EUROPEAN COMMISSION C(2018) 4451 final PUBLIC VERSION





To the notifying parties: Dear Sir or Madam, Subject:Case M.8894 – ACS / HOCHTIEF / ATLANTIA / ABERTIS INFRAESTRUCTURAS

Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/2004 and Article 57 of the Agreement on the European Economic Area



1.The parties 1.1.Atlantia 1.1.1.Atlantia's activities 1.1.2.Control over Atlantia and Autogrill 1.2.ACS 1.2.1.ACS' activities 1.2.2.Control over Hochtief 1.3.Abertis 1.3.1.Abertis' activities 1.3.2.Control over Areamed 2.The operation and the concentration

2.1.Joint Control 2.2.Full-Functionality 3.EU DIMENSION 4.Market Definition 4.1.Toll Motorway Concessions 4.1.1.The grant of toll motorway concessions 4.1.2.Transport on toll motorways 4.2.Provision of electronic toll systems (ETS)/distribution of on-board units (OBE) 4.2.1.Regulatory framework 4.2.2.Product market definition 4.2.3.Geographic market 4.2.4.Conclusion on market definition 4.3.Provision of equipment and/or services for electronic toll collection (ETC)/intelligent transport systems (ITS) 4.3.1.Regulatory framework 4.3.2.Product market definition 4.3.3.Geographic market 4.3.4.Conclusion on market definition 4.4.The construction of infrastructure 4.4.1.Regulatory framework 4.4.2.Product market definition

4.4.3.Geographic market 4.4.4.Conclusion on market definition 4.5.Food services concessions 4.5.1.Regulatory framework 4.5.2.The grant of food services sub-concessions on motorway services areas 4.5.3.The provision of concession food services on motorway service areas 5.Competitive assessment 5.1.Horizontal effects 5.1.1.The grant of toll motorway concessions 5.1.2.Transport on toll motorways 5.1.3.Provision of ETS/distribution of OBE 5.1.4.Provision of equipment or services for ETC/ITS 5.1.5.The provision of concession food services on motorway service areas 5.1.6.The Construction of infrastructure 5.2.Vertical effects 5.2.1.Legal framework 5.2.2.Overview of the vertically affected markets 5.2.3.The provision of ETS/distribution of OBE and the grant of toll motorways concessions 5.2.4.The provision of equipment or services for ETC/ITS and the grant of toll motorway concessions. 5.2.5.The provision of ETC/ITS equipment or services and the provision of ETS/distribution of OBE

5.2.6.The grant of food services sub-concessions and the provision of concession food services on motorway service areas 5.2.7.The Construction of infrastructure and the grant of toll motorway concessions 6.Conclusion



(1)On 1 June 2018, the European Commission received notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Atlantia S.p.A. ("Atlantia", Italy) and ACS Actividades de Construcción y Servicios, S.A. ("ACS", Spain), together with its controlled company HOCHTIEF AG ("Hochtief", Germany) acquire within the meaning of Articles 3(1)(b) and 3(4) of the Merger Regulation joint control over Abertis Infraestructuras, S.A. ("Abertis", Spain) by way of acquisition of shares (the "Transaction"). Atlantia, ACS/Hochtief and Abertis are collectively designated hereinafter as "the Parties" 1.The parties 1.1.Atlantia 1.1.1.Atlantia's activities (2)Atlantia is a holding company mainly active in the toll motorway concessions and airport infrastructure sectors. With regard to toll motorway management in the EU, Atlantia is active in Italy, through in particular Autostrade per l'Italia S.p.A ("ASPI"), and more marginally in Poland, through Stalexport Autostrada Malopolska. In addition, Atlantia operates electronic toll systems (ETS) through Telepass S.p.A. (“Telepass”) and is active in the provision of intelligent transport systems (ITS) through Autostrade Tech. Finally, Atlantia provides construction and maintenance works, through Pavimental S.p.A. ("Pavimental"), and engineering services, through Spea Engineering S.p.A. ("Spea"). Both companies mainly operate on an intra-group basis. 1.1.2.Control over Atlantia and Autogrill (3)Atlantia's main shareholder is Edizione S.r.L ("Edizione"), via Sintonia S.p.A. with a participation of 30.25% of Atlantia’s issued capital. Edizione is an Italian holding company that belongs to the Benetton family, which notably controls Autogrill S.p.A. ("Autogrill"), a company active in the provision of concession food services to travellers, mostly on motorways. (4)The Commission recently affirmed that in view of Atlantia’s shareholding structure and in the absence of specific rights attached to it, Edizione has not “de jure sole control over Atlantia” and that “considering the past and expected attendance rates at Atlantia's shareholders' meetings (approximately 80%), the level of Edizione's stake in Atlantia is insufficient to conclude that Edizione will have the absolute majority of the votes at Atlantia's shareholders' meetings”. However, in the light of additional factors, the Commission could not rule out that Edizione exercises de facto sole control over Atlantia and, therefore, that Atlantia and Autogrill belong to the same group. (5)ACS and Atlantia submit that no changes in the corporate structure and/or decision-making process have taken place since Atlantia's previous notification of case M.8536 – Atlantia/Abertis Infraestructuras. (6)For the purpose of this Decision, the question of whether Edizione controls Atlantia can be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market even considering that Atlantia is an active player, through Autogrill, for food services concessions. 1.2.ACS 1.2.1.ACS' activities (7)ACS is a group of companies active in construction and services activities. ACS' activities are divided into three business areas: (i) construction, (ii) industrial services and (iii) other services. (8)Hochtief carries out infrastructure development and building projects in the transport, energy and social and urban infrastructure sectors, as well as mining activities, public-private partnerships (PPP) and other services. In addition to Hochtief, ACS carries out construction projects through Dragados, S.A. ("Dragados") and is active in the concession business through Iridium Concesiones de Infraestructuras, S.A. ("Iridium"). 1.2.2.Control over Hochtief (9)Currently, ACS holds a stake of 71.72% in Hochtief and there has not been any material change in Hochtief's corporate governance since ACS acquired sole control over Hochtief in 2011 and, most importantly, since the Commission approved Abertis' potential acquisition by Hochtief.

(10)Post-Transaction, and as explained in section 2 below, as part of the financing of the takeover of Abertis, Atlantia will ultimately acquire the new shares that Hochtief will issue through a capital increase and that will represent a minority shareholding in Hochtief of up to 24.1%, while ACS will continue to hold no less than 50% plus one share of Hochtief's entire share capital. ACS will therefore continue to have a majority of the voting shares represented at general shareholders’ meetings, and will therefore be able to pass or reject the resolutions that require a simple majority of votes cast, including the election of shareholders’ representatives in Hochtief’s Supervisory Board. Atlantia will have customary minority protection rights. As a consequence, there will be no veto rights allowing Atlantia to exercise joint control over Hochtief. (11)ACS will therefore continue to exercise sole control over Hochtief post-Transaction within the meaning of the Merger Regulation. 1.3.Abertis 1.3.1.Abertis' activities (12)Abertis is the parent company of a group operating mostly in the toll roads and telecommunications infrastructure sectors. With regard to toll motorway management in the EU, Abertis is mainly active in the management of toll motorways in Spain (mainly through Acesa, Aumar, Avasa, Iberpistas, Aucat and Invicat among others), in France (through Sanef, including SAPN), and to a lesser extent in Italy (through the A4 Holding - Autostrada Brescia-Padova). (13)Abertis also owns a 50% stake in Areamed 2000 S.A. ("Areamed"), a joint venture active in Spain in the food services concession on motorways; and a 35% stake in Bip & Drive S.A. ("Bip&Drive"), which distributes electronic toll payment devices known as on-board equipment (OBE) in Spain. Abertis also operates and issues electronic payment systems through Bip&Go SAS ("Bip&Go") and Eurotoll SAS ("Eurotoll"), and electronic tolling and smart mobility solutions through Emovis SAS ("Emovis") and A4 Mobility Srl ("A4 Mobility"). 1.3.2.Control over Areamed (14)Areamed is a 50-50 joint venture between Abertis and Areas S.A. ("Areas", of Portugal), a subsidiary of Elior Group. (15)Even though Abertis is not involved in the day-to-day management of Areamed's service areas, the Commission could not exclude in two recent decisions that Abertis jointly controls Areamed together with Areas, exercising a decisive influence over strategic decisions concerning the operation of Areamed. Areamed's shareholding structure and its governance and control mechanisms have not changed since. (16)In any case, for the purpose of this Decision, the question of whether Abertis jointly controls Areamed's operations can be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market even considering Abertis as active, through Areamed, on the market for the provision of concession food services. 2.The operation and the concentration (17)The Transaction constitutes a revised structure of two precedent proposed concentrations notified and cleared unconditionally by the Commission, but never implemented as originally foreseen. Atlantia initially announced a takeover offer for 100% of Abertis' share capital which was approved by the Commission on 13 October 2017. On 6 February 2018, the Commission cleared a competing offer by Hochtief to acquire sole control over Abertis. Subsequently, on 23 March 2018, Atlantia, ACS and Hochtief entered into an Investment Agreement ("the Investment Agreement") by which they modified their respective acquisition projects over Abertis and decided to proceed with a joint investment in Abertis. (18)Pursuant to the terms of the Investment Agreement, Atlantia withdrew its offer, while Hochtief modified and completed its competing offer and therefore acquired sole control over Abertis. Subsequently, ACS and Atlantia will incorporate a special purpose vehicle (the "SPV") which will then acquire the shares of Abertis owned by Hochtief. Atlantia, ACS and Hochtief will own interests in the SPV as follows: (i) Atlantia will own 50% plus one share; (ii) ACS will own 30% and (iii) Hochtief will own 20% minus one share. (19)In a last step, as explained in Section 1.2 above, Hochtief will issue new shares through a capital increase, which Atlantia will ultimately acquire, representing a minority shareholding in Hochtief up to 24.1%, while ACS will continue to hold no less than 50% plus one share of Hochtief's share capital. 2.1.Joint Control (20)The governance of the SPV owning Abertis' shares and the governance of Abertis will be regulated by the Shareholders' Agreement ("SHA"). Furthermore, ACS and Atlantia entered into [information related to other agreements signed by the Parties]. (21)According to the SHA, Atlantia will be able to appoint 5 out of 9 directors of the Boards of Directors of the SPV and Abertis. The appointment of senior management will be subject to simple majority. As a consequence, Atlantia will be able to appoint Abertis' CEO and the CFO and will in fact determine the company's daily management. It follows from the above that joint control cannot be established on the basis of equality in voting rights or appointment to decision-making bodies. (22)However, ACS has additional rights which allow it to veto decisions which are essential for the strategic commercial behaviour of the SPV and of Abertis and enable it to co-determine which concessions Abertis is going to acquire and thereby to co-determine the investment strategy of Abertis. (23)In this regard, paragraphs 65-71 of the Commission Consolidated Jurisdictional Notice ("CJN") stipulate that in case of a veto right on major investments, the importance of such a veto right for the purposes of assessing control depends on (i) the extent to which investments constitute an essential feature of the market and (ii) the level of investments subject to the approval of the parent companies. (24)Pursuant to the SHA, for the approval by the Shareholders' Meeting of any Reserved Matter, including equity investment, divestment decisions or participation in projects above EUR […] million in aggregate per financial year, the express approval of both ACS and Atlantia is required. In practice, it means that ACS will be able to veto any investment and/or divestment that would go above that threshold. If, however, over a single financial year, there were three single investments of EUR […] million each, ACS would only be able to exercise its veto as from the third investment.

