLU-DSL network), and that there are no 
indications that UPC would start providing access to  its HFC network absent the Transaction. As a 
result, in this context no merger-specific effects can arise and the Transaction does not raise serious 
doubts as to its compatibility with the internal market in this respect. 
64 Upstream market  Downstream market  
Wholesale leased lines  
If market is defined on the level of 
communes 
Please see footnote 62 above for the communes 
where the merged entity would hold a market 
share equal or larger than 30%. 
 
If market is defined nationwide:  
In the overall wholesale leased lines market  
TMA: [0-5]% (revenues) 
UPC: [0-5]% (revenues) 
 In the potential segment for wholesale trunk 
segments 
TMA: [10-20]% (revenues) UPC: [0-5]% (revenues)  
 
In the potential segment for wholesale terminating segments: 
TMA: [0-5]% (revenues) 
UPC: [0-5]% (revenues)  
In the potential segment for terminating leased 
lines with bandwidth above 2 Mbps: TMA: [0-5]% (revenues)  
UPC: [0-5]% (revenues) 
 In the potential segment for terminating leased 
lines with bandwidth equal and below 2 Mbps: 
TMA: [0-5]% (revenues)  
UPC: [0-5]% (revenues) 
 In the potential segment for terminating leased 
lines with bandwidth above 10 Mbps  
TMA: [0-5]% (revenues) UPC: [0-5]% (revenues) 
 
In the potential segment for terminating leased lines with bandwidth equal and below 10 
Mbps:  
UPC: [0-5]% (revenues) TMA: [0-5]% (revenues) 
 
In the potential segment for passive infrastructure (dark fibre): 
UPC: [0-5]% (revenues) 
TMA: [0-5]% (revenues)  
In the potential segment of active infrastructure 
(traditional managed leased lines and Ethernet 
services with guaranteed bandwidth): 
UPC: [0-5]% (revenues) TMA:
 [0-5]% (revenues)  Retail supply of mobile 
telecommunication services 
TMA: [20-30]% (subscribers) 
UPC:  [0-5]% (subscribers) 
 
Retail home internet access services 
market 
including both fixed and mobile connections in 
Austria: 
TMA: [10-20]% 
UPC:  [10-20]% 
 
including fixed but excluding mobile 
connections: TMA: <[0-5]% 
UPC: [20-30]% (subscribers)
 
Retail business connectivity market 
TMA: not active 
UPC: [0-5]% (on the overall Austrian retail 
market for business connectivity services); 
below 20% (in potential segments)  
Retail fixed telephony services 
TMA: not active 
UPC: [10-20]%  
Wholesale broadband access services 
market 
TMA: not active 
UPC: <[0-5]%  
Wholesale access and call origination 
services on mobile network 
TMA:[70-80]% (revenues) 
UPC: not active  
 
65  
(324)  In addition to the links displayed in the table above, the Transaction gives rise 
to a number of further vert ically affected markets: 
(I) the upstream wholesale markets for international roaming services in 
Member States (other than Austria) in  which DTAG offers such services and 
the downstream retail market for mob ile telecommunications services in 
Austria (where UPC is active); 
(II) the upstream wholesale markets for call termination services respectively 
on TMA's mobile network in Austri a and on DTAG's mobile networks 
(outside Austria), and both (i) the downstream retail market for mobile 
telecommunications services in Austria (where UPC is active) and (ii) the 
downstream retail market for fixed tele communications services in Austria 
(where UPC is active); 
(III) the upstream wholesale market for call termination services on UPC's 
mobile network and (i ) the downstream retail  market for mobile 
telecommunications services in Austri a (where TMA is active), (ii) the 
downstream retail markets for mobile  telecommunications services in 
Member States where DTAG is active, a nd (iii) the downstream retail markets 
for fixed telecommunications services  in Member States where DTAG is 
active; 
(IV) the upstream wholesale markets for call termination services respectively 
on TMA's fixed network in Austria and on DTAG's fixed networks (outside 
Austria), and both (i) the downst ream retail market for mobile 
telecommunications services in Austria (where UPC is active) and (ii) the 
downstream retail market for fixed tele communications services in Austria 
(where UPC is active); 
(V) the upstream wholesale market fo r call termination services on UPC's 
fixed network and (i) the downstr eam retail market for mobile 
telecommunications services in Austri a (where TMA is active), (ii) the 
downstream retail markets for mobile  telecommunications services in 
Member States where DTAG is active, a nd (iii) the downstream retail markets 
for fixed telecommunications services  in Member States where DTAG is 
active; 
(VI) the downstream wholesale market fo r end-to-end calls in Austria (where 
UPC is active) and (i) the upstream w holesale markets for call termination 
services respectively on TMA's mobile  network in Austria and on DTAG's 
mobile networks (outside Austria), a nd (ii) the upstream wholesale markets 
for call termination servi ces respectively on TMA's fixed network in Austria 
and on DTAG's fixed networ ks (outside Austria). 
(325)  The Notifying Party submits that the markets mentioned in the previous 
paragraph are only technically verti cally affected, implying that the 
Transaction cannot raise any competitio n concerns. The mentioned wholesale 
markets are regulated under the EU tel ecommunications rules, in order to 
prevent any foreclosure or anticompetitive discrimination. According to the Notifying Party, the Commission has alr eady recognised this as a relevant 
66 factor in several past decisions. Furthe rmore, some of the vertical links are 
due to the international activities of DTAG that would not be materially 
impacted by the Transaction. 
(326)  The Commission notes that no complaint has been received regarding the 
vertical relationships indicated in pr evious paragraph (324). Given the low 
increment brought by the Tran saction in the downstream  markets, as well as 
the fact that the upstream markets are extensively regulated,166 the 
Commission considers that the Transac tion does not raise se rious doubts as to 
its compatibility with the internal market  as regards the vertical relationships 
mentioned in paragraph (324) .  
4.3.1.  Wholesale access and call origination services on mobile networks  
(327)  In Austria there are three MNOs, whic h are currently providing wholesale 
access and call origination  services on mobile networks (TMA, A1 and H3A). 
On the market for wholesale access and call origination services only TMA, 
and not UPC, is active (with a mark et share of [70- 80]% in terms of 
subscribers and [80-90]% in terms of revenues). 
4.3.1.1.  The Notifying Party's views 
(328)  The Notifying Party submits that the Transaction will not lead to any input or 
customer foreclosure concerns since: 
i. the structure of the Austrian market for wholesale access and call 
origination on mobile networks would not be affected by the Transaction 
as it will not reduce the number of M NOs that provide wholesale access to 
MVNOs in Austria; 
ii. market shares in the wholesale market  for access and call  origination on 
mobile networks would not be informative, as they can be subject to large variations, should a large wholesal e customer switch its host MNO. 
TMA's current relevant position on the Austrian market for wholesale 
access and call origination on mobile networks merely results from the fact that TMA hosts HoT, the by far largest Austrian MVNO; 
iii. TMA would not have the ability to  foreclose MVNOs from wholesale 
access and call origination on mobile networks in Austria because any 
MVNO could obtain wholesale acce ss to H3A's and A1's mobile 
                                                 
