Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,   BELGIË  
 
Tel: +32 229- 91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu.   EUROPEAN COMMISSION  
Brussels, 6.3.2020  
C(2020)  1573 final  
PUBLIC VERSION 
 
To the notifying parties  
Subject : Case M.9674 – VODAFONE ITALIA / TIM / INWIT JV 
Commissio n decision pursuant to Article 6(1)(b) in conjunction with 
Article 6(2)  of Council Regulation No 139/20041 and Article 57 of the 
Agreement on the European Economic Area2 
Dear Sir or Madam,  
(1) On 17 January 2020, the  European Commission (the “Commission”)  received 
notification of a proposed concentration pursuant to Article 4 of the Merger 
Regulation by which Vodafone Europe B.V. and Telecom Italia S.p.A (“ TIM”) will 
combine into a newly created joint venture their  passive mobile telecommunications 
infrastructu re businesses in Italy  (the “Transaction ”).3  
1. THE PARTIES  
(2) Vodafone  Europe B.V. is part of the Vodafone Group, which operates 
telecommunications networks and offers telecommunications and other services in a 
number of countries across the globe. Within the EU, Vodafone is active in ten 
Member States. In particular, Vodafone Italia S.p.A. (“ Vodafone ”) provides mobile 
and fixed telecommunications services to consumers and businesses in Italy. 
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the “Merger Regulation” ). With effect from 1 December 2009,  the Treaty on the 
Functioning of the European Union ( “TFEU ”) has introduced certain changes, such as the replacement of  
“Community ” by “Union”  and “common market ” by “internal market” . The termin ology of the TFEU will 
be used throughout this D ecision.  
2  OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).  
3  Publication in the Official Journal of the European Union No C 29, 28.01.2020, p. 13. 
In the published version of this decision, 
some information has been  omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
confidential information. The omissions are 
shown thus […]. Where possible the 
information omitted has been replaced by 
ranges  of figures or a general description.  
 
 
2 Vodafone Italia also owns its mobile network that consists of approx imately 11  000 
passive sites and related infrastructure.  
(3) TIM provides mobile and fixed telecommunications services to consumers and 
businesses in Italy. Outside Italy, TIM is mainly active in Brazil. TIM owns the 
passive infrastructure of its mobile networ k in Italy through Infrastrutture Wireless 
Italiane S.p.A. (" INWIT "), a publicly listed, 60.33% owned subsidiary. INWIT 
operates approximately 11  000 passive infrastructure sites hosting equipment mainly 
for mobile network operators (“ MNOs ”) and other providers of electronic 
communication services.  
(4) Vodafone , TIM  and INWIT  are designated hereinafter as “ Parties ”. 
2. THE TRANSACTION  
(5) Pursuant to a Framework Agreement executed on 26 July 2019, the Parties intend to 
combine their passive infrastructure operations in Italy into a jointly controlled 
company  (hereinafter, the “Joint Venture”, the “JV” or “INWIT”) . 
(6) For this purpose, Vodafone Italia has created a separate legal entity, Vodafone 
Towers S.r.l. (“ VOD Towers ”), to which it has contributed its passive infras tructure 
operations. INWIT will acquire a minority participation (43.4%) in VOD Towers 
against the payment of a cash consideration. VOD Towers will then merge into 
INWIT. As a result, the Parties will each hold shares equal to approximately 37.5% 
of INWIT ’s capital,4 whilst the remaining shares will be free -floating.5 The 
shareholders of INWIT will then adopt Amended By -Laws  and the Parties will 
execute a Shareholders’ Agreement .  
(7) Finally, INWIT will execute with each of TIM and Vodafone Italia a Master Ser vice 
Agreement  (“MSA”) for the provision of hospitality services, for a term of […] 
years, with tacit renewal clause for an additional […] years . Under the terms of the 
MSAs:  
(a) With respect to hospitality services on existing macro -sites6 […] : 
(i) As result of t he Transaction, INWIT will manage around 22 000 
existing macro sites . […] . 
(ii) […]. 
(iii)[…]. 
(iv) […]. 
(v) […].7 […] . 
                                                 
4  […]. 
5  This step of the Transaction is subject to the so c alled “whitewash procedure”, which requires the 
approval of the minority shareholders, to avoid the need by Vodafone and TIM to make a tender offer 
over the totality of the shares of INWIT.  
6  For a definition of macro -sites, see paragraph (37) . 
7  […].  
 
 
3 (vi) […]. 
(b) With respect to hospitality services on new macro sites or small cells8, […] : 
(i) […]. 
(ii) […], the Parties grant INWIT the status of preferred supplier  for the 
provision of services on new sites, […] . 
(c) […], each of the Parties commit to entrust INWIT the provision of hospitality 
services on macro sites and small cells, as well as fiber  backhaul services,  
[…]. 
(d) […]. 
(e) […]: 
(i) […]. 
(ii) […]. 
(8) Thus , the MSAs contain several p rovisions which afford preferential rights to the 
Parties  to access the sites managed by the Joint Venture . The rationale of these 
provisions is to ensure that INWIT’s ability to offer hospitality to third parties on 
any of the sites contributed by the Par ties is restricted to the space that the Parties 
will leave free after the Parties have activated the passive sharing. Thus such 
provisions are functional to the additional agreements entered into by the Parties 
described in Section 3.3. And in particular to the agreement related to passive 
sharing.  
(9) The MSAs will be taken into account in the assessment of the effects of the 
Transaction. On the one hand, these are long- term supply contracts, which arguably 
go beyond what normally required in a transitory per iod for the implementation of a 
transaction. On the other hand, being these binding contracts that will define the 
rights of the Parties over the assets managed by the Joint Venture, the MSAs will 
have an influence over the competitive behaviour of the Joi nt Venture.  
3. THE CONCENTRATION  
3.1. Joint control  
(10) Post-Transaction INWIT will be jointly controlled by Vodafone and TIM within the 
meaning of Article 3(1)(b) of the Merger Regulation for the following reasons : 
(a) First,  the Parties will each hold 37.5% of INWIT’s capital and thus together 
hold more than 50%.  
                                                 
8  In respect to small cells, see paragraph (38) . 
 
 
4 (b) Second, the Amended By -Laws  set out , in particular, the following 
governance principles:  
– The Board of Directors  will consist of 13 members appointed 
following  a list mechanism. According to this mechanism, if two lists 
obtain each the votes of at least 25% of INWIT capital (but less 
than 50% - which would be the case for the lists presented by 
Vodafone and TIM), such lists appoint each 5 directors. The 
remaining directors are appointed from the minority lists.  Thus the 
Parties will be able to appoint each 5 directors . 
– A number  of reserved matters , including, among others, the budget 
and the business plan, the nomination of the CEO and the Chairman, 
could be decided by the Board only with a supermajority of 
9 dire ctors. Thus , in principle, the favourable vote of directors 
nominated both by TIM and Vodafone is required . 
(c) Third, pursuant to the Shareholders’ Agreement , TIM and Vodafone have 
agreed to appoint each an equal number of member of the Board of Directors 
of INWIT. For the first term, TIM designates  the CEO , while  Vodafone 
designates  the Chairman and the CFO. Subsequently, in the absence  of 
agreement, a rotation mechanism for the designation of key manager s is 
applied between Vodafone and TIM. Finally, a three  years lock -up period is 
foreseen on any sale of shares of INWIT.9 
3.2. Full-functionality  
(11) The Parties submit that the proposed Joint Venture  would not be full -function, for 
the following reasons:  
(a) the primary purpose of the Joint Venture  would not be the format ion of an 
independent tower company active on the Italian market; rather it would be  to 
hold and manage the Parties’ combined passive infrastructure assets for the 
benefit of the Parties, with third -party sales representing an ancillary element;  
(b) the Joint Venture’s  third party sales are expected to remain below […] % and 
the Joint Venture  is expected to remain economically dependent on sales to 
its parent companies in the long -term;  
(c) the governance and contractual rights of the Joint Venture ’s parents will 
significantly limit the Joint Venture ’s operational autonomy, in that the Joint 
Venture  will need to prioritise the critical infrastructure needs of TIM and 
Vodafone over any commercialisation of assets towards third parties;  
(d) the relationship between the Joint Venture  and the parent companies is not 
“truly commercial” in nature, as the Parties enjoy preferential super anchor 
tenant rights , which would not be made available on the market by an 
independent tower company;  
                                                 
9  In the past the Commission has considered that 3 years was a sufficient period of time for establishing the 
long-lasting change of control pursuant t o Article 3 of the Merger Regulation (see Commission decision 
of 8 May 2014 in Case M.6905 – INEOS / SOLVAY / JV , recital 6).  
 
 
5 (e) finally, the fact that the Joint Venture  is listed on the Italian  Stock Exchange 
and does have third party minority shareholders does not have any impact on 
the above -mentioned analysis. 
(12) The Commission considers that Post -Transaction INWIT will constitute a full-
function Joint Venture  within the  meaning of Article 3(4) of the Merger Regul ation 
for the following reasons. 
3.2.1. Sufficient Resources  
First, the Joint Venture will have sufficient resources to operate independently on the 
hospitality services markets.10 INWIT is an existing company, listed in  the Italian 
stock exchange and after the Transaction about 25% of its share capital will continue 
to be held by the public and INWIT will thus remain a publicly traded company.  
INWIT  already has and will continue to have a management dedicated to its day -to-
day operations with “managerial autonomy”  and will continue to have access to 
sufficient resources (including its own finance, staff and assets) to conduct its 
business activities independently .  In any case, the Parties do not contest this element 
of the analysis.  
3.2.2. Presence on the market  
(13) INWIT will  not take over one specific function within the parent companies’ 
business activities  and will have its own presence on the market.11 
(14) As it will be better explained at following Section 7.2, already today both I NWIT 
and VOD Towers (albeit to a lesser extent) offers telecommunications hospitality 
services to third parties in Italy and post -Transaction the Joint Venture will continue 
to be active in the hospitality services markets in Italy, similarly to any other 
operator on the same markets.  The Parties have clearly stated that INWIT will be 
able to supply third parties on market terms as it sees fit and that it will be better 
placed to monetise Vodafone’s passive infrastructure by increasing third party 
tenancies  (see below at section 7.5.2).  
(15) Concerning the  sales by the JV to the parent companies, the essential question is 
whether the JV will be geared to play an active role on the market and can be 
considered economically autonomous from an operational viewpoint.12 In case of 
significant sales of the JV to the parents, a finding of operational autonomy is 
possible if the relationship between the JV and its parents is truly commercial in 
character as “the greater the proportion of sales likely to be made to the pare nts, the 
greater will be the need for clear evidence of the commercial character of the 
relationship”.13 
                                                 
10  Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the 
control of concentrations between undertakings , paragraph 94 (OJ C 95, 16.4.2008 , p. 1).  
11  Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the 
control of concentrations between undertakings , paragraph 95.  
12  Commission Consolidated Jurisdiction al Notice under Council Regulation (EC) No 139/2004 on the 
control of concentrations between undertakings , paragraph 98.  
13  Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the 
control of concentrations between und ertakings , paragraph 98.  
 
 
6 (16) Therefore, it is important to consider whether INWIT deals with the Parties at arm’s 
length. The simple fact that the Parties reserve for themselves a l arge proportion of 
the JV’s infrastructure, which is reflected in the high percentage of revenues 
expected to be realised with the Parties, does not as such exclude that the 
relationship between the JV and the parents is at arm’s length.  
(17) In this respect, i n the present case there are strong indications that the Parties will 
have access to INWIT’s infrastructure at market terms . 
(18) While the Parties can reserve for themselves a large part of the JV’s infrastructure, as 
they have priority access to most of its s ites, they still have to pay a market price for 
that access. Indeed, under the MSAs, to access INWIT’s infrastructure the Parties 
will […]. The […] fees paid by the Parties appears to be the market remuneration for 
the preferential super anchor tenant righ ts that the Parties will enjoy on INWIT’s 
infrastructure . Nothing in the Commission’s investigation suggests that similar 
preferential rights could not be granted by independent tower companies  to a third -
party customer , with a similarly  adequate remunerat ion. 
(19) In addition, the fact that the Parties’ access to INWIT’s infrastructure will be subject 
to market terms is confirmed by the reports of independent experts, who – on the 
basis of the Italian stock market regulations – were called to evaluate the contr actual 
relations between INWIT and the Parties.  Notably, an official report – established on 
the basis of the evaluation of independent experts – indicat es that the economic 
terms of the MSAs with TIM and Vodafone are in line with market values and would 
have likely been  applied even if the T ransaction was concluded with third parties.14 
(20) Therefore, it appears that the relationship between the JV and the Parties is truly 
commercial in character.  
(21) For a finding of operational autonomy, it is also  relevant that INWIT still has 
available capacity to offer to third parties and foresees , in addition, to build new sites 
at the request of third parties.15  
                                                 
14  See the evaluation in “Documento informativo relativo ad operazione di maggiore rilevanza con parti 
correlate redatto ai sensi dell’art. 5 del Regolamento adottato da CONS OB con delibera n. 17221 del 
12 marzo  2010”  
(https://www.inwit.it/sites/default/files/INWIT%20Documento%20Informativo%20OPC%20DEF.pdf ), 
where it is stated that: “Ai sensi dell’art. 14 del Regolamento OPC, la convenienza economica 
dell’Operazione è stata oggetto di particolare attenzione per il Comitato PC in considerazione della 
sottoposizione di Inwit a direzione e coordinamento di TIM. Al riguardo, il Comitato OPC ha ritenuto 
che le condizioni dell’Operazione siano congrue e ragionevoli per Inwit e che appare fondato affermare 
la sussistenza della convenienza economica dell’Operazione [inclusi gli MSA] in quanto, anche secondo 
quanto risulta dal Parere di Equita: (a) i termini economici costituiscono condizi oni in linea con i valori 
di mercato, che sarebbero stati verosimilmente applicati anche qualora l’Operazione fosse stata 
conclusa con un soggetto diverso da una parte correlata” (pag e 37; emphasis added ). 
15  Commenting the results of the first three trime sters of 2019, INWIT’s CEO publicly declared that the JV 
will have the resources and capacity to promot e the development of 5G and new wireless technologies in 
Italy, support ing the projects of all operators in the sector: “ I dati dei nove mesi del 2019 confermano per 
INWIT una performance industriale che continua a garantire la crescita della società. INWIT  è stata 
fortemente impegnata, e continua ad esserlo, nel perfezionamento dell’accordo di partnership di lungo 
periodo con Tim e Vodafone che porterà a breve alla nascita del primo operatore infrastrutturale in 
Italia.  Una realtà che avrà le risorse e le capacità per sostenere lo sviluppo del 5G e delle nuove 
tecnologie wireless, sostenendo i progetti di tutti i soggetti che operano nel settore , e permett endo al 
Paese di confermare la leadership che si è conquistata questi ultimi anni nella telefonia mobile " 
 
 
 
7 (22) In this context , the Commission notes that the capacity reservation on INWIT ’s 
infrastructure appears to be intended to protect the Parties, who need access to 
INWIT’s key infrastructure, and does not appear to be necessary to allow INWIT to 
operat e on the market  (where, as discussed below at S ection 7.5.2, there is third 
parties’ demand for hospitality services on IN WIT’s infrastructure). Indeed, before 
the Transaction  INWIT is already operating autonomously on the market , offering a 
large (and growing) part of its infrastructure to third parties  notwithstanding the 
capacity reservation already enjoyed by TIM . 
(23) It thus  appears that, on balance, regardless of the amount of sales to the Parties, 
INWIT is geared to play an active role on the market and can be considered 
economically autonomous from an operational viewpoint. 
3.2.3. Long- lasting nature  
(24) Finally,  the Joint Venture is  intended to operate on a lasting basis.16 INWIT has an 
indefinite duration and the combined business plans provided by the Parties cover 
the period up to […], in line with the duration of the MSAs for the provision of 
hospitality services, which have a ter m of […] years ( with tacit renewal clause for an 
additional […] years ). The Shareholders’ Agreement has a duration of […] years but 
provide for its possible renewal during a […]  period before its expiration. 
3.2.4. Conclusion on full -functionality  
(25) Therefore, the Commission concludes that the Transaction will lead to the creation 
of a joint venture  performing on a lasting basis all the functions of an autonomous 
economic entity pursuant to Article 3(4) of the Merger Regulation and thus 
constitutes a concentration w ithin the meaning of Article 3(1)(b)  of the Merger 
Regulation . 
3.3. Scope of the concen tration  
(26) Under the Framework Agreement, t he Transaction is instrumental to the 
implementation of a series of other agreements between the Parties:17 
(a) A Passive Sharing Agreement , concerning the sharing of sites and passive 
mobile network equipment between the Parties. It provides for t he extension 
of the existing passive sharing arrangements  between the Parties18 on a 
nationwide basis for a term of […] years, with tacit renewal cl ause for an 
additional […] years . Also INWIT will be party to this agreement, as 
successor of TIM in some of the existing arrangements.  
(b) An Active Sharing Agreement , concerning the sharing of active mobile 
network equipment between the Parties. It provides for the  implementation of 
an active sharing  of the Parties’ respective existing 2G and 4G networks, as 
                                                                                                                                                      
(“https://www.inwit.it/it/content/esaminato -CdA -resoconto -intermedio -di-gestione -30-settembre -2019” ; 
emphasis added) . 
16  Commission Consolidated Juris dictional Notice under Council Regulation (EC) No 139/2004 on the 
control of concentrations between undertakings , paragraph 103.  
17  […].  
18  Since 2007, the Parties have a number of passive sharing arrangements, mainly in  municipalitie s with a 
population of  up to 35 000 inhabitants (and in certain cases up to 50  000 inhabitants).  […].  
 
 
8 well as the joint roll- out of a 5G network, in municipalities with a population 
of up to 100 000 inhabitants . The agreement will have the duration of […]  
years, with tacit renewal clause for an additional […] years.  
(c) A Backhauling Agreement , setting out the terms and conditions for the 
supply of backhauling services  by the Parties to each other via their existing 
fiber  connections.19 The agreement will have the duration of […] years, with 
tacit renewal clause for an additional […] years.  
(27) According to the Parties, the Transaction and the various agreements mentioned 
above (together the “ Operation ”) all serve the rationale of accelerat ing 5G 
deployment by the Parties, while creating synergies in terms of CAPEX and OPEX 
investments.20  
(28) The Commission has received third party submissions claiming that the scope of the 
investigation in the present case under the Merger Regulation should not be limited 
to the Transa ction, but it should extend to entire Operation.  
(29) In this respect, the Commission notes that agreements entered into by the parties to a 
concentration  that do not form an integral part of a  concentration (because they do 
not establish control within the mea ning of Article 3(2) of the Merger Regulation  
and do not carry out the main object of the concentration ), but still restrict the 
parties' freedom of action in the market , can be  covered by the assessment in a 
decision declaring the concentration compatible  with the common market.21 This is 
the case if they qualify as ancillary restraints.  
(30) For a contractual arrangement to be qualified as  an ancillary restraint , it needs to 
satisfy the following two legal criteria : 
(a) being directly related  to the implementation  of the concentration, 
i.e. economically related to the main transaction and intended to allow a 
smooth transition to the changed company structure after the concentration, 
and 
(b) being necessary to the implementation of the concentration, i.e. in the 
absence  of that agreement, the concentration could not be implemented or 
could only be implemented under considerably more uncertain conditions, at 
substantially higher cost, over an appreciably longer period or with 
considerably greater difficulty . 
(31) Pursuant to paragraph 11 and following of the Commission Notice on restrictions 
directly related and necessary to concentrations , restrictions are not directly related 
and necessary to the implementation of the concentration simply because the parties 
regard them as su ch.22 As clarified by the Court, “ [w]here it is not possible to 
                                                 
19  […].   
20  See […].  
21  Commission Notice on restrictions directly related and necessary to concen trations, OJ C 56, 5.3.2005, 
p. 24–31, paragraph 10.  
22  This clear indication in the Notice differentiates the analysis of the necessity criterion for the analysis of 
ancillary restraint from the one used for the purpose of establishing whether a serious of transaction 
constitute a single concentration (see Commission decision of 27  June 2019 in Case M.8179 – 
Canon/Toshiba Medical Systems Corporation).  
 
 
9 dissociate such a restriction from the main operation or activity without 
jeopardising its existence and aims, it is necessary to examine the compatibility 
[with EU competition rules] in conjunction with the compatibility of the main 
operation”. However, “ the fact that that operation is simply more difficult to 
implement or even less profitable without the restriction concerned cannot be 
deemed to give that restriction the ‘objective necessity’ required in order for it to be 
classified as ancillary ”.23 As it appears from the examples set out in the Commission 
Notice on restrictions directly related and necessary to concentrations  as well as 
from the Commission practice,24 ancillary restraints norma lly consist in  agreements 
in the favour of the joint venture or the target company (such as non- compete clause, 
supply agreements, etc.), which would enable it to operate in the market in a viable 
manner especially in a transitory period.  
(32) In this context, the Commission considers that it cannot be established that the 
Passive Sharing Agreement, the Active Sharing Agreement and the Backhauling 
Agreement constitute ancillary restraints. Indeed, they do not appear to be directly  
related to the  implementation o f the Transaction in the sense of paragraph (30)(a), as 
they regulate relationships between the Parties and the Transaction could be 
implemented even without them.  
(33) Further, it cannot be concluded that the necessity criterion set out in 
paragraph  (30)(b)  would be met  with respect to the Passive Sharing Agreement, the 
Active Sharing Agreement and the Backhauling Agreement , as the Transaction could 
be implemented even in their absence with out jeopardisin g its existence and aims . 
To the contrary, it appears that it is the Joint Venture  that is instrumental to the 
implementation of the Passive Sharing Agreement and the Active Sharing 
Agreement: w ithout the Joint Venture  it may indeed be more costly or longe r to 
create a common grid of the Parties through the those agreements . 
3.4. Conclusion  
(34) Therefore, the Transaction constitutes a concentration  within the meaning of 
Articles  3(1)(b) and 3(4) of the Merger Regulation. The scope of the concentration 
whose effects will be assessed in this Decision will be limited to the agreements 
bringing out the Transaction, that is to say the Amended By -Laws  and the  
Shareholders’ Agreement, together with  the MSAs .25 
4. EU DIMENSION  
(35) The undertakings concerned have a combined aggregate  worldwide  turnover of more 
than EUR 5 000 million (Vodafone 50 254 million, TIM 18 934 million) .26 Each of 
Vodafone and TIM has an EU -wide turnover in excess of EUR 250 million 
(Vodafone […] million, TIM 14 271 million) , but they do not achieve more than 
two-thirds of their aggregate EU -wide turnover within one and the same Member 
                                                 
23  Judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201, 
paragraph s 90-91. 
24  E.g. Commission decision of 10 August 1992 in Case IV/M.206 – Rhône -Poulenc/SNIA, p aragraph 8.3.  
25  For the sake of clarity, antitrust rules , in particular Article 101 TFEU, will continue to apply to the Passive 
Sharing Agreement, the Active Sharing Agreement and the Backhauling Agreement, regardless of the 
outcome of the present assessment under the Merger Regulation.  
26  Turnover calculated i n accordance with Article 5 of the Merger Regulation . 
 