(25)In addition, ACS and Atlantia submit that the veto right will also indirectly apply to the financing and re-financing of projects. (26)ACS and Atlantia submit that investment decisions are essential and strategic in the toll motorway sector. In particular, ACS and Atlantia submit that during the last 10 years, equity investments and/or participation in projects and concessions by Abertis have exceeded – with the only exception of [year] – the EUR […] million in aggregate per financial year threshold. Furthermore, the large majority of the acquisitions (and disposals) by Abertis of toll motorway concessions within the period 2007 to 2017 exceeded EUR […] million on a stand-alone basis, and would have sufficed in themselves to trigger ACS' veto right. This shows that the threshold of EUR […] million in aggregate per financial year is low enough to trigger the veto right in most of the projects in which Abertis will participate. (27)In terms of post-Transaction investments, ACS and Atlantia submit that they plan to carry out investments of the size and capital commitment as the ones that are usually carried out in the toll motorways sector and that have been carried out over the last 10 years, meaning above the EUR […] million in aggregate per financial year threshold. (28)Being able to veto investment decisions about whether to acquire or not a toll motorway concession allows deciding about the market presence of Abertis. It is the only decision triggering the presence in the market for the granting of concessions, i.e. the competition for the market. As the management and exploitation of the concessions, i.e. competition in the market, is subject to ex-ante regulation by the granting authority, the decision to invest is also a decision about the subsequent management and exploitation of the concession. Therefore the acquisition of toll motorway concessions constitutes the core business of Abertis. It follows that such a veto right is of crucial relevance for determining its commercial strategy. (29)For the above reasons, the veto right that ACS may exercise with respect to the acquisition of toll motorway concessions and that will be triggered by the EUR […] million in aggregate per financial year thresholds affects the adoption of strategic decisions within the meaning of paragraphs 65-71 of the CJN. (30)In case of deadlock, the SHA disposes that the status quo should prevail. However, if five or more unresolved deadlocks occur within the five years following the SHA's effective date, the SHA provides for a clause pursuant to which both ACS and Atlantia have the right to initiate the process for the termination of the SHA. [Details on how to proceed for the termination of the SHA in case of a deadlock.] (31)[Details on the termination of the SHA]. This mechanism is very cumbersome and long-lasting. It will not only absorb a lot of time and resources but could also lead to the entry of new shareholders which may not be in Atlantia's interest. Therefore, it is in both ACS and Atlantia's interest to jointly agree on investments/divestments that can be subject to the veto right. (32)[Details on the termination of the SHA.] In addition, ACS and Atlantia submit that the likelihood of five or more un-resolved deadlocks taking place during the first five years is very low due to the fact that any deadlock would deteriorate the effectiveness of the governance, of the strategy and therefore of the value of Abertis. (33)It follows that the veto right over investments/divestments above EUR […] million in aggregate per year is in itself sufficient to concede the parent companies joint control over Abertis even though there is no equality between the parent companies in votes or representation in the board of directors. Consequently, ACS has also control over Abertis. 2.2.Full-Functionality (34)Abertis will continue to have a management dedicated to its day to day operations, including a CEO and a CFO, and access to financial resources. Abertis will also maintain its current presence in the market, and it will generate revenues through the tolls it charges to the users of the motorways. (35)Pursuant to Section 13.1 of the SHA, the initial duration of the SHA is […] years. [Details of the SHA’s renewal], there is a lock-up period [details of the lock-up period]. (36)As a consequence, the JV is meant to be on a lasting basis and full functional. 3.EU DIMENSION (37)The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million (Atlantia: EUR 5 782 million, ACS: EUR 34 899 million and Abertis: EUR 5 323 million). Each of them has an EU-wide turnover in excess of EUR 250 million (Atlantia: EUR […] million, ACS: EUR […] million and Abertis: EUR […] million) but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the same Member State. (38)The Transaction has therefore an EU dimension according to Article 1(2) of the Merger regulation. 4.Market Definition (39)ACS, Atlantia and Abertis are active in the market for (i) toll motorway concessions. The Transaction also relates to services ancillary to the operation of toll motorway concessions, such as (ii) the provision of electronic toll systems (ETS)/distribution of on-board units (OBE), (iii) the provision of equipment or services for electronic toll collection (ETC)/intelligent transport systems (ITS) (iv) the construction of infrastructure, (v) food services concessions. (40)The definition of all the markets referred to in the above paragraph was addressed by the Commission in the course of its market investigation for Cases M.8536 – Atlantia/Abertis Infraestructuras and M.8694 – Hochtief/Abertis. 4.1.Toll Motorway Concessions

(41)The operation of infrastructure concessions in general is an activity where private operators assume responsibility for the design, construction, finance, operation and maintenance of an infrastructure asset for a public sector customer. The contracts are usually long-term contracts and the construction costs and the subsequent maintenance/operation costs tend to be covered by fees paid either by the users of the asset (e.g. motorway tolls) or by the public sector customer throughout the contract term, rather than, as in a normal construction contract, upon completion of the construction. This transfers the responsibility for the financing of the asset from the public to the private sector and this is what drives the public sector to opt for concessions to address their infrastructure needs. (42)In prior decisions relating to infrastructure services provided by licensed operators such as motorway concessionaires, the Commission has held that competition essentially takes place (i) at the time where the license is granted by the public authorities (competition for the market), and (ii) whenever a licensed operator is subject to competition from substitutable alternatives (competition in the market). (43)Therefore, the Commission has distinguished two markets relating to toll motorway concessions: (i) the market for the grant of toll motorway concessions, where supply is represented by public authorities and demand by undertakings or consortia of undertakings with an interest in acquiring toll motorway concessions, and (ii) the market for the transport on toll motorways, consisting in the provision of speedy and secure road transport infrastructures between various geographical points (routes). (44)In the case of motorways, concessionaires bidding for a motorway concession generally earn revenues through (i) direct tolling systems, where the granting authority delegates the construction, funding and management of a road to a managing company, which carries out the works at its expenses and collects the tolls directly from users (distance-based charge) to cover the investment and the maintenance costs (also referred to as "real tolls"); (ii) shadow tolling systems, where the granting authority delegates the construction, funding and management of a road to a managing company, which does not collect any tolls from users (tolls are paid by the road administration based on the number of vehicles using the road); or (iii) availability payment schemes, where the granting authority delegates the construction, funding and management of a road to a managing company, which carries out the work at its expenses and is remunerated by the granting authority according to pre-defined indicators based on road availability and level of maintenance. In this case, users may pay a toll to the granting authority in the form of a "vignette" (time-based charge). 4.1.1.The grant of toll motorway concessions Regulatory framework (45)In this section, the Commission describes the rules applicable to the grant of toll motorway concessions by public authorities, as determined by EU law or the law of EEA countries in which the Parties hold toll motorway concessions. EU level (46)The grant of high value concession contracts in the EU is governed by Directive 2014/23/EU (the "Concessions Directive"). Considering the investments required for the operation of a toll motorway concession, the award of toll motorway concessions in the EU is likely to fall within the scope of the Concessions Directive. (47)The Concessions Directive establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, which aim at ensuring non-discrimination, fair access to markets and EU-wide competition for high-value concessions. In particular, they provide for the mandatory publication at EU level of a concession notice, including a description of the concession and the conditions of participating in the concession award procedure, thus preventing the direct award of concession contracts without transparent competition. (48)The EU Member States had to transpose the Concessions Directive into their national legislation by 18 April 2016. Italy (49)Pursuant to the transposition of the Concession Directive by legislative decree No. 50/2016 (the "Code"), toll motorway concessions are to be awarded pursuant to public tender procedure, on the basis of provisions consistent with those set out in the Concessions Directive. Spain (50)Law 9/2017, of 8 November 2017, on Public Sector Contracts, which came into force on 9 March 2018, partially transposed the Concessions Directive and regulates service concessions and other concessions in general. However, Concession Act 8/1972, which is still in force, is lex specialis with regard to motorway concessions. 4.1.1.1.Product market definition ACS and Atlantia's view (51)ACS and Atlantia consider that the relevant product market should be defined as the market for the grant of toll motorway concessions, meaning that no further segmentation should be made between a) direct tolling systems where the motorist is charged based on distance, b) indirect tolling systems where the motorist is charged based on time (e.g. vignette) by the granting authority, also referred to as availability payment schemes and c) shadow tolling systems where the company is remunerated by the granting authority directly. (52)ACS and Atlantia consider two lines of arguments, both on the demand and the supply side. (53)On the demand side, the mechanism chosen by the granting authority to remunerate the concessionaire would play a minor role as opposed to other factors, such as, for example, the complexity of the engineering and construction works, the duration of the construction phase, the length of the toll road and the associated operating and capital expenses.