166  Commission decision of 1 September 2016 in case M.7758, Hutchinson 3G Italy / Wind / JV , 
recitals 218 to 226. With respect to the market for international roaming services, see Regulation (EU) 
No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming on public mobile communications network within the Union (OJ 2012 L 172/10), last amended by Regulation 
(EU) 2017/920 of the European Parliament and of the Council of 17 May 2017 (OJ 2017 
L 147/1).With respect to the wholesale market for call termination on mobile networks in Austria, see: 
with regard to TMA's mobile network, RTR Decision of 30 September 2013, M 1.10/12-100, as 
amended by RTR Decision of 21 December 2015, M 1.1/15-47; in respect of UPC's mobile core 
network, see RTR Decision of 15 June 2015, M 1/14-50, as amended by RTR Decision of 21 December 2015, M 1.1/15-51. With respect to the wholesale market for call termination on fixed 
networks in Austria, see: with regard to UPC's fixed network, see RTR Decision of 
30 September 2013, M 1.8/2012-176, as amended by  RTR Decision of 21 December 2015, M 1.2/15-
70; in respect of TMA's hypothetical fixed network, see RTR Decision of 30 September 2013, 
M 1.8/2012-174, as amended by RTR Decision of 21 December 2015, M 1.2/15-68. 
67 networks. Furthermore, H3A would ev en be legally obliged, on the basis 
of the commitment which H3A had offered in the Hutchison 3G 
Austria/Orange Austria  case167, to grant wholesale access to H3A's mobile 
network; 
iv. TMA would not have any incentive to  foreclose MVNOs from wholesale 
access and call origination on mobile ne tworks in Austria, as wholesale 
revenues achieved with MVNOs – in pa rticular with HoT – account for an 
important share of TMA's revenues. Moreover, the MVNOs hosted on TMA's mobile network would overwhe lmingly target customer groups 
and segments which [confidential in formation about customer groups and 
segments targeted by TMA]. 
4.3.1.2.  The Commission's assessment 
a. Vertical link between wholesale mark et for access and call origination 
services on mobile network and retail supply of mobile 
telecommunications services 
(329)  The Commission considers that pre-Transaction, TMA's ability to foreclose 
MVNOs is limited despite its very high market share in the wholesale market 
for access and call origination services. As pointed out by the Notifying Party, 
there are two further potential host s for MVNOs, namely A1 and H3A. 
Moreover, until 2022 H3A is legally ob liged to grant wholesale access to 
H3A's mobile network at fixed rates (which are adapted to the prevailing market conditions), on the basis of the commitment which H3A had offered in 
the Hutchison 3G Austria/Orange Austria  case.
168 Moreover, internal 
documents submitted by the Notifying Pa rty suggest that MVNOs raise the 
possibility of switching to H3A. Moreove r, these documents suggest that the 
wholesale terms offered by TMA are internally discussed with reference to 
wholesale terms offered by H3A. 
(330)  The Commission notes that UPC is active in  the retail market of the supply of 
mobile telecommunications services through an MVNO agreement with H3A 
and therefore owns no mobile infrastructure. The merged entity's ability to engage in input foreclosure will therefor e not differ compared to that of TMA 
prior to the Transaction.  
(331)  Second, the Commission notes that ther e are no indications that TMA has 
engaged in any foreclosure strategy so fa r, which seems to indicate that before 
the merger it lacked the ability and/ or the incentive in that respect. 
Nevertheless, the Commission has as sessed whether, following the 
Transaction, the merged entity will have an (increased) incentive to engage in 
input foreclosure towards MVNOs incl uding those curren tly hosted on TMA's 
mobile network.
169 By engaging in input forecl osure either partially (by 
increasing the wholesale access and call or igination service prices or offering 
worse quality of service), or fully (b y no longer offering wholesale access and 
                                                 