 
10 State. The notified operation therefore has a U nion dimension pursuant to 
Artic le 1(2) of the Merger Regulation. 
5. INDUSTRY OVERVIEW  
5.1. Passive network infrastructure  
(36) Wireless telecomm unications networks are composed of a number of radio access 
network sites, essentially a mast with an antenna and a radio -frequency system, 
linked to a core network by backhaul connections.  
(37) There are essentially two types of radio access network sites : ground based towers 
and rooftop towers ( together referred to as “macro -sites”) . These sites have been 
originally built for captive use by network operators, but a market for hospitality 
services on macro -sites has been gradually opened.  
(38) Recently, to ensure reliable coverage in buildings or dense urban areas , macro -sites 
have  been supplemented by the use small cells and distributed antenna systems 
(“DAS” ; together, with small cells , “micro -sites”) . Micro -sites are expected to be 
used more prominently in 5G mobile networks  and a market for the supply of 
hospitality services on these sites has  started to develop. 
(39) Each radio access network site covers a limited area and has a maximum capacity  in 
terms of physical space on which equipment can be housed as well as in terms of 
electromagnetic fields (“EMF”)  limits.  
(40) Due to the architectonic configuration of Italian cities, with several historical 
buildings, often space on sites is limited or the use for telecommunications purposes 
is restricted.  
(41) Further, the legislation on EMF limits in Italy is very stringent. It imposes the same 
EMF limits (i.e. 20 V/m or 6 V/m depending on the target measurement points stated 
by law) irrespective of types of uses of antennas. Accordingly, the same EMF limits 
apply for both broadcas ters and telecom operators, as well as for both macro and 
micro -cells ( though the low power and limited coverage of microsites allows for 
simplified EMF assessments ). T he Agenzia Regionale per la Protezione 
dell’Ambiente (“ARPA”)  is the Italian  regional body tasked with ensuring fulfilment 
of EMF obligations as well as giving prior authorisation for the installation of 
additional antennas on a site by an operator after the latter has provided ARPA with 
the relevant simulation and impact assessment, as presc ribed by law. To obtain the 
prior authorisation from ARPA, current tenants on a site commonly collaborate with, 
and provide information on their equipment to, prospective tenants on the site, 
including in respect of the emissions and physical features ( e.g. antenna height) of 
the equipment on the site, so as to enable the potential new tenants to prepare a 
proper simulation to be submitted to ARPA. The suppliers of hospitality services on 
the site  are usually not involved in these discussions but have an interest in 
facilitating the process to increase their revenues.27 The challenges for operators to 
build new sites have been clearly described by the Italian Competition Authority in 
Segnalazione  n. AS1551. 
                                                 
27  Agreed minutes of the conference call of 26 November 2019 with Wind Tre, paragraphs 3 to 11.  
 
 
11 (42) The supply of hospitality services on sites include the rental of the space on the 
passive infrastructure, for which the customers pay the supplier a hosting fee. Normally the provision of these services is regulated by framework contracts of long duration (between 6
28 and 15 years) and the possibility of automatic renewal at the 
first expiration. The framework agreements are then supplemented by specific 
hosting agreements for relevant sites so that such relationships are governed by both the terms of the relevant overarching framework agreement and the specific hosting agreements pertaining to the relevant sites in question. 
(43) A specific type of framework agreements are the “anchor tenant arrangements”. These are usually the result of the outsourcing of the management of previously captive sites to a third par ty. In this context, in order to keep some degree of control 
over the key network input constituted by the site, the customer usually reserves some preferential treatment or veto rights over the asset.  
5.2. Suppliers of hospitality services on passive network infrastructure  
(44) There is a range of providers of hospitality services. 
(45) Firstly, sites are owned and managed by MNOs, which use them primarily for their own network purposes  but also provide access to third parties . In Italy, there are 
currently four MNOs man aging, operating and, to a different extent,  offering access 
to sites: TIM, Vodafone, Wind Tre S.p.A. (“Wind Tre”) and Iliad Italia S.p.A. 
(“Iliad”).  
(46) As mentioned earlier, TIM operates its 11  000 macro- sites through a separate 
company, INWIT. The same proc ess of spin -off of the towers operations into a 
separate company has been recently undertaken by Wind Tre, with the creation of CK Hutchison Networks Italia S.p.A. (“CKHNI”), which manages around 9 000 
macro -sites.  Vodafone also owns its mobile network that consists of approximately 
11 000 macro sites and related infrastructure.  
(47) Secondly, sites are owned and managed by independent wireless infrastructure 
providers, known as " independent TowerCos ". In Italy there are three independent 
TowerCos: Cellnex Telecom, S.A. (“Cellnex”), E i Tower S.p.A. (“E i Tower”) and 
RaiWay S.p.A. (“RaiWay”).  
(48) Cellnex  started providing hospitality  services in Italy in  2015. On 26 March 2015, 
Cellnex closed the acquisition of 7 377 macro -sites (the “Galata business”) from the 
mobile operator WIND S.p.A. (“WIND”, today merged into Wind Tre
29). WIND 
retained a 10% non- controlling shareholding over the Galata business. The sale 
agreement included a tower services agreement for these sites with WIND for period 
of 15 years, renewable for an additional period of 15 more years, and foresaw the 
deployment of additional sites that would have allowed WIND to accelerate the offer of new mobile broadband services.
30 
(49) On 7 May 2019, Iliad (which operates a mobile network not only in Italy but also in France and Ireland) announced that it entered into a series of agreements with 
                                                 
28  […]. 
29  Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV . 
30  See press release at 
https://www.cellnextelecom.com/content/uploads/2015/03/26032015 TorresWindclosing- EN1.pdf  
 
 
12 Cellnex to form a strategic partnership with respect to Iliad's passive mobile telecom 
infrastructure in France and Italy.31 In total, Iliad agreed to transfer under the control 
of Cellnex 7  900 macro -sites (5  700 in France, 2 200 in Italy).32 As part of the 
contemplated transaction, Iliad entered into long- term service contracts with Cellnex. 
These agreements comprise the provision of hosting services over mobile telecom infrastru cture as well as the construction of new sites through a build- to-suit program 
encompassing 6  400 macro- sites (4  500 in France and 1 900 in Italy) of which 3 500 
committed by Iliad (2  500 in France and 1 000 in Italy). 
(50) Ei Towers ' activity consists of manag ing a portfolio of approximately 3 300 
infrastructures, of which 2 300 broadc asting sites and approximately 1  000 mobile 
macro -sites.
33 Rai Way is a subsidiary of RAI, Italy's state -owned television and 
radio broadcaster, and manages over 2  300 macro -sites across Italy.34 Thus, Rai Way 
and Ei Towers mainly provide coverage and signal for TV and radio broadcasting through broadcasting towers. 
5.3. Demand -side of hospitality services on passive network infrastructure  
(51) Sites are key inputs for building two types of wi reless telecommunication s networks: 
mobile telecommunications networks and fixed- wireless access (“FWA”) networks.  
(52) As mentioned, in Italy there are currently four MNOs: TIM, Vodafone, Wind Tre and Iliad. They do not only manage and operate sites, but also use these sites for 
their supply of telecommunications services. 
(53) TIM  is the formerly state- owned incumbent and was founded in August 1994 
through the merger of five companies: SIP, Iritel, Telespazio, Italcable and Sirm. Based on data published by the Ital ian telecoms regulator, as of September 2019 
TIM was the second largest provider of retail mobile telecommunications services by 
number of SIM cards (excluding machine to machine (“M2M” ) subscriptions; it was 
the market leader if M2M subscriptions are incl uded).
35 TIM also provides mobile 
virtual network operators (“MVNOs”)  with wholesale access to its mobile network.  
TIM’s mobile network is based on the 2G, 3G and 4G technologies, but it has launched 5G pilots in Rome, Turin and Naples . TIM is also active i n the provision of 
fixed telephony and fixed internet services, both at retail and wholesale level , based 
on its copper and fiber  networks ( including recently  FWA technology )
36 and, based 
on data published by the Italian telecoms regulator, as of September 2019 it was the market leader in the supply of retail fixed internet services . 
(54) Vodafone  was formed in 1994 with the name of Omnitel as the first alternative to 
the market leader TIM. In 2001, Omnitel was acquired by Vodafone Group and 
in 2003 it changed i ts name to Vodafone  Italia . Based on data published by the 
Italian telecoms regulator, as of September 2019 Vodafone  was the third largest 
provider of retail mobile telecommunications services by number of SIM cards 
                                                 
31  See press release at https://www.iliad fr/presse/2019/CP_070519_Tower_Eng.pdf  
32  See […].  
33 See https://www.eitowers.it/azienda/art/10/Profilo.shtml. 
34 See http://www raiway.it/it IT/web/guest/tower -rental  
35  AGCOM, Communication Markets Monitoring System , no. 4/2019  available at 
https://www.agcom.it/documents/10179/4386532/Allegato+23-1- 2020/7b245499- 7f9f-45af-80c0-
76b41a197b7c?version=1.0  
36  Parties’ reply to RFI 21, question 1.  
 
 
13 (excluding M2M subscriptions; it was the second largest if M2M subscriptions are 
included) .37 Vodafone also provides MVNOs  with wholesale access to its mobile 
network. Vodafone ’s mobile network is based on the 2G, 3G and 4G technologie s, 
but it has launched 5G pilots in the Milan metropolitan area  (including 28 
surrounding localities), Rome, Turin, Bologna and Naples . Vodafone also delivers 
fixed telecommunications services to consumers  and businesses  without using FWA 
technology  yet and, based on data published by the Italian telecoms regulator, a s of 
September 2019 it was the second largest supplier of retail fixed internet services.  
(55) Wind Tre  was created in 2016 through a merger between two MNOs previously 
active in Italy, WIND and H3G S.p.A.38 Since 2018 it is controlled by CK Hutchison 
Holdings Limited.39 Based on data published by the Italian telecoms regulator, as of 
September 2019 Wind Tre  was the market leader in the supply of retail mobile 
telecommunications services by number of SIM cards (excluding M2M 
subscriptions; it was the third largest player if M2M subscriptions are included).40 
Wind Tre also provides MVNOs with wholesale access to its mobile network. Wind 
Tre’s mobile network is currently based  on the 2G, 3G and 4G technologie s. Wind 
Tre also delivers fixed telecommunications services to consumers  and businesses 
and, based on data published by the Italian telecoms regulator, as of September 2019 
it was the fourth largest supplier of retail fixed internet services.  
(56) Iliad  entered the Italian market in 2016 as beneficiary of the remedies, whose 
implementation was condition for the clearance of the merger between Wind and 
H3G. These remedies consisted of a number of elements designed to allow the entry 
of a fourth MNO into the Italian market , that is  in particular : (1) the transfer 
of spectr um and the option to acquire/co- locate on macro access sites; (2)  an option 
to enter into a RAN sharing agreement; and (3) a national roaming agreement. Iliad 
launched its mobile commercial offer on 28 May 2018.  
(57) Since 25 July 2019, a fifth MNO is active i n Italy, Fastweb S.p.A. (“Fastweb”). 
Fastweb, an indirect wholly owned subsidiary of Swisscom AG , is active in the 
Italian mobile market since 2007 , originally as MVNO. Following the progressive 
acquisition of several blocks of high frequency spectrum, i n June 2019 Fastweb 
signed a strategic co -investment with Wind  Tre for a joint roll -out of a 5G network 
starting from 2020. The agreement will lead to  the deployment  of a shared 5G radio 
access and backhauling network in Italy , including Wind Tre and Fastweb  macro and 
small cells, connected through dark fiber from Fastweb, to be deployed nationwide, 
with a targeted coverage of  90% of the population by  2026. Wind Tre will manage  
the 5G network, while  both operators  will remain  independent in the commercial and  
operational use of the shared infrastructure.  As part of the agreement, Wind Tre  will 
provide Fastweb roaming services on Wind Tre’s  existing network (4G  and legacy 
technologies), while Fastweb will provide  Wind Tre wholesale access  to Fastweb’s  
fiber net work . Indeed, Fastweb is also active in the supply of fixed internet services 
via its fiber network, as well as via FWA technology. The latter is the result of the 
                                                 
37  AGCOM, Communication Markets Monitoring System , no. 4/2019  available at 
https://www.agcom.it/documents/10179/4386532/Allegato+23- 1-2020/7b245499- 7f9f-45af-80c0-
76b41a197b7c?version=1.0  
38  See Commission decision of 1 Septemb er 2016 in case M.7758 –  Hutchison 3G Italy / Wind / JV . 
39  See Commission decisi on of 30 August 2018 in case M.9041 –  Hutchison 3G Italy / Wind Tre . 
40  AGCOM, Communication Markets Monitoring System , no. 4/2019  available at 
https://www.agcom.it/documents/10179/4386532/Allegato+23- 1-2020/7b245499- 7f9f-45af-80c0-
76b41a197b7c?version=1.0  
 
 
14 acquisition of Fastweb of the FWA branch of Tiscali S.p.A. in July 2018. Based on 
data publi shed by the Italian telecoms regulator, as of September 2019 Fastweb was 
the third largest supplier of retail fixed internet services, but it was the second 
largest, after TIM, in the in the segment for speeds between 10 and 30 Mbps and 
above 100 Mbps.  
(58) Other than Fastweb, there are two large suppliers of FWA services in Italy: Linkem 
S.p.A . (“Linkem”) and Eolo S.p.A . (“Eolo”).  
(59) Linkem  is a provider of FWA services to residential and business customers that 
focuses mainly on metropolitan areas, but also in di gital divide areas. Linkem has 
been awarded 3.4 -3.6 GHz frequencies to provide its services until  2029 and 
currently uses LTE technology to provide last -mile connectivity to end -customers. 
This may differ from other FWA providers who use proprietary technologies.41 In 
December 2019 Linkem and Fastweb signed a strategic agreement for the 
simultaneous deployment of two separate 5G radio access networks (one leveraging 
Linkem’s spectrum  and one leveraging Fastweb’s 26 GHz), and for the reciprocal 
provision of network slice services. Based on data published by the Italian telecoms 
regulator, as of September 2019 Linkem was the fifth largest supplier of retail fixed 
internet services (at distance from the fourth), but it was the second largest, after 
TIM, in the s egment for speeds between 30 and 100 Mbps. 
(60) Eolo is provider of FWA services in rural areas and small urban centres (i.e. less 
than 10 000 inhabitants) with a specific focus on areas with low coverage of fixed 
access broadband. Eolo operates using both non- licenced  frequencies (i.e. 5 GHz) to 
provide connectivity services at a 30 mbps speed (“EoloWave”) and licenced 
frequencies (i.e. 28 GHz) that provide connectivity services at 100 mbps 
(“EoloWave G”).  Based on data published by the Italian telecoms regulat or, as of 
September 2019 Eolo was the fourth largest supplier of retail fixed internet services 
in the segment for speeds between 30 and 100 Mbps. 
(61) Based on the results of the market investigation the Commission notes that, 
irrespective of the type of custo mers considered from the demand -side, t he most 
important parameter of competition for the supply of hospitality services and driver 
of customer demand is the location of the specific site the customer is interested in . 
Indeed, also given the scarcity of si tes, customers select the sites based on their radio 
network planning needs. For MNOs, price is the second driver of customer demand 
after site location , while for FWA suppliers  price and location of the site have the 
same importance. In relation to MNOs, t he same applies for both macro-  and micro-
sites.42 
5.4. Network sharing   
(62) MNOs can roll out their network by themselves, independently from other MNOs, or 
together with other MNOs through a network sharing agreement.  
(63) In a network sharing agreement, MNOs agree t o share some of the network elements 
in order to reduce costs and improve coverage and capacity. The degree of 
integration within network sharing agreements varies depending on whether: (i)  the 
                                                 
41  Agreed minutes of the conference call of  12 December 2019 with Linkem, paragraphs 2 -3. 
42  See replies to RFI Q3 , question 18.  
 
 
15 MNOs only share their site infrastructure ("passive sharing" or "site sharing"); 
(ii) they also share the RAN equipment at the sites ("active sharing"); (iii)  they also 
share their spectrum ("spectrum sharing"); or (iv)  they also rely on the same core 
network ("full network sharing").  
(64) In particular, passive sharing involves sharing the basic infrastructure, such as masts, 
cabins and  sometimes antennas and power supplies ("passive infrastructure"), as well 
as the cost of the site itself (rent and rates). Active sharing involves also sharing the 
RAN equipment ("active equipment"), meaning the base transceiver station and the 
controller nodes (for 2G and 3G), or the base transceiver station (for 4G) in addition 
to the passive infrastructure. Transmission (backhaul to the MNOs’ core networks) 
may also be shared under pass ive or active sharing agreements.  
(65) In Italy, all MNOs are engaged in some level of passive sharing or co -location of 
sites. In particular, since 2007, the Parties have a number of passive sharing 
arrangements, mainly in municipalities with a population of up to 35 000 inhabitants 
(and in certain cases up to 50 000 inhabitants). As explained, under the Passive 
Sharing Agreement the Parties plan to increase their passive sharing arrangements to 
up to 100%  of Italy ’s territory . Under the Active Sharing Agreement, they plan to 
engage in active sharing in cities with less than 100 000 inhabitants. 
5.5. Backhauling connections  
(66) Backhaul services are the connections between the antenna in an infrastructure and 
the switches in the core network and are used to ensure the proper functioning of a 
mobile network. Backhaul are general ly wired connections based on either (i) fiber  
optic cables or (ii) copper cables. However, wireless backhaul can be used in areas 
where fixed backhaul is not available.  
(67) Backhaul providers are pri marily fixed operators who are able to provide fibe r optic 
or copper cables from their fixed network.  Other than TIM and Fastweb, these are 
Open Fiber S.p.A. (“Open Fiber”) and Retelit Digital Services (“Retelit”).  
(68) Open Fiber  is a wholesale -only supplier of fiber connectivity services that started its 
activity in 2017 after the acquisition of, and subsequent merger with, Metroweb. 
Open Fiber plans to reach 19 million premises with fiber by 2023. In "black and grey 
areas", the plan foresees to reach 9.5 mill ion premises of which Open Fiber already 
reaches over 5.5 million premises. As winner of public tenders for fiber connectivity 
in "white areas", Open Fiber will also build a pu blic fiber network reaching 
9.6 million premises. Almost 15% of the premises in those areas will be served 
through FWA networks.43 
(69) Retelit  is a listed company on the Italian stock exchan ge market and it operates 
since 2000 a fiber network in Italy that  today reaches approximately 12 500 km. 
Retelit operates under a business -to-business  model addressing wholesale and 
business markets .44 
                                                 
43  Open Fiber’s reply to RFI Q4, question 1.  
44  Retelit’s reply to RFI Q4, question 1.  
 
 
16 6. MARKET DEFINITION  
(70) The Joint Venture  will operate the network sites  previously operated by the Parties 
and will offer hospitality services on this infrastructure  to the Parties and third 
parties . Moreover, both Parties are active in Italy in the provi sion of mobile and 
fixed telecommunications services to consumers and businesses , for which access to 
sites is an important input. Finally, TIM and the Joint Venture  will be both active in 
the supply of backhaul  connectivity for sites. Therefore, the Transaction may have 
an impact on a series of telecommunications markets in Italy, which will be 
examined below .45 
6.1. Hospitality s ervices  
6.1.1. Product market definition 
(71) The Parties submit that the relevant product market is the market for the provision of 
hospitality services to telecommunication operators , including both macro-  and 
micro -sites, distinct from the market for the provision of hospitality services to TV 
and radio broadcasting operators. T he Parties also submit that supply of hospitality 
services to MNOs, FWA suppliers  and other categories  of telecommunications 
operators ( in particular,  IoT, but also OTMOs to the extent they are not MNOs or 
FWA suppliers )46 should be part of the overall market, but in any case the  question 
could be left open, as the Transaction would not raise any competitive concern in 
that respect.  
(72) The Commission has previously identified a market for sites and site infrastructure 
for digital mobile radio -telecommunications equipment.47 The Commis sion 
concluded that the  possibility for operators of TV and radio broadcasting sites to 
satisfy the needs of MNOs were limited . Indeed, a lthough there was a tendency for 
MNOs  to utilise broadcast ing structures where they are suitable for the local 
requirem ents of the service, generally broadcast ing transmission equipment is 
located on sites affording a much higher level of geographical coverage when 
compared to the coverage requirements of mobile systems. Consequently, 
broadcast ing sites tend to be tall str uctures in elevated locations that transmit at high 
powers in order to achieve optimal population coverage using a limited number of 
sites. In view of capacity considerations, mobile radio networks are cellular in 
                                                 
45  The Transaction gives also rise to additional technically affected markets due t o vertical relationships of 
the JV’s activities with the mobile network activities of the Parties and TIM’s limited FWA activities , i.e. 
the wholesale supply of mobile call termination services, the wholesale supply  of international roaming 
services and th e wholesale supply of fixed call termination services. Irrespective of the exact market 
definition, the effects of the Transaction in relation to the supply of these services are only follow -on 
effects of the vertical effects of the Transaction on the retail/wholesale  mobile and fixed markets. Specific 
incentives to foreclosure competitors in these markets appear very unlikely and no complaint has been 
received regarding those markets in the pre- notification contacts and in the market investigation. Thus, t he 
markets related to the supply of these services are not discussed further in this Decision.  
46  “IoT” (Internet -of-things); refers to customers providing mobile connectivity services for the internet of 
things; “OTMO” (Other -than- Mobile -Operators) includ es customers other than mobile operators 
including FWA suppliers, Public Administrations and Others.  
47  Commission decision of 30 April 2003 in Case COMP/38.370 –  O2 UK Limited / T -Mobile UK Limited 
("UK Network Sharing Agreement") , recitals 45 -51; Commiss ion decision of 16 July 2003 in Case 
COMP/38.369 – T-Mobile Deutschland/O2 Germany: Network Sharing Rahmenvertrag, recitals 49 -55. 
 
 
17 nature, each site providing sufficient but  limited coverage, reducing inter -cell 
interference and allowing the frequency allocations to be re -used in other areas.48 
(73) The vast majority of the participants to the market investigation49 confirmed that 
suppliers of mobile telecommunications services and suppliers of TV/Radio 
broadcasting  services have different requirements for hospitality services.50 
Generally, towers originally designed to serve MNOs would be limited in their 
ability to offer hospitality services to radio and TV broadcasters. Moreover, T V and 
radio broadcasters need higher transmission power and need to be located outside of 
densely populated areas, while MNOs would require capillary distribution of 
antennas especially in densely populated areas.  
(74) With respect to a possible segmentation be tween different telecommunications 
operators (MNOs, FWA suppliers ), the majority of the respondents to the market 
investigation submitted that requirements for hospitality services on macro -sites are 
the same for suppliers of mobile telecommunications serv ices and providers of 
FWA, at least to a certain extent.51 In general,  FWA equipment would be  
comparable to MNOs’ equipment , although sometimes smaller. Energy requirements 
could be met within the same infrastructure as MNOs. On the other hand, FWA 
services  would target a customer base living in the less densely populated areas in 
Italy, wh ere fixed fiber telecommunication services are not as capillary as in the 
more densely populated areas : in this context FWA suppliers needs a smaller number 
of sites for t heir operations (in the range of hundreds sites) . On the contrary, MNOs 
would need capillary distribution in urban and rural areas  and have a much greater 
need for sites (in the range of thousands sites) .  
(75) Most respondents to the market investigation submi tted also that there are other 
categories of customers that have similar requirements in terms of hospitality 
services as MNOs, such as in particular IoT providers ( public utilities for their smart 
grids (controllers for meters, smart sensors), security se rvices ), but at the moment 
their demand would be marginal, in terms of space and value, compared  to MNOs ’ 
demand .52 
(76) With respect to micro -sites, the vast majority of respondents to the market 
investigation submitted that MNO s using hospitality services on macro -sites would 
consider hospitality services on micro- sites as a complement and not as an 
alternative for their network. Micro- cells are used in combination with macro cells to 
improve coverage and capacity in very densely occupied areas (stadium, shopping 
malls ) or to reach areas where normal infrastructure is insufficient (underground, 
                                                 
48  Commission decision of 16 July 2003 in Case COMP/38.369 –  T-Mobile Deutschland/O2 Germany: 
Network Sharing Rahmenvertrag, recital  53. 
49  Throughout this Decision, when the Commission refers to the (number of) respondents in relation to a 
given question of the market investigation, this excludes all respondents that have not provided an answer 
to that question or replied "I do  not know", unless stated otherwise. For example, "a majority of 
respondents" means a majority of respondents having replied to a given qu estion and not having ticked 
"I do not know".  
50  Replies to RFI Q3 and RFI Q4, questions 3 and 3.1.  
51  Replies to RFI  Q3 and RFI Q4, questions 4 and 4.1.  
52  Replies to RFI Q3 and RFI Q4, questions 5 and 5.1. The Parties submit that INWIT […] and Vodafone 
[…] hosted on a combined total of […]. On this basis, the Parties submit that the total market size for a 
hypothetical  market for the supply of hospitality services on macro -sites to IoT customers can be left 
open. See Form CO, paragraph 168.  
 