(54)On the supply side, the reason why a given granting authority would opt, for example, for a direct toll instead of a shadow toll or an availability scheme mechanism would reflect historical preferences rather than competition dynamics. (55)In addition, ACS and Atlantia consider that no segmentation should be made between (i) the primary market, i.e. concessions that are awarded by the granting authorities, and (ii) the secondary market, i.e. the sale of on-going concessions. (56)Finally, ACS and Atlantia also submit that there is no need to distinguish between (i) "greenfield" concessions, which include the initial construction and development of the road infrastructure, and (ii) "brownfield" concessions, which refer to the award of the motorway concession once the construction phase is complete and the road is fully operational, since the proposed Transaction would not raise competition concerns regardless of whether a separate market is defined or not. The Commission's assessment (57)In its prior decision practice, the Commission has defined the market for the grant of toll motorway concessions as consisting in the economic activity where supply is represented by the public administration and demand by undertakings or consortia of undertakings with an interest in acquiring the right to operate the toll motorway concessions. (58)The results of the Commission's market investigation did not warrant a narrower segmentation within the grant of toll motorway concessions depending on the toll revenue scheme. (59)Some respondents having expressed an opinion pointed towards a different degree of risk entailed by these three different tolling mechanisms, such as the risk of managing different types of payment, the risk of payment elusion and, most importantly, traffic volume risk. More specifically, (i) direct tolling and (ii) shadow tolling would require the concessionaire to take traffic volume risk as opposed to (iii) indirect tolling (availability payment schemes). (60)However, the more an economic operator would be financially solvent, the more likely such an economic operator would be capable and willing to face traffic volume risk. As an example, one respondent states that "[b]idding for a real toll or a shadow toll system normally implies to assume traffic risk. […] The traffic risk implies higher level of economic and financial risk. This will cause lenders being more demanding on the equity commitment by the sponsors and on financial covenants". As an example, one respondent states that "[m]ore and more the market is seeing industrial companies with large experience teaming up with entities with the financial capacity (funds) to bid for specific projects. Those consortia will be always strong competitors […]". One respondent states that " [i]n the end, toll collection activity can be subcontracted to third parties in the case the bidder has not specific skills". (61)In the end, the majority of respondents having expressed an opinion consider that the operation of toll motorway concessions through each of (i) direct toll, (ii) indirect toll and (iii) shadow toll payment scheme systems is in essence similar and can be operated by any toll motorway manager interchangeably. (62)More specifically, the majority of granting authorities having expressed an opinion considered that bidding for toll motorway concessions does not require the bidder to have specific resources and abilities to generate revenues through (i) direct tolling, (ii) indirect tolling (availability payment systems) or (iii) shadow tolling systems. (63)Although some granting authorities replied that they might favour bidders with a specific background in managing a given toll revenue mechanism over other economic operators when granting a motorway concession, the granting authorities clarified that the criteria on the basis of which granting authorities select the concessionaire are more varied and focus on technical and financial solvency. As an example, one granting authority states that "[t]he main requirements are technical and financial solvency, but there are no specific requirements in order to favour bidders with specific background in managing a given toll revenue mechanism against other motorways operators not managing this type of toll revenue scheme". As an example, one granting authority states that "[t]he three mechanisms require similar project finance arrangements that we as an authority will not differentiate upon […]. (64)On the demand side, the majority of competitors having expressed an opinion considered that bidding for toll motorway concessions does not require the bidder to have specific resources and abilities to generate revenues through (i) direct tolling, (ii) indirect tolling (availability payment systems) or (iii) shadow tolling systems.. (65)Moreover, some respondents also indicated that the three mechanisms at issue require different resources and technical abilities, with (i) direct toll requiring more specific resources and abilities than (ii) shadow toll and (iii) availability payment schemes. Nevertheless, the market investigation confirmed that this technology is easily accessible and that economic operators can easily outsource the relevant technology, establish partnerships or outsource collection and enforcement operations. (66)The Commission therefore concludes that the market for the grant of toll motorway concessions should not be further divided according to the remuneration system as the economic risk does not differ to a significant extent and all potential bidders have the necessary resources to operate under any of the three mechanisms either individually or by setting up a consortium. (67)In recent cases, the Commission noted that secondary transactions (i.e. the sale of concession holders by their shareholders and their acquisition by new shareholders) present key differences from primary transactions, e.g. secondary transactions are in general not launched at the initiative of the granting authority. (68)Nevertheless, the Commission acknowledged that there is some degree of competition for the acquisition of existing concessions, which may involve companies also active in the market for the grant of toll motorway concessions by granting authorities. (69)In any event, the Commission considers that for the purpose of this Decision, the question of whether the market for the grant of toll motorway concessions may be further split into greenfield, brownfield or secondary sales of motorway concessions constitute another relevant product market may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible product market definition. (70)Therefore, while it is not necessary to decide on whether secondary sales represent a market, which would be distinct from the grant of toll motorway concessions, the Commission will also take account of the level of competition between ACS, Atlantia and Abertis at the time of secondary sales to assess the effects of the Transaction on the market for the grant of motorway concessions. 4.1.1.2.Geographic market definition ACS and Atlantia's view

(71)ACS and Atlantia consider that the geographic market for the grant of toll motorway concessions should be considered at least EEA-wide (and potentially worldwide) in scope. The Commission's assessment (72)In the past, the Commission has left open the question of the geographic scope of the market for the grant of toll motorway concessions. While results of prior market investigations pointed out to an at least EEA-wide market, the Commission did not exclude the existence of national markets. (73)In the light of the market investigations in the most recent Commission's decisions, the Commission left open the question of whether the market for the grant of toll motorway concessions is national, EEA-wide or world-wide. 4.1.1.3.Conclusion on market definition (74)In view of the above, the Commission considers that (i) direct tolling systems, (ii) indirect tolling systems and (iii) availability payment schemes are all part of the same market for the grant of toll motorway concessions. (75)For the purpose of this Decision, the question of whether brownfield and greenfield concessions constitute a separate or a single relevant product market may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market on either definition. (76)For the purpose of this Decision, the question of whether secondary sales of motorway concessionaires constitute another relevant product market may be left open as well, as the Transaction would not raise serious doubts as to its compatibility with the internal market on that plausible product market. (77)With regard to the geographic scope, for the purpose of this Decision, the question of whether the market for the grant of toll motorway concessions is national, EEA-wide or world-wide may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible geographic market definition. 4.1.2.Transport on toll motorways 4.1.2.1.Product market definition ACS and Abertis' view (78)ACS and Abertis submit that the Commission should only take into account for the assessment of the present transaction the grant of toll motorway concessions, leaving out other means of transport. The Commission's assessment (79)In its prior decision practice, the Commission has considered a market for the transport on toll motorways, also corresponding to the management of motorway concessions, and consisting in the provision of speedy and secure road transport infrastructure between various geographical points (routes). (80)In previous cases, the Commission has left open the question of whether alternative modes of transport (for example by rail, air or sea) are in the same market as toll motorways, indicating that the existence and extent of inter-modal competition has to be assessed on a route-by-route basis. 4.1.2.2.Geographic market definition ACS and Abertis' view (81)ACS and Abertis agree with the Origin & Destination ("O&D") method the Commission applied in previous decisions but submit that the exact geographic market definition may ultimately be left open, as it would not alter the competitive assessment of the case. The Commission's assessment