167  Commission decision of 12 D ecember 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria . 
168  Commission decision of 12 D ecember 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria . 
169  TMA currently hosts a total of 9 MVNOs (correspondin g to 10 mobile brands), of which HoT is by far 
the largest (see Table 7A(3), page 175 of the Form CO). 
68 call origination services), the merged entity could trigger subscribers of the 
MVNOs hosted on TMA's mobile networ k to switch to other providers. Pre-
merger, TMA can be expected to have an incentive to engage in such a strategy if the increased retail prof it from MVNO subscribers switching to 
TMA more than compensates for the foregone TMA wholesale profit on the MVNO subscribers switching away. This trade-off depends crucially on what 
percentage of the various MVNO subs cribers would choose TMA as their 
alternative provider and how  TMA's wholesale profit margin relates to its 
retail profit margin. Ba sed on the observation that TMA does not currently 
engage in such a strategy it can be cons idered that the potential retail profits 
on recaptured subscribers pre-Transaction would not exceed the foregone profits on the corresponding whol esale access towa rds the MVNOs.
170     
(332)  The Commission notes that, first, UPC is not active on the wholesale market 
for access and call origination services on mobile networks in Austria and 
therefore no merger-specific change  to TMA's wholesale profit margins 
towards MVNOs is to be expected due to horizontal effects. Second, as concluded in Section 4.2.1, the Transaction is not expected to lead to higher prices, and therefore higher margins, in the retail mobile telecommunication services as a result of horizontal eff ects either. Therefor e, the only potential 
difference in incentives to engage in input foreclosure for the merged entity 
compared to TMA pre-Transaction relates to the fact that the merged entity 
would recapture not only MVNO subs cribers switching to TMA but also 
those that would potentially switch to UPC. Given the marginal presence of 
UPC in the retail market for mobile telecommunication services in Austria ([0-5]%
171) the Commission concludes that th e merged entity's incentive to 
engage in input foreclosure would not be  appreciably higher compared to that 
of TMA pre-merger.172 Therefore, the Commission considers that the merged 
entity will have no incentive to e ngage in input foreclosure.  
(333)  The views of the respondents to the ma rket investigation are mixed with 
respect to the expected impact of the Transaction on  the business of 
MVNOs.173 The majority of respondents believe  that there will be no material 
change of price and/or other conditions of competition in the wholesale access 
and call origination market in Austria as  a result of the Transaction. However, 
the market investigation revealed mixe d views as to whether the Transaction 
will have an impact on the incentives of the merged entity to provide wholesale access. Similarly, there are mi xed views as to whether the incentive 
of A1 and H3A to grant wholesale acces s to their respectiv e networks will 
                                                 
170  As an illustrative example, the market share of Ho T, the largest MVNO hosted on TMA's network,  in 
the retail market for mobile telecommunication serv ices in Austria is currently [5-10]% whereas 
TMA's is [20-30]% (Form CO, Table 7A(4)(a), page 178). Assuming that all providers in this market 
are equally close competitors to each other and an y subscribers switching would be distributed to 
competing providers proportionally to their respective market shares, TMA would only recapture 
approximately [20-30]% of all HoT subscribers switching away. This means that TMA's retail margin 
would need to be roughly [3 to 5] times larger than its wholesale margin for input foreclosure to be profitable, which does not appear to be the case.  
171  See above paragraph (128).  
172  Whereas TMA could be expected to recapture ap proximately [20-30]% of HoT switchers, the merged 
entity could be expected to recapture approximately [20-30]% of those, and the wholesale margin of 
the merged entity would need to be approximately [3 to 5 times] the size of the retail margin for input foreclosure to be profitable, a marginal differ ence compared to TMA's stand-alone incentives.  
173  Questionnaire Q2, reply to question F.1.5. 
69 change.174 Finally, a majority of respondent s consider that the Transaction 
will have a negative impact on the abil ity of existing MVNOs to continue 
operating in Austria175 However, the Commission notes that the provided 
justifications do not suggest that this  would be caused by anti-competitive 
foreclosure as three respondents consider  that competition at  the retail level 
will become fiercer. The Commission therefore considers that results of the market investigation, although not entirel y consistent, seems to suggest that 
anti-competitive foreclosure on the w holesale market for access and call 
origination services is unlikely, consid ering that the few concerns expressed 
are either unsubstantiated or not merger-specific. 
(334)  In light of the analysis above, the Commission concludes the Transaction does 
not raise serious doubts as to its compatibility  with the intern al market with 
respect to the vertical relationship be tween the market for wholesale access 
and call origination on mobile network a nd the market for retail supply of 
mobile telecommunications services. 
b. Vertical link between wholesale mark et for access and call origination 
services on mobile networks and retail internet access services 
(335)  Wholesale access and call origination se rvices are also an input for the 
provision of retail (mobile) internet access services by MVNOs that do not have an own mobile infrastructure . During the Commission's market 
investigation one responde nt (Ventocom) raised the concern that following 
the Transaction, the merged entity would be likely to foreclose MVNOs from access to TMA's mobile infrastructure, w ith a view to protecting its position 
on the market for retail internet access services.
176 Further feedback from the 
market investigation also relevant for this assessment is set out in paragraph (333) above.  
(336)  In terms of ability, the Co mmission notes that the merged entity's ability to 
foreclose MVNOs from wholesale access on mobile networks is limited as these could be either hosted by H3A or by A1 (see above). In this respect the 
Commission recalls the finding that entry in the retail internet access services 
market is relatively easy (see Secti on 4.2.1). In particular, MVNOs have the 
ability to switch to H3A which is under an obligation to provide non-discriminatory access to its mobile  network under the commitments in 
case M.6497. 
(337)  In terms of incentive, the key question is whether, following the Transaction, 
the merged entity will have an (increased) incentive to engage in input foreclosure towards the MVNOs in view of its increased ma rket position in 
the downstream market due to the addition of UPC's retail internet access services customers. 
                                                 