 
18 high buildings). In other terms, while macro -sites are deployed to achieve 
homogeneous coverage, small cells deployment is instead used to address specific 
capacity need s within a limited area, often a public venue (outdoor or indoor) or a 
particularly crowded area. Due to the limited coverage range of a small cell, it will 
be not feasible, both technically and economically, to plan an extensive coverage 
only leveraging s mall cells, since a very high number of small cell sites would be 
needed to achieve the minimum coverage objective. From a structural point of view, 
micro -sites would not be suitable to host antenna equi pment usually deployed on 
macro -sites, as antennas hosted on macro- sites are larger and require higher 
locations. Furthermore, those antennas are characterized by higher output power 
(and thus electromagnetic emissions)  and therefore they cannot be placed on typical 
micro -cells locations, since these latter are generally at human height.53 
(77) As for the possibility for a tower company active in the provision of hospitality 
services on macro -sites to start offering hospitality services on micro -sites with 
limited investments and in a reasonable timeframe  (and vic e versa) , the result of the 
market investigation was mixed.54 In any case, the vast majority of the respondents 
submitted that framework agreements, which are entered into between MNOs and 
tower operators to regulate access to a set of locations across the territory under 
license, generally do not cover both macro-  and micro -sites.55 
(78) Based on the above , the Commission considers that, in line with its previous 
decisions, hospitality services to TV and radiobroadcasting  operators are not part of 
the relevant market. Furthermore, the Commission considers that macro -sites and 
micro -sites are part of separate markets . 
(79) With respect to macro -sites, the result of the market investigation has not been 
conclusive as regards  the possible distinction between hospitality s ervices to MNOs 
and FWA suppliers . Therefore, the Commission leaves this question open and will 
analyse the impact of the Transaction considering both a general market for 
hospitality services on macro -sites to customers other than TV and radio 
broadcaster s, and distinct markets for hospitality services on macro- sites to 
(i) MNOs and (ii) FWA suppliers .  
(80) As for the question whether the other categories of customers  (excluding TV and 
radio broadcasters, i.e. in particular  IoT providers ) form part of a separa te market, 
the Commission considers that this question can also be left open . Indeed, whilst the 
Commission does not find serious doubts as to the compatibility of the Transaction 
as a result of horizontal or vertical effects in relation to this customer g roup,  this 
does not affect the conclusion that serious doubts arise in relation to the overall 
market for the supply of hospitality services to all customers other than TV and radio 
broadcasters.  This is because the current demand by these customers is mar ginal 
compared  to the demand by MNOs and FWA suppliers56 and thus does not affect the 
competitive analysis for the overall  market for hospitality services to all customers 
other than TV and radio broadcasters . 
                                                 
53  Replies to RFI Q3 and RFI Q4, questions 6, 6.1, 7 and 7.1.  
54  Replies to RFI Q3 and RFI Q4, questions 8, 8.1, 9 and 9.1.  
55  Repl ies to RFI Q3 and RFI Q4, questions 10 and 10.1.  
56  See footnote 52.  
 
 
19 (81) With respect to the market for hospitality serv ices on micro -sites,  the Commission 
notes, based on the market reconstruction57, that this type of sites would be primarily  
intended to satisfy MNOs’ demand up to 2027, with sales to this customer group 
representing more than 95% on each year covered by the  market reconstruction, by 
both volume and value. Further, there is no evidence in the file that the effects of the 
Transaction in relation to the supply of hospitality services on micro- sites to 
customers other than MNOs would be different. In this contex t, the Commission 
considers that, f or the purposes of this Decision, the relevant product market would 
be the overall supply of hospitality services on micro sites, without any further 
segmentation.   
6.1.2. Geographic market definition  
(82) The Parties submit that the  market for hospitality services is national in scope, 
because MNOs would purchase hospitality services from a TowerCo so that they can 
in turn provide services according to the terms of their license, which is typically for 
the territory of a given Member  State. Therefore, MNOs would purchase services 
from operators that can provide solutions across the entire territory of a Member 
State. MNOs would not approach TowerCos for a single access purchase at a certain 
location  and they will either rely on TowerC os to manage their networks in its 
entirety or to provide access to a set of locations across the territory under the 
license. To address these needs, TowerCos would provide a diversified portfolio of 
assets conveniently located across the country. These f eatures would explain why 
there are no local TowerCos for MNOs.  
(83) The Commission has in its previous decisions considered that the market for 
hospitality services for mobile operators is national in scope, because it is driven by 
nationally licensed operators and the relevant planning rules are guided by national 
law58 and because all the site hosting activities are subject to a national regulatory 
environment.59 In addition, national competition authorities have considered in past 
decisions that the market fo r hospitality services is national in scope.60 
(84) The result s of the market investigation generally  confirm a national dimension of the 
market, at least with respect to macro -sites. The majority of the respondents 
submitted that they normally negotiate framewo rk agreements to obtain/provide 
access to a set of locations across the territory under license (usually nation -wide) 
and for the management of the entire national network, in particular for macro-
sites.61 Furthermore, the vast majority of the respondents s ubmitted that the main 
suppliers of hospitality services are the same across Italy , although for micro- sites a 
                                                 
57  In this respect, see Section 7.2.2.  
58  Case COMP/ 38.370 –  O2 UK Limited / T -Mobile UK Limited ("UK Network Sharing Agreement") , 
30 April 2003,  para. 52 ; Case COMP/38.369 –  T-Mobile Deutschland/O2 Germany: Network Sharing 
Rahmenvertrag, 16 July 2003, para. 5 6. 
59  Commission decision of 1 5 November 2002 in case M. 2925  – Charterhouse/CDC/TDF , paragraph 27 . 
60  For Italy see the decision of the Italian Competition Authority No. 23117 in case C11205 –  Elettronica 
Industriale/Digital Multimedia Technologies , 14 D ecember 2011 , paragraph 30. See also the French 
Competition Authority Decision No. 19 -DCC -169, 30 August 2019, relative à la prise de contrôle exclusif 
de la société Iliad 7 par la société Cellnex France Groupe , paragraph 16.  
61  Replies to RFI Q3 and RFI Q4, questions 14.1 and 14.2.  
 
 
20 certain number of respondents did not provide a definite answer, as micro -sites 
market would still be nascent .62 
(85) However, one complainant submitte d that in Italy providers of hospitality services 
would price access to their infrastructure at local level, with access to some sites 
being much more costly than others.63 This difference in pricing would show the 
local dynamics of the market, that will de pend on:  
(a) the number of sites available locally, the level of occupation of these sites 
and their owner;  
(b) the actual possibility to erect new sites that could  be extremely limited in 
certain area of historic interest; 
(c) the limits placed by local authorities w ith regard to the power of the 
transmission equipment to be placed on the sites;  
(d) the population reachable via the site concerned.  
Those persistent price differences would be incompatible with a national dimension 
of the market , would show that there are si gnificant local barriers to entry and thus 
would lead to specific local competitive dynamics. The structure of supply would be 
very different depending on the local area concerned. The Italian Competition 
Authority would have confirmed the obstacles encountered by tower companies (or 
MNOs) wishing to extend their presence in certain areas.64 
(86) The Commission considers that those observations are not sufficie nt to put into 
question the result s of the market investigation. First, pricing conditions are just one 
element among others to be considered in the assessment of the geographic 
dimension of the market. Other relevant elements to be taken into account are the 
basic demand characteristics, the significant suppliers’  presence, and the  distribution 
of market sh ares. In this respect, as explained above at paragraph (84)  agreements 
for hospitality services are generally negotiated at national level to obtain/provide 
access to a set of locations on the whole national territory and the ma in suppliers of 
hospitality ser vices are the same across Italy.  
(87) With respect to the distribution of market shares, the same complainant has provided 
the Parties’ market shares at local level (municipalities ), based on the number of 
sites managed  (see below  at section 7.2.1.2) . Although the Commission has some 
reservations on the use of this metric to calculate the real market power of tower 
companies (notably as it would not distinguish between captive sales and sales to 
third parties, see further below in section 7.2.1.2), the data show that the Parties are 
generally consistently present on the national territory, with similar market shares.  
(88) Furthermore, with regard to the alleged price differences, from the analysis of the 
agreements in place between tower  companies and telecom operators (included the 
                                                 
62  Replies to RFI Q3 and RFI Q4, questions 15.1 and 15.2.  
63  Iliad’s submission of 17 January 2020, Iliad’s observations in cas e M.9674 – Vodafone Italia/TIM/Inwit 
JV. 
64  Italian Competition authority, report No. AS1551 of 21 December 2018 –  Ostacoli nell’installazione di 
impianti di telecomunicazione mobile e broadband wireless access e allo sviluppo delle reti di 
telecomunicazio ne in tecnologie 5G . 
 
 
21 agreement between INWIT and the complainant) it results that the price differences 
are not directly  linked to the geographical location of the sites  (in terms of different 
places in Italy) . Sites are generally  priced per categories, with sites in urban areas 
generally more expensive than sites in rural areas and sites in big cities more 
expensive than sites in towns and smaller cities (other price categories are possible, 
as touristic places). In general, the p ricing categories seem linked to the 
characteristics of the area served ( in terms of coverage and population reachable , as 
the complainant itself acknowledges) and not to the specific geographic areas. That 
implies that sites in urban areas are generally more valuable than sites in rural areas. 
Although it cannot be excluded that in some specific locations there could be 
specific problems of site scarcity and/or of local authorization processes longer and 
more difficult than on average (and that this can ha ve an influence on the specific 
pricing), the Commission considers that this element only cannot justify a market 
definition al local level, considering that all the other elements point to a national 
dimension of the market. In any case,  the Commission in  its analysis will consider a 
potential distinction between rural and urban areas – also in connection with the 
existing passive arrang ements between the Parties – to take into account this possible 
difference in the competitive dynamics between rural areas and areas more densely 
populated, where barriers to entry could be somehow more relevant.  
6.2. Retail mobile telecommunications services (“retail mobile market s”) 
(89) Mobile telecommunications services to end customers consists of the sale of 
subscriptions enabli ng access to public mobile telecommunications networks. Such 
access allows end users to make voice national and international calls, send and 
receive messages and use mobile data.65 
6.2.1. Product market definition 
(90) The Part ies submit that, in line with previous Commission decisions, the relevant 
product market is the overall retail market for mobile telecommunications services. 
Furthermore, they consider that it is not necessary for the Commission to consider 
whether any potential segmentation may be appropriate, i n the absence of any 
plausible vertical competition concerns on any basis. 
(91) The Commission has considered the retail mobile market in several past decisions, 
including with specific reference to the Italian market.66 In these decisions , the 
Commission has considered that there is an overall retail market for mobile 
telecommunications services constituting a separate market from retail fixed 
telecommunications services.67 The Commission did not further subdivide the 
overall retail mobile market based on the typ e of service (voice calls, SMS, MMS, 
                                                 
65 See, among others, Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / 
Wind / JV , recital 118; Commission decision of 30 May 2018 in Case M.7000 –  Liberty Global/Ziggo , 
paragraph 199.  
66  Commission decision of 1 September 2016 in case M.7758 –  Hutchison 3G Italy / Wind / JV ; Commission 
decisi on of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre . 
67 Commission decision of 27 November 2018 in case M.8792 –  T-Mobile NL/Tele2 NL , recital 160; 
Commiss ion decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , recital 252; 
Commission decision of 30 May 2018 in Case M.7000 – Liberty Global/Ziggo , paragraph 206 and 
Commission decision of 2 July 2014 in case No M.7018 –  Telefónica Deutschla nd/E -Plus, recital 64.  
 
 
22 mobile internet data services), or network technology.68 The Commission considered 
possible distinctions in the overall retail market for mobile telecommunications 
services between pre -paid or post -paid services and conc luded that these did not 
constitute separate product markets , but represent rather market segments within an 
overall retail market.69 In addition, the Commission did not identify separate markets 
for the provision of mobile telecommunications services to pr ivate customers and 
business customers. This was principally due to supply -side substitutability 
considerations relevant to the area of overlap between the parties involved in those 
cases.70 Finally, the Commission ultimately concluded that OTT services do not fall 
within the same relevant market as mobile telecommunications services, as OTT 
services rely on mobile telecommunications (data) services and fixed broadband 
services to function.71 In relation to M2M subscriptions, in recent decisions, the 
Commission has concluded that these belong to a separate market.72 
(92) There are no elements  in the Commission's file  in the present case that  would justify 
a departure from the position in previous cases .  
(93) For the purposes of this  Decision, the Commission therefore retains its previous 
product market definition and considers that there is an overall product market for 
the retail provision of mobile telecommunications services , excluding M2M 
subscriptions, and the product market for the retail provision of M2M subscript ions. 
Since suppliers in each of these markets use the same network is used for the their 
activities , the vertical analysis of the effects of the Transaction in relation to these 
retail services will be undertaken jointly and in the following any referenc e to the 
“retail mobile  market s” should be intended to both the overall product market for the 
                                                 
68 Commission decision of 1 September 2016 in case M.7758 –  Hutchison 3G Italy / Wind / JV , 
recitals  135-140; Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty 
Global/Dutch JV , paragraph 74; Commission decision of  11 May 2016 in case M.7612 –  Hutchison 3G 
UK/Telefónica UK , recitals 255, 261, 270, 279, 287; Commission decision of 2 July 2014 in case M.7018 
– Telefónica Deutschland/E -Plus, recitals 31 to 55; Commission decision of 30 May 2018 in Case M.7000 
– Liberty  Global/Ziggo, paragraph 206; Commission decision of 28 May 2014 in case M.6992 –  
Hutchison 3G UK/Telefónica Ireland, recital 141; Commission decision of 12 December 2012 in case 
M.6497 – Hutchison 3G Austria/Orange Austria, recital 58.  
69 Commission decisi on of 27 November 2018 in case M.8792 –  T-Mobile NL/Tele2 NL , recital 202; 
Commission decision of 1 September 2016 in case M.7758 –  Hutchison 3G Italy / Wind / JV , 
recitals  146-149; Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty 
Global/Dutch JV , paragraph 74; Commission decision of 11 May 2016 in case M.7612 –  Hutchison 3G 
UK/Telefónica UK , recitals 255, 261, 270, 279, 287; Commission decision of 2 July 2014 in case M.7018 
– Telefónica Deutschland/E -Plus, recitals 31 to 55; Commissio n decision of 30 May 2018 in Case M.7000 
– Liberty Global/Ziggo , paragraph 206; Commission decision of 28 May 2014 in case M.6992 –  
Hutchison 3G UK/Telefónica Ireland, recital 141; Commission decision of 12 December 2012 in case 
M.6497 – Hutchison 3G Austr ia/Orange Austria, recital 58.  
70 Commission decision of 1 September 2016 in case M.7758 –  Hutchison 3G Italy / Wind / JV , 
recitals  153-161; Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty 
Global/Dutch JV , paragraph 74; Commission dec ision of 11 May 2016 in case M.7612 –  Hutchison 3G 
UK/Telefónica UK , recitals 255, 261, 270, 279, 287; Commission decision of 2 July 2014 in case M.7018 
– Telefónica Deutschland/E -Plus, recitals 31 to 55; Commission decision of 30 May 2018 in Case M.7000 
– Liberty Global/Ziggo , paragraph 206; Commission decision of 28 May 2014 in case M.6992 –  
Hutchison 3G UK/Telefónica Ireland, recital 141; Commission decision of 12 December 2012 in case 
M.6497 – Hutchison 3G Austria/Orange Austria, recital 58.  
71 Commissio n decision of 27 November 2018 in case M.8792 –  T-Mobile NL/Tele2 NL , recital 169; 
Commission decision of 1 September 2016 in case M.7758 –  Hutchison 3G Italy/WIND/JV , recital 145, 
Commission decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , recital 265.  
72  Commission decision of 27 November 2018 in case  .8792 – T-Mobile NL/Tele2 NL , recitals 223 and 224; 
Commission decision of 15 July 2019 in c ase M.9370 – Telenor / DNA , paragraph 31.  
 
 
23 retail provision of mobile telecommunications services , excluding M2M 
subscriptions, and the product market for the retail provision of M2M subscriptions. 
6.2.2. Geographic market definition  
(94) The Part ies submit that, in line with the Commission's previous decisions, the market 
for mobile telecommunications services to end customers is national in scope. 
(95) In line with previous decisions73 and taking into account that nothing  in the 
Commission's file  would justify a departure from the previous position, for the 
purposes  of this Decision, the Commission considers that the geographic scope of 
the market for mobile telecommunications services is national in scope and 
corresponds to the territor y of Italy.  
6.3. Wholesale access and call origination on mobile networks (“wholesale mobile 
market”)  
(96) MNOs provide wholesale access and call origination services which enable operators 
without their own network, namely MVNOs and Service Provider s, to have access to 
one or more of the MNOs’ networks in order to provide mobile telecommunications 
services to end customers. “Full” or “thick” MVNOs maintain their own core 
infrastructure and use MNOs only for access to a radio network. By contrast, “li ght” 
or “thin” MVNOs do not have their own infrastructure and rely entirely on the 
infrastructure of an MNO.74 
6.3.1. Product market definition 
(97) In line with previous Commission decisions, the Part ies submit that there is an 
overall market for wholesale access and call origination services on mobile 
networks . 
(98) In previous cases, the Commission defined a wholesale market for access and call 
origination on public mobile networks.75 The services provided by MNOs to non -
MNOs were considered as key elements required for no n-MNOs to be able to 
                                                 
73 Commission decision of 1 September 2016 in case  M.7758 – Hutchison 3G Italy / Wind / JV , recital 166; 
Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV , 
paragraph  76; Commission decision of 11 may 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , 
recitals 293; Co mmission decision of 30 May 2018 in Case M.7000 –  Liberty Global/Ziggo , 
paragraph  211; Commission decision of 2 July 2014 in case No M.7018 –  Telefónica Deutschland/E -Plus, 
recital 74; Commission decision in case M.6497 –  Hutchison 3G Austria/Orange Austri a, recital 73; 
Commission decision in case No M.5650 –  T Mobile/Orange UK , paragraphs 25 and 26 and Commission 
decision of 28 May 2014 in case No M.6992 –  Hutchison 3G UK/Telefónica Ireland, recital 164.  
74 Light MVNOs may also use the services of a mobile virtual network enabler (“MVNEs“), an organisation 
that provides business infrastructure solutions to MVNOs such as billing, administration, operations 
support, mobile site subsystem support and other related services.  
75 Commission decision of 3 August 2016 in case M.7978 –  Vodafone / Liberty Global / Dutch JV , 
paragraph 187; Commission decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , 
recitals 295 to 300; Commission decision of 2 July 2014 in case M.7018 –  Telefónica Deutschland/E -
Plus, recitals 77 to 79; Commission decision of 28  May 2014 in case M.6992 – Hutchison 3G 
UK/Telefónica Ireland , recital 156; Commission decision of 12 December  2012 in case M.6497 –  
Hutchison 3G Austria/Orange Austria, recitals 61 to 63; Commission decision  of 1 March  2010 in case 
M.5650 – T-Mobile/Orange , paragraphs 27 to 30; Commission decision of 27 November  2007 in case 
M.4947 – Vodafone/Tele2 Italy/Tele2 Spain,  paragraph 15.  
 
 
24 provide retail mobile communication services. Since both services were considered 
to be generally supplied together, they were seen as being part of a single market.  
(99) Nothing in the Commission's file would justify a departure from the previous 
position.  
(100)  For the purposes of this  Decision, the Commission therefore retains its previous 
product market definition and considers  that there is a distinct wholesale market for 
access and call origination on public mobile telephone networks.  
6.3.2. Geog raphic market definition  
(101)  In line with previous Commission decisions, the Part ies submit that the relevant 
geographic scope of the market for wholesale access and call origination on mobile 
networks is national, that is to say, limited to the territory of Italy. 
(102)  In previous cases, the  Commission considered the wholesale market for access and 
call origination to be national in scope due to regulatory barriers stemming from the 
fact that licenses granted to MNOs are generally national in scope.76 
(103)  In line with p revious decisions and taking into account that nothing  in the 
Commission's file  would justify a departure from the previous position, for the 
purposes  of this Decision, the Commission considers that the geographic scope of 
the wholesale market for access and call origination on public mobile networks is 
national in scope and corresponds to the territor y of Italy.  
6.4. Retail fixed internet access services (“retail fixed  market s”) 
(104)  Fixed internet access services at the retail level consist of the provision of 
subscriptions enabling customers to access the internet through a fixed 
telecommunications connection. 
6.4.1. Product market definition 
(105)  The Parties note that the Italian telecoms regulator (AGCOM) has previously 
identified a single relevant market for retail broadban d access services in Italy, 
including all the fixed network access technologies available on the market. 
AGCOM concluded that the relevant market for fixed access included services 
through copper, mixed copper -fibre, only optical fiber  and fixed wireless 
technologies.77 However, the Parties consider that it is not necessary to conclude on 
product market definition, and in particular whether a further segmentation between 
broadband and ultra -broadband would be appropriate in the fixed internet market, in 
the absence of any competition concern.  
(106)  In previous decisions , the Commission considered but ultimately left open possible 
segmentations within the supply of retail fixed internet access services according to 
                                                 
76 Commission decision of 3 August 2016 in case M.7978 –  Vodafone / Liberty Glob al / Dutch JV , 
paragraph 190; Commission decision of 11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , 
recitals 305 and Commission decision of 12 December  2014 in case M.6497 – Hutchison 3G 
Austria/Orange Austria, recitals 74 to 77 with further r eferences.  
77  AGCOM decision No. 348/19/CONS of 18 July 2019, available at 
https://www.agcom.it/documents/10179/15564025/Del ibera+348- 19-CONS/1fe1fd57- 1b27- 4755- bfd6-
89455e12ce09?version=1.0.  
 
 
25 (i) product type, distinguishing between narrowband, broadband and dedicated 
access and (ii) distribution mode, distinguishing between xDSL, fiber , cable, and 
mobile broadband.78 Conversely, the Commission noted that the retail market for 
fixed internet access services should not be segmented according to download 
speed.79 The Commission also considered distinguishing between residential and 
small business customers, on the one hand, and larger business and public 
authorities, on the other hand, but ultimately left the question open.80 
(107)  In a recent case, the Commission considered that the relevant product market was the 
overall retail market for the provision of fixed internet access services, including all 
product types, distribution modes and speeds/bandwidths, to residential and small 
business customers, excl uding only the supply of fixed internet services provided 
through mobile network infrastructure.81 
(108)  For the purpose of this Decision, the Commission notes that retail fixed services are 
relevant to the extent a vertical link arise s with the supply of hospita lity services on 
macro -sites. From a technological point of view, such link exists only in relation to 
FWA networks. In this respect, the Commission notes that TIM has recently 
launched  retail fixed services based on FWA technology  (to both business and 
residential customers) and Vodafone […] . In this context, a hypothetical market for 
the supply of retail fixed services via FWA technology only could be envisaged. 
Such hypothetical market would be vertically affected by the Transaction and the 
effects of a potential foreclosure strategy in such market could be more pronounced 
than in an overall market .82  
(109)  Further, the Commiss ion notes that, from a network stand- point, the needs of a FWA 
supplier are likely to be the same, regardless of whether the services ar e offered to 
residential and small business customers  or to large business customers.  
(110)  Thus, for the purpose of this Decision, the Commission considers that the relevant 
product market  is either the overall retail market for the provision of fixed Internet 
access services, including all customer groups, product types, distribution modes and 
speeds/bandwidths, excluding only the supply of fixed internet services provided 
through mobile network infrastructure83, or a hypothetical narrower market where 
services are only supplied based on FWA technology. As the operators in these 
                                                 
78 See Commission decision of 29 June 2010 in Case M.5532 –  Carphone Warehouse/Tiscali UK , 
paragraphs 7 -21; Case M.6990 Vodafone/Kabel Deutschland, paragraphs 192- 194. Commission decision 
of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV , paragraph 38.  
79 See Commission decision of 29 June 2010 in Case M.5532 –  Carphone Warehouse/Tiscali UK , 
paragraphs 7 -21; Case M.6990 – Vodafone/Kabel Deutschland, paragraphs 192- 194. Commi ssion 
decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraph 38.  
80 See Commission decision of 19 May 2015 in case M.7421 – Orange/ Jazztel , recital 42; Commission 
decision of 30 May 2018 in case M.7000 –  Liberty Global/Ziggo,  paragraph 165; Commission decision of 
7 October 2016 in case M.8131 –  Tele2 Sverige/TDC Sverige, paragraph 32.   
81 Commission decision of 18 July 2019 in Case M. 8864 - Vodafone/ Certain Liberty Global Assets , 
recital  56. 
82  FWA retail fixed services still account for a small percentage of the overall market; see matket shares of 
Eolo and Linkem (the largest FWA players) in Section 7.2.5.  
83  Since fixed internet services provided through mobile network infrastructure  are provided  by MNOs or at 
best by custo mers of MNOs on the wholesale mobile market, the effects of the Transaction on this 
potential segment are the same as on the retail and wholesale mobile market. Thus the effects of the 
Transaction on the supply of fixed internet services through mobile net work infrastructure will not be 
further discussed in this Decision.  
 