(82)In its prior decision practice, the Commission has defined transport on toll motorways according to the O&D method, whereby every combination of a point of origin and a point of destination is considered to be a distinct market from the demand side. Conclusion on market definition (83)For the purpose of this decision, the question of whether the provision of transport on toll motorways should be distinguished from other transport modes may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible product market definition. (84)In any event, considering that the Parties do not offer transport infrastructure services other than on toll motorways or toll roads, the Commission will assess the effects of the Transaction on the narrowest product market, i.e. the provision of transport on toll motorways. (85)As to the geographic market definition, for the purpose of this decision, every combination of a point of origin and a point of destination (O&D pair) will be considered as constituting a distinct market. 4.2.Provision of electronic toll systems (ETS)/distribution of on-board units (OBE) (86)An OBE is a device installed in the vehicle and read remotely by an antenna installed on motorway tolls for the purposes of allowing the vehicles to pass without stopping to make the toll payment. (87)In order to electronically collect road tolls, according to ACS and Atlantia, drivers and motorway concessionaires need to enter into contracts with OBE distributors or ETS providers (also referred to as toll service providers – "TSP") that interconnect road users with the road managers, manage the toll collection, and its transfer to the toll motorway managers. 4.2.1.Regulatory framework (88)On 31 May 2017, the Commission proposed to recast the EETS directive. When describing the reasons for and objectives of the proposal, the Commission emphasised that (i) even if the electronic toll collection systems have been deployed at national, regional or local level in 20 Member States and the number of systems is increasing constantly, the vast majority require road users to install special equipment, namely on-board units/on-board equipment ("OBU"/"OBE") in their vehicles. While some offer cross-border interoperability, most do not. This results in costs and burdens for users, who must equip their vehicles with multiple OBUs to be able to drive unhindered in different countries; and (ii) the objectives of the EU legislation at stake – and in particular the pan-European interoperability of electronic road toll systems that was the main objective of the directive – remain largely unattained. 4.2.2.Product market definition 4.2.2.1.Prior decisional practice (89)With regard to the distribution of OBE devices, the Commission identified the following five main categories of stakeholders in a previous decision: concessionaires, OBE manufacturers/Intelligent Transport Systems ("ITS") providers, distributors or electronic tolling service provider ("ETSP"), financial institutions, and OBE users (the drivers). The payment of the toll fee can be made either in cash, by credit/debit card or via OBE devices. (90)In a prior decision, the Commission concluded that the different methods of toll payment, i.e. in cash, by credit/debit card, or by using an OBE device, do not form part of the same product market. The Commission therefore defined a market for the distribution of OBE devices. (91)The results of the market investigation in Case M.8536 – Atlantia/Abertis Infraestructuras were inconclusive with regard to the question of whether the market for the distribution of OBE devices should be considered as a distinct market. While some respondents, in line with the previous Commission's findings, confirmed that OBE devices were not substitutable to other means of toll payment (such as credit/debit card and cash), others indicated that car drivers as well as truck (heavy vehicles) drivers using a toll motorway consider the different means of toll payment as interchangeable and that once someone has started using an OBE device they would be willing to switch to other means of toll payment if the costs of OBE devices were to increase by 5-10% on a permanent basis. (92)In addition, the majority of the respondents to the same market investigation having expressed an opinion indicated that there were no significant differences between the provision of ETS/distribution of OBE to car drivers and the provision of ETS/distribution of OBE to truck drivers, notably in terms of cost and type of devices. However, some respondents also pointed out to a distinction between the two segments notably due to technical interoperability issues. 4.2.2.2.ACS and Atlantia's view (93)ACS and Atlantia consider that the exact product market definition can be left open also in this case, as no competition concern should arise under any plausible market definition. 4.2.2.3.The Commission's assessment (94)The results of the market investigation referred to in paragraph (92) above have not provided any indication that would make the Commission deviate from the conclusions reached in its precedent cases.

4.2.3.Geographic market 4.2.3.1.Prior decisional practice (95)In its prior decisions, the Commission has considered the market for the distribution of OBE devices as likely national in scope, even though the OBE device may be interoperable on a wider basis than national basis. When analysing the progress achieved in the implementation of the EETS, the Commission reached the conclusion that there are still different national systems due to technical barriers which have not yet been removed by the Member States and the stakeholders. Therefore, a pan-European interoperability of electronic road toll systems has not been achieved yet. 4.2.3.2.ACS and Atlantia's view (96)ACS and Atlantia submit the provision of ETS/distribution of OBE is national in scope, as the economic relations between OBE distributors and users are established on a national basis. Nevertheless, ACS and Atlantia ultimately consider that the exact geographic definition of the market can be left open, as there would be no possible competition concern regardless of the geographic scope considered. 4.2.3.3.The Commission's assessment (97)The results of the market investigation in the recent Case M.8536 – Atlantia/Abertis Infraestructuras were inconclusive with regard to the geographic scope of the market for the distribution of OBE devices. While some of the respondents to the market investigation provided indications towards an EEA dimension, others confirmed that the implementation of the EETS took place only in some of the EEA countries but not in all. For example it is still on-going in Italy and Germany. The conclusions reached by the Commission in its recast proposal also clearly point to national markets (see paragraph (88) above). 4.2.4.Conclusion on market definition (98)For the purpose of this decision, the questions of whether (i) the market for the provision of ETS/distribution of OBE devices constitutes a distinct market, (ii) OBE devices are substitutable to other means of toll payment, and (iii) distribution of OBE to cars should be distinguished from the distribution of OBE to trucks, may be left open as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible product market definition. (99)As regards the geographic scope, the question on whether the market for the distribution of OBE devices is national or EEA-wide in scope may be left open as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible geographic market definition. 4.3.Provision of equipment and/or services for electronic toll collection (ETC)/intelligent transport systems (ITS) (100)ETC systems detect the presence of a vehicle passing a toll station, classify it and deduct the correct toll fee. (101)In order to allow the proper functioning of ETC systems, motorway concessionaires need to install at tolling stations, in proximity of the free flow lane(s), certain roadside equipment, such as tag readers/antennas, as well as other devices such as cameras for automated license plate recognition, or other equipment aimed at automatising the toll fee calculation and collection, that communicate with the drivers’ OBE units. The initial set-up of such systems, and/or its maintenance, may be provided either by the same companies already active within the market for the distribution of OBE, or by more specialised companies active in the market for the provision of ITS. (102)ITS are advanced applications which without embodying intelligence as such aim to provide innovative services relating to different modes of transport and traffic management and enable various users to be better informed and make safer, more coordinated and ‘smarter’ use of transport networks. 4.3.1.Regulatory framework Italy (103)In Italy, Article 177 of the Code (see paragraph (49) ) introduced the obligation for the concessionaire to award 60% of the contracts for the provision of services and supplies exceeding a given threshold (EUR 150 000) through a public tender procedure. Consequently, within the abovementioned 60% threshold, intra-group companies interested in the contracts to be awarded have to take part into such public tenders, direct awarding being precluded. Spain (104)In Spain, the main regulation in force concerning tender procedures is Law 9/2017, of 8 November 2017, on Public Sector Contracts, which came into force on 9 March 2018 and replaced previous legislation. According its Article 252 the execution of the works that a concessionaire is entitled to perform pursuant to the grant of the concession may be sub-contracted to third parties or to their in-house companies but only through a tender procedure. As a result, even the assignment of works to in-house companies is subject to a tender procedure. 4.3.2.Product market definition

4.3.2.1.Prior decisional practice (105)In a prior decision, the Commission considered a distinction between the provision of ETC equipment (including the manufacture and provision of OBE) and the provision of other ITS equipment, ultimately leaving it open. 4.3.2.2.ACS and Atlantia's view (106)ACS and Atlantia consider that the exact product market definition can be left open also in this case, as no competition concerns would arise under any of the plausible market definitions. 4.3.2.3.The Commission's assessment (107)The Commission's market investigation revealed some differences between ETC equipment used for tolling purposes, and other (non-tolling) ITS equipment, used mostly for traffic management and traffic law enforcement. This is because although some companies produce both tolling and non-tolling ITS equipment, in many cases some suppliers specialise in either ETC or in other ITS equipment. (108)A competitor to the Parties submitted that ETC equipment includes (a) the manufacturing and provision of OBE equipment; (b) roadside equipment for capturing vehicle passages and for detecting toll violators; (c) so called back-office systems, which are centralized computer systems for processing toll transactions, supervision of technical systems and tolling associated commercial business processes like billing or fining traffic law violators; (d) professional services like roadside and back office technical and commercial operations and maintenance. (109)Although the provision of ETC equipment might also include the manufacturing and provision of OBE equipment, the latter activity differs from the distribution of OBE devices to end users for being basically a business-to-business model, as opposed to a business-to-customer model. (110)As an example, another respondent to the market investigation pointed out that the provision of certain ETC equipment or services should be included in the market for the grant of toll motorway concessions. This would be the case, for example, of those contracts in which the construction and/or maintenance of the road infrastructure would not be included. Instead, the concessionaire would be granted the rights to design, finance, build, maintain and/or operate national or regional pure tolling systems. (111)ACS and Atlantia argue that these contracts should not be qualified as concession contracts but rather as public procurement contracts. (112)The Commission considers that those contracts should not be included in the market for the grant of toll motorway concessions. Instead, given that these contracts deal with the provision to private or public customers of ETC equipment and/or services, they should be included in the market for the provision of equipment and/or services for ETC, regardless of whether the ETC provider installs the ETC system or whether the ETC provider installs and then operates the ETC system. 4.3.3.Geographic market 4.3.3.1.Prior decisional practice (113)In prior decisions, the Commission has ultimately left open the question whether the market for the provision of equipment or services for ETC/ITS is national or EEA-wide in scope. 4.3.3.2.ACS and Atlantia's view (114)ACS and Atlantia consider that the exact geographic definition of the market for the provision of ITS equipment/services can be left open, as the Transaction would not raise any serious doubts as to its compatibility with the internal market under any plausible geographic definition of the market. 4.3.3.3.The Commission's assessment (115)The results of the market investigation for the Case M.8536 – Atlantia/Abertis Infraestructuras case were inconclusive with regard to the geographic scope of the market for ITS equipment or services. While some of the respondents to the market investigation indicated that that the conditions of competition (e.g. equipment or services requested by motorways concessionaires, price levels, procedures for the award of the contract by motorways concessionaires) for providing equipment or services for ITS are homogeneous in the EEA, others also provided indications towards significant differences from one EEA country to another. 4.3.4.Conclusion on market definition (116)For the purpose of this Decision, the question of whether a distinction should be made between the provision and operation of ETC equipment (including the manufacture and provision of OBE) and the provision and operation of other ITS equipment may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible market definition.