174  Questionnaire Q2, reply to question F.3.1 and F.3.2 
175  Questionnaire Q2, reply to question F.4 and F.4.1. 
176  Ventocom also submitted that the Transaction would enable the merged entity to offer multiple play 
bundles which would create an incentive to foreclose Ventocom. The Commission’s assessment 
contained in paragraphs (335) to (340) applies e qually to multiple play bundles. In particular, the 
Commission notes that TMA’s mobile data services ar e not available with retail TV or fixed telephony 
services (paragraph (244)) suggesting that mobile broadband services may not be direct substitutes to 
those product bundles. 
70 (338)  In this respect the Commission notes that in its assessment of potential 
horizontal non-coordinated effects in the retail internet access services market (see Section 4.2.1) it reached the conclusi on that TMA and UPC are relatively 
distant competitors within this mark et. This was mainly based on an 
assessment of the closeness of competition between TMA's mobile cubes and UPC's fixed broadband offering. However,  more than [70-90]% of internet 
service subscribers of those MVNOs hosted by TMA use mobile data-only 
products other than mobile cubes that , if anything, are even more distant 
substitutes to UPC's fixed broadband offering than mobile cubes. Based on 
these findings, the Commission considers that if TMA were to foreclose access to its mobile network to the M VNOs hosted on it, the percentage of 
potential switchers that would divert to  UPC's internet access services on its 
fixed network would be very small. The Commission therefore concludes on 
this point that the Transaction would not  have an appreciable effect on the 
incentives of the merged entity, compared to those of TMA, to engage in input foreclosure of its mobile network for the downstream provision of retail 
internet access services by host MVNOs. 
(339)  In relation to the potential impact of foreclosing MVNOs on the retail market 
for internet access services, the Co mmission notes that currently the 
competitive position of MVNOs in the retail market of internet access services is very limited. When focusing on residential custom ers, according to 
data provided by the Notify ing Party the total market  share of all MVNOs was 
merely [0-5]% in 2017 (the market sh are of MVNOs is [0-5%] for business 
customers). It follows that the impact of potential input foreclosure on this 
market would not be significant.  
(340)  In light of the analysis above, the Co mmission concludes that the Transaction 
does not raise serious doubts as to its co mpatibility with the internal market 
with respect to the vertical relation ship between the market for wholesale 
access and call origination on mobile netw orks and the market of retail supply 
of internet access services. 
4.3.2.  Wholesale leased lines  
(341)  The wholesale leased lines market lies upstream from several downstream 
markets, as explained in paragraph (104). Since the upstream product of 
wholesale leased lines is basically th e same irrespective of the downstream 
market in which it is used, the analysis that follows holds true mutatis 
mutandis  for all these vertical links. 
4.3.2.1.  The Notifying Party's view  
(342)  The Notifying Party submits that the Tr ansaction will not lead to any input 
foreclosure with respect to  wholesale leased lines. 
If the wholesale market for leas ed lines is defined nationwide 
(343)  First, according to the Notifying Part y the merged entity will remain a 
negligible supplier of w holesale leased lines in Austria post-merger. The 
Parties' combined shares are low both in the overall Austrian market for wholesale leased lines (approximately [0 -5]%) as well as in all plausible sub-
segments thereof (see 3.1.5.3 above) and, hence, it is excluded that the 
71 merged entity would have the ability to foreclose customers, including other 
MNOs, from access to wholesale leased lines.  
(344)  Second, according to the No tifying Party there are an important number of 
suppliers of wholesale leas ed lines such as A1 and energy utility companies 
from which customers, including M NOs, can obtain access to wholesale 
leased lines. 
(345)  Third, according to the Notifying Party A1 is subject to access and price 
regulation with regard to the supply of wholesale terminating segments of 
leased lines (including dark fibre) in large pa rts of Austria with the exception 
of those product and geographic segmen ts where the TKK found the existence 
of a sufficient degree of competition and the absence of significant market power by any supplier. 
If the wholesale market for leased lin es is defined on th e level of communes 
(346)  According to the Notifying Party verti cal input foreclosure concerns would 
also not arise if one c onsidered hypothetical local  markets for wholesale 
terminating segments of leased lines at the level of communes. 
(347)  First, according to the Notifying Part y, amongst the communes in which UPC 
is currently supplying  wholesale terminating segmen ts of leased lines and/or 
has negotiated about wholesale leased lines with [name of third party] 
since 2014, there are no communes wher e UPC is the single supplier of 
wholesale terminating segm ents of leased lines or  where A1 and UPC would 
be the only two suppliers. Based on UPC's estimates, in approximately [30-40%]% of these communes there are two competitors in addition to UPC, in approximately [20-30%]% there are three additional competitors, in approximately [20-30%]% there are four additional competitors, and in approximately [20-30%]% there are five or more additional competitors. 
(348)  Second, in most of the communes in  which UPC is currently supplying 
wholesale terminating segments of leased lines
177 and/or has negotiated about 
access to wholesale terminating segments of leased lines with [name of third 
party] since 2014, A1 is subject to acce ss and price regulation with regard to 
wholesale terminating segments of leased  lines (including leased lines with 
traditional interfaces, Ethernet services with guaranteed bandwidth and dark 
fibre). Approximately 70% of these co mmunes are not include d in the list of 
359 communes of the TKK 2014 decision178 and approximately 64% of these 
communes are not included in the list of 355 co mmunes of the TKK 2018 
Draft Decision179. Consequently, alternative o ffers are available to any 
potential access seeker. 
(349)  Third, the merged entity also does not have any incentive to foreclose 
customers, including other MNOs, fr om access to wholesale terminating 
segments of leased lines. Accordin g to the Notifying Party TMA currently 
supplies wholesale leased lines and dark fibre to [name of third party] on the 
                                                 