 
26 markets which would be affected by the Transaction are the same, the vertical 
analysis of the effects of the Transaction in relation to these retail services will be 
undertaken jointly and in the following any reference to the “retail fixed markets” 
should be intended to cover both the overall retail market for the provision of fixed 
internet access services  and the hypothetical narrower market where services are 
only supplied based on FWA  technology.  
6.4.2. Geographic market definition  
(111)  The Part ies submit that the relevant geographic scope is national.  
(112)  In previous decisions, the Commission concluded that the retail market for the 
provision of fixed internet services was national in scope.84 In Liberty Global/BASE 
Belgium  the Commission considered whether the geographic scope of the market 
should be defined on a regional basis or by reference to the footprint of the operators' 
networks, but ultimately left the question open.85 In Vodafone/Certain Libe rty 
Global Assets , the Commission considered that the relevant geographic market for 
the retail provision of fixed internet services was national in scope .86 
(113)  There are no elements in the Commission's file in the present case that would justify 
a departure from the position in previous cases.  
(114)  The Commission therefore concludes that, for the purpose of the present Decision,  
the relevant geographic market for the retail provision of fixed internet services is 
national in scope  and correspond to the territory o f Italy.  
6.5. Wholesale fixed internet access services (“ wholesale  fixed  market s”) 
(115)  Wholesale access to internet services includes different types of access that allow 
internet service providers to provide services to end consumers. It comprises 
physical access at a fixed location, non- physical or virtual network access, at a fixed 
location; and resale of the fixed incumbent's internet offering.  
6.5.1. Product market definition 
(116)  The Parties do  not take a view on the exact definition of the market for wholesale 
fixed  access.  
(117)  In previous decisions87, the Commission defined a separate market for wholesale 
broadband access and left open the question of whether it should be sub- divided per 
type of access (LLU, bitstream or resale of the incumbent's offering).  
                                                 
84 See Commission decision of 29 June 2010 in Case M.5532 –  Carphone Warehouse/Tiscali UK , 
paragraph  47; Case M.5730 –  Telefónica/Hansenet , paragraph 28; Case M.6990 – Vodafone/Kabel 
Deutsc hland, paragraph 197. Commission decision of 3 August 2016 in case M.7978 –  Vodafone/Liberty 
Global/Dutch JV , paragraph 40.  
85 Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recitals 62 -64. 
86 Commission decision of 18 July 2019 in Case M. 8864 - Vodafone/ Certain Liberty Global Assets , 
recital  61. 
87  Commission decision of 20 September 2013 in Case M.6990 -  Vodafone/Kabel Deutschland, 
paragraph  161; Commission decision of 29 June 2009 in Case M.5532 -  Carphone Warehouse/T iscali UK , 
paragraphs  28- 34. 
 
 
27 (118)  For the purpose of  this Decision, the Commission notes that wholesale fixed services 
are relevant to the extent a vertical link arises  with the supply of hospitality services 
on macro -sites. From a technological point of view, such link exists only in relation 
to FWA networ ks. In this respect, the Commission notes that TIM has recently 
launches FWA wholesale fixed services, whilst […] . In this context, an hypothetical 
market for the supply of wholesale fixed services via FWA technology only could be 
envisaged. Such hypotheti cal market would be vertically affected by the Transaction 
and the  effects of a potential foreclosure strategy in such market could be more 
pronounced than in an overall market.88  
(119)  Thus, f or the purposes of this Decision, the Commission considers that the relevant 
product market is  either  the overall wholesale supply of  fixed  access , encompass ing 
all technologies , or a hypothetical narrower market where services are only supplied 
based on FWA technology. As the operators in these markets which would be 
affected by the Transaction are the same, the vertical analysis of the effects of the 
Transaction in relation to these wholesale services will be undertaken jointly and in 
the following any reference to the “wholesale fixed markets” should be intended to 
cover  both the overall wholesale supply of  fixed  access , encompassing all 
technologies, or the  hypothetical narrower market where services are only supplied 
based on FWA technology . 
6.5.2. Geographic market definition  
(120)  The Part ies do not take a view on the geographic m arket definition for wholesale 
Internet access services.   
(121)  In Carphone Warehouse/Tiscali UK , while there were indications supporting a 
national scope of the market, the Commission ultimately left open the exact 
geographic market definition.89 In Liberty Glob al/BASE Belgium , the Commission  
considered whether the geographic scope of wholesale access to Internet services 
should be national or limited to the network footprint of each operator, but ultimately 
left the product market definition open.90  
(122)  For the purpose of this Decision, the exact geographic market definition can be left 
open, as the Transaction does not raise serious doubts as to its compatibility with the 
internal market with respect to wholesale Internet access services under any 
alternative geographic market definition. 
6.6. Wholesale supply of fixed backhaul services  
(123)  Backhaul services are the connections between the antennae in an infrastructure and 
the switches in the core network and are used to ensure the proper functioning of a 
mobile network. Back haul networks can be compr ised of wireless backhaul 
(i.e. microwaves) or fixed backhaul.  MNOs have typically operated their own 
microwave backhaul while fixed backhaul has been provided by fixed network 
operators such as TIM , Open Fiber  and Fastweb in Ital y. Fixed backhaul services are 
                                                 
88  As TIM has only recently launched these services, its market share is likely to be more limited compared 
to its competitors.  
89  Commission decision of 29 June 2009 in Case M.5532 –  Carphone Warehouse/Tiscali UK , 
paragraphs  48-54. 
90  Commission decision of 4 February 2016 in Case M.7637 – Liberty Global/BASE Belgium , recital  172. 
 
 
28 provided on either (i) fibe r optic cables or (ii) copper cables. However, wireless 
backhaul can be used in areas where fixed backhaul is not available. 
6.6.1. Product market definition 
(124)  The Parties submit that wholesale fixed backhau l forms part of a wider set of fixed 
telecommunication services, which enable telecommunications providers to connect 
their own networks to end user sites for the supply of business connectivity service s 
(“wholesale leased lines”).  The wholesale market for  leased lines could be 
segmented by trunk and terminating segments as well as between active 
infrastructure (traditional managed leased lines and Ethernet  services with 
guaranteed bandwidth) and passive infrastructure (dark fiber).  Wholesale fixed 
backhaul  would not correspond to any particular segment of wholesale fixed leased 
lines but rather would comprise  different segments of leased lines depending on the 
particular needs of the relevant telecommunications customer.  In any case, the 
Parties submit the exact product market definition can be left open, as the 
Transaction would not give rise to any competition concern on any possible basis in 
this respect.  
(125)  In previous cases, the Commission has left open the product market definition for 
backhaul services.91  
(126)  The vast majority of the respondents to the market investigation submitted that the 
different transmission means (i.e. wireless, fiber and copper lines) do not satisfy the 
same backhauling needs (e.g. in terms of capacity and other relevant parameters).92 
The different transmission would address different backhauling needs in relation to 
capacity, stability, time -to-deploy and costs. However, fiber would offer the highest 
reliability in terms of capacity, throughput, latency, etc. and would be the only 
option for future 5G backhauling. For example, Iliad notes that fixed copper 
backhaul is not in use anymore and that wireless backhaul  does not provide the same 
performance. Fastweb further confirms that copper is a legacy technology and that 
wireless and fi xed fiber backhauling are two separate services.  
(127)  As regard the question whether passive and active infrastructure services satisfy the 
same backhauling needs (e.g. in terms of capacity and other relevant parameters), the 
result of the market investigation has been inconclusive: some respondents point ed 
to a significant substitutability between the two services, other s submitted  that dark 
fiber would allow much higher capacity and lower latency with respect to leased 
lines and Ethernet services.93 
(128)  Finally, mo st respondents submitted that suppliers of backhauling connections from 
the sites to the aggregation point are the same as the suppliers of backhauling 
connections from the aggregation point to the core network.94 
(129)  In the present case, the question of the e xact product market definition for wholesale 
services for fixed backhaul can be left open, as the Transaction does not raise 
competition concerns under any possible product market definition. In any case, the 
                                                 
91  Case M.6990 –  Vodafone/Kabel Deutschland, paragraph  148; Case M.6584 –  Vodafone/Cable & Wireless , 
paragraph  30; Case M.7758 – Hutchison 3G  Italy / Wind / JV , 1 September 2016, recitals 206- 211. 
92  Replies to RFI Q3 and RFI Q4, questions 11 and 11.1.  
93  Replies to RFI Q3 and RFI Q4, questions 12 and 12.1.  
94  Replies to RFI Q3 and RFI Q4, question 13.  
 
 
29 competitive analysis will focus on fixed fiber backhauling services, irrespective of a 
segmentation by active or passive infrastructure services, considering that (i) future 
roll-out would mainly involve fiber connections due to 5G capacity requirements , 
(ii) MNOs typically self -supply wireless  backhau l services . 
6.6.2. Geographic market definition  
(130)  The Parties submit that the geographic market definition for wholesale services for 
backhaul services is at least national in scope.  However, they submit that the exact 
geographic market definition can be left open, as the Transaction would not give rise 
to any competition concern on any possible basis.  
(131)  In a previous case , the Commission has left the  exact geographic scope of the 
possible market for wholesale services for fixed backhaul  open.95 
(132)  Respondents to the mark et investigation submitted that in general the main suppliers 
of backhauling services are the same across Italy  and offer their services on a 
national basis . However, some respondents submitted that there are also local 
suppliers (in particular public infr astructure suppliers).96 
(133)  For the purposes of this  Decision and in line with the result of the market  
investigation, the Commission considers that the geographic scope of the market for 
wholesale services for fixed backhaul  is national in scope and corresponds to the 
territor y of Italy. A national scope  appears to be the most appropriate to assess  the 
Transaction in light of the concerns expressed by some market participants, linked to  
possible detrimental effects of the Transaction on potential competition at national 
level.   
7. COMPETITIVE ASSESSMEN T 
7.1. Introduction 
(134)  The Transaction gives rise  to a number of horizontally affected markets in the supply 
of hospitality services on macro -sites to customers other than TV and radio 
broadcasters  (possibly split by custom er type into MNOs and FWA suppliers ) in 
Italy.  
(135)  Furthermore, both Parties will remain independently active in a series of 
telecommunications markets in Italy  that are downstream from  the hospitality 
service market , notably: (i) the r etail mobile market s, (ii) the w holesale mobile  
market, (iii) the r etail fixed  market s, and (iv) the w holesale fixed  market s. In this 
respect, the Transaction gives rise to vertically affected markets.  
(136)  In addition, customers of hospitality services also purchase fixed backhaul  services. 
TIM and the Joint Venture  are active in the market for w holesale supply of fixed 
backhaul services . Thus , the Transaction also gives rise to potential  conglomerate 
effects . 
                                                 
95  Commission decision of 1 September 2016 in cas e M.7758 –  Hutchison 3G Italy / Wind / JV , recital 211.  
96  Replies to RFI Q3 and RFI Q4, questions 16 and 16.1.  
 
 
30 (137)  Finally, a risk of cooperative effects from the Transaction arises in rel ation to (i) the 
retail mobile markets and (ii) the wholesale mobile market (see footnote 225) . 
(138)  Each of these potential effects is discussed in turn in the following sections . After 
setting out the market shares in the relevant markets , the Commission will first 
assess the potential non-coordinated effects stemming from the Transaction 
(horizontal, vertical and then conglomerate  effects ). Then the Commission will 
assess the potential coordinated effects stemming from the Transaction (horizontal 
and vertical  effects ). Finally , the Commission will assess the potential cooperative 
effects of the Transaction.  
7.2. Market shares  
(139)  According to the Horizontal  Merger Guidelines and the Non- Horizontal Merger 
Guidelines,97 in the assessment of the effects of a merger, market  shares constitute a 
useful first indication of the structure of the markets at stake and of the competitive 
importance of the relevant market players.  
7.2.1. Hospitality s ervices  on macro- sites  
7.2.1.1. Sales market shares  
Parties’ submission  
(a) Hospitality services o n macro- sites to MNOs  
(140)  Based on the data provided by Parties in the Form CO, the market shares by value 
and volume for the hypothetical market for the supply of hospitality services on 
macro -sites to MNO s, at national level and excluding captive sales in 2018, are 
illustrated in Table 1. 
                                                 
97 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Horizo ntal Merger Guidelines"),  OJ C 31, 05.02.2004, 
paragraph  14; Guidelines on the assessment of non -horizontal mergers under the Council Regulation on 
the control of concentrations  between undertakings  ("Non -Horizontal Merger Guidelines"), OJ C 265, 
18.10.2008, paragraph  24. 
 
 
31 Table 1 - Market shares for the supply of hospitality services on macro -sites to MNOs 
(non- captive sales, 2018)  
 
Suppliers  Volume (tenancies)  Value (Euro)  
000  Market share  Million  Market share  
TIM/INWIT  […] [20-30]% […] [10-20]% 
Of which sales to 
Vodafone  […] [10-20]% […] [10-20]% 
Vodafone  […] [20-30]% […] [10-20]% 
Of which sales to 
TIM  […] [10-20]% […] [5-10]% 
Combined  […] [40-50]% […] [30-40]% 
Of which sales to 
TIM and Vodafone  […] [30-40]% […] [20-30]% 
Cellnex  […] [30-40]% […] [40-50]% 
Wind Tre  […] [5-10]% […] [0-5]% 
Ei Towers  […] [0-5]% […] [10-20]% 
Iliad  […] [0-5]% […] [0-5]% 
Others  […] [5-10]% […] [5-10]% 
Source: Commission computation based on the data provided by the Parties in the Form CO.  
 
(141)  Based on the  above Table, the Parties’ combined market share would be [40- 50]% 
by volume and [30- 40]% by value. The Joint Venture  would thus be, post -
Transaction, number one supplier by volume, followed by Cellnex (at [5 -10] 
percentage points distance). Conversely, by  value, Cellnex would be the market 
leader with [40- 50]% market share, followed at a distance of almost [20- 30] 
percentage points by the Joint Venture . No other suppliers would have a market 
share above 10%, by either volume or value, with the exception of  Ei Tower s by 
value ( [10-20]% market share).  
(b) Hospitality services on macro -sites to FWA suppliers  
(142)  Based on the data provided by Parties in the Form CO, the market shares by value 
and volume for the hypothetical market for the supply of hospitality services on 
macro -sites to FWA suppliers , at national level in 2018, are illustrated in Table 2.  
Table 2  - Market shares for the supply of hospitality services on macro -sites to FWA suppliers  (2018)  
 
Suppliers  Volume (tenancies)  Value (Euro)  
000  Market shar e Million  Market share  
TIM/INWIT  […] [20-30]% […] [10-20]% 
Vodafone  […] [5-10]% […] [0-5]% 
Combined  […] [20-30]% […] [10-20]% 
Cellnex  […] [20-30]% […] [70-80]% 
Wind Tre  […] [10-20]% […] [5-10]% 
Others  […] [40-50]% […] […] 
Source: Commission computat ion based on the data provided by the Parties in the Form CO.  
 
(143)  Based on the above Table, the Parties’ combined market share would be [20- 30]% 
by volume and [10- 20]% by value. The Joint Venture  would thus be, post -
Transaction, number one supplier by volume, followed by Cellnex (at [0 -5] 
percentage points distance). Conversely, by value, Cellnex would be the clear market 
leader with [70- 80]% market share, followed at a distance of more than [60- 70] 
percentage points by the Joint Venture . The Parties provided only data on Wind Tre 
as individual alternative supplier, which would have a market share of [ 10-20]% by 
volume and [5 -10]% by value. For other suppliers, the Parties only provided an 
aggregated market share by volume, equal to [40 -50]%. Importantly, t he P arties 
 
 
32 were not able to provide disaggregated data on sales by Cellnex and Wind Tre to 
FWA suppliers  and others customers. Thus, the above figures are likely to 
underestimate the Parties’ position in relation to the sales t o FWA suppliers .  
(c) Hospitality  services on macro -sites to customers other than TV and radio 
broadcasters, MNOs and FWA customers  
(144)  Based on the dataset provided by the Parties it is not possible to estimate market 
shares for the hypothetical market for the supply of hospitality services on macro -
sites to customers other than TV and radio broadcasters, MNO s and FWA 
customers, such as providers of IoT services.  
(d) Hospitality services on macro -sites to customers other than TV and radio 
broadcasters  
(145)  Based on the data provided by Parties in the Form CO, the market shares by value 
and volume for the hypothetical overall market for the supply of hospitality services 
on macro -sites to customers other than TV and radio broadcasters, at national level 
and excluding captive sales in 2018, are illustrated in Table 3. 
Table 3 - Market shares for the overall supply of hospitality services on macro -sites 
(non- captive sales, 2018)  
 
Suppliers  Volume (tenancies)  Value (Euro)  
000  Market share  Million  Market share  
TIM/INWIT  […] [20-30]% […] [10-20]% 
Of which sales to 
Vodafone  […] [10-20]% […] [5-10]% 
Vodafone  […] [20-30]% […] [10-20]% 
Of which sales to 
TIM  […] [10-20]% […] [5-10]% 
Combined  […] [40-50]% […] [30-40]% 
Of which sales to 
TIM and Vodafone  […] [20-30]% […] [10-20]% 
Cellnex  […]4 [30-40]% […] [50-60]% 
Wind Tre  […] [5-10]% […] [0-5]% 
Ei Towers  […] [0-5]% […] [5-10]% 
Iliad  […] [0-5]% […] [0-5]% 
Others  […] [5-10]% […] [5-10]% 
Source: Commission computation based on the data provided by the Parties in the Form CO.  
 
(146)  Based on the above Table,  the Parties’ combined market share would be [40- 50]% 
by volume and [30- 40]% by value. The Joint Venture would thus be, post -
Transaction, number one supplier by volume, followed by Cellnex (at more than 
[10-20] percentage points distance). Conversely, by value, Cellnex would be the 
market leader with [50- 60]% market share, followed at a distance of more than 
[20-30] percentage points by the Joint Venture. No other suppliers would have a 
market share above 10%, by either volume or value. 
Commission’s market reconstruction 
(147)  The Commission has conducted a market reconstruction exercise collecting data 
from the Parties and their main competitors on actual sales, and estimates on the 
future sales, of hospitality services  on macro -sites, in revenues and volume (as 
number of tenancies), over the period 2017 to 2027. The purpose of this exercise was 
to assess the exact extent of the overlap between the Parties' activities as well as their 
 
 
33 relative importance compared to their competitors at national level and , in rela tion to 
sales by volume, at  sub-national level. In this respect, the Commission has collected 
data distinguishing between areas where the Parties are already implementing 
passive sharing arrangements (thus areas with less than 35  000 inhabitants) and areas  
where this is not the case (thus areas with more than 35 000 inhabitants). This is 
because,  where passive sharing is already implemented , the Parties are already 
giving priority to each other for hospitality services on the macro -sites, as reflected 
by th e fact that […] . Considering the physical and electromagnetic limitations, this 
means that the competitive dynamics for the Parties’ merchant activities vary  
depending on whether passive sharing is already implemented or not: in the former 
case the level o f freedom to sell to third parties, and the likelihood that space for 
third parties (in particular MNOs) would be available, is indeed lower.  
(148)  Estimates on future sales have been provided by the information providers based on 
the assumption that the site Joint Venture  between TIM and Vodafone would have 
not been created. [ ...] The Parties have provided estimates on future sales also on the 
basis of the assumption that the Passive and Active Sharing Agreements are 
implemented. In this respect , the Commission notes that, at the time of the adoption 
of this Decision, the Parties have […] .  
(149)  The market shares computed on the basis of the resulting dataset are thus 
underestimating the market position of the Parties: 
(a) […]. 
(b) According to the Parties, the implementation  of the Passive Sharing 
Agreement  would result into a reduction by […]  of the number of their 
tenancies on third parties' sites for each of the Part ies in areas with more than 
35 000 inhabitants. Assuming a worst -case scenario where not all of these 
tenancies would be occupied by third party customers, the position of 
competing providers of hospitality services is thus likely to be overestimated 
in the Commission's dataset.  
(c) According to the Parties, the extension of the passive sharing arrangements 
would re sult into an increase of ca. […]  of the number of the tenancies of 
each Party on the sites of the other P arty in areas with more than 35 000 
inhabitants. Assuming these additional tenancies are to the detriment of each 
of the Parties' sales to third partie s, the Parties' non -captive market shares are 
thus likely to be underestimated in the Commission's dataset compared to 
what they would be in a counterfactual where the passive sharing is not 
extended.  
(a) Hospitality services on macro -sites to MNOs  
(150)  On the basis of the Commission’s  market reconstruction, the following tables present 
the Parties' and their competitors market shares in the supply of hospitality services 
on macro -sites to MNO s at national level as well as, in terms of tenancies, 
disaggregated shares considering separately the areas where the Parties where 
already passively sharing (areas with less than 35  000 inhabitants) and those where 
the passive sharing will be extended (areas with more than 35  000 inhabitants). Data 
for sales to MNOs are co mputed both including and excluding captive sales (where 
captive sales do not include sales of the Parties to each other).  
 
 
34 Table 4 - Market shares by revenues for the supply of hospitality services on macro -sites to MNOs  
(national level)  
 
Suppliers  2017  2018 2019  2020  2021  2022  2023  2024  2025  2026  2027  
Including captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
Excluding captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
Table 5 -  Market shares by volume for the supply of hospitality services on macro- sites to MNOs  
(national level)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Including captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way […] […] […] […] […] […] […] […] […] […] […] 
 
 
35 Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way […] […] […] […] […] […] […] […] […] […] […] 
 
Table 6 -  Market shares by volume for the supply of hospitality services on m acro -sites to MNOs  
(areas with more than 35 000 inhabitants)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Including captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
Excluding captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Tow ers […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
 
 
36 Table 7 -  Market shares by volume for the supply of hospitality services on macro- sites to MNOs  
(areas with less than 35 000 inhabitants)  
 
Suppliers  2017 2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Including captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
Excluding captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
(151)  In order to assess the effective extent to which the Parties will compete in the supply 
of hospitality services on macro- sites to third parties in the post- Transaction scenario 
and in view of the implementation of the Passive S haring Agreement, the 
Commission has also computed market shares for the sales of hospitality services on 
macro -sites to MNOs excluding not only captive sales, but also the Parties’ sales to 
each other. These shares are presented in the following tables.  
Table 8 -  Market shares by revenues for the supply of hospitality services on macro -sites to MNOs  
(national level)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales and sales of the Parties to each other  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
 
37 Table 9 -  Market shares by volume for the supply of hospitality services on macro- sites to MNOs  
(Excluding captive sales and sales of the Parties to each other)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
National level  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3 […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
Areas with more than 35  000 inhabitants  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Areas with less than 35  000 i nhabitants  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
(152)  A third party has submitt ed that the Commission should carefully consider whether 
Wind Tre sales to Iliad and Cellnex' sales to, respectively, Wind Tre and Iliad are 
really part of the non -captive market, due to the origin of such sales (that is, a 
commitment to the Commission in a previous merger case or a sale of sites 
simultaneous to the conclusion of service agreement s with some degree of 
preferential treatment with the seller which remain anchor tenant ). The Commission 
has thus estimated market shares also excluding these sales from the merchant 
market . In this context, the Commission has calculated market shares  both including 
and excluding the sales of the Parties to each other . The reason for excluding cross -
sales of the Parties in this context is to give due account to the impact of Passive 
 
 
38 Sharing Agreement and thus to consider the origin of such sales also for the cross -
Party sales, in line with what suggested by the complainant for Wind Tre sales to 
Iliad and Cellnex' sales to, respectively, Wind Tre and Iliad . These shar es are 
presented in the following tables.  
Table 10 -  Market shares by revenues for the supply of hospitality services on macro -sites to MNOs  
(national level)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales and ass imilated to captive  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
Excluding captive  sales, assimilated to captive and sales of the Parties to each other  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
Table 11 -  Market shares by volume for the supply of hospitality services on macro- sites to MNOs 
(national level)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales and assimilated t o captive  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
 
39 Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales, as similated to captive and sales of the Parties to each other  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way […] […] […] […] […] […] […] […] […] […] […] 
 
Table 12 -  Market shares by volume for the supply of hospitality services on macro- sites to MNOs 
(areas with more than 35 000 inhabitants)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales and assimilated to captive  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales, assimilated to captive and sales of the Parties to each other  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
 
 
40 Table 13 -  Market shares by volume for the supply of hospitality services on macro- sites to MNOs 
(areas with less than 35 000 inhabitants)  
 
Supplier s 2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales and assimilated to captive  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
Excluding captive sales, assimilated to captive and sales of the Parties to each other  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
(153)  Based on the market reconstruction, the Commission notes that affected markets 
would arise in relation to the supply of hospitality s ervices to MNOs under any 
possible market reconstruction, with the exclusion of the market reconstruction that  
excludes captive sales and sales of the Parties to each other at national level and in 
the areas with more than 35  000 inhabitants. In the same m arket reconstruction 
which excludes captive sales and sales of the Parties to each other in areas with less 
than 35 000 inhabitants, the Parties’ combined market shares would be below the 
25% threshold set out at paragraph 18 of the Horizontal Merger Guide lines at which 
a concentration may be presumed to be compatible with the internal market. With 
the exception of a few years, in all other market reconstructions, the Parties’ 
combined market shares are above 40% and in several years also above the 50% 
threshold set out at paragraph 17 of the Horizontal Merger Guidelines at which a 
dominant market position maybe considered to exist.  
(b) Hospitality services on macro -sites to FWA suppliers  
(154)  On the basis of the market reconstruction, the following tables present the Parties' 
and their competitors market shares in the supply of hospitality services to FWA 
suppliers  at national level as well as, in terms of tenancies, disaggregated shares 
considering separately the areas where the Parties where already passively s haring 
(areas with less than 35  000 inhabitants) and those where the passive sharing will be 
 
 
41 extended (areas with more than […]∗ inhabitants) . The Parties’ data on their future 
sales to FWA suppliers  also includes sales to all other customers other than TV  and 
radio broadcasters and MNOs. However, as the Parties ’ to these customers are  
negligible98, it is unlikely that the Parties’ shares are overestimated.  
Table 14 -  Market shares by revenues for the supply of hospitality services on macro -sites to  
FWA supp liers (national level)  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
Table 15 -  Market shares by volume for the supply of hospitality services on macro- sites to  
FWA suppliers  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
National level  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025 2026  2027  
Areas with more than 35  000 inhabitants  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
                                                 
∗  Should read: “35 000”.  
98  See footnote 52.  
 