(117)The Transaction would not raise serious doubts either even if a plausible narrower segment is considered for the manufacturing and provision of OBE units. (118)As regards the geographic market definition, the question of whether the market for the provision of equipment or services for ETC/ITS is national or EEA-wide in scope may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market on either plausible geographic market. (119)The Commission will therefore consider the same market definition for the provision of equipment or services for ETC/ITS considered for the previous Cases M.8536 – Atlantia/Abertis Infraestructuras and M.8694 – Hochtief/Abertis. 4.4.The construction of infrastructure 4.4.1.Regulatory framework (120)Within the market for the construction of infrastructure, the demand is represented by the State, other contracting authorities, as well as private concessionaires. (121)Regarding road construction, the contracts are awarded under a specific regime determined by European and national law. At EU level (122)The award of works contracts related to road concessions is covered by the Concessions Directive as well as Directives 2014/24/EU and 2014/25/EU (the "Public Procurement Directives"). Italy (123)In Italy, the regulatory regime related to road construction works on motorways is provided by the legislative Decree No. 50 of 18 April 2016 (Decreto Legislativo Nº 50/2016) as modified by Law No. 205 of 27 December 2017, implementing the Concessions and Public Procurement Directives. Article 177 of this legislative Decree provides that concessionaires (State-owned and private ones) are obliged to outsource at least 60% of their contracts concerning works, services, and supply. Pursuant to the same provision, when granting such contracts, the concessionaires have to use tendering procedures. Spain (124)In Spain, the legal framework applicable to works related to motorway concessions is set in (i) the Law 9/2017, of 8 November 2017, on Public Sector Contracts, which transposes Directive 2014/24/EU and partially the Concessions Directive, (ii) the Spanish Act 8/1972 of 10 May 1972 on construction, maintenance and operation of motorways, as well as (iii) Decree 215/1973 of 25 January 1973, on the general terms governing the construction, maintenance and operation of motorways under concession. The Spanish Act 8/1972 distinguishes between two types of administrative motorway concessions: on the one hand, construction, maintenance and operation of motorways; on the other hand, maintenance and operation of already constructed motorway sections. (125)According to Article 252 of the Law 9/2017 on Public Sector Contracts, the execution of the works that a concessionaire is entitled to perform pursuant to the grant of the concession may be sub-contracted to third parties in line with the provisions of that Law or the specific tender documentation. 4.4.2.Product market definition ACS and Atlantia's view (126)ACS and Atlantia submit that the market at stake should be defined as the market for construction of all large infrastructures, including motorways, which encompass also engineering services. The Commission's assessment (127)In its prior decision practice, the Commission has considered the possibility of distinguishing within the market for construction services between (i) large and small infrastructure (divided according to the projects concerned), (ii) roads and other types of infrastructure, and (iii) motorways and other roads. (128)In a prior decision regarding transport, the Commission has also considered engineering services as a distinct market.

4.4.3.Geographic market ACS and Atlantia's views (129)ACS and Atlantia submit that the appropriate geographical scope of the market should be wider than national given that international construction firms are fully capable of bidding for construction contracts in Member States in which they have no pre-existing presence. In any case, the Parties deem that is not necessary to exactly define the geographical scope of the market, since there would be no competitive concerns regardless of the ultimate market definition chosen. The Commission's assessment (130)In its prior decision practice, the Commission has left open the question on whether the market for construction of infrastructure is national or EEA-wide in scope. 4.4.4.Conclusion on market definition (131)For the purpose of this Decision, the question of whether a distinction should be made between (i) large and small infrastructure, (ii) roads and other infrastructure, and (iii) motorways and other roads may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible market definition. (132)Considering that Abertis is only active in the market for concessions for motorway infrastructure, the Commission will assess the effects on the Transaction on a narrower product market for motorways. (133)In addition, the question of whether a distinction should made between the market for construction of infrastructure and the market for engineering services may also be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market on either plausible product market. (134)As to the geographic market definition, the question of whether the market for construction of infrastructure is national or EEA-wide may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market on either plausible geographic market. 4.5.Food services concessions (135)In its prior decision practice relating to concession food services, the Commission has mainly analysed the competitive dynamics at the time of the award of food services concessions (competition for the market). (136)Considering that Atlantia (through Autogrill) and Abertis (through Areamed) may be subject to the competitive constraint exerted by other providers of conceded services (food services or retail), the Commission has assessed whether, in relation to concession food services, competition in the market should also be analysed. For that purpose, and by analogy with the approach taken for toll motorway concessions (see section 4.1 above), the Commission has considered the definition of two distinct markets: (i) the grant (or award) of food services sub-concessions on motorway service areas, and (ii) the provision of food services on motorway service areas. 4.5.1.Regulatory framework (137)This section describes the rules applicable to the grant of food services sub-concessions by toll motorway concessionaires, as determined by EU law or the laws of EEA countries in which Abertis holds toll motorway concessions. 4.5.1.1.At EU level (138)The Concessions Directive does not provide for a specific legal regime applicable to the granting of sub-concessions by concessionaires. 4.5.1.2.In Italy (139)The procedures for the award of all services provided in motorways service areas by motorway concessionaires are subject to the specific regime set forth in Law No. 498/92 (as amended), which notably requires that ANAS S.p.A. approves the schemes of the invitation to tender. (140)Furthermore, the ASPI convention of 12 October 2007 provides the concessionaire with the right of granting sub-concessions for motorway services areas on the basis of competitive, transparent and non-discriminatory procedures, which should be adequately made public.

(141)Finally, in 2000, the Italian competition authority (Autorità Garante della Concorrenza e del Mercato, "AGCM") scrutinised the acquisition of control of ASPI by Edizione. In that framework, it imposed certain commitments concerning the award of food service concessions on ASPI's motorway network, in order to neutralise a possible strengthening of Autogrill's dominant position on the Italian market for the supply of food services on motorways. The decision notably requires that (i) ASPI fully tenders out the supply of food services on its network, (ii) the tendering procedure is entrusted to an independent body, and (iii) the share of outlets entrusted to Autogrill by Atlantia does not exceed 72%. Those commitments, which have no time limit, still apply to Atlantia and would still apply post-Transaction, unless they are revised following a change in the factual or legal situation on which the AGCM decision was based. 4.5.1.3.In Spain (142)According to Law 37/2015 on roads (the "Road Act"), sub-concessions for motorway service areas shall be awarded to the most economically advantageous tender following a tender procedure, which shall be approved by the Ministry of Public Works and Transport. 4.5.2.The grant of food services sub-concessions on motorway services areas 4.5.2.1.Product market definition ACS and Atlantia's view (143)ACS and Atlantia did not contest the Commission's approach in its prior decision practice. The Commission's assessment (144)In its prior decision practice, when assessing competition at the time of the award of food services concessions (competition for the market), the Commission has identified a market for concession food services distinct from contract food services, consisting in the outsourcing or the provision of food service requirements to the public in travel- and retail-related locations and leisure venues. (145)The Commission has further considered whether the market for food services concessions should be divided according to the type of activity primarily carried out in the areas where concession food services are provided (e.g. travel, retail, sports or leisure). Within food services concessions in travel-related locations, the Commission has considered a further sub-division according to the type of locations or venues (e.g. airports, railway stations, motorway service areas). (146)Conversely, the Commission has considered whether concession food services provided on motorway service areas are part of a broader market for services ancillary to the operation of toll motorway facilities, also including gas sales or hotel accommodation. 4.5.2.2.Geographic market definition ACS and Atlantia's view (147)ACS and Atlantia did not contest the Commission's approach in its prior decision practice. The Commission's assessment (148)In its prior decision practice regarding food services concessions, the Commission has initially considered that the market for concession food services is national in scope, before considering it as possibly wider than national. With regard to a neighbouring market, i.e. the market for the award of concessions for travel retail services at airports, the Commission has found some indications that the market could be at least EEA-wide in scope. (149)As for toll motorway concessions, it is not possible, at this stage, to conclude firmly on the precise geographic scope of the market for the grant of food services sub-concessions. (150)However, the progressive implementation in the national laws of EEA countries of requirements for motorway concessionaires to grant sub-concessions following a transparent competitive procedure as well as the internationalisation of food services concessionaires point towards the definition of an EEA-wide or even worldwide geographic market. 4.5.2.3.Conclusion on market definition (151)For the purpose of this Decision, the question of whether there is an overall market for the grant of sub-concessions for commercial ancillary facilities on motorway services areas or whether it should be segmented by type of services or locations may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible market definition.

(152)In addition, the question of whether the market for the grant of food services sub-concessions on motorway service areas is national, EEA-wide or world-wide may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible market definition. 4.5.3.The provision of concession food services on motorway service areas 4.5.3.1.Product market definition ACS and Atlantia's view (153)ACS and Atlantia did not contest the Commission's approach in its prior decision practice. The Commission's assessment (154)The Commission has not, in its past decision practice, defined a market for the provision of concession food services on motorway service areas, distinct from the market for the grant of food services sub-concessions on motorway service areas. (155)However, it has identified two neighbouring markets: (i) the provision of retail services at airports, distinct from the market for the award of concession for the operation of retail services at airports; and (ii) the retail supply of motor fuels (i.e. sales of motor fuels at service stations), possibly divided between sales at motorway and at non-motorway stations. (156)In addition, the Commission has found that there is a market for motorway catering distinct from the market of traditional catering, based on demand-side considerations (captive customers only made of motorway users) and supply-side considerations (wide turnover variations, importance of ancillary services, long opening hours and heavily regulated environment). Within that market, it has distinguished between (i) food services strictly speaking (restaurants), (ii) refreshment services, and (ii) sale of food products. (157)In that context, the Commission has assessed (i) whether the market for the provision of food services should be divided between food services provided on motorway service areas and at other locations, and (ii) concession food services provided on motorway services areas represent a part of a wider market also encompassing refreshments services and sale of food products on motorway services areas. 4.5.3.2.Geographic market definition ACS and Atlantia's view (158)The view of ACS and Atlantia is that the exact geographic definition of the market can be left open, as no competition concerns arise under any plausible market definition. The Commission's assessment (159)The Commission has not, in its past decision practice, defined the geographic scope of the market for the provision of concession food services. (160)Due to the homogeneity in prices and in consumer preferences as well as a possible chain of substitution effect across motorway service areas, it cannot be excluded that the market for the provision of concession food services is national. In addition, supply-side considerations, notably the number of players operating on an at least national basis, would plead in favour of the relevant geographic market being defined as wider than local. 4.5.3.3.Conclusion on market definition (161)For the purpose of this decision, the question of whether (i) a distinction should be made between the grant (or award) of food services sub-concessions on motorway service areas, and the provision of food services on motorway service areas and (ii) the market for the provision of concession food services on motorway service areas is part of a wider product market (encompassing other locations or other services) may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market under any plausible market definition. (162)Considering that Abertis, as a concessionaire, only manages toll roads and that Autogrill is only active in the provision of food services, the Commission will assess the effects of the Transaction on the narrower product market, i.e. the provision of concession food services on motorway service areas. (163)As to the geographic market definition, the question of whether the market for food services concessions is local or national may be left open, as the Transaction would not raise serious doubts as to its compatibility with the internal market on either plausible geographic market.