177  Meaning that, at least one of the two ends of  the leased line is f ound in such a commune. 
178  TKK decision of 28 July 2014, M 1.5/2012-135. 
179  TKK draft Decision of 16 April 2018, M 1.8/15-61. 
72 basis of commercial conditions  regardless of the fact that TMA and [name of 
third party] are competitors on the retail market for mobile telecommunications services and th e Transaction does not alter TMA's 
incentives to supply wholesale leased lines and dark fibre to [name of third party] under commercial conditions.  
(350)  Finally, the Notifying Party submits that [n ame of third party] is in any event 
not dependent on access to UPC's wholesal e leased lines services for [purpose 
of wholesale access to leased lines] pur poses. In the scope of the negotiations 
between UPC and [name of third part y] which took place between April 2014 
and August 2017 UPC submitted offers for 221  sites to [name of third party] 
at attractive commercial conditions, however, [name of third party] only 
ordered Ethernet services for two s ites for testing purposes and for two 
additional sites. In August 2017, after [e vent in time], [nam e of third party] 
informed UPC that [name of third part y] does not intend to  order wholesale 
leased lines services for addi tional sites from UPC anymore. 
4.3.2.2.  The Commission's assessment 
(351)  During the market investigation, some respondents argued that the 
Transaction could raise competition conc erns in relation to the upstream 
market for wholesale leased lines servic es (and all plausible sub-segments of 
this product market) and (i) the dow nstream market of retail mobile 
telecommunications services and (ii) the downstream market of the retail 
internet access services market (but not with re gard to other relevant 
downstream markets as descri bed in paragraph (341)).  
(352)  One H3A raised concerns that leased  lines and dark fibre services are 
indispensable for mobile transmissi on purposes and that through the 
Transaction TMA will acquire one importa nt provider of such services, UPC, 
and will thus gain a significant comp etitive edge. According to H3A it will 
see its choice of infrastr ucture suppliers si gnificantly reduced as the merged 
entity, unlike UPC pre-merger,
180 will no longer have an interest in offering 
commercially attractive services […]. Th e same would apply to A1 which is 
already vertically integrated in area s where it is not regulated. This would 
have a negative impact on […] in the retail telecommunications market as 
well as in the retail internet acce ss market (“spill-over effects”).  
(353)  The Commission has carefully assessed this complaint and the competitive 
conditions in this sector. 
(354)  First, with respect to the prospect of  the Transaction having an appreciable 
effect on the merged entity's ability  to foreclose downstream competitors from 
the upstream input of wholesale leased  lines the Commission notes that the 
Parties' commercial activities in this wholesale leased lines market are currently extremely limited with insigni ficant markets shares at the national 
level. With regard to the trunk se gment the Commission notes that the 
                                                 
180  According to that MNO low-priced leased line (etherlink) prices offere d to date by UPC exerted 
competitive pressure in contract ne gotiations with other suppliers of fixed line access. This has led to 
prices with other vendors materially lower than  A1’s regulated prices. Hence, the de facto 
disappearance of UPC as a potential vendor for that MNO will damage H3A’s position for access to 
indispensable infrastructure. 
73 combined market shares of the Parties is low ([10-20]%) and the increment of 
[0-5]% very low and that there are at least ten other competitors present, among these the incumbent and market leader A1, as well as Tele2(H3A).
181 
At the commune level, based on a comp arison of data submitted by RTR and 
the Parties there exist only 24 communes182 where the merged entity would 
hold significant market shares (>30% ma rket share in terms of number of 
lines) in potential sub-segments of wholesale terminating segments of leased lines. However, those communes repres ent less than 3% of the Austrian 
population. 
(355)  The Commission also notes that in ma ny of those communes, A1 also has a 
strong presence and could provide acce ss to its wholesale terminating 
segments of leased lines. Specificall y, in 18 out of these 24 communes TKK 
found, in the 2014 Decision
183, that A1 had significant market power within 
the meaning of electronic communications  regulation in the wholesale leased 
lines market. Consequently, in those co mmunes A1 is subject to access and 
price regulation with regard to wholesal e terminating segments of leased lines 
(including leased lines w ith traditional interfaces, Ethernet services with 
guaranteed bandwidth and dark fibre) wh ich have at least one end in these 
communes, bringing the percentage of  the Austrian population living in a 
commune where foreclosure might be a hypothetical possibili ty down to less 
than 0.04%. 
(356)  In the remaining 6 communes, TKK found that there is sufficient competition 
so that wholesale regulation would not be necessary. This in turn suggests that the Parties' ability to foreclose is likely limited, even after the Transaction. 
(357)  Furthermore, the Transaction is unlikely to have an appreciable effect on the 
merged entity's ability to foreclos e downstream competitors for similar 
reasons to those for which the Transac tion would not lead to anti-competitive 
horizontal effects on the market for whol esale leased lines (see Section 4.3.2). 
(358)  Second, with respect to the prospect of  the Transaction having an appreciable 
effect on the merged entity's incentive  to foreclose downstream competitors 
from the upstream input of wholesale leased lines the Commission notes that 
such an incentive would be limited. Indeed, on national as well as on 
commune level there are other competit ors present to which customers could 
easily switch to. These include the incu mbent A1, who is subject to access 
and price regulation with re gard to wholesale terminating segments of leased 
lines (including leased lines with traditio nal interfaces, Ethernet services with 
guaranteed bandwidth and dark fibre) in  large parts of Austria and in the 
majority of the communes listed in paragraphs (354) and (355) above. 
(359)  Third, even if the merged entity were assumed to have an incentive to engage 
in input foreclosure the Commi ssion considers that the likely impact  on 
effective competition in the relevant downstream markets would be 
                                                 