 
42 Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025 2026  2027  
Areas with less than 35  000 inhabitants  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way […] […] […] […] […] […] […] […] […] […] […] 
 
(155)  Based on the market reconstruction, the Commission notes that affected markets 
would arise in relation to the supply of hospitality services to FWA suppliers  under 
all considered geographic delineations . With the exception of a few ye ars, the 
Parties’ combined market shares are above 40% and in some  years also above the 
50% threshold which, as indicated in paragraph 17 of the Horizontal Merger 
Guidelines , may in themselves be evidence of the existence of a dominant position.  
(c) Hospit ality services on macro -sites to customers other than TV and radio 
broadcasters, MNOs and FWA customers  
(156)  As explained  at paragraph (154) , the Parties’ data on their future sales to FWA 
suppliers  also includes sales to all other customers other than TV and radio 
broadcasters and MNOs. Thus, they have not been able to provide data on this 
residual category of customers. However, they submitted that currently INWIT […] 
and Vodafone […]  hosted on a combined total of […]. Further, in t he Form CO they 
provided aggregated sales for the years 2016 to 2018 to the residual category of 
customers. Based on these figures, in 2018 Fastweb had […] tenancies belonging to 
this category, and TIM/INWIT […] , both at national level.99 In the same year and at 
national level, the Commission notes that, according to the market reconstruction, 
[…]. The Commission notes that on this basis affected markets would arise also in 
relation to the supply of hospitality services to customers other than TV and radio 
broadcasters, MNOs and FWA suppliers , as the Parties could be estimated to have 
around [ …] of the market.  
(d) Hospitality services on macro -sites to customers  other than TV and radio 
broadcasters  
(157)  As regards the overall market for the supply of hospitality services to customers 
other than TV and radio broadcasters , based on the market reconstruction, the 
Commission notes sales to MNOs (including captive sales) represent by value almost 
the totality of such overall market, as illustrated in the below table.  
                                                 
99  Form CO, Tables 3 and 5.  
 
 
43 Table 16 –  Relative importance of customers within the overall market for the supply of hospitality 
services to customers other than TV and radio broadcasters  (including captive sales)  
 
 2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Revenues (nati onal)  
MNOs  […] […] […] […] […] […] […] […] […] […] […] 
FWAs  […] […] […] […] […] […] […] […] […] […] […] 
Volume (national)  
MNOs  […] […] […] […] […] […] […] […] […] […] […] 
FWAs  […] […] […] […] […] […] […] […] […] […] […] 
Volume (areas with more than 3 5 000 inhabitants)  
MNOs  […] […] […] […] […] […] […] […] […] […] […] 
FWAs  […] […] […] […] […] […] […] […] […] […] […] 
Volume (areas with less than 35  000 inhabitants)  
MNOs  […] […] […] […] […] […] […] […] […] […] […] 
FWAs  […] […] […] […] […] […] […] […] […] […] […] 
 
(158)  Based on the above the Commission notes that, in the market reconstruction, the 
shares of the Parties in the overall market are in line with those in relation to the 
supply of hospitality services on macro- sites to MNOs. Further, the Commiss ion 
notes that there is a discrepancy of volume and value figures in relation to the 
relative importance of customer groups in the business of suppliers of hospitality 
services. However, value figures are likely to provide a better indication of the 
power that suppliers have vis -à-vis their customers, as well as of the importance of a 
customer group in the overall economy of the business strategy of suppliers. In this 
context, the Commission considers that the effects of the Transaction are likely to be 
the same in the overall market and in the hypothetical market for the supply of 
hospitality services to MNOs.  
7.2.1.2. Alternative market share metrics  
(159)  A third party has submitted that another relevant metric to assess market power in 
the supply of hospitality service s is the number of sites managed by an operator. It 
has also submitted market shares based on this metric at local level (municipality). 
According to the figures provided by this third party the situation would be as the 
one represented in the below table. 
Table 17 –  HHI delta and combined market shares post -Transaction per municipality clusters  
[…] 
Source: Third party’s submission.  
 
(160)  Thus, based on the third party’ submission, in 3 400 cities the Parties’ combined 
market shares would be above 50% and in 1 400 […]∗ the Parties’ combined market 
shares would be above 60%. More in detail, based on the third party submission the 
situation in the Italian cities with more than 50  000 inhabitants where the Joint 
Venture  will have a market share above 50% and the HHI  will be over 3000 post -
Transaction would be the one illustrated in the following table.  
                                                 
∗  Should read: “cities”.  
 
 
44 Table 18 –  HHI delta and combined market shares post -Transaction per municipalities  
[…] 
Source: Third party’s submission . 
 
(161)  In the Form CO the Parties submitted that th e number of sites would not be a 
suitable capacity metric essentially because installed capacity can easily vary 
depending on customers’ demand.  
(162)  The Commission agrees with the Parties in relation to the unsuitability of number of 
sites as a relevant market share metric. Indeed, capacity shares based on the number 
of sites reflect the capacity potentially available in the market based on the offers 
made by the Tower Cos to customers (which usually list the full set of sites managed 
by an operator at least on  the side of INWIT and TIM). However, the actual presence 
of free capacity on a site can be verified only after technical testing by the potential 
customer of the free physical and electromagnetic space on the site. This is 
demonstrated by Iliad’s statemen t that [ …].100 By the same token, [ …].101 
(163)  In this context, looking at number of sites as a proxy of capacity may not be 
representative of the effective capacity on the market and likely overestimate the 
ability of the Parties to host third parties. This is bec ause of the existing veto rights 
that each Party retains on its sites and the fact that the Parties are already hosted on a 
number of each other sites. 
(164)  Nonetheless, the Commission notes that the conclusions that  can be drawn in terms 
of market power of the  Parties from the shares by capacity (which apply to all 
possible product market delineations in terms of customers as these customers are 
hosted on the very same sites) are not very different from the conclusions that can be 
drawn from the shares in terms  of sales. This is particularly evident if considering 
the results of the market reconstruction at national level, as well as sub -local 
distinguishing between areas where passive sharing already existed between the 
Parties and where it will be extended.  
Table 19 –  Capacity shares by number of sites  
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
National  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
                                                 
100  Agreed minutes  of the conference call of 28 November 2019 with Iliad, paragraph 7.  
101  Agreed minutes  of the conference call of [ …], paragraph 4.  
 
 
45 Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Areas with more than 35  000 inhabitants  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way […] […] […] […] […] […] […] […] […] […] […] 
Areas with less than 35  000 inhabitants  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
VF […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
(165)  In this context, the Commission notes the following. In the market reconstruction, 
the Commission has not collected data on sales at local level  (in Italy  there are 
around 5 220 cities where either or both the Parties have a site) . This is because of 
the difficulties in identifying an appropriate geographic level at which to conduct the 
exercise, as substitutability between sites is a function of the spectrum portfolio of 
the customer. Nonetheless, the third party complainant submitting that the 
geographic scope of the market should be local provided market shares at 
municipality level based on number of sites. As shares based on this same metric at 
national level do not seem to depart from the shares based on sales at national level 
as reconstructed by the Commission, the Commission considers that there is no 
reason to believe that the combined market shares of the Parties would be different 
even if a narrower geograph ic scope of the market were to be considered.  
7.2.2. Hospitality services on micro -sites  
(166)  Based on the data provided by Parties in the Form CO, the market shares by volume 
for the overall market for the supply of hospitality services on micro- sites at national 
level and excluding captive sales in 2018, are illustrated in the table below.  
Table 20 –  Supply of hospitality services on micro sites  
Mobile Operators  2018 
Vodafone  [0-5]% 
INWIT  [5-10]% 
Rest of the market  [90-100]% 
Source: Form CO, Table 7.  
 
 
46 (167)  Based on th e above Table, the Parties’ combined market share would be [5 -10]% by 
volume and Cellnex would be the market leader with [90- 100]% market share.  
(168)  In order to assess the reliability of the data provided by the Parties, the Commission 
has conducted a market r econstruction exercise collecting data from the Parties and 
their main competitors on actual sales, and estimates on the future sales, of 
hospitality services  on micro -sites, in revenues and volume (as number of tenancies), 
over the period 2017 to 2027. 
(169)  Estimates on future sales have been provided by the information providers based on 
the assumption that the site Joint Venture  between TIM and Vodafone would have 
not been created. The Parties have provided estimates on future sales also on the 
basis of the a ssumption that the Passive and Active Sharing Agreements are 
implemented. In this respect, the Commission notes that, at the time of the adoption 
of this Decision, the Parties have […] . 
(170)  Whilst it will roll- out micro- cells, [ …] has not provided any data on sales. However, 
it cannot be excluded that it will sell access to its micro -sites. Further, the data used 
for the market reconstruction do not include the DAS sales of [ …] in the instances 
where it is the ow ner of the DAS and MNOs pay a recurring fee to ha ve their 
frequency repeated by the DAS. As well as in the instances where the DAS is sold to 
a customer (e.g. IKEA).  Finally, several respondents to the market investigation 
indicated that, with the massive rollout of 5G networks, new entrant specialized i n 
micro -sites deployment, not accounted for in the market reconstruction, could 
emerge. Thus, the market shares computed on the basis of the resulting dataset are 
likely overestimating the market position of the Parties.  
(171)  On this basis, the following tables  present the Parties' and their competitors market 
shares in the supply of hospitality services on micro- sites at national level by 
revenues and by volume in terms of tenancies. Data for sales to MNOs are computed 
both including and excluding captive sales  (where captive sales do not  include  sales 
of the Parties to each other).  
Table 21 -  Market shares by revenues for the supply of hospitality services on micro -sites 
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Including captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
Vodafone  […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
 
47 Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Excluding captive sales  
TIM/IN WIT  […] […] […] […] […] […] […] […] […] […] […] 
Vodafone  […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way […] […] […] […] […] […] […] […] […] […] […] 
 
Table 22 -  Market shares by volume fo r the supply of hospitality services on micro -sites 
 
Suppliers  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Including captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
Vodafone  […] […] […] […] […] […] […] […] […] […] […] 
Com bined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way […] […] […] […] […] […] […] […] […] […] […] 
Excluding captive sales  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
Vodafone  […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
(172)  In order to assess the effective extent to which the Parties will compete in the supply 
of hospitality services on micro- sites to third parties in the  post-Transaction scenario 
and in view of the implementation of the Passive Sharing Agreement, the 
Commission has also computed market shares for the sales of hospitality services on 
micro -sites excluding not only captive sales, but also the Parties’ sales  to each other. 
These shares are presented in the following table.  
 
 
48 Table 23 -  Market shares for the supply of hospitality services on micro -sites  
(excluding captive sales and sales of the Parties to each other ) 
 
Suppliers  2017  2018  2019  2020  2021  2022  2023 2024  2025  2026  2027  
Revenues  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
Vodafone  […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
Volume  
TIM/INWIT  […] […] […] […] […] […] […] […] […] […] […] 
Vodafone  […] […] […] […] […] […] […] […] […] […] […] 
Combined  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
EI Towers  […] […] […] […] […] […] […] […] […] […] […] 
Rai Way  […] […] […] […] […] […] […] […] […] […] […] 
 
(173)  Based on the market re construction, the Commission notes that affected markets 
would arise in relation to the supply of hospitality services on micro- sites only at the 
earliest in year 2022, unless captive sales are included. Post -Transaction, the market 
reconstruction also sho w an intense  head -to-head competition between the Parties 
and Cellnex, especially when excluding not only captive sales but also the sales of 
the Parties to each other.  
7.2.3. Retail mobile markets   
(174)  In the Form CO, the Parties provided t heir shares and the ones of their competitors 
(in value and volume) in an hypothetical market including both the retail mobile 
market s in Italy , which are presented in the following  table.  
 
 
49 Table 24 – Retail mobile services, including  M2M, in Italy  
Mobile Operators  Share by value (% ) 
2016  2017  2018  
Vodafone  30.9%  31.3%  30.5%  
TIM  32.1%  33.1%  34.5%  
Wind  Tre 33.3%  31.8%  29.8%  
Iliad  0% 0% 0.8%  
MVNOs  (including 
Fastweb)  3.7%  3.8%  4.4%  
 Share by volume (%)  
2016  2017  2018  
Vodafone  29.4%  30.2%  29.2%  
TIM  30.2%  30.7%  30.7%  
Wind T re  33.1%  31.2%  29.2%  
Iliad  0% 0% 2.7%  
MVNOs (including 
Fastweb)  7.4%  8% 8.1%  
Source:  Form CO, based on Italian Telecommunications Authority annual reports (percentages).  
(175)  Whils t market shares by value are not available, based on volume data published b y 
AGCOM for the year September 2018 to September  2019,  the Commission has 
estimated  the market shares of the Parties and their competitors in the overall market 
for the retail provision of mobile telecommunications services , excluding M2M 
subscriptions, and in the market for the retail provision of M2M subscriptions , which 
are presented in the following table.  
Table 25 – Retail mobile  markets  in Italy –  share by volume  (September 2018 to September 
2019)  
 Retail mobile services 
excluding M2M  M2M subscription s 
Vodafone  25.1%  39% 
TIM  27.4%  41% 
Wind Tre  30.7%  19% 
Iliad  5.6%  0% 
Poste Mobile  5.3%  0% 
MVNOs (including Fastweb)  5.9%  0% 
Source: AGCOM Communication Markets Monitoring System, no. 4/2019 available at 
https://www.agcom.it/documents/10179/4386532/Allegato+23- 1-2020/7b245499 -7f9f-45af-80c0-
76b41a197b7c?version=1.0 and Commission’s calculation based on that data.  
7.2.4. Wholesal e mobile market   
(176)  Both TIM and Vodafone are active in Italy in the market for wholesale access and 
call origination on mobile networks:  
(a) TIM provides wholesale mobile network access to a number of MVNOs such 
as Coop Voce, Tiscali Mobile, Welcome Italia;  
(b) Voda fone provides wholesale mobile network access to a number of 
MVNOs: PostePay Spa, Daily Telecom Srl, Lycamobile Srl, Optima Italia 
Spa, Compagnia Italia Mobile Srl, Rabona Srl, Noitel Italia Srl, Nexus 
Telecom Srl and Europe Energy Spa.  
 
 
50 (177)  Based on the data p rovided by Parties in the Form CO, t he market shares of the 
Parties and of their competitor  in the wholesale mobile market in Italy are in the 
following tables (in value and volume):  
Table 26 – Wholesale mobile in Italy –  value  
Operators  Value (in EUR  millions and %)  
2016  (M) 2016 ( %) 2017  (M) 2017 ( %) 2018  (M) 2018 ( %) 
Vodafone  […]  [50-60]%  […] [30-40]%  […] [20-30]%  
TIM  […]  [10-20]%  […] [30-40]%  […] [40-50]%  
Wind  Tre […] [20-30]%  […] [20-30]%  […] [30-40]%  
Total  […] 100%  […] 100%  […] 100%  
Source: Parties’ estimates  
Table 27 – Wholesale mobile in Italy –  volume  
Operators  Volume (in subscribers millions and %)  
2016  (M) 2016 ( %) 2017  (M) 2017 ( %) 2018  (M) 2018 ( %) 
Vodafone  […] [20-30]%  […] [20-30]%  […] [10-20]%  
TIM  […] [10-20]%  […] [30-40]%  […] [30-40]%  
Wind  Tre […] [50-60]%  […] [40-50]%  […] [40-50]%  
Total  […] 100%  […] 100%  […] 100%  
Source: Parties’ estimates  
7.2.5. Retail fixed markets  
(178)  Both Parties are active in Italy in the supply of retail fixed Internet services to end 
customers. Vodafone provides fixed broadband services to its customers as well as 
packages including fixed Internet access and mobile or TV services. TIM  also 
provides Internet access to final customers, offering packages including voice, TV 
and smart home services , including  via FWA technology since 2019.  
7.2.5.1. Overall retail supply  of fixed I nternet access services  
(179)  Based on the data provided by Parties,102 the market shares of the Parties and of their 
competitors in the overall retail market for fixed Internet access servic es in Italy are 
in the following table (in value):  
Table 28 – Retail fixed Internet  in Italy –  value (consumers spending)  
Operator  Share by value (%)  
2016  2017  2018  
TIM  39.7%  36.6%  38.2%  
Vodafone  8.6%  9.8%  12.0%  
Fastweb  26.3%  28.0%  26.2%  
Wind  Tre 12.7% 12.2%  11.2%  
Tiscali  2.8%  0.5%  2.3%  
Eolo  N/A N/A 2.0%  
Linkem  N/A 2.9%  2.0%  
BT Italia  0.8%  N/A N/A 
Others  9.1%  9.9%  6.2%  
Source: AGCOM  annual reports . 
                                                 
102  Parties’ reply to RFI 19.  
 
 
51 7.2.5.2. Retail supply  of fixed Internet access services  based on FWA technology  
(180)  The Parties did not provide market shares for their competitors in the retail supply of 
fixed Internet access services based on FWA technology , but estimate that TIM’s 
market share by the end of September  2019 was approximately [0 -5]%.103 
7.2.6. Wholesale fixed markets  
7.2.6.1. Overall wholesale sup ply of fixed access, encompassing all technologies  
(181)  The Parties have not provided market shares at national level for the overall market 
for wholesale fixed services. They submitted that market data for the Italian 
wholesale fixed market could be retrieved in the official publications of AGCOM.  
(182)  Notably, in its decision No. 348/19/CONS, AGCOM provided market shares for:  
(a) the market for wholesale local access provided at fixed location  (WLA),104 
defining such a market as the demand and supply of wholesale local a ccess 
services at fixed location, by means of copper, fiber  and FWA  technologies . 
Services included in the relevant market are, amongst others: local loop 
unbundling (LLU), sub- loop unbundling (SLU), Virtual unbundling local 
access (VULA) ); and  
(b) the market for wholesale central access provided at fixed location for mass -
market products  (WCA),105 defining such a market as the demand and supply 
for wholesale central access services provided at fixed location, by means of 
copper, optical fiber  and FWA  technologie s. 
(183)  Based on the data provided by Parties,106 the market shares of the Parties and of their 
competitors in the two mentioned wholesale markets in Italy are in the following 
table (in volume):  
Table 29 – Wholesale fixed access, encompassing all technologies  (volume ) 
Operator  Share by volume (%)  
2016  2017  2018  
Wholesale local access provided at fixed location  
TIM  92.56%  90.24%  89.28%  
Others  7.44%  9.76%  10.72%  
Wholesale central  access provided at fixed location for mass market products  
TIM  55.08%  54.51%  51.54%  
Fastweb  11.36%  11.97%  12.45%  
Wind  14.91%  13.36%  13.67%  
Vodafone  10.30%  10.90%  12.57%  
Tiscali  2.04%  2.16%  2.25%  
Others  6.32%  7.10%  7.52%  
Source: AGCOM.  
                                                 
103  Parties’ reply to RFI 21, question 2.  
104  Market 3 of Commission Recommendation 2014/710/EU of 9 October 2014 on relevant product and 
service markets within the electronic communication s sector susceptible to ex ante regulation in 
accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common 
regulatory framework for electronic communications networks and servic es, in OJ L 295, 11.10.2014, 
p. 79–84. 
105  Market 3b of Commission Recommendation 2014/710/EU.  
106  Parties’ reply to RFI 19.  
 
 
52 7.2.6.2. Wholesale supply of fixed access  based on FWA  
(184)  Based on the data provided by Par ties,107 the market share by value of TIM and its 
competitors (on an aggregated basis) in 2019 and estimates for 2020 are the 
following:  
Table 30 – Wholesale fixed access based on FWA technology  (value)  
Operator  Share by value  (%) 
2019 2020 
TIM  [0-5]% [0-5]% 
Fastweb  [20-30]% [20-30]% 
Others  (including Eolo and 
Linkem)  [70-80]% [70-80]% 
 
7.2.7. Fixed backhauling services   
(185)  Vodafone does not supply backhaul services to third parties . It operates its own fixed 
and wireless backhaul services and sourc es backhaul se rvices from third parties.  
Vodafone uses a range of fixed and wireless backhaul to connect its radio access 
network to its own core network.  
(186)  TIM offers to third parties both active backhauling services and passive backhauling 
services such as dark fiber . TIM’s  dark fiber  backhaul service is comprised of the 
supply and maintenance of a fiber  connection of a pair of “unlit” optical fiber  lines 
(i.e. without the supply of equipment) to connect an MNO’s radio access network to 
its core network. The MNO's point of presence can be located on an  INWIT/T IM 
site or on a third party site. 
(187)  INWIT in 2017 started to offer backhaul services to TIM and in 2018 entered the 
market for providing fixed backhauling services to third parties and through the 
provision of dark fiber (i.e. only the passive infrastructure not the active service) . 
(188)  Based on the data provided by Parties in the Form CO, t he market shares of TIM  and 
of its competitors in the wholesale market for fixed backhaul services in Italy 
(copper and fiber) are in t he following table (in value):  
Table 31 – wholesale backhaul services in Italy – value  
Operators  Market share by revenues (Euro million)  
2016  % 2017  % 2018  % 
INWIT108 […] [0-5]% […] [0-5]% […] [0-5]% 
TIM  […] [20-30]% […] [30-40]% […] [30-40]% 
Fastweb  […] [20-30]% […] [20-30]% […] [20-30]% 
Others  […] [40-50]% […] [40-50]% […] [40-50]% 
Total  […] 100%  […] 100%  […] 100%  
 Source: TIM  Internal Estimates  
(189)  The Parties have also provided TIM’s  market shares in the market for leased lines 
(and related sub -segmen ts), that are consistent with the market shares in the 
backhauling services:  
                                                 
107  Parties’ reply to RFI 22, question 2.  
108  Parties’ response to RFI 2, Table 3.  
 
 
53 Table 32 – Leased Lines in Italy –  value  
Operators  Market share by revenues (Euro million)  
2016  % 2017  % 2018  % 
Leased Lines  
TIM  […] [30-40]%  […] [30-40]%  […]  [30-40]%  
Total […] 100%  […] 100%  […]  100  
(i) Dedicated capacity  
TIM  […] [30-40]%  […] [30-40]%  […]  [40-50]%  
Total  […] 100%  […] 100%  […]  100%  
(a) Dedicated capacity – Copper and leased lines  
TIM  […] [60-70]%  […]  [60-70]%  […]  [60-70]%  
Total  […] 100%  […]  100%  […]  100%  
(b) Dedicated capacity – Fiber  
TIM  […] [20-30]%  […]  -20-30]%  […]  [30-40]%  
Total  […] 100%  […]  100%  […]  100%  
(ii) Leased Lines – Infrastructure – Ducts and Dark Fiber  
TIM  […] [20-30]%  […]  [20-30]%  […]  [30-40]%  
Total  […] 100%  […]  100%  […]  100%  
Source: TIM  internal e stimates  
(190)  Other relevant leased lines operators in Italy are Fastweb, Open Fiber and Retelit.  
7.2.8. Affected markets  
(191)  Based on the above, the Transaction gives rise to the following horizontally affected 
markets : 
(a) The supply of hospitality services on macro- sites to MNOs;  
(b) The supply of hospitality services on macro- sites to FWA suppliers;  
(c) The supply of hospitality services on macro -sites to customers other than TV 
and radio broadcasters, MNOs and FWA customers ; 
(d) The supply o f hospitality services on macro -sites to customers other than TV 
and radio broadcasters ; 
(e) The supply of hospitality services on micro -sites.  
(192)  The Transaction gives rise to vertically affected markets in relation to the links 
between the following markets :109 
(a) The upstream market for the supply of hospitality services on macro- sites to 
MNOs (and/or the upstream market  for the supply of hospitality services on 
macro -sites to customers other than TV and radio broadcasters ) and the 
downstream retail mobile markets;110 
(b) The upstream market for the supply of hospitality services on macro- sites to 
MNOs (and/or the upstream market  for the supply of hospitality services on 
macro -sites to customers other than TV and radio broadcasters ) and the 
downstream wholesale mobile mark et; 
                                                 
109  See also footnote 45.  
110  See also footnote 152.  
 
 
54 (c) The upstream market for the supply of hospitality services on macro- sites to 
FWA suppliers (and/or the upstream market  for the supply of hospitality 
services on macro -sites to customers other than TV and radio broadcasters ) 
and the downstream retail fi xed markets;  
(d) The upstream market for the supply of hospitality services on macro- sites to 
FWA suppliers (and/or the upstream market  for the supply of hospitality 
services on macro -sites to customers other than TV and radio broadcasters ) 
and the downstream wholesale fixed markets;  
(e) The upstream market for the supply of hospitality services on micro -sites and 
the downstream retail mobile markets;111 
(f) The upstream market for the supply of hospitality services on micro -sites and 
the downstream wholesale mobile mark ets.112 
(193)  Finally, t he Transaction may have a significant impact within the meaning of 
Section  6.4 of Annex I to the Implementing Regulation113 in relation to  the supply of 
fixed fiber backhaul services ( irrespective of a segmentation between active and 
passive infrastructure), which is neighbouring to:  
(a) The supply of hospitality services on macro- sites to MNOs;  
(b) The supply of hospitality services on macro- sites to FWA suppliers;  
(c) The supply of hospitality services on macro -sites to customers other than TV 
and radio broadcasters, MNOs and FWA customers ; 
(d) The supply of hospitality services on macro -sites to customers other than TV 
and radio broadcasters ; 
(e) The supply of hospitality services on micro -sites.  
7.3. Non-coordinated effects  
7.3.1. Introduction 
7.3.1.1. Horizontal effects  
(194)  A merger giving rise to significant impediment of effective competition may do so as 
a result of the creation or strengthening of a dominant position in the relevant 
markets. Moreover, mergers in oligopolistic markets involving the elimination of 
important constrai nts that the parties previously exerted on each other, together with 
a reduction of competitive pressure on the remaining competitors, may also result in 
                                                 
111  In this respect, see footnote 160.  
112  In this respect, see footnote 160.  
113  Consolidated version of the Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing 
Council Re gulation (EC) No 139/2004 on the control of concentrations between under takings  and its 
annexes (Form CO, Short Form CO, Form RS and Form RM) ( OJ L 133, 30.04.2004, p. 1- 39), as 
amended by Commission Regulation (EC) No 1033/2008 ( OJ L 279, 22.10.2008, p.3- 12) and by 
Commission Implementing Regulation (EU) No 1269/2013 of 5 December 2013 (OJ L 336, 14.12.2013, 
p. 1-36). 
 