5.Competitive assessment 5.1.Horizontal effects (164)The Transaction leads to horizontal overlaps in the following markets: (i) the grant of toll motorway concessions (ACS, Atlantia and Abertis are active on the demand side), (ii) the provision of ETS/distribution of OBE, (iii) provision of equipment or services for ETC/ITS, (iv) the provision of concession food services and (v) the construction of infrastructure. 5.1.1.The grant of toll motorway concessions (165)The Transaction would lead to affected markets as follows: First, at EEA level, the Transaction gives rise to a horizontally affected market for the grant of toll motorway concessions in terms of revenues. (166)Second, if the geographic market is considered to be national in scope, the Transaction gives rise to a horizontally affected market for the grant of toll motorway concessions in Italy (in terms of km and revenues) and Spain (in terms of km and revenues). 5.1.1.1.Analytical framework (167)In its prior decision practice regarding infrastructure managed under concession or franchise contracts, the Commission has assessed the impact of a concentration on the market for the grant of concessions or franchises based on three elements. (168)First, the Commission has taken account of the Parties' combined position on the market of the concessions or franchises operated by the Parties, calculated notably on the basis of the number of concessions or franchises, in terms of length (km) or of revenues. Nevertheless, in bidding markets such as the grant of toll motorway concessions, the Commission has acknowledged that those shares reflect the Parties' position based on past grants, but not necessarily the actual or future bidding behaviour and success rate. (169)Second, the Commission has analysed historic bidding data, to determine whether the Parties are active bidders and compete head-to-head, as well as whether bidders are expected to enjoy significant incumbency or scale advantages as a result of previous grants of concessions or franchises. (170)Third, the Commission has considered the number of alternative bidders in the market and the competitive constraint they exert on the Parties. 5.1.1.2.ACS and Atlantia's view (171)ACS and Atlantia claim that the Transaction is unlikely to create any concern relating to the grant of toll motorway concessions for the following reasons. (172)First, ACS and Atlantia submit that the market for the grant of toll motorway concessions is a bidding market where high value contracts are awarded following open and transparent tender procedures, which are conducted according to the Concessions Directive, as transposed by the Member States into their national legislation. (173)Second, ACS and Atlantia submit that the Parties are not close competitors. Atlantia and Abertis specialise in brownfield concessions, which are projects in which the construction is completed so that the road is operational and generating revenue at the time of the investment. In contrast, ACS focuses (through Iridium and Hochtief) on greenfield concessions, which require the design, finance and construction before the road becomes operational. (174)Third, ACS and Atlantia submit that the Parties face strong competition from a wide range of international and local concession companies, construction firms and financial infrastructure investors which are capable to successfully bid, either alone or in consortia, for toll motorway concessions. 5.1.1.3.The Commission's assessment Calculation of market presence for toll motorway concessions (175)As previously described in section 4.1.1, toll motorway concessions consist of the economic activity where supply is represented by the public administration and demand by undertakings or consortia of undertakings with an interest in acquiring the right to operate the toll motorway concessions. (176)Within this framework, ACS and Atlantia claimed that free motorways, i.e. motorways (i) free of charge and (ii) directly operated by a public authority without a concession contract, should be included in the calculation of the total market and the Parties' market presence. According to ACS and Atlantia, it is not exceptional that toll motorway concessions operated by a private company are reverted to the State, and public authorities may eventually put their entire motorway network (including free motorways) on the market place through competing bidding processes.

(177)However, the Commission considers that the methodology proposed by ACS and Atlantia is not appropriate as it leads to a distorted picture of the competitive landscape of the market. Indeed, the proposed methodology would not be consistent with the market definition and dilute the Parties' market presence. (178)Given the reasons above and in the light of the market definition, the Commission will take a conservative approach whereby the total market size should not include free motorways. (179)Moreover, following the previous practice, the Commission will take a conservative approach whereby every toll motorway concession will be allocated in full to the Parties' market share whenever one of them holds control over a consortium operating a concession, regardless of whether it is joint or sole control. (180)Finally, due to the lack of publicly available information on the proceeds for certain concession payment mechanisms (mostly for shadow toll and availability payment schemes) ACS and Atlantia have estimated the total market size in terms of revenues by applying an average ratio "revenue/length" specific to each country. Combined market presence for toll motorway concessions operated by the Parties (181)It follows that, with regard to direct toll motorway concessions, the proposed Transaction would give rise to affected markets for the grant of toll motorway concession at EEA level, and nationally in Italy and in Spain. (182)At worldwide level, the Parties operate together [10-20]% of the toll motorway concessions based on km (ACS: [0-5]%, Atlantia: [0-5]%; Abertis: [5-10]%) and [10-20]% of toll motorway concessions based on revenues (ACS: [0-5]%, Atlantia: [5-10]%; Abertis: [5-10]%). (183)At EEA level, the Parties operate together [10-20]% of the toll motorway concessions based on km (ACS: [0-5]%, Atlantia: [5-10]%; Abertis: [5-10]%) and [20-30]% of toll motorway concessions based on revenues (ACS: [0-5]%; Atlantia: [10-20]%; Abertis: [5-10]%). (184)It follows that the Transaction gives rise to an affected market for the grant of toll motorway concessions based on revenues in the EEA. (185)According to the data submitted by ACS and Atlantia, there are, at EEA level, four main competitors, namely Vinci ([5-10]% in km; [10-20]% in revenues), Eiffage ([0-5]% in km; [5-10]% in revenues), Asfinag ([0-5]% in km; [5-10]% in revenues) Brisa ([0-5]% in km; [0-5]% in revenues) and Gruppo Gavio ([0-5]% in km; [0-5]% in revenues). (186)In Italy, where there are a total of 76 toll motorway concessions, Abertis would add 2 concessions to Atlantia's 21 toll motorway concession portfolio. (187)Altogether, Atlantia and Abertis operate [50-60]% of the toll motorway concessions in Italy based on km (Atlantia: [50-60]%; Abertis: [0-5]%) and [60-70]% of the toll motorway concessions based on revenues (Atlantia: [50-60]%; Abertis: [5-10]%). (188)According to the data submitted by ACS and Atlantia, there are, in Italy, three other main competitors, namely Gruppo Gavio ([10-20]% in km; [10-20]% in revenues), Autostrada del Brennero ([5-10]% in km and [5-10]% in revenues) and Autovie Venete ([0-5] % in km; [0-5]% in revenues). (189)In Italy, the increment brought about by the Transaction would be of 236 km to the 3 019 km operated by Atlantia and of EUR […] million to the EUR […] million of Atlantia. (190)In Spain, where there are a total of 76 toll motorway concessions, ACS would add 10 concessions to Abertis' 11 toll motorway concession portfolio. (191)Altogether, ACS and Abertis operate [30-40]% of toll motorways in Spain based on km (ACS: [10-20] %; Abertis: [20-30]%) and [40-50]% of toll motorways based on revenues (ACS: [0-5]%; Abertis: [30-40]%). (192)According to the data submitted by ACS and Atlantia, there are, in Spain, three other main competitors, namely Itinere ([10-20] % in km; [5-10]% in revenues), Sacyr ([5-10] % in km; [0-5]% in revenues), Cintra ([5-10] % in km; [0-5]% in revenues), FCC ([5-10]% in km), Globalvia ([0-5]% in km), Acciona ([0-5]% in km). (193)In Spain, the increment brought about by the Transaction would be of 580 km to the 1 573 km operated by Abertis and of EUR […] million to the EUR […] million of Abertis. (194)However, it is worth noting that in bidding markets such as the grant of toll motorway concessions, the Commission has acknowledged that those shares reflect the Parties' position based on past grants, but not necessarily the actual or future bidding behaviour and success rate. (195)ACS and Abertis' activities in the market for the grant of toll motorway concessions overlap in the UK. However, for the reasons outlined below, the UK is not an affected market. In the UK, where there are a total of 20 toll motorway concessions, Abertis would add one concession to ACS's one toll motorway concession portfolio.