181  Based on data of RTR submission of 3 July 2018.  
182  This assumes a segmentation of the guaranteed bandwidth at 10 Mbit/s. See Footnote 62. The results 
would be similar and hence the same reasoning would apply if a segmentation of the guaranteed 
bandwidth at 2 Mbit/s were applied.  
183  TKK Decision of 28 July 2014, M 1.5/2012-125, sections 2.1.1. and 2.1.2. 
74 insignificant. All the relevant markets that are downstream to the wholesale 
leased lines market are national in scope. Hence, the Commission considers 
that any foreclosure strategy affecting at most a tiny share of the Austrian 
population would be incapable of leading to an appreciable increase of the costs of downstream products and hen ce there would be no upwards pricing 
pressure on their sales prices.  
(360)  Fourth, during its market investig ation the Commission found no evidence 
undermining any of the points put forward by the Parties in paragraph
s (342)  
until  (350)  above, which the Commission cons iders valid and relevant.  
(361)  Fifth, the fact that according to the No tifying Party [name of third party] only 
procures Ethernet services  for [0-5] sites and has informed UPC that it does 
not intend to order wholesale leased lin es services for a dditional sites from 
UPC anymore demonstrates that [name of third party] is not dependent on 
wholesale access to leased lines from UP C in order to be able to provide its 
retail telecommunications and retail internet access services in Austria.184 This 
limits any potential impact from a possi ble foreclosure strategy of the merged 
entity. In addition, [name of third party]  appears to rely in many instances on 
microwave connections for mobile bac khauling purposes. The possibility to 
rely on microwave technology instead of fi xed infrastructure in the form of 
leased lines further limits any potential  impact from hypothetical foreclosure. 
(362)  Finally, other respondents to the market  investigation than [name of third 
party] did not raise specific vertical foreclosure concerns.185 No respondent to 
the market investigation (except for [nam e of third party]) indicated that post 
transaction (i) MNOs will not have whol esale access to UPC's leased lines at 
similar conditions as those today or (ii) that A1's access conditions will 
deteriorate post Transaction.186 In contrast, two respondents indicated that 
(i) MNOs will not have wholesale access to UPC's leased lines at similar 
conditions as those today and (ii) two respondents indicated that A1's access 
conditions will either remain more or  less the same or will even improve.187 
4.3.2.3.  Conclusion 
(363)  In light of the analysis above, the Co mmission concludes that the Transaction 
does not raise serious doubts as to its co mpatibility with the internal market 
with respect to the vertical relation ship between the market for wholesale 
access to leased lines a nd the relevant downstream markets mentioned in 
paragraph (341) above. 
4.4. Assessment of conglomerate e ffects: Multiple-play bundles 
(364)  TMA's services in the market(s) for reta il mobile telecommunications services 
and UPC's services in the markets for fixed telecommunications services are 
                                                 
184  According to the Notifying Party's information even though UPC and [confidential information about 
the customer relationship between UPC and the third party]. 
185  Two respondents to the market investigation we re generally pointing to the fact that a further 
concentration in the market for wholesale leased lines would not be beneficial to competition since 
prices may increase, Questionnaire Q6, Se ction C. Impact of the Transactions. 
186  Replies to Questionnaire Q6, Section B. .C.2, B.C.3. 
187  Replies to Questionnaire Q6, Section B. .C.2, B.C.3. 
75 complementary or at least closely re lated. Accordingly, the Commission has 
examined whether the Transaction would give rise to conglomerate effects by 
foreclosing competitors in the retail market for mobile telecommunications services, the retail market for fixed telephony services, the retail market for 
internet access services, the retail mark et for fixed telephony services and/or a 
potential market for multiple-play bundles with mobile and fixed components. 
(365)  According to the Commission's Guidelines on the assessment of Non-
horizontal Merger Guidelines,
188 conglomerate effects require (a) the ability to 
foreclose, (b) the incentives to fo reclose and (c) the likelihood that a 
foreclosure strategy would have a significant detrimental effect on 
competition and harm consumers. In order to be taken into account, any conglomerate effect must be merger  specific. In other words, the 
conglomerate effect must result from TMA's acquisition of UPC. 
4.4.1.  The Notifying Party's views 
(366)  The Notifying Party submits that the Tr ansaction does not raise any concerns 
with regard to a hypothetical market for multiple-play services in Austria. 
(367)  First of all, as TMA is essentially no t active on such a hypothetical market, 
the Parties' activities do not overlap. 
(368)  According to the Notifying Party, the Transaction will establish a third fixed-
mobile operator which owns fixed and mobile infrastructure and will be able to offer a broad range of fixed and m obile telecommunicatio ns services (fixed 
telephony, fixed internet, cable TV and mobile telecommunications) to 
business and private customers in Austria. As such, TMA/UPC will be able to compete with the incumbent A1 and with H3A in an increasingly convergent market environment. 
(369)  The significant market share detained by UPC in the triple play segment is not 
very informative, because of the interaction between the different bundles. In 
any event, the market shares of the indi vidual services included in a multiple-
play offering are much more informativ e than shares of hypo thetical segments 
for multiple-play services and show that  (i) the merged entity's estimated 
market shares do not exceed 30% on any of the four retail markets for the 
single components of multiple-play services  and (ii) A1 is the clear market 
leader in the area of fixed and mobile telecommunications services in Austria, 
including in the field of multiple-play services. 
(370)  In any case, the Notifying Party submits that the Transaction will neither 
create nor increase the merged entity's ability or incentive to engage in practices which result in anticompetit ive foreclosure of competitors: 
- the Transaction will neither create no r increase the merged entity's ability 
or incentive to offer fixed-mobile multiple-play services, because (i) UPC is already active as fixed a nd mobile provider and therefore is 
already in a position to sell both fixe d and mobile services as well as 
fixed-mobile multiple-play services regardless of the Transaction, and 
                                                 