 
55 a significant impediment to effective competition, even in the absence of 
dominance.114 
(195)  In fact, the Hor izontal Merger Guidelines describe horizontal non- coordinated 
effects as follows: “ A merger may significantly impede effective competition in a 
market by removing important competitive constraints on one or more sellers who 
consequently have increased mark et power. The most direct effect of the merger will 
be the loss of competition between the merging firms. For example, if prior to the 
merger one of the merging firms had raised its price, it would have lost some sales 
to the other merging firm. The merger  removes this particular constraint. Non-
merging firms in the same market can also benefit from the reduction of competitive 
pressure that results from the merger, since the merging firms’ price increase may 
switch some demand to the rival firms, which, in turn, may find it profitable to 
increase their prices. The reduction in these competitive constraints could lead to 
significant price increases in the relevant market .”115 
(196)  The Horizontal Merger Guidelines list a number of factors which may influence 
whether  or not significant horizontal non- coordinated effects are likely to result from 
a merger, such as the large market shares of the merging firms, the fact that the 
merging firms are close competitors, the limited possibilities for customers to switch 
suppli ers, or the fact that the merger would eliminate an important competitive 
force.116 That list of factors applies equally regardless of whether a merger would 
create or strengthen a dominant position, or would otherwise significantly impede 
effective competit ion due to non- coordinated effects. Furthermore, not all of these 
factors need to be present to make significant non- coordinated effects likely and it is 
not an exhaustive list.117  
(197)  In addition, the Horizontal Merger Guidelines describe a number of factors, which 
could counteract the harmful effects of the merger on competition, including the 
likelihood of buyer power, the entry of new competitors on the market, and 
efficiencies.  
7.3.1.2. Vertical  effects  
(198)  Vertical mergers are generally less likely to significantly imp ede effective 
competition than horizontal mergers. However, there are circumstances in which 
non-horizontal mergers may significantly impede effective competition. This is 
essentially because a non -horizontal merger may change the ability and incentive to 
compete of the merging companies and their competitors in ways that cause harm to 
consumers.118 
(199)  One way in which vertical mergers may significantly impede effective competition is 
through non -coordinated effects, which may principally arise when mergers give  rise 
to foreclosure. A merger is said to result in foreclosure where actual or potential 
rivals' access to supplies or markets is hampered or eliminated as a result of the 
                                                 
114 Horizontal Merger Guidelines, paragraph 25.  
115 Horizontal Merger Guidelines, paragraph 24.  
116 Horizontal Merger Guidelines, paragraphs 27 and following . 
117 Horizontal Merger Guidelines, paragraph 26.  
118 Non-horizontal Merger Guidelines, Section II.  
 
 
56 merger, thereby reducing these companies' ability and/or incentive to compete.119 
Such foreclosure may discourage entry or expansion of rivals or encourage their exit. 
Such foreclosure is regarded as anti -competitive where the merging companies — 
and, possibly, some of its competitors as well — are as a result able to profitably 
increase t he price charged to consumers.120 
(200)  Two forms of foreclosure can be distinguished. The first is where the merger is 
likely to raise the costs of downstream rivals by restricting their access to an 
important input (input foreclosure). The second is where the me rger is likely to result 
in foreclosure of upstream rivals by restricting their access to a sufficiently large 
customer base (customer foreclosure). The former is the type of foreclosure that  is 
relevant for the assessment of the Transaction.  
7.3.1.3. Conglomerate effects  
(201)  The Non- Horizontal Guidelines indicate that competition concerns can arise in 
circumstances where a merger involves companies that are active in closely related 
markets. While in the majority of circumstances conglomerate mergers will not lead 
to a ny competition problems, in certain circumstances they can lead to 
anticompetitive effects. One such example is when the combination of products in 
related markets would give the merged entity the ability and incentive to leverage a 
strong market position in one of the markets to the other market by means of tying or 
bundling. Where tying or bundling is likely to lead to a reduction in actual or 
potential rivals’ ability or incentive to compete it may reduce competitive pressure 
on the merged entity, allowi ng it to increase prices.  
7.3.2. Horizontal non-coordinated effects in the supply of hospitality services on macro -
sites to MNOs  
7.3.2.1. Parties’ view  
(202)  The Parties submit that the Transaction would not raise any competition concerns, 
for the following reasons. 
(203)  First, the TowerCo business historically developed as a by -product of each MNO 
building its own network for captive use. TIM, Vodafone and the other MNOs have 
generally self -sourced to a large extent their needs, with third- party hospitality 
services to complement each MNO’s network. Therefore, post -Transaction the 
market structure for third -party tenancies would not change significantly.  
(204)  Second, TIM and Vodafone entered into a passive sharing agreement already in 2007 
and since then Vodafone has been […] . Thus, the T ransaction would bring under the 
same roof sites that were already to a large extent shared between the Parties and 
conversely were not an important competitive source of tower space for other 
MNOs.  
(205)  Third, the two other MNOs active in Italy, Wind Tre  and I liad already have a set of 
cooperation agreements in force.  
                                                 
119 Non-horizontal Merger Guidelines, paragraph 29.  
120 Non-Horizontal Merger Guidelines, paragraph 29.  
 
 
57 (206)  Fourth, there would be sufficient availability of sites/tenancies, as acknowledged by 
the Commission in previous cases.121 In particular, the independent TowerCo 
Cellnex will remain the leading prov ider of third -party tenancies in Italy and 
TowerCos will be able to develop new sites to the extent there is a demand for that.  
(207)  Fifth, TV and radio TowerCos could easily use their existing sites to accommodate 
demand from MNOs if needed.  
7.3.2.2. Commission’s assessment  
(208)  In relation to potential horizontal non-coordinated effects in the supply of hospitality 
services on m acro-sites to MNOs , the Commission notes the following.  
(209)  First, as illustrated in Section 7.2.1, based on the Commission’s market 
reconstruction, wha tever the metric considered , the Parties’ combined shares, both 
historical and projected up to 2027, are very large and virtually always above 40% . 
This is true regardless of the geographic level considered .  
(210)  Second, as regards closeness of competition, th e evidence in the Commission’s file 
is mixed. On the one hand, the Parties plan to […]  and to build a common grid 
leveraging their combined portfolio.122 This is in fact the purpose of the Passive 
Sharing Agreement . In the same vein, albeit the third party c omplainant submitting 
that the relevant market should be locally defined provided market shares at 
municipality level, this geographic dimension may be larger than the effective area 
where site substitutability occurs. Looking at narrower data on site loca tion based on 
postal code s, it appears that an actual  overlap between the Parties’ sites would arise 
only in […]  postal codes where both the Parties’ sites are present.123 
(211)  On the other hand, postal codes may also be a too narrow dimension and the actual 
analysis of closeness between sites should be done depending on the spectrum 
portfolio of the customer  that is seeking access. In this context, for players with 
different spectrum portfolios than those of the Parties, the Parties’ sites may 
constitute more alternatives  than complements  to each other , especially given the 
limited availability of sites in urban areas.  In this respect, the Commission notes that 
MNOs  responding  to the market investigation indicated that the Parties are very 
close competitors (if no t the closest competitors) due to the size and quality of their 
site portfolio .124 
(212)  Third, it is unclear to what extent the Parties so far exert ed an important competitive 
constraint on each other in the supply of hospitality services  to MNOs . Indeed, 
before the Transaction  TIM has continued to be the main customer of INWIT 
representing still ca. […] % of its revenues in the latest published financial report 
(third quarter of 2019)125, even if INWIT’s business plan before the Transaction 
foresaw an increase of th e revenues realised with third parties (in line with TIM ’ 
objective  to monetise the financial potential of its sites by increasing the number of 
tenants ). The […] customer of INWIT has been Vodafone, with sales driven from 
                                                 
121  Commission decision of 1 September 2016 in c ase M.7758 –  Hutchison 3G Italy / Wind / JV . 
122  See Parties’ reply to RFI 19, question 6.e.  
123  See Annex 1u to the Active Sharing Agreement.  
124  See replies to RFI Q3, questions 19 and 20.   
125  See INWIT’s presentation to the investors of 5 November 2019, av ailable at 
https://www.inwit.it/sites/default/files/INWIT -9M%2719%20Financial%20Results.pdf   
 
 
58 the strategic decision of TIM and  Vodafone to engage in passive sharing  before the 
creation of INWIT .126  
(213)  As regards Vodafone, so far it has managed its tower operations as part of its mobile 
business and […].127 In this respect, as also noted by Ei Towers128, Vodafone has 
operated only margina lly as TowerCo, neither has exerted a strong competitive 
pressure on the market. Whilst in an hypothetical  counterfactual Vodafone may have 
spun off its tower operations in an independent company (as it is doing for its 
European business)129, there is no indication that the strategy of primarily serving 
itself would have changed, as it has been the case for INWIT  so far .  
(214)  The fact that the Parties would likely continue to primarily serve themselves and 
each other even if they were not to combine their tower business is supported by the 
fact that they would in any event engage in an increase of their passive sharing 
arrangements under the Passive Sharing Agreement.  
(215)  In addition, as explained in Section 5.3., for  MNOs, the location of the site is the 
primary driv er of demand. However, for the Parties, the location of their sites has not 
been driven by their willingness to satisfy, and compete for, merchant demand, but 
rather to fulfil the requirements of their mobile network. There is no indication that 
this is likely to change in the future. In fact , the Commission notes that other MNOs 
in the market engaged in strategic par tnership with independent TowerC os rather 
than with the Parties for their site deployment. Indeed, both Wind Tre and Iliad ha ve 
sold part of t heir passive assets to Cellnex and entered into an anchor tenant 
agreement with this operator , including the supply of new “built -to-suit” sites .130 
(216)  Further, the fact that the Parties are unlikely to have exerted an important 
competitive constraint on each other in the supply of hospitality services to MNOs, 
as well as that they are unlikely to exert such constraint  in the counterfactual, is 
supported by the view of Wind Tre, according to which  “it should be generally noted 
in the context of describing compet ition among the providers of hospitality services 
that site portfolios do not necessarily per se overlap, and given the physical and 
electromagnetic emissions limitations on sites and relatively -long term contractual 
commitments for installed equipment, ev en where there is comparable overall 
footprint and even where there is a direct, alternative site location from another 
tower company, such alternative sites may often not be actually available to host the 
needs of a prospective MNO customer ”.131 Likewise , Ei Towers stated that the 
competitive pressure exerted on INWIT by the MNOs, Vodafone, Wind Tre and 
Iliad, is of less relevance compared to the one exerted by Cellnex and Ei Towers.132 
(217)  Fourth, the supply of hospitality services to MNOs is characterised by long- term 
contracts. In particular, other than the agreements with Cellnex described in 
                                                 
126  See INWIT’s stand alone business plan, see Annex 4 to the Form  CO. 
127  See Vodafone’s stand alone business plan , see Annex 4 to the Form CO . 
128  See Ei Towers’ reply to RFI Q4, question  19. 
129  See Vodafone’s press release of 26 July 2019, available at https://www.vodafone.com/news -and-
media/vodafone -group -releases/news/create -europe -largest -tower -company -unlocking- value -for-
shareholders   
130  See above Section 5.3.  
131  Wind Tre’s reply to RFI Q3, question 19.  
132  Ei Towers’ reply to RFI Q4, question 18.  
 
 
59 Section  5.3, Wind Tre has agreements in place with [ …] as well as with the Parties 
themselves: […] .  
(218)  Likewise, Iliad, other than the agreements with Cellnex described in S ection 5.3, it 
has a long term contract with […]  and with [ …]. […]. 
(219)  With respect to Fastweb , […]. However, the Commission notes that, [ …]. In fact, as 
explained in Section 5.3., in the Wind Tre/Fastweb partnership it will be for Wind 
Tre to manage the mobile network. Thus , it is unclear to what extent  Fastweb will be 
an active customer  of hospitality services for a mobile network , to the extent it 
would rely on the partnership with Wind Tre to roll -out its 5G mobile network. 
(220)  The long duration of the framew ork contracts is likely to offer adequate protection 
vis-à-vis any worsening of term s and conditions for hospitality services deriving 
from a potential reduction of the competitive pressure in the market due to the 
Transaction (albeit, as explained above, it is unclear to what extent the Parties 
exerted such pressure on each other, in the first place). In this respect, the 
Commission also notes that  most market participants have not expressed concern in 
relation to the early termination of the contracts by the Parties133 and that, in any 
event,  the Parties committed  not to terminate their contracts with third parties by 
exercising their early termination rights .134 
(221)  Moreover, the Commission notes that, due to the implementation of the Passive 
Sharing Agreement, t he Parties plan to […] . Based on the Parties’ estimates, […]. 
Whilst there is no commitment from the Parties to do so, the Commission notes that 
should this actually occur it would constitute another mitigating factor of any 
potential reduction of the competitive pressure in the market due to the Transaction. 
Indeed, especially Tower Cos are likely to intensify competition between themselves 
[…]. 
(222)  Finally, as explained by Cellnex,135 the Commission  notes that pursuant to 
Article  3(2) of the Broadband Cost Reduc tion Directive , implemented in Italy by the 
legislative decree  n. 33 of  15 February 2016,136 “any network operator has the 
obligation to meet all reasonable requests for access to its physical infrastructure 
under fair and reasonable terms and conditions, including price ”.137 
(223)  In this context, despite the high barriers to entry, the Commission considers it 
unlikely that the Transaction would negatively affect MNOs  as a result of a 
worsening of the terms and conditions offered to them. 
(224)  Likewise, to the extent tha t new sites can be built, it is unlikely that the Transaction 
would negatively affect MNO s. Indeed, as mentioned, construction of new sites by 
                                                 
133  See Replies to Market Test questionnaire, question 11.  
134  A commitment in this respect has also been included in the Final Commitments.  
135  Replies to Market Test questio nnaire, question 9.  
136  Decreto legislativo n. 33 del 15 febbraio 2016, relativo all’attuazione della direttiva 2014/61/UE del 
Parlamento europeo e del Consiglio, del 15 maggio 2014, recante misure volte a ridurre i costi 
dell’istallazione di rete di comunicazione elettronica ad alta velocità,, Italian OJ  “Serie Generale”  n.57 of 
09.03. 2016.  
137  Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to 
reduce the cost of deploying high -speed electronic communications net works, OJ L 155, 23.5.2014, 
p. 1-14. 
 
 
60 the Parties has been primarily driven by their mobile network needs and other MNO 
operators have strategic partnerships with Cellnex for build- to-suit sites. Moreover, 
in relation to the construction of new sites, buyer power, in the form of self -supply, 
is likely to mitigate any potential effect of the Transaction.  
(225)  Nonetheless, especially in urban areas, the possibi lities to build new sites are 
negligible, and TowerCos’ inventories are the only alternative. As discussed in 
Section 7.3.6. below, due to the potential decrease in space, and thus capacity, to be 
offered to third parties in the market by the Joint Venture , as result of the MSAs and 
the preferential rights foreseen therein , MNOs may see reduced capacity available to 
them in the market.138  
(226)  In this context, the Commission notes that Wind Tre and Fastweb  are unlikely to be 
negatively affected  as a result of hor izontal unilateral effects  deriving from this 
reduction in capacity , despite the latter having  expressed concerns in the market 
investigation.139 This is because, as further discussed in Section 7.3.6. below , based 
on the projections on network roll -out subm itted by Wind Tre in the market 
reconstruction, it plans  […]. Further , as explained at paragraph (219) , Fastweb is 
unlikely to constitute an active customer of hospitality services for a mobile network , 
to the extent it would re ly on the partnership with Wind Tre to roll -out its 5G mobile 
network.  
(227)  Further, there is no indication in the file that entry of a new MNO in Italy (other than 
Fastweb) is likely.  
(228)  However, the Commission notes that Iliad is still in the process of developing its 
mobile network independently. D ue to the difficulties of building new sites in Italy, 
especially in urban areas, in order to be able to roll -out a competitive network, Iliad 
might need to rely on the Parties’ sites. In fact , as discussed in Section 7.3.6. below, 
based on the projections on network roll -out submitted by Iliad in the market 
reconstruction, it plans to rely on [ …]. Assuming that Iliad’s projections of reliance 
on the Parties’ sites are based on a  previous verification of the inability of other 
suppliers to satisfy its network planning needs in a given area with their site stock, 
for areas where no new sites can be built, the reduction of the capacity in the market 
resulting  from the Transaction, in combination with the MSAs , is not likel y to be 
compensated by the competing TowerCos or self -supply . 
(229)  For these reasons, (i) Iliad being one of the only two MNO active customers in the 
possible market for the supply of hospitality services to MNOs, other than the 
Parties, and (ii)  to the extent Fastweb were not to rely on the partnership with Wind 
Tre to roll -out its 5G mobile network and/or a new MNO were to enter in Italy, the 
Commission cannot exclude that the Transaction give s rise to serious doubts as to its 
compatibility with the internal market in relation to the supply of hospitality services 
to MNOs on macro -sites as a result of horizontal non- coordinated effects.   
                                                 
138  […].  
139  See Fastweb’s reply to RFI Q3.  
 
 
61 7.3.3. Horizontal non- coordinated effects in the supply of hospitality services on macro-
sites to FWA suppliers  
7.3.3.1. Parties’ view  
(230)  The Parties submit that the Transaction would not raise any competition concerns in 
relation to the supply of hospitality services on macro- sites to FWA suppliers , but 
have not provided any specific argument in this respect other than those reported in 
Section 7.3.2.1. 
7.3.3.2. Commission’s assessment  
(231)  In relation to potential horizontal  non-coordinated effects in the supply of hospitality 
services on m acro-sites to FWA suppliers , the Commission notes the following.  
(232)  First, as illustrated in Section 7.2.1, based on the Comm ission’s market 
reconstruction, whatever the metric considered , the Parties’ combined shares, both 
historical and projected up to 2027, are very large and virtually always above 40% . 
This is true regardless of the geographic level considered.  
(233)  Second, as r egards closeness of competition, the evidence in the Commission’s file 
is mixed. Indeed, whilst FWA suppliers  responding  to the market investigation 
indicated that the Parties are very close competitors (if not the closest competitors) 
due to the size and quality of their site portfolio ,140 the actual substitutability 
between the Parties’ sites may vary depending on the spectrum portfolio and the 
technology used by the FWA customer. For example, should technologies requiring 
direct visual transmission (i.e. L oS – Line of Sight) be used, the presence of 
obstacles impeding direct visual between the transmitting antenna and the receiving 
antenna, such as buildings between two sites, prevent thos e sites from being 
substitutes.141 
(234)  Third, it is unclear to what extent the Parties did exert an important competitive 
constraint on each other in the supply of hospitality services to FWA suppliers . As 
explained at paragraphs (212) -(214) , the Parties’ site operations have been primarily 
driven by the need to satisfy their mobile network needs . Thus, whilst, as explained 
in Section 5.3., the primary driver of FWA suppliers’  demand is the location of the 
sites (together with price ), for the Parties, the location of their si tes has not been 
driven by their willingness to satisfy, and compete for, merchant demand.  
(235)  Fourth, the supply of hospitality services to FWA suppliers is characterised to a large 
extent by long- term contracts. For example, […] . Further, [ …]. Likewise, […] […] 
[…]. 
(236)  The long duration of the framework contracts is likely to offer adequate protection 
vis-à-vis any worsening of term s and conditions for hospitality services deriving 
from a potential reduction of the competitive pressure in the market due to the 
Transaction (albeit, as explained above, it is unclear to what extent the Parties 
exerted such pressure to each other, in the first place). In this respect, the 
Commission also notes that  most market participants have not expressed concern in 
                                                 
140  See replies to RFI Q3 , questions 19 and 20.   
141  Agreed minutes  of the conference call of 4 December 2019 with Eolo, paragraph 6.  
 
 
62 relation to th e early termination of the contracts by the Parties142 and that, in any 
event,  the Parties committed  not to terminate their contracts with third parties by 
exercising their early termination rights .143 
(237)  Moreover, the Commission notes that, due to the implementa tion of the Passive 
Sharing Agreement, the Parties plan to […]. As explained at paragraph (221) , based 
on the Parties’ estimates, […]. Whilst there is no commitment from the Parties to do 
so, the Commission notes  that should this actually occur it would constitute another 
mitigating factor of any potential reduction of the competitive pressure in the market 
due to the Transaction. Indeed, especially TowerCos are likely to intensify 
competition between themselves […]. 
(238)  Finally, as explained by Cellnex144 as well as in par agraph (222) , the Commission 
notes that pursuant to Article 3(2) of the Broadband Cost Reduction Directive, 
implemented in Italy by the legislative decree n.  33 of 15 February 2016, “ any 
network operator has the obligation to meet all reasonable requests for access to its 
physical infrastructure under fair and reasonable terms and conditions, including 
price”.  
(239)  In this context, despite the high barriers to entr y, the Commission considers it 
unlikely that the Transaction would negatively affect FWA suppliers as a result of a 
worsening of the terms and conditions offered to them. 
(240)  Likewise, to the extent that new sites can be built, it is unlikely that the Transaction 
would negatively affect FWA suppliers . Indeed, as mentioned, construction of new 
sites by the Parties has been primarily driven by their mobile network needs  and not 
by the intention to satisfy merchant demand .  
(241)  Finally , as further discussed in Section 7.3.8. below, the Commission considers that 
it is unclear whether, due to the potential decrease in space, and thus capacity, to be 
offered to third parties in the market by the Joint Venture , as result of the MSAs and 
the preferential rights foreseen the rein, FWA suppliers  may see reduced capacity 
available to them in the market.145  
(242)  Indeed, even if the Parties were to roll -out two 5G networks on all of the sites that  
will be managed by the Joint Venture , it seems that  there would still remain space on 
those sites for some FWA network operators. Indeed, depending on the FWA 
technology used, the physical and electromagnetic space occupied by FWA networks 
is generally more limited than the one of a mobile network. In this respect, Eolo 
explained that, while no site is likely to be able to host more than two 5G antennas, 
its antennas would still be able to be hosted given their neutral impact on EMF 
limits .146 In addition, based on the market reconstruction, the Commission notes that 
currently FWA suppliers  are active the most in the rural areas below 35 000 
inhabitants where the Parties are already installing […]  mobile network antennas, 
and still space have been rented to FWA players.  
                                                 
142  See Replies to Market Test questionnaire, question 11.  
143  A commitment  in this respect has also been included in the Final Commitments.  
144  Replies to Market Test questionnaire, question 9.  
145  […].  
146  Agreed minutes  of the conference call of 4 December 2019 with Eolo, paragraph 10.  
 