(196)Altogether, ACS and Abertis operate [5-10]% of toll motorways in the UK based on km (ACS: [0-5]%; Abertis: [5-10]%) and [5-10]% of toll motorways based on revenues (ACS: [0-5]%; Abertis: [0-5]%). (197)According to the data submitted by ACS and Atlantia, there are, in the UK, five other main competitors, namely IFM Investments ([0-5%]% in km; [5-10]% in revenues), Sir Robert McAlpine ([10-20]% in km), Balfour Beatty ([30-40]% in km), Equitix ([10-20]% in km) and Semperian PPP invest ([10-20]% in km). (198)In the UK, the increment brought about by the Transaction would be of 22 km to the 74 km operated by Abertis and of EUR […] million to the EUR […] million of Abertis. Historic bidding data and closeness of competition (199)ACS and Hochtief provided data on the 112 tenders for the grant of toll motorway concessions launched in the EEA between 2005 and 2017 in which either ACS or Abertis have participated. (200)In the countries where Atlantia, and/or ACS, and/or Abertis are active, there have been: 26 tenders in Spain, 12 in Portugal, 11 in Germany, 9 in Ireland, 8 in France, 7 in the UK, 6 in Italy, 6 in The Netherlands, 6 in Greece, 1 in Poland; (201)Atlantia has not participated in any of these tenders, save for the prequalification phase of a public tender procedure launched by ANAS S.p.A. on June 13, 2012, for the award of a concession relating to the building, operation and maintenance of the A21 motorway Piacenza-Cremona-Brescia with a branch to Fiorenzuola D’Arda. On November 14, 2014, the Italian Ministry of Infrastructures and Transport (which in the meantime succeeded to ANAS S.p.A. as grantor) admitted ASPI to the subsequent phase, but ASPI never submitted a binding bid. (202)ACS has participated in 82 of the above-mentioned 110 EEA tenders and won 26 times. (203)ACS and Atlantia submit that Abertis has participated in only five tenders: through Sanef in four tenders in France, of which it has won one, and through Acesa in one tender in Spain, which it lost. (204)Moreover, ACS and Atlantia submit that neither Atlantia nor Abertis have been very active bidders since 2005. More specifically, in the EEA, Atlantia only participated in two procedures (in Italy) and Abertis in five procedures, including four in France (through SANEF) and one in Spain (through Acesa). Abertis successfully participated in one out of those five procedures (in France). (205)In addition, ACS and Atlantia submit that (i) ACS and Atlantia have never participated in the same award procedure, that (ii) Atlantia and Abertis have not competed for the same toll motorway concessions to be awarded by public authorities in the EEA over the last ten years and that (iii) ACS and Abertis competed against each other for the award of the same motorway concession contract only once. (206)In addition, ACS and Abertis have not competed directly against each other, even taking into account secondary transactions (i.e. sale and acquisition of existing concessionaires) in the EEA. (207)The granting authorities having expressed an opinion in the market investigation confirmed that ACS, Atlantia and/or Abertis never competed against each other since 2005. Furthermore, the majority of granting authorities consider that absent the Transaction, the Parties are not expected to compete against each other. Indeed, one granting authority stated that "[o]nly one party […] has ever submitted bids and there was never competition between each other". Another granting authority stated that "[…] we have not seen any historic head-to-head competition for concessions or electronic tolling […] between" ACS and Abertis. (208)The majority of the granting authorities having expressed an opinion in the market investigation do not consider ACS, Atlantia and Abertis as being the closest or close competitors to each other overall. (209)In Italy, where ACS is not present, Gruppo Gavio is indicated as being the closest competitor of Atlantia. (210)In Spain, where Atlantia is not present, two out of the three granting authorities having expressed an opinion consider, on the one hand, Abertis as being the closest competitor of ACS and, on the other hand, Itinere and Cintra as being ACS' close competitors. One of those two granting authorities considers Itinere as being the closest competitor of Abertis. However, the same granting authority considers Cintra and ACS as being Abertis' close competitors. The other granting authority does not consider any of the Parties as being the Abertis' closest or close competitor. (211)However, the majority of granting authorities having expressed an opinion in the market investigation responded that there would still be, post-Transaction, a sufficient number of companies competing with the Parties to prevent the risk that granting authorities receive less advantageous offers in Italy, Spain, UK and, more generally, at EEA level. (212)The majority of competitors having expressed an opinion in the market investigation do not consider ACS, Atlantia and Abertis as being the closest or close competitors to each other overall. (213)In Italy, where ACS is not present, the majority of competitors having expressed an opinion in the market investigation do not consider ACS, Atlantia and Abertis as being the closest or close competitors to each other. The majority of competitors having expressed an opinion in the market investigation consider that Atlantia's closest competitor in Italy is Gruppo Gavio. Two competitors consider Abertis as being the closest competitor of Atlantia, whilst three competitors consider Atlantia as the closest competitor of Abertis. (214)In Spain, where Atlantia is not present, the majority of competitors having expressed an opinion in the market investigation do not consider ACS, Atlantia and Abertis as being the closest or close competitors to each other. Cintra and Globalvia are indicated as being the closest competitors of ACS. Globalvia is indicated as being the closest competitor of Atlantia. Cintra, Globalvia and Itinere are indicated as being the closest competitors of Abertis. Two competitors, however, consider Abertis as the closest competitor of ACS. One of those two competitors considers ACS as being a close competitor of Abertis.

(215)However, the majority of competitors having expressed an opinion in the market investigation consider that there would be a sufficient number of companies competing with ACS, Atlantia and Abertis for toll motorway concessions to prevent the risk that granting authorities receive less advantageous offers. (216)The fact that ACS is not closest competitor to Atlantia and Abertis is also confirmed by the Parties' commercial strategy. ACS has a specific focus on greenfield concessions, whilst Atlantia and Abertis specialise in on-going concessions (brownfield concessions or secondary transactions). Parties' bidding strategies (217)The Parties bidding strategy further confirms that ACS, Atlantia and Abertis are not each other's closest competitors. (218)First, ACS has a specific focus on greenfield concessions, whilst Atlantia and Abertis specialise in on-going concessions (brownfield concessions or secondary transactions). This explains limited past and recent activity of Atlantia and Abertis on the market for the grant of toll motorway concessions at EEA and worldwide levels. As a consequence, ACS and Atlantia claim that ACS is not to be seen as a close competitor of Atlantia and of Abertis. (219)The results of the Commission's market investigation also support the complementarity of ACS' construction activities and appetite for greenfield concessions, against Atlantia and Abertis' preference for mature assets and less risky brownfield investments. (220)Second, ACS and Atlantia submit that the acquisition of existing concessionaires in some non-EEA countries, (e.g. Turkey, Brazil and Chile) offers more attractive risk-return profiles, hence more interesting business opportunities, than in EEA countries. Therefore, ACS and Atlantia submit that Atlantia intends to focus on secondary sales outside of the EEA. (221)The Commission has found no evidence running counter to ACS and Atlantia's statements regarding their investment strategies and business plans. (222)As a consequence, the Commission considers that, absent the Transaction, Atlantia and Abertis would have continued to give priority to secondary sales and, as far as Atlantia is concerned, to infrastructure projects outside of the EEA., (223)This finding would also apply to Italy, the only EEA country where both Atlantia and Abertis currently hold toll motorway concessions. In fact, Abertis' internal documents confirm that it has a strategic focus on [Business secret]. Although it cannot be excluded that Abertis, as an exception to this strategic focus, could bid for the renewal of the concession awarded to A4 Holding (subsequently acquired by Abertis), it should be considered that (i) it is at least uncertain whether Atlantia would have bid for that concession absent the Transaction, considering that it did not bid for the acquisition of A4 Holding and, (ii) in any case, any potential loss of competition would not materialise before 2027, when the concession awarded to A4 Holding expires. Barriers to entry or expansion (224)ACS and Atlantia submit that there are no specific barriers to entry, given that economic operators that have already been granted a toll motorway concession are not better placed than potential entrants. (225)In addition, ACS and Atlantia submit that possible barriers to entry that stem from the bidding specifications can be easily surmounted by current or potential competitors in so far as they are strong integrated companies and that they take part to such tenders in consortia. (226)According to ACS and Atlantia, integrated companies would be able to bid as part of consortia in view of getting specific expertise deemed to be useful for a given project. According to ACS and Atlantia, members of the consortia are not usually the same and consortia can also combine in different ways works/equipment/services provided by single members: even integrated companies, having in-house competences, may leave to other partners of the consortium the responsibility to provide them. In addition, financial funds, pension funds and sovereign funds can bid together with integrated companies. (227)In particular, the bidding data provided by Atlantia tend to demonstrate that the submission of bids by consortia is frequent. These consortia enable the combination of different skills and spread financial risks among several companies, thus mitigating the advantages in terms of integration or scale of largest concessionaires. (228)Some respondents to the market investigation identify the established position of certain companies on the market, experience or reputation, language barriers, loyalty to public authorities, high investments, know-how and access to important technology as the barriers to enter or expand in the market for toll motorway concessions. Nevertheless, the Commission considers that the Transaction is unlikely to have a major impact on these barriers to entry or expansion, as confirmed by the majority of respondents to the market investigation having expressed an opinion. (229)The Commission also considers entry not to be particularly difficult. One competitor stated that "[e]xperience and financial capacity will continue to be the main barriers and those will not change with the Transaction. More and more the market is seeing industrial companies with large experience teaming up with entities with the financial capacity (funds) to bid for specific projects. Those consortia will be always strong competitors […]". Another competitor confirmed that "[t]he Transaction does not affect the investment capacity of potential competitors […]". (230)In addition, the Concessions Directive establishes rules on the procedures for procurement by contracting authorities and contracting entities by means of a concession, which aim at ensuring non-discrimination, fair access to markets and EU-wide competition for high-value concessions. In particular, they provide for the mandatory publication at EU level of a concession notice, including a description of the concession and the conditions of participating in the concession award procedure, thus preventing the direct award of concession contracts without transparent competition. (231)The EU Member States had to transpose the Concessions Directive into their national legislation by 18 April 2016. And the implementation of the Concessions Directive is expected to promote the treatment on an equal footing of incumbent and non-incumbent concessionaires, considering that conceding authorities are required to apply harmonised selection criteria guaranteeing that the motorway concessions are awarded to the most economically advantageous tenders. Other bidders