188  Non-horizontal Merger Guidelines, paragraph 91 onwards. 
76 (ii) UPC's position on the retail fixed markets will remain substantially 
unchanged, as TMA is not active on any of these markets; 
- there will not be any incentive to increase price of fixed services to 
cross-subsidize a mobile component in fixed-mobile bundles, because (i) the demand for fixed-mobile bundles is still underdeveloped in 
Austria and therefore customers w ould switch to another provider of 
fixed products, and (ii) A1 and othe r providers of fixed services would 
have strong incentives to undermine a ny hypothetical strategy to increase 
prices for fixed services by continuing to compete aggressively for standalone fixed customers; 
- as a counterstrategy, mobile-only oper ators could decide to launch fixed-
mobile multiple-play services on the basis of A1's regulated wholesale 
access services to engage in bundle-to-bundle competition; 
- more than 50% of Austrian TV hous eholds have satellite connections 
and do not usually purchase TV se rvices in a bundle  with mobile 
telecommunications services. Conseque ntly, there is a large customer 
base in Austria which is not interested in purchasing TV services in a bundle with mobile teleco mmunications services; 
- outside the UPC footprint, the merged  entity will not be in a position to 
offer fixed-mobile multiple-play services on the basis of UPC's cable network; 
- fixed-mobile convergence is still at a nascent stage in Austria compared 
to other Member States. 
(371)  The Notifying Party concludes that the Transaction does not give rise to 
anticompetitive conglomerate effects. On  the contrary, the merged entity's 
ability to offer fixed-mobile multiple-play services is pro-competitive. 
4.4.2.  The Commission's assessment 
(372)  The Commission has assessed the likely  impact of the Transaction on the 
merged entity's ability and incentive to engage in practices related to multiple play bundles which would result in anticompetitive foreclosure of competitors in the retail market for mobile tel ecommunications services, in the retail 
market for fixed telephony services, in the retail market for internet access services, the retail market for fixed te lephony services and/ or in a potential 
market for multiple-play bundles with mobile and fixed components.. 
(373)  Some participants to the market investigation have expressed concerns with 
respect to the possibility for the merged  entity to foreclose mobile operators 
by offering multiple play bundles. 
(374)  Ventocom submits that the Transaction will enable TMA to market multiple 
play products and consequently to leve rage its market power in the mobile 
area to the fixed services markets, with  a consequential "lock in" effect for 
subscribers, in particular also with re spect to bundles of residential broadband 
and mobile. That would be detrimental for MVNOs which cannot offer bundles (for lacking access to re sidential broadband market). 
77 (375)  Similarly, H3A submits that the Transaction can have exclusionary effects, as 
it will create a symmetri c duopoly (A1/TMA-UPC) of two incumbents with 
market power in the retail markets of both fixed and mobile telecommunications services. According to H3A, the two incumbents will pursue a fixed-mobile convergence (FMC ) strategy with th e intention and 
effect of marginalising mobile-only players […]. H3A submits that the 
merged entity will have […]. 
(376)  A1 also submits that the merged enti ty could leverage the strong market 
position in the fixed broadband segm ent to other business areas, and 
ultimately increase prices in such areas as well. In particular, the combination of UPC with TMA as a strong mobile provider would enable the merged 
entity to expand and secure UPC’s existing strong position through the offering of bundled (fixed and mobile) products. 
(377)  Another respondent to the market inve stigation argues th at following the 
Transaction the merged entity would be able to provide stronger multiple play 
offers which would further strengthen its position and attr act customers from 
mobile operators.
189 Other respondents pointed to negative effects because of 
the reinforcement of TMA and the abil ity of the merged entity to offer 
fixed/mobile products. 
(378)  The Commission has assessed whether the me rged entity could be able to use 
its market power in one market to for eclose competitors in another market by 
bundling fixed and mobile produc ts after the Transaction. 
(379)  As regards the ability to engage in bundling, the Commissi on notes that UPC 
is currently able to offer fixed- mobile bundles, by relying on an MVNO 
agreement. As such, one of the Parties already has prior to the Transaction the 
ability to engage in bundling. The Transa ction will allow the merged entity to 
offer fixed-mobile bundles that are base d on its own fixed and mobile network 
infrastructure. 
(380)  As regards the ability to foreclose rivals, the new entity must have a 
significant degree of market power in at  least one of the concerned markets. 
That is, at least one of the merging pa rties' products must  be viewed by many 
customers as particularly important  and there must be few relevant 
alternatives for that product.190 
(381)  With respect to the market for retail mobile telecommunications services in 
Austria, the merged entity's market share will be below 30%, which can be 
seen as a first indication of the lack of  market power. Moreover, there are at 
least two significant competitors with  comparable market position (A1 and 
H3A). The Commission is therefore of th e view that based on its position in 
the retail mobile market, it is unlikely that after the Transaction the merged 
entity will have the ability to leverage  its position in the retail mobile market 
into the retail market fo r fixed telephony services, the retail market for 
internet access services, the retail market  for TV and/or in a potential market 
for multiple-play bundles with mobile and fixed components. 
                                                 
189  Questionnaire Q2, reply to question F.1.1.1. 
190  Non-horizontal Merger Guidelines, paragraph 99. 
78 (382)  Similarly, the merged entity's estimated market shares will not exceed 30% on 
any of the three retail market s for the single fixed components.191 With 
respect to dual play offers, current ly UPC has a limited market share of 
[10-20]% in the fixed Internet and TV  segment and [10-20]% in the fixed 
internet and fixed telephony segment. 
(383)  The only potential market where UPC has a sizable market share is the fixed 
triple play offers (internet, telephony and TV), where it has an estimated share 
of [50-60]%. However, the Commission not es that customers in Austria have 
relevant alternatives in the TV mark et: triple play bundles including TV 
represent just about 15% of  the total TV households in Austria. Satellite TV 
connections are common in Austria and satellite customers do not normally 
buy fixed triple play bundles. Furthermor e, triple bundles are offered by A1, 
which is also the market leader in th e single components,  and by other fixed 
operators active at local level. More over, irrespectivel y of the market 
definition, fixed triple play products can be substituted by the included components. For example, instead of a fixed triple play product, customers could buy separately TV and fixed inte rnet/telephony. Therefore, the merged 
entity will not enjoy a strong enough posit ion even in this sp ecific segment to 
foreclose in the adjacent markets. 
(384)  In any case, the Commission has also a ssessed whether the merged entity will 
have an incentive to engage in bundli ng of fixed and mob ile services to 
foreclose mobile-only rivals from e ffectively competing for customers who 
purchase both fixed and mobile services. 
(385)  After the Transaction, the merged entity might have an incentive to introduce 
a price-discrimination strategy consisting of somewhat increasing the price of 
the standalone products and/or to lo wer the price of fi xed-mobile bundles.
192  
(386)  However, as regards the incentive for the merged entity to increase the price 
of the standalone fixed components af ter the Transaction, in light of the 
merged entity's market position in the relevant markets (see paragraphs (381) - (383)) and the fact that many consumers in Austria still su bscribe separately 
to fixed and mobile products, in particular the incentives to increase the prices of the standalone products are limited.
193 In this regard, in particular A1 
enjoys a strong market position and o ffers alternative fixed and mobile 
products. The incentives are further mitig ated by the fact that the merged 
entity will have a fixed cable infrastr ucture that covers only about [30-40]% 
of the Austrian households and hence ca nnot rely on this infrastructure to 
offer fixed and mobile bundles in large pa rts of Austria. As  regards the claim 
that low churn rates for bundles would al low the merged entity to raise price, 
                                                 