 
63 (243)  However, the Commission notes that , for example,  the largest FWA provider, 
Linkem, leverages the same mobile technology as mobile operators and plans to 
upgrade its LTE 4G network to 5G.147 Thus, its future demand for sites may more 
frequently enter into conflict with the one of the Parties  in the context of their 
passive sharing to w hich the MSAs are instrumental . […].148  
(244)  Further , as explained above, the implementation of the Passive Sharing Agreement is 
likely to  […]. As illustrated above, t he capacity that could be freed up on third 
parties’ sites  would amount to more than the current number of tenancies by the 
main FWA players in the areas with more than 35 000 inhabitants and to a 
considerable portion of the national demand in 2019. This is because the 
requirements  of FWA suppliers  in relation to sites differ from those of MNOs,  not 
only in terms of space needed, but also in terms of numbe r of sites, which  is much 
lower.  
(245)  Nonetheless, on the one hand, there is no commitment from the Parties to actually 
withdraw from third party sites and, on the other hand, as the overall number of si tes 
over which the Parties will engage in passive sharing will increase, there would still 
a reduction of the c apacity available on the market.  
(246)  In this context, it cannot be concluded whether  the capacity that would remain in the 
market  would be sufficient  to satisfy the demand of FWA suppliers .  
(247)  For these reasons, the Commission cannot exclude that the Transaction will give rise 
to serious doubts as to its compatibility with the internal market in relation to the 
supply of hospitality services to FWA suppl iers as a result of horizontal non-
coordinated effects.  
7.3.4. Horizontal non- coordinated effects in the supply of hospitality  services on macro -
sites to customers other than TV and radio broadcasters, MNOs and FWA suppliers  
7.3.4.1. Parties’ view  
(248)  The Parties submit that the Transaction would not raise any competition concerns in 
relation to the supply of hospitality services on macro- sites to customers other than 
TV and radio broadcasters, MNOs and FWA suppliers , but have not provided any 
specific argument in this respect  other than those reported in Section 7.3.2.1. 
7.3.4.2. Commission’s assessment  
(249)  In relation to potential  horizontal  non-coordinated effects in the supply of hospitality 
services on m acro-sites to customers other than TV and radio broadcasters, MNOs 
and FWA supplier s, the Commission notes the following.  
(250)  First, a s illustrated in Section 7.2.1, based  on the Commission’s market 
reconstruction, the Parties’ combined shares in the supply of services to this residual 
category of customers are likely to be large and above t he 25% , the threshold below 
which market shares may provide an indication that a concentration is not liable to 
impede effective competition , as indicated in  paragraph 18 of the Horizontal Merger 
Guidelines. 
                                                 
147  See above Section 5.3 . 
148  Agreed minutes  of the  conference call of [ …], paragraph  4. 
 
 
64 (251)  Second, as regards closeness of competition, the  results of the market investigation 
have been inconclusive. Only one customer belonging to this customer group replied 
to the market investigation and considered INWIT, Vodafone, Cellnex and Wind Tre 
all at the same level  of closeness of competition.149 
(252)  Third, it is unclear to what extent the Parties did exert an important competitive 
constraint on each other in the supply of hospitality services to customers  other than 
TV and radio broadcasters, MNOs and FWA suppliers . As explained at 
paragraphs  (212) -(214) , the Parties’ site operations have been primarily driven by 
the need to satisfy their mobile network needs. Thus, whilst, based on the only 
responding customer to the market investigation, the primar y driver of customer 
demand is the location of the sites,150 for the Parties, the location of their sites has 
not been driven by their willingness to satisfy, and compete for, merchant demand.  
(253)  Finally, the Commission notes that this residual customer group i s highly 
heterogeneous and includes private and public surveillance networks, environmental 
monitoring systems, operators of IoT networks, etc. The demand of these customers 
is very limited, both in terms of number of sites and in terms of physical and 
electromagnetic space required. For this reason, the Commission understands that for 
this customer group framework contracts are uncommon.  
(254)  Nonetheless , in the market investigation no merger specific concern has been raised 
in relation to the effects of the T ransaction with respect to hospitality services vis -à-
vis this customer group.  
(255)  Further, it is unlikely that, due to their very limited space requirements, this 
customer group would see a reduction of the capacity available to them as result of 
the MSAs  and the preferential rights foreseen therein .151 
(256)  For these reasons, the Commission considers that the Transaction does not give rise 
to serious doubts as to its compatibility with the internal market in relation to the 
supply of hospitality services to custome rs other than TV and radio broadcasters, 
MNOs and FWA suppliers  as a result of horizontal non- coordinated effects.152 
                                                 
149  See replies to RFI Q3 , questions 19 and 20.   
150  See replies to RFI Q3 , question  18. 
151  […].  
152  A third party submitted in the market investigation that, “ on the long term, IoT and m obile services will be 
complementary ” but it nonetheless suggested that MNOs try to prevent the expansion of IoT networks. It 
stated that “ at the current stage of development still limited awareness on the demand side represents a 
good ground for competiti ve aggressiveness by MNOs, that overemphasize potential weaknesses of non 
the cellular technology (actually largely compensated by cost efficiency and operational benefits for 
prospect clients). A further reason of difficulty is represented by the fact that the frequencies required, 
unlicensed across whole Europe, in Italy are owned by the Ministry of Defence who does not release them 
on a permanent basis for free use (as it should, according to ITU rules) ” (see agreed minutes of the 
conference call of 29 N ovember 2019 with Ei Towers, paragraph 25).  
The Commission has not found any evidence that IoT connectivity and M2M services belong to the same 
market (in fact the same third parties does not claim substitutability), thus a vertical link between IoT 
connec tivity and the Parties’ activity in the supply of hospitality services on macro -sites does not 
technically arise.  
Nonetheless, for the same reasons outlined in Section 7.3.6, the Commission does not consider that 
vertical input foreclosure effects to the d etriment of customers other than TV and radio broadcasters, 
MNOs and FWA suppliers would arise with respect of the supply of hospitality services on macro -sites. 
Thus, such effects will not be further discussed in this Decision.  
 
 
65 7.3.5. Horizontal non- coordinated effects in the supply of hospitality services on macro-
sites to customers other than TV and radio broadcasters  
7.3.5.1. Parties’ view  
(257)  The Parties submit that the Transaction would not raise any competition concerns in 
relation to the supply of hospitality services on macro- sites to customers other than 
TV and radio broadcasters, but have not provided any specific argument in this 
respect other than those reported in Section 7.3.2.1. 
7.3.5.2. Commission’s assessment  
(258)  As explained at paragraph (158) , the Commission considers that the effects of the 
Transaction are likely to be the same in the overall market and  in the possible market 
for the supply of hospitality services to MNOs. This is because of the significant  
relative importance that this customer group has in the overall market.  
(259)  For the reasons set out in Section 7.3.1., which are in any  event reinforced by the 
Commission findings in relation to the supply of hospitality services to FWA 
suppliers  set out in Section 7.3.2, the Commission cannot exclude that the 
Transaction will give rise to serious doubts as to its compatibility with the internal 
market in relation to the overall supply of hospitality services as a result of 
horizontal non- coordinated effects.  
7.3.6. Horizontal non- coordinated effects in the supply of hospitality services on micro-
sites  
7.3.6.1. Parties’ view  
(260)  The Parties submit that the Transaction would not raise any competition concerns in 
relation to the supply of hospitality services on micro- sites, but have not provided 
any specific argument in this respect other than those reported in Section 7.3.2.1. 
7.3.6.2. Commission’s assessment  
(261)  In relation to potential h orizontal  non-coordinated effects in the supply of hospitality 
services on micro -sites, the Commission notes the following.  
(262)  First, the Commission notes that the market for the supply of hospitality services on 
micro -sites is still under development . This i s clearly shown by the market 
reconstruction: as illustrated in the Table below, the annual growth rate of the total 
market size is very high.  
Table 33 - Year over Year increase of total market size for hospitality services on micro -sites  
 
 2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Growth rate  […] […] […] […] […] […] […] […] […] […] 
 
(263)  This observation has been confirmed by respondents to the market investigation. 
Open Fiber explained that “ [m]icro -sites market is taking up and volumes will 
increa se in the next future ”.153  
                                                 
153  Replies to RFI Q4, quest ion 9.  
 
 
66 (264)  The Commission also notes that so far the main supplier of hospitality services on 
micro -sites has been Cellnex. Indeed the supply of INWIT has been mainly focused 
on captive sales  to TIM, […], as clearly shown in the Tables in Section 7.2.2. above. 
Vodafone, in turn, […] . The absence of any active involvement by Vodafone in the 
market has been confirmed by [ …] who is not aware of Vodafone being significantly 
present in the micro -cells market .154 
(265)  In this context, no conclusion can be  made as to the degree of closeness of 
competition between the Parties’ offerings . 
(266)  Further, as explained in Section 5.3., for  MNOs, the location of the site is the 
primary driver of demand. However, considering the primary captive focus of the 
Parties’ act ivities in the supply of hospitality services on micro -sites, the location of 
their sites will unlikely be driven by their willingness to satisfy, and compete for, 
merchant demand, but rather to fulfil the requirements of their mobile network. In 
this cont ext, it is unclear  to what extent the Parties will exert a competitive constraint 
on each other  in the supply of merchant hospitality services on micro -sites.  
(267)  Second, the Commission notes, on the basis of the market reconstruction, that post -
Transaction head-to-head  competition  between the Joint Venture  and Cellnex is 
likely  to remain.  
(268)  Respondents to the market investigation have explained that micro- cells deployment 
in Italy is still marginal. In this vein, Fastweb stated that “ the micro -sites market is 
still marginal and fragmented among small players mainly focused on specific 
areas .”155 In this context , it cannot be concluded that the Parties enjoy any 
incumbency advantage in relation to location of their micro -cells as for macro -cells. 
(269)  In fact, respondents  to the market investigation have explained that the market for 
hospitality services on micro -sites is today characterized by competition for the 
market rather than competition in the market.156 Moreover, with the massive rollout 
of 5G networks , respondent s to the market investigation have an expectation that 
several new players will enter the market. Wind Tre explained that the “key variable 
for a provider of micro- sites is ownership or access to fiber ducts / fiber optic 
backhauling. There are various ent ities that have this (e.g., fiber companies and 
utilities), both at local and nationwide level ”.157 Building micro -cells appears also to 
be easier than building macro -sites, while subject to the same electromagnetic limits . 
In this respect, Open Fiber explai ned that the d evelopment of micro- sites is less 
time-consuming and less expensive than macro -sites and 12 months is a coherent 
period to build a micro- site.158 
(270)  Finally , the Commission notes that customers of hospitality services on micro- sites 
did not raise concerns in the market investigation .159 In fact, based on the market 
reconstruction, the Commission notes that over 95% of the sales of hospitality 
services on micro -sites goes to MNOs, which either already have a partnership with 
                                                 
154  Replies to RFI Q3, question 20.3.  
155  Replies to RFI Q3, question 15.  
156  Replies to RFI Q3, question 24.3.  
157 Replies to RFI Q3, question 19.4.  
158  Replies to RFI Q4, question 8.  
159 Replies to RFI Q3, question 35.2.  
 
 
67 Cellnex for the supply of such services or in -house capabilities to satisfy their micro -
sites needs.  
(271)  For these reasons, the Commission considers that the Transaction does not give rise 
to serious doubts as to its compatibility with the internal market in relation to the 
supply of hospitality services on micro -sites as a result of horizontal non- coordinated 
effects.160 
7.3.7. Vertical non- coordinated effects to the detriment of suppliers of retail mobile 
services  (input foreclosure)  
7.3.7.1. Parties’ view  
(272)  The Parties submit that ther e are no plausible  prospects that the  Joint Venture  would 
engage  in an input foreclosure strategy to the detriment of suppliers of retail mobile 
services.  
(273)  First, the Parties submit that the rationalisation that will occur in the passive 
infrastructure to avoid overlaps betw een Vodafone ’s and TIM’s sites will increase 
tower capacity.161 Accordingly, third parties will have access to those sites that have 
been freed by either Vodafone or TIM  following the rationalisation process.  
(274)  Second, the Parties submit that the Joint Venture  will not have sufficient market 
power for any input foreclosure strategy to be successful. The Parties stress their low 
market power in the market for towers or any segment of such market. Barriers to 
entry on the market appear to be low, as evidenced by Cellnex’ recent entry on the 
market.162 
(275)  Third, the Parties note that no third party relies extensively on the passive 
infrastructure of Vodafone or TIM  pre-Transaction. Accordingly, Vodafone and 
TIM have only hosted third parties on […] % and […] % of their sites respectively. 
Moreover, MNOs already have access to proprietary passive infrastructures or have 
entered into agreements with tower companies such as Cellnex to have access to 
passive infrastructures. The Parties also consider that eviction of current ly hosted 
third parties may induce such third parties to engage in retaliatory measures, which 
would ultimately reduce the Joint Venture ’s likelihood of engaging in any form of 
input foreclosure.163 
7.3.7.2. Commission’s assessment  
(276)  As explained in Section 5, macro -sites constitute an essential input for the roll- out of 
mobile networks. Thus, the supply of hospitality services to MNOs is vertically 
related to the retail mobile markets  and the Commission assesses in this Section the 
likelihood of vertical non -coordinate d effects to the detriment of competing suppliers 
of retail mobile telecommunications services.  
                                                 
160  For the same reasons, despite m icro-cells will be important in the deployment of 5G mobile networks, the 
Commission does not consider that vertical input foreclosure effects to the detriment of competing MNO 
would arise with respect of the supply of hospitality services on micro -sites. Thus, such effects will not be 
further discussed in this Decision.  
161  Form CO, paragraph 394.  
162  Form CO, paragraphs 395- 396.  
163  Form CO, paragraph 397.   
 
 
68 (277)  In relation to the Parties ' ability to foreclose, the Commission notes the following.  
(278)  First, as illustrated in Section 7.2.1, based  on the Commission’s market 
reconstruction, whatever is the metric considered  (with the exception  of the instances 
where sales to the Parties are also excluded) , the Joint Venture  will hold a market 
share above the 30% threshold, below which, according to paragraph 25 of the Non-
Horiz ontal Merger Guidelines, competition concerns are unlikely to be found. This is 
true regardless of the geographic level considered.  
(279)  Second, the Commission has conducted a market reconstruction, collecting data on 
the network roll out plans of the Parties’ MNO competitors, to assess to what extent 
they plan to densify their network and to rely on the Parties’ sites for this purpose. 
The results of this exercise are illustrated in the following table, showing : (i) the 
number of the Parties’ sites over which F astweb, Wind Tre and Iliad plan to roll out 
their network up till 2027; (ii)  the percentage that these sites represent out of the total 
number of sites of Fastweb’s, Wind Tre’s and Iliad’s respective networks; and 
(iii) the increase year over year of the n umber of these sites . 
Table 34 - Competing MNOs’ reliance on the Parties’ sites  
Number of sites of INWIT and Vodafone on which the customer relies  
Customer  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Urban areas (more than 35  000 inhabitants)  
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas (less than 35  000 inhabitants)  
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Perc entage of sites of INWIT and Vodafone on which the customer relies  
Customer  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Urban areas  ( more than 35  000 inhabitants ) 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas ( less than 35  000 inhabitants ) 
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
YoY increase of the number of sites of INWIT and Vodafone on which the customer relies  
Customer  2017  2018  2019  2020  2021  2022  2023 2024  2025  2026  2027  
Urban areas  (more than 35  000 inhabitants)  
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas (less than 35  000 inhabitants)  
Wind 3  […] […] […] […] […] […] […] […] […] […] […] 
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Iliad  […] […] […] […] […] […] […] […] […] […] […] 
 
 
69 (280)  On the basis of the above, the Commission notes the following:  
(a) Wind Tre  […]. 
(b) Fastweb […]. In fact, as explained in Section 5.3., in the Wind Tre/Fastweb 
partnership it will be Wind Tre to manage the mobile network. Thus, it is 
unclear to what extent  Fastweb will be an active customer of hospitality 
services for a mobile network , to the ext ent it would rely on the partnership 
with Wind Tre to roll -out its 5G mobile network. 
(c) Iliad instead, by 2027, plans to build up to [ …] of its network in areas 
populated by more than 35 000 inhabitants on INWIT/Vodafone sites, [ …] in 
areas populated by less  than 35 000 inhabitants. In absolute numbers, the 
additional INWIT/Vodafone sites on which Iliad plans to build its network 
(compared to the situation as of 31 December 2019) are [ …] in areas with 
more than 35 000 inhabitants and [ …] in areas with less th an 35 000 
inhabitants. 
(281)  There is no indication in the file that entry of a new MNO in Italy (other than 
Fastweb)  is likely.  
(282)  In this context, the Commission considers that the Parties  would have the ability to 
foreclose access to an important input to Iliad.164 
(283)  As explained in Section 5, pre-Transaction the Parties already engaged in a passive 
sharing arrangement. In that context, whilst they did not control each other sites 
within the meaning of Article 3 of the Merger Regulation, they were already able to 
affect third party’s ability to access also the sites they did not control by affecting the 
electromagnetic and physical space available on the site.  
(284)  Further, already pre -Transaction, Iliad experienced a high failure rate when 
requesting access to sites to I NWIT.165 In particular, Iliad explained that [ …].166 This 
is confirmed by the Parties’ submission, according to which in 2019 INWIT denied 
access to Iliad […]  times out of the […]  requests of access made by the latter, 
i.e. […]% of the times.167 
(285)  The Commissio n has thus assessed the merger specific change in the Parties’ ability 
to foreclose Iliad.  
                                                 
164  Nonetheless, whilst there is no evidence in the file that this is likely, to the extent Fastweb w ere not to rely 
on the partnership with Wind Tre to roll -out its 5G mobile network, it is likely that the Parties would be 
able to access to an important input to Fastweb. The same would be the case should a new MNO enter in 
Italy. In both these instances,  the analysis made with respect to the foreclosure to Iliad would apply. 
Indeed, any new MNO entrant, including Fastweb to the extent it would not rely on the partnership with 
Wind Tre to roll- out its 5G mobile network, would likely have the same needs in terms of access to the 
Parties’ sites as Iliad.  
165  Iliad […] where previously Wind Tre was hosted and where Iliad has succeeded to Wind Tre as a result of 
the commitments in case M.7758 –  Hutchison 3G Italy / Wind / JV  and in case M.9041 – Hutchison 3G 
Italy / Wind Tre .. 
166  Agreed minutes  of the conference call of 28 November 2019 with Iliad, paragraph 7.  
167  Parties’ reply to RFI 19, question 3.  
 
 
70 (286)  In this respect, based on the data submitted by the Parties,168 the Commission notes 
that, pre -Transaction, a significant difference existed in the number of sites sha red 
by the Parties depending on the location of the sites, and precisely on whether the 
sites were located in areas with less or more than 35 000 inhabitants. More in detail, 
pre-Transaction the Parties already shared over […] % of their combined sites in 
areas with less than 35  000 inhabitants, but only […] % of their combined sites in 
areas with more than 35  000 inhabitants. 
(287)  Further the Commission notes that, post -Transaction, the Parties plan to increase the 
number of sites they share, and thus reduce the capacity available to third parties 
(and in particular Iliad), in an asymmetric manner depending on the location. Indeed, 
in areas with less than 35  000 inhabitants, the Parties plan to increase the number of 
sites they will share by […] %, from around [ …]  to […], whilst having preferential 
rights under the MSAs on over […]  sites in these areas. Conversely, in areas with 
more than 35 000 inhabitants, the Parties plan to increase the number of sites they 
will share by almost […] %, from around […]  to over […], corresponding to the 
total number of sites over which they would have preferential rights under the MSAs 
in these areas.169 Thus , they are more likely to use the rights afforded to them by the 
MSAs  and this may  prevent the Joint Venture  from selling hospitality services to 
Iliad in areas with more  than 35 000 inhabitants , thereby increasing the failure rate of 
the access requests of Iliad to the Joint Venture . 
(288)  The Commission also notes that, as a result of the commitments which allowed the 
entry of Il iad,170 the latter benefits from an option to enter into a RAN sharing 
arrangement with Wind Tre, which [ …]. Further, in the market investigation, Iliad 
explained that “in relation to macro- cells there is a strong distinction between sites 
in rural / less de nsely populated areas and large cities / densely populated areas. In 
the first, the localization of the site will be relevant but generally there will be a 
possibility to put in competition several players […]. In large cities / densely 
populated areas, it  is often the case that actually available sites are scarce, thus 
leading to a situation where the MNO needing a site will above all consider the 
location / availability of the site and will be less concerned about other variables 
due to limited competitio n / choice ”.171 Finally, in the market investigation, Iliad also 
submitted [ …]. 
(289)  In this context , the Commission considers that a merger -specific change in ability to 
foreclose Iliad exists and is limited to the areas with more than 35 000 inhabitants. 
(290)  In rel ation to the Parties ' incentives  to foreclose, the Commission notes that the 
strategic rationale of the Transaction is for the Parties to better manage their site 
assets with a view to deploy faster a 5G network and thus being able to better 
compete on the  retail mobile markets . In the retail mobile market s, Iliad has been 
created as new fourth MNO to eliminate the anticompetitive effects stemming from 
the creation of Wind Tre, which would have entailed a reduction of the competitive 
                                                 
168  Parties’ reply to RFI 19, question 6(e).  
169  Parties’ reply to RFI 19, question 6(e). […]  in the reply to RFI 1 9. 
170  See Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV ; 
Commission decision of 30 August 2018 in case M.9041 –  Hutchison 3G Italy / Wind Tre . 
171  Iliad’s reply to RFI Q3, question 18.  
 
 
71 pressure to the benefit  also of Vodafone and TIM.172 Based on the latest figures 
released by AGCOM, the Italian telecom regulator, it can be observed that Iliad is 
delivering on this mission and the Parties, along with Wind Tre, are keeping on 
losing market shares, to the benefit of Iliad and MVNOs, as illustrated by the below 
Figure which compares market shares in September 2019 with those in 
September  2018 (see arrows below the horizontal line).173 
 
(291)  In this context, the Commission considers that  the Parties have both a symmetric 
incentive in foreclosing Iliad’s roll -out. Indeed, the Parties’ gain s in the downstream 
retail mobile markets as a result of the foreclosure of  an aggressive competitor like 
Iliad would likely largely outweigh what they would lose upstream by not offering 
hospitality services to Iliad . 
(292)  As regards the effects of a possible foreclos ure strategy, as outlined above, Iliad 
plans, by 2027, to build up to [ …] of  its network in areas populated by more than 
35 000 inhabitants on INWIT/Vodafone sites.  This represents a considerable 
percentage of the site needs of Iliad. Further, due to its more limited spectrum 
portfolio compared to its MNO competitors,174 Iliad is likely to need a greater 
densification of the network to ensure adequate capacity to cater for the demand o f 
the Italian retail mobile customers, which has grown considerably over the year s 
since its entry .175 Considering the difficulties of building new sites in Italy in urban 
areas, it is unlikely that the reduction of the capacity in the market resulting  from the 
Transaction, in combination with the MSAs, would be compensated by the 
competing TowerCos or self -supply.  
                                                 
172  See Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV ; 
Commission decision of 30 August 2018 in case M.9041 –  Hutchison 3G Italy / Wind Tre . 
173  AGCOM, Communication Markets Monitoring System , no. 4/2019  available at 
https://www.agcom.it/documents/10179/4386532/Allegato+23- 1-2020/7b245499- 7f9f-45af-80c0-
76b41a197b7c?version=1.0  
174  See https://www.agcom.it/documents/10179/9304077/Studio- Ricerca+25 -01-2018/ed5ed802- c105 -4aad -
82c7- 3877fb32b70d?version=1.0  
175  As to network densification as a tool to avoid capacity constraints, see Commission decision of 
11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK , Annex C. As to the evolution of data 
usage in Italy, see AGCOM, Communication Markets Monitoring System . 