(232)ACS and Atlantia submit that there are a number of large companies competing for the grant of toll motorway concessions at the EEA level, such as the groups Vinci, Eiffage, Brisa, Sacyr or Cintra. ACS and Atlantia submit that in the last ten years, Vinci participated in 23 tenders in the EEA and won nine; Sacyr participated in 14 tenders in the EEA and won four. Considering the significant level of integration of those large companies, they are expected to continue competing for the grant of toll motorway concessions, even if the merged entity were to stop participating in bidding consortia post-Transaction”. (233)Similarly, ACS and Atlantia submit that at national level, there are a number of companies competing for the grant of toll motorway concessions in the market, namely: (i) in Spain, the groups Sacyr, Cintra, Globalvia and Acciona are to be regarded as strong competitors as they are identified amongst the successful winners of several tender procedures for motorway concessions in the bidding data submitted by ACS and Atlantia and (ii) in Italy, Gruppo Gavio is particularly active and successful in the market. (234)As a consequence, ACS and Atlantia claim that, post-Transaction, there would be a sufficient number of strong and skilled competitors for the grant of toll motorway concessions to prevent the risk that granting authorities receive less advantageous offers as a consequence of the weakening of competition. (235)A majority of both the competitors and granting authorities that expressed an opinion during the market investigation consider that, post-Transaction, there would be a sufficient number of companies competing with the Parties for toll motorway concessions to prevent the risk that conceding authorities receive less advantageous offers in Italy and Spain, as well as in other EEA countries. (236)More generally, the majority of respondents to the market investigation having expressed an opinion consider that there would be sufficient competition left, entry is not difficult and the market is regulated. 5.1.1.4.Conclusion (237)In view of the above considerations and of the outcome of the market investigation, meaning that (i) neither Atlantia or Abertis have been very active bidders over the last ten years in the EEA; (ii) ACS, Atlantia and/or Abertis never competed against each other since 2005 and absent the Transaction, the Parties are not expected to compete against each other; (iii) the complementarity of the Parties' business focus; (iv) the number and strength of the remaining competitors, (v) the degree of regulation of the award procedures for the grant of toll motorway concessions, and (vi) the fact that the majority of respondents to the market investigation expect sufficient competition to prevent the Parties from raising prices in tenders, the Commission considers that the Transaction does not raise serious doubts as to its compatibility with the internal market with respect to the grant of toll motorway concessions or to secondary transactions, under any plausible geographic market definition (national, EEA-wide or worldwide). 5.1.2.Transport on toll motorways (238)In the EEA the Parties provide transport on toll motorways in the following Member States: Atlantia in Italy and Poland; ACS group in Spain, Germany, United Kingdom, Ireland, Portugal, Greece and the Netherlands; Abertis in Spain, France, Italy and the United Kingdom. The Transaction thus gives rise to horizontal links between the Parties in Italy, Spain, and the United Kingdom. 5.1.2.1.ACS and Atlantia's view (239)ACS and Atlantia submit that their networks do not overlap in terms of O&D. Therefore, the Transaction has no impact whatsoever on the structure and the functioning of the market for the transport on toll motorways. 5.1.2.2.The Commission's assessment (240)Despite the fact that the Parties hold motorway concessions in Italy, Spain and the United Kingdom, the motorways held by the Parties connect different O&D pairs, and therefore the Transaction does not give rise to any relevant horizontal overlap in the market for transport on toll motorways. 5.1.3.Provision of ETS/distribution of OBE (241)Atlantia and Abertis both operate as TSP in Italy (Atlantia through Telepass), in Spain (Abertis through Bip&Drive and Bip&Go) and in France (Abertis through Bip&Drive, Bip&Go and Eurotoll). ACS has no presence in the market for the provision of ETS/distribution of OBE. 5.1.3.1.ACS and Atlantia's view (242)ACS and Atlantia consider that the Transaction will not give rise to any concerns related to unilateral effects on the provision of ETS/distribution of OBE. (243)First, at national level, the Parties' activities for the provision of ETS/distribution of OBE do not overlap. Second, at EEA level, there would remain strong enough competing companies. 5.1.3.2.The Commission's assessment (244)The Transaction does not give rise to affected markets, if the market for the distribution of OBE was considered national.

(245)At EEA level, the Transaction gives rises to an affected market, with the Parties' combined market share reaching [30-40]% for all drivers, and [30-40]% when considering the potential segment for car drivers only. The increment brought about the Transaction is less than [5-10]% (Abertis would respectively add [5-10]% and [5-10]% to Atlantia's Telepass). (246)The majority of the respondents having expressed an opinion during the Commission's market investigation submitted that the Transaction would not have an impact on the provision of ETS/OBE, and that there would be sufficient competition post-Transaction to prevent the Parties from raising prices or degrading service quality for the provision of ETS/OBE. These results are in line with the responses to the market investigation for the recent Case M.8536 – Atlantia/Abertis Infraestructuras, for which the same horizontal overlap for the provision of ETS/distribution of OBE was also addressed, and the market investigation did not identify any concerns with respect to uncoordinated effects due to the horizontal overlap on the market for the provision of ETS/distribution of OBE, either at EEA or at national level. (247)Affected markets at EEA level mainly result from the monopoly currently enjoyed by Atlantia in Italy, which however pre-dates the Transaction and it is therefore not merger-specific. Moreover, Atlantia and Abertis will face competition, post-Transaction, from a number of other OBE distributors, such as ViaVerde, Vinci, APRR (owned by Eiffage) and Toll Collect with individual market share of approximately [10-20]%, [5-10]%, [5-10]% and [0-5]% respectively for all drivers, and with ViaVerde, Vinci and APRR also present in the segment for car drivers only with individual market shares of [10-20]%, [10-20]% and [5-10]% respectively. (248)Considering a sub-segmentation for the distribution of OBE for cars only at EEA level appears to be less relevant, because a very high proportion of OBE devices in Europe are not technically interoperable and can only be used in a single country. If an EEA-wide market was considered for the distribution of OBE devices for heavy vehicles – for being those that travel cross-border on a regular basis, the Parties' combined market share would be as low as [5-10]%. (249)Finally, two major operators active at EU level in different Member States, namely DKV and Axxès (a company controlled by the Vinci group), are entering the Italian market with their own OBE. DKV has already obtained the required authorisations/certifications to operate on the Italian toll motorway network. Such process could plausibly be completed by the end of the current year 2018. Axxès is in an advanced phase to obtain the authorisation/certification. In addition, Total, another relevant player at the EU level has started contacts with the Italian authorities in charge of the granting of the authorization in order to enter the Italian market. 5.1.3.3.Conclusion (250)In view of the above, and considering notably (i) the fact that no affected markets arise at national level, (ii) the limited increment brought about by the Transaction at EEA level, and (iii) the number and strength of remaining competitors, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market in respect of the market for the provision of ETS/distribution of OBE, under any plausible segmentation. 5.1.4.Provision of equipment or services for ETC/ITS (251)Atlantia and Abertis are both active as providers of ETC systems in the EEA, through Autostrade Tech (Atlantia, mainly active in Italy, but also in Austria, Spain, France and Poland), Emovis (Abertis, active in Croatia, France, Ireland and the UK) and A4 Mobility (Abertis, active in Italy). ACS has no presence in the market for the provision of equipment or services for ETC/ITS. 5.1.4.1.ACS and Atlantia's view (252)ACS and Atlantia submit that the Transaction would not give rise to any affected markets for the provision of equipment or services for ETC/ITS, either at EEA level or at national level, even if a plausible narrower market is considered for the manufacture and provision of OBE. 5.1.4.2.The Commission's assessment (253)With regard to the overall market for the provision of ITS equipment or services, the proposed Transaction does not give rise to any affected markets both at EEA level and at national level. (254)On a narrower market for the provision of ETC equipment, the Parties' combined market shares in 2017 do not give rise to any affected market either at EEA level or at national level. (255)If an even narrower market for the manufacture and provision of OBE is considered, the proposed Transaction would not lead to an overlap, since only Atlantia, through Autostrada Tech, is engaged in the production of OBE. (256)The majority of the respondents having expressed an opinion during the Commission's market investigation for this case submitted that the Transaction would not have an impact on the provision of ETC systems, and that there would be sufficient competition post-Transaction to prevent the Parties from raising prices or degrading service quality for the provision of ETC systems. (257)The majority of the respondents having expressed an opinion during the Commission's market investigation submitted that the Transaction would not have an impact on the provision of equipment or services for ETC/ITS, and that there would be sufficient competition post-Transaction to prevent the Parties from raising prices or degrading service quality for the provision of equipment or services for ETC/ITS. These results are in line with the responses to the market investigation for the recent Case M.8536 – Atlantia/Abertis Infraestructuras, for which the same horizontal overlap for horizontal overlaps brought about by the proposed Transaction for the provision of equipment or services for ETC/ITS were also addressed, and the market investigation did not identify any concerns with respect to uncoordinated effects due to the horizontal overlap on the market for the provision of equipment or services for ETC/ITS in the EEA or at national level. (258)With regard to those contracts described in paragraphs 110-112 above, the Commission considers, by examining the type of contracts that have been tendered out by public authorities since 2010, that neither Atlantia nor Abertis have to date won any such contract and did not realise any revenues in the EEA. (259)The tenders in which at least either Atlantia or Abertis participated in the last nine years are the following: (i) Italy – ETC system for motorways directly managed by ANAS (2010), (ii) France - Ecotaxe project (2010), (iii) Hungary - Heavy vehicles free flow tolling system, (2012), (iv) Belgium - Heavy vehicles free flow tolling system, (2013), (v) Ireland – ETC free flow tolling system on M50, (2015), (vi) Slovenia – Heavy vehicles free flow to