191  The retail market for fixed telephony services, th e retail market for internet access services and the 
retail TV distribution market.  
192  Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , 
recital 625. The Commission considers that that the merged entity will have no incentive to 
"subsidize" mobile-only products, offering such produ cts at a price below aver age variable costs or 
average total costs. Such a predator y strategy cannot be expected to i nduce H3A to leave the market as 
H3A is a well-established market participant and ther e are no indications that it would suffer from any 
liquidity constraints.  
193  In light of this the Commission also considers that the merged entity will have no incentive to engage 
in pure bundling, that is, to exclusively offer fixed-mobile bundles. 
79 the Commission notes that churn rates ma y well increase if prices of bundles 
were increased.  
(387)  As a result of this price discrimina tion strategy, customers who buy fixed and 
mobile products separately could incur an increase in their total cost of ownership while customers who opt into the bundle could be better-off. 
However, unless it has the (intende d or unintended) consequence of 
marginalising mobile-only competitors, price discrimination is unlikely to have significant anticompetitive effects.  
(388)  As for the possible impact on mobile- only operators, it appears that only 
relatively few customers currently use fixed-mobile bundles
194 and a 
significant demand for mobile-only pr oducts will remain on the market. 
Moreover, any potential impact of such price discrimination strategy is further 
mitigated (i) by the ability of mobile-only operators to respond by lowering the price of the mobile component, and (ii) by the possibili ty for mobile-only 
operators to start offering fixed/mob ile bundles (possibly including hybrid 
products) based on A1's regulat ed fixed wholesale offer. 
(389)  It can be added that H3A is not a pure  mobile operator, as in November 2017 
H3A completed the acquisition of Tele2's Austrian unit, active as provider of 
fixed telecommunications services mainly  to business customers in Austria. 
H3A itself has publicly announced that afte r the consolidation, it plans to roll 
out new offers of complete telecomm unication and IT, as well as innovative 
bundles for its residential customers.
195 
(390)  Based on the above, the Commission cons iders that the Transaction may only 
confer to the merged entity a limited ab ility (if any) to leverage its market 
position in the fixed triple play market  to foreclose mobile competitors. The 
Commission does not consider that th e Transaction would confer to the 
merged entity the ability to impact the market share of mobile-only players to 
such an extent that they would be marginalised or entirely foreclosed. 
(391)  The Transaction might accelerate the trend towards fixed-mobile 
convergence. By joining a strong fixed o ffer with a strong mobile offer, the 
Transaction could somewhat speed up the uptake of fixed-mobile bundles. 
However, the Commission considers th at even where customers would be 
converted more rapidly into fixed-m obile bundles, this does not in itself 
undermine the ability of mobile-only co mpetitors to effectively compete for 
customers. 
(392)  As for the concerns regarding coordina tion between the merged entity and A1 
with respect to fixed-mobile bundl es, leading to higher prices, the 
Commission considers that there is no in creased risk of stable coordination 
emerging post-Transaction. 
                                                 
194  The Notifying Party mentions a market study of 2017 by Inform a/Ovum in accordance to which only 
2% of fixed broadband services customers purchase those services as part of a bundle including mobile 
voice. 
195  See https://www.telegeography.com/products/commsu pdate/articles/2017/11/09/hutchison-drei-
completes-takeover-of-tele2-austria/ ,  
80 (393)  Given that at present TMA in not active in this market, the Transaction will 
not decrease the number of providers th at offer a full range of bundles. There 
are also no indications that coordination with the merged entity would be materially easier than with UPC pre-Tr ansaction. In any case, the Commission 
has already analysed a possible scenario  of coordination for the home internet 
access services market in paragraphs (283) to (302) and has concluded that there is not sufficient evidence to find th at the Transaction would give rise to 
serious doubts as a result of coordinate d effects on that market. Most of the 
observations made in this respect are valid for multiple-play bundles as well. 
It can be added that that the number of multiple play bundles is currently increasing and that multiple play bundl es are more complex products than the 
included components, which also ma kes coordination more difficult.
196 The 
Commission hence draws the conclusion that the Transaction does not give 
rise to serious doubts as a result of coordinated effects with respect to 
multiple-play bundles.  
4.4.2.1.  Conclusion on conglomerate effects 
(394)  Based on the above considerations, the Commission is of the view that the 
Transaction does not give ri se to serious doubts as to its compatibility with the 
internal market in relation to anti- competitive conglomerate effects. In 
particular, the Commission considers that  the Transaction would not lead to 
the marginalisation of mobile-only rivals.  
5. CONCLUSION  
(395)  For the above reasons, the European Commission has decided not to oppose 
the notified operation and to declare it compatible with the internal market and with the EEA Agreement. This d ecision is adopted in application of 
Article 6(1)(b) of the Merger Re gulation and Article 57 of the EEA 
Agreement. 
For the Commission 
 (Signed)  Margrethe VESTAGER Member of the Commission 
                                                 
196  Horizontal Merger Guidelines, paragraph 45.