 
 
72 (293)  The foreclos ure strategy is thus likely to significantly reduce Iliad’s ability to deliver 
quality services to retail mobile customers in Italy an d thus Iliad’s ability to compete 
in the retail mobile markets . A potential foreclosure of Iliad’s network rollout 
possibilities is in turn likely to have significant anticompetitive effects in the retail 
mobile markets : as explained in Section 5, Iliad ha s indeed been created as new 
fourth MNO to eliminate  the anticompetitive effects stemming from the creation of 
Wind Tre and, as outlined above, is exerting an important competitive constraint on  
retail mobile markets , in particular in the supply of retail  mobile services, excluding 
M2M, which account for over 70% of mobile retail subscriptions .176 
(294)  For these reasons, the Commission considers that the Transaction give s rise to 
serious doubts as to its compatibility with the internal market as a result of vertical 
non-coordinated effects to the detriment of Iliad (or any new MNO entrant with the 
same needs in terms of access to the Parties’ sites as Iliad177) as supplier of retail 
mobile services . 
7.3.8. Vertical non- coordinated effects to the detriment of suppliers of w holesale mobile 
services  (input foreclosure)  
7.3.8.1. Parties’ view  
(295)  The Parties submit that ther e are no plausible prospects that the  Joint Venture  would 
engage  in an input foreclosure strategy to the detriment of suppliers of wholesale  
mobile services  for the same  reasons outlined in Section 7.3.7.1. 
7.3.8.2. Commission’s assessment  
(296)  As explained in Section 5, macro -sites constitute an essential input for the roll- out of 
mobile networks. Thus, the supply of hospitality services to MNOs is vertically 
related to the wholesale mobile market and the Commission assesses in this Section 
the likelihood of vertical non- coordinated effects to the detriment of competing 
suppliers of wholesale access and call origination on mobile networks. 
(297)  In this respect, the Commission notes that the  same considerations made in Section 
7.3.7 in relation to the ability and the incentives of the Parties to foreclose suppliers 
of retail mobile services also apply in relation to suppliers of wholesale mobile 
services . This is because the same network is u sed by MNO s to provide both 
wholesale and retail mobile services.  
(298)  In terms of effects, the Commission notes that, while based on the market share data 
provided by the Parties, Iliad would have not won any contract for an MVNO 
customer, the wholesale mobile  demand is extremely lumpy and tenders are 
infrequent.  
(299)  Nonetheless, any potential foreclosure of Iliad’s network rollout possibilities is likely 
to have significant anticompetitive effects in the wholesale mobile market by 
                                                 
176  The foreclosure effects  on the retail mobile markets are likely to be worsen by the foreclosure on the 
wholesale mobile market, assessed in Section 7.3.8.  
177  See footnote 164.  
 
 
73 reducing the number of alternati ve MNOs, in line with the predictions made by the 
Commission when assessing the creation of Wind Tre.178 
(300)  For these reasons, the Commission considers that the Transaction give s rise to 
serious doubts as to its compatibility with the internal market as a result of vertical 
non-coordinated effects to the detriment of Iliad (or any new MNO entrant with the 
same needs in terms of access to the Parties’ sites as Iliad179) as supplier of 
wholesale mobile services.  
7.3.9. Vertical non- coordinated effects to the detriment of s uppliers of retail fixed services  
(input foreclosure)  
7.3.9.1. Parties’ view  
(301)  The Parties have not submitted their views in relation to the  possibility that the  Joint 
Venture  would engage  in an input foreclosure strategy to the detriment of suppliers 
of retail fixed  services . 
7.3.9.2. Commission’s assessment  
(302)  As explained in Section 5, macro -sites constitute an essential input for the roll- out of 
FWA networks used for the delivery of retail fixed telecommunications services. 
Thus, the supply of hospitality services to FWA suppliers is vertically related to the 
retail fixed market s and the Commission assesses in this Section the likelihood of 
vertical non -coordinated effects to the detriment of competing suppliers of retail 
fixed telecommunications services.  
(303)  In relation to the P arties ' ability to foreclose, the Commission notes the following.  
(304)  First, as illustrated in Section 7.2.1, based  on the Commission’s market 
reconstruction, whatever is the metric considered, the Joint Venture  will hold a 
market share above the 30% threshold, below which, according to paragraph 25 of 
the Non- Horizontal Merger Guidelines, competition concerns are unlikely to be 
found. This is true regardless of the geographic level considered.  
(305)  Second, the Commission has conducted a market reconstruction, colle cting data on 
the network roll out plans of the  main FWA suppliers , to assess to what extent they 
plan to densify their network and to rely on the Parties’ sites for this purpose . The 
results of this exercise are illustrated in the following table, showin g: (i)  the number 
of the Parties’ sites over which Fastweb, Eolo and Linkem plan to roll out their 
network up till 2027; (ii)  the percentage that these sites represent out of the total 
number of sites of Fastweb’s, Eolo’s and Linkem’s respective networks; and (iii)  the 
increase year over year of the number of these sites.  
                                                 
178  Commission decision of 1 September 2016 in case M.7758 –  Hutchison 3G I taly / Wind / JV ; Commission 
decision of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre . 
179  See footnote 164.  
 
 
74 Table 35 - Competing FWA suppliers ’ reliance on the Parties’ sites  
 
Number of sites of INWIT and Vodafone on which the customer relies  
Customer  2017  2018  2019  2020  2021  2022  2023  2024  2025 2026  2027  
Urban areas (more than 35  000 inhabitants)  
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Eolo  […] […] […] […] […] […] […] […] […] […] […] 
Linkem  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas (less than 35  000 inhabitants)  
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Eolo  […] […] […] […] […] […] […] […] […] […] […] 
Linkem  […] […] […] […] […] […] […] […] […] […] […] 
 
Percentage of sites of INWIT and Vodafone on which the customer relies  
Customer  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Urban areas  (more than 35  000 inhabitants)  
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Eolo  […] […] […] […] […] […] […] […] […] […] […] 
Linkem  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas (less t han 35  000 inhabitants)  
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Eolo  […] […] […] […] […] […] […] […] […] […] […] 
Linkem  […] […] […] […] […] […] […] […] […] […] […] 
YoY increase of the number of sites of INWIT and Vodafone on which the custo mer relies  
Customer  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Urban areas  (more than 35  000 inhabitants)  
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Eolo  […] […] […] […] […] […] […] […] […] […] […] 
Linkem  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas (less than 35  000 inhabitants)  
Fastweb  […] […] […] […] […] […] […] […] […] […] […] 
Eolo  […] […] […] […] […] […] […] […] […] […] […] 
Linkem  […] […] […] […] […] […] […] […] […] […] […] 
 
(306)  On the basis of the above, the Comm ission notes the following:  
(a) as explained in Section 5.3., Fastweb has entered into a cooperation with 
Linkem for the reciprocal provision of network slice services and [ …]. Thus, 
it is unclear to what extent Fastweb will be an active customer of hospitalit y 
services on macro -sites for an FWA network. However, at this stage this 
possibility cannot be excluded , given its obligation to give reciprocal access 
to Linkem.  
(b) Eolo, by 2027, plans to build up to [ …] of its network in areas populated by 
more than 35 000 inhabitants on INWIT/Vodafone sites, [ …] in areas 
populated by less than 35 000 inhabitants. In absolute numbers, the additional 
INWIT/Vodafone sites on which Eolo plans to build its network (compared 
 
 
75 to the situation as of 31 December 2019) are [ …] in a reas with more than 
35 000 inhabitants and [ …] in areas with less than 35  000 inhabitants. 
(c) Linkem, by 2027, plans to build up to [ …] of its network in areas populated 
by more than 35 000 inhabitants on INWIT/Vodafone sites, [ …] in areas 
populated by less t han 35 000 inhabitants. In absolute numbers, the additional 
INWIT/Vodafone sites on which Eolo plans to build its network (compared 
to the situation as of 31 December 2019) are [ …] in areas with more than 
35 000 inhabitants and [ …] in areas with less than 35 000 inhabitants. 
(307)  In this context, the Commission considers that the Parties would have the ability to 
foreclose access to an important input to FWA suppliers . 
(308)  As explained in Section 5, pre -Transaction the Parties already engaged in a passive 
sharing ar rangement. In that context, whilst they did not control each other sites 
within the meaning of Article 3 of the Merger Regulation, they were already able to 
affect third party’s ability to be technically able to access also the sites they did not 
control b y affecting the electromagnetic and physical space available on the site.  
(309)  Further, already pre- Transaction, FWA players experienced a high failure rate when 
requesting access to sites to the Parties’ sites. For example, Linkem explained that 
[…]. Further,  according to the data submitted by the Parties, in the past three years 
they already denied access to their sites in response to over […] % of the requests 
they received by the main FWA suppliers, […] . 
Table 36 - Number of access requests and denials by t he Parties  
 
Vodafone  FY 2018  FY 2019  FY 2020  
Requests  Denials  Failure 
rate Requests  Denials  Failure 
rate Requests  Denials  Failure 
rate 
Areas with more than 35 000  inhabitants  
Fastweb  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Eolo  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Linkem  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Overall  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Areas with less than 35 000  inhabitants  
Fastweb  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Eolo  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Linkem  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Overall  […]  […]  […]  […]  […]  […]  […]  […]  […]  
INWIT  / 
TIM  2017  2018  2019  
Requests  Denials  Failure 
rate Requests  Denials  Failure 
rate Requests  Denials  Failure 
rate 
Area s with more than 35 000  inhabitants  
Fastweb  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Eolo  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Linkem  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Overall  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Areas w ith less than 35 000  inhabitants  
Fastweb  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Eolo  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Linkem  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Overall  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Note: For Vodafone the reference is to fiscal years.  
(310)  The Commission has thus assessed the merger specific change in the Parties’ ability 
to foreclose FWA suppliers.  
 
 
76 (311)  In this respect, based on the data submitted by the Parties,180 the Commission notes 
that, pre -Transact ion, a significant difference existed in the number of sites shared 
by the Parties depending on the location of the sites, and precisely on whether the 
sites were located in areas with less or more than 35 000 inhabitants. More in detail, 
pre-Transaction t he Parties already shared over […] % of their combined sites in 
areas with less than 35 000 inhabitants, but only […] % of their combined sites in 
areas with more than 35 000 inhabitants. 
(312)  Further the Commission notes that, post -Transaction, the Parties plan to increase the 
number of sites they share, and thus reduce the capacity available to third parties 
(and in particular Iliad), in an asymmetric manner depending on the location. Indeed, 
in areas with less than 35  000 inhabitants, the Parties plan to incr ease the number of 
sites they will share by […] %, from around […]  to […], whilst having preferential 
rights under the MSAs on over […]  sites in these areas. Conversely, in areas with 
more than 35 000 inhabitants, the Parties plan to increase the number of sites they 
will share by almost […] %, from around […]  to over […], corresponding to the total 
number of sites over which they would have preferential rights under the MSAs in 
these areas.181 Thus , they are more likely to use the rights afforded to them by the 
MSAs and this may prevent the Joint Venture  from selling hospitality services to 
FWA suppliers in areas with more than 35 000 inhabitants, thereby increasing the 
failure rate of the access requests of FWA suppliers to the Joint Venture . 
(313)  In this cont ext, the Commission considers that a merger -specific change in ability to 
foreclose FWA suppliers exists but it is limited to the areas with more than 35 000 
inhabitants. 
(314)  In relation to the Parties ' incentives  to fore close, the Commission considers that this 
cannot be excluded. Indeed, based on AGCOM’s data, the number of fixed access 
lines based on FWA technologies in September 2019 have been increasing compared 
to September 2018,182 as illustrated in the following Figure.  
                                                 
180  Parties’ reply to RFI 19, question 6(e).  
181  Parties’ reply to RFI 19, question 6(e). […]   in the re ply to RFI 19.  
182  AGCOM, Communication Markets Monitoring System , no. 4/2019  available at 
https://www.agcom.it/documents/10179/ 4386532/Allegato+23- 1-2020/7b245499- 7f9f-45af-80c0-
76b41a197b7c?version=1.0  
 
 
77 Figure 1 - Distribution of fixed ac cess lines by infrastructure and trend compared to September 2018 
[%] 
 
(315)  Specifically in relation to fixed broadband connections, AGCOM found that, whilst 
TIM’s share is decreasing and Vodafone’s increases, Fastweb ( mainly  its services 
offered via fiber), L inkem and other operators offering services based on FWA 
technologies have increased their market share.183 
 
(316)  The growth of shares by FWA suppliers  (in particular Linkem and Eolo) , in 
particular with respect to TIM, is more pronounced when considering higher  
                                                 
183  AGCOM, Communication Markets Monitoring System , no. 4/2019  available at 
https://www.agcom.it/documents/10179/4386532/Allegato+23- 1-2020/7b245499- 7f9f-45af-80c0-
76b41a197b7c?version=1.0  

 
 
78 connections for the suppliers of higher internet speeds, above 30 Mbps, as illustrated 
by the below Figure.184  
 
 
(317)  In this context, the Commission conside rs that the Parties have both an incentive in 
foreclosing FWA suppliers ’ roll -out. This is the case in  areas with more than 35  000 
inhabitants, where the Parties are more likely to have  already , or plan to roll -out, 
fixed infrastructure for the supply of fixed internet services. Indeed, the significant 
investments needed to roll -out fixed infrastructure ar e likely to have been (or to be) 
made in more populated areas.  This is even the more the case in a potential market 
for the supply of retail fixed services via FWA technologies only, where TIM has 
recently entered  and Vodafone is […]. Indeed, the Parties’ gain s in the downstream 
                                                 
184  AGCOM, Communication Markets Monitoring System , no. 4/2019  available at 
https://www.agcom.it/documents/10179/4386532/Allegato+23- 1-2020/7b245499- 7f9f-45af-80c0-
76b41a197b7c?version=1.0  

 
 
79 retail fixed markets as a result of the foreclosure of  aggressive FWA competitor s like 
Linkem  would likely largely outweigh what they would lose upstream by not 
offering hospitality services to FWA suppliers.  
(318)  As regards the effects of a possible foreclos ure strategy, as outlined above, FWA 
suppliers are increasing their market shares, which indicate an increasing interest by 
Italian consumer s for fixed internet services based on FWA technology.  
(319)  Further, as explained at paragraph (306) , the main FWA providers, Linkem and 
Eolo, plan to expand their network based to a considerable extent on the Parties’ 
sites. Considering the difficulties of building new sites in Italy in urban areas, it is 
unlikely that the r eduction of the capacity in the market resulting  from the 
Transaction, in combination with the MSAs, would be compensated by the 
competing TowerCos or self -supply.  
(320)  A foreclose strategy by the Parties is thus likely to reduce FWA players’ ability to 
expand their network. In this context, the Commission cannot exclude that the 
Transaction will have significant effects in the downstream market for fixed retail 
services,  in particular in terms of reduction of choice .185 Indeed, FWA suppliers offer 
consumers in It aly an alternative technology which high performance in terms of 
speed, in particular in the areas where fiber has not yet been rolled out.  
(321)  For these reasons, the Commission cannot exclude that the Transaction give s rise to 
serious doubts as to its compati bility with the internal market as a result of vertical 
non-coordinated effects to the detriment of FWA suppliers  of retail fixed services.  
7.3.10. Vertical non- coordinated effects to the detriment of suppliers of wholesale fixed 
services  (input foreclosure)  
7.3.10.1. Parti es’ view  
(322)  The Parties have not submitted their views in relation to the  possibility that the  Joint 
Venture  would engage  in an input foreclosure strategy to the detriment of suppliers 
of wholesale fixed services . 
7.3.10.2. Commission’s assessment  
(323)  As explained in Secti on 5, macro- sites constitute an essential input for the roll- out of 
FWA networks used for the delivery of wholesale fixed telecommunications 
services. Thus, the supply of hospitality services to FWA suppliers is vertically 
related to the wholesale fixed market and the Commission assesses in this Section 
the likelihood of vertical non- coordinated effects to the detriment of competing 
suppliers of wholes fixed telecommunications services. 
(324)  In this respect, the Commission notes that the same considerations made  in 
Section  7.3.9 in relation to the ability of the Parties to foreclose suppliers of  retail 
fixed services also apply in relation to suppliers of wholesale fixed services . This is 
because the same network is used by FWA provider s to provide both wholesale  and 
retail fixed services.  
                                                 
185  The foreclosure effects on the retail fixed markets are likely to be worsen by the foreclosure on the 
wholesale fixed markets, assessed in Section 7.3.10.  
 
 
80 (325)  As regards the incentive s to foreclose, these cannot be excluded. Indeed, both Parties 
may have an incentive to foreclose a competitor at wholesale level which would 
enable competition at retail level, where TIM is active and V odafone is […]. Further, 
TIM is active as provider of wholesale fixed services based on FWA technology, 
which appear s in itself an attractive market as demonstrate d by the fact that there 
exist  players which  are active only in the supply of wholesale fixed services via 
FWA technologies without  being active at retail level. In particular , Open Fiber has 
explained that it plans to offer wholesale fixed services using FWA technologies in 
relation to  almost 15% of the premises it will connect (i.e. 19 million) .186 In such 
context, the Parties’ gains in the downstream wholesale fixed markets as a result of 
the foreclosure of  competitor s would likely outweigh what they would lose upstream 
by not offering hospitality services to FWA suppliers.  
(326)  In terms of effects, th e Commission notes that, while based on the market share data 
provided by the Parties, it cannot be concluded that FWA suppliers  have played an 
important role in the overall supply of wholesale fixed services , the wholesale fixed  
demand is extremely lumpy and tenders are infrequent. Further, if one were to 
consider only the possible market for the  supply of wholesale fixed services based on 
FWA technology, the effects of the transaction would be greater as the market is 
likely to expand187 and the competing p roviders would see reduce their expansion 
possibilities . 
(327)  Any potential foreclosure of FWA suppliers’  network rollout possibilities is likely to 
have anticompetitive effects in the wholesale mobile market by reducing the number 
of alternative providers , in particular if the supply based on FWA technology is 
considered . 
(328)  For these reasons, the Commission cannot exclude that the Transaction give s rise to 
serious doubts as to its compatibility with the internal market as a result of vertical 
non-coordinated effects to the detriment of FWA suppliers  of wholesale fixed  
services.  
7.3.11. Vertical non- coordinated effects to the detriment of suppliers of hospitality services 
on macro- sites (customer foreclosure)  
7.3.11.1. Parties’ view  
(329)  The Parties have not submitted their views in rela tion to the  possibility that the  Joint 
Venture  would engage  in a customer foreclosure strategy to the detriment of 
suppliers of hospitality services on macro- sites. 
7.3.11.2. Commission’s assessment  
(330)  In the market investigation, the Commission has received complaints  in relation to 
the potential anticompetitive effects of the Transaction to the detriment of suppliers 
of hospitality services on macro- sites, in particular independent TowerCos not 
vertically integrated in the operation of communications networks, as a re sult of 
customer foreclosure. According to the complainants, the Transaction, in 
combination with the MSAs and the status of preferred supplier therein foreseen for 
                                                 
186  Open Fiber’s reply to RFI Q4, question 1.  
187  This is demonstrated by TIM’s recent entry in the market and by the fact that, as mentioned, Open Fiber 
plan to offer wholesale fixed services based on FWA network.  
 
 
81 the Joint Venture  with respect to TIM and Vodafone as customers of hospitality 
services on macro -sites, would prevent TIM and Vodafone from contracting with 
alternative suppliers of hospitality services on macro- sites. As TIM and Vodafone 
are two of the largest suppliers of retail (and wholesale) mobile services, competitors 
of the Joint Venture  would thus be foreclose d from  access to a sufficient customer 
base and their ability and incentives to compete post -Transaction would be reduced.  
(331)  In this respect,  the Commission notes that indeed it is likely that the Parties have the 
ability and the ince ntive to insource their demand of macro- sites. In fact, as 
explained at paragraph (149) , according to the Parties’ estimates, the extension of the 
passive sharing arrangements would result into a […] on third parties' sites for each 
of the Parties in areas with more than 35 000 inhabitants. It can be considered that 
post-Transaction, […]. Further, due to the preferred supplier clause included in the 
MSA, it is likely that the Parties will be less active in looking for hospitality  services 
from third party suppliers. 
(332)  Nonetheless, the Commission does not consider that a withdrawal  of the Parties’ 
networks from third party sites would have a foreclosure effect  on suppliers of 
hospitality services on macro -sites, which would have a si gnificant detrimental effect 
on consumers in the downstream market, be it the supply of mobile or fixed services 
at retail or wholesale level , pursuant to paragraph  59 of the Non- Horizontal Merger 
Guidelines. 
(333)  First,  the Parties are already vertically integ rated and source the majority of their 
hospitality services in -house or from each other as a result of the passive sharing 
arrangement already in place. There is no indication that this is likely to change in 
the future , in particular in relation to the co nstruction of new sites . In fact, as 
explained above, due to the Passive  Sharing Agreement  the Parties would in any 
event increase their sales to each other and reduce  their tenancies on third parties’ 
sites.  
(334)  Second, the Commission has conducted a market r econstruction, collecting data on 
TowerCos’ actual sales, and estimates on the future sales, of hospitality services  on 
macro -sites, in revenues and volume (as number of tenancies), per customer over the 
period 2017 to 2027.  In this respect, the Commission  has collected data 
distinguishing between rural areas where the Parties are already implementing 
passive sharing arrangements (thus areas with less than 35  000 inhabitants) and areas 
where this is not the case (thus areas with more than 35 000 inhabitants ). This is 
because, where passive sharing is already implemented, the Parties are already 
giving priority to each other for hospitality services on the macro -sites. 
(335)  Estimates on future sales have been provided by the information providers based on 
the assu mption that the site Joint Venture  between TIM and Vodafone would have 
not been created. [ …].  
(336)  On this basis, the following table  presents Cellnex ’, Ei Towers ’ and Rai Way ’s as 
well as Wind Tre’s expected reliance on TIM and Vodafone as customers of  
hospit ality services on the macro -sites, showing:  (i) the percentage of the total sales 
by volume and value of each Towe rCo achieved with sales to TIM and Vodafone; 
(ii) the absolute number of tenancies  of each Tower Co achieved with sales to TIM 
and Vodafone; and (iii)  the increase year over year of the sales by volume and value 
of each Tower Co with TIM and Vodafone.  
 
 
82 Table 37- TowerCos’ reliance on sales to the Parties  
 
Percentage of sales  to TIM  and Vodafone out of total sales by value at national level  
TowerCo  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
YoY increase of sales to TIM and Vodafone out of total sales by value at national level  
TowerCo  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
Sales to TIM and Vodafone by volume (tenancies)  
TowerCo  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Urban areas  (m ore than 35  000 inhabitants)  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas  (less than 35  000 inhabitants)  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
Percenta ge of sales to TIM and Vodafone out of total sales by volume (tenancies)  
TowerCo  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Urban areas  (more than 35  000 inhabitants)  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
Percentage of sales to TIM and Vodafone out of total sales by volume (tenancies)  
TowerCo  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Rural areas (less than 35  000 inhabitants)  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
 
 
83 YoY increase of sales to TIM and Vodafone out of total sales by volume (tenancies)  
TowerCo  2017  2018  2019  2020  2021  2022  2023  2024  2025  2026  2027  
Urban areas  (more than 35  000 inhabitants)  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
Rural areas (less than 35  000 inhabitants)  
Wind Tre  […] […] […] […] […] […] […] […] […] […] […] 
Cellnex  […] […] […] […] […] […] […] […] […] […] […] 
Ei Towers  […] […] […] […] […] […] […] […] […] […] […] 
Ray Way  […] […] […] […] […] […] […] […] […] […] […] 
 
(337)  On the basis of the above, the Commission notes the following:  
(a) Whilst in terms of tenancies, the sales to the Parties account for a share of 
each of the TowerCos’ total sales above [ …], with the exception of [ …], the 
year over year increase of such sales is never above [ …] as from 2020 and in 
certain cases is even [ …]. Moreover, when considering the absolute increase 
of the number of tenancies to be achieved  with sales to the Parties by 2027 
compared to sales at 31 December 2019, the increase would be very limited 
or negative, with the exception of [ …]. In more detail, t he change in 2027 
compared to 2019 would be: for Wind Tre [ …] at national level; for Cellnex 
[…] at national level; for Ei Towers [ …] at national level; for Rai Way [ …] 
at national level.  
(b) In terms of revenues, the sales to the Parties account for a share o f Wind Tre 
and Cellnex below [ …] and so is the year over year increase as from 2020. 
The share in relation to Ei Tower is [ …] but the year over year increase as 
from 2020 is [ …]. Rai Way [ …] and the year over year increase is [ …].   
(338)  With regard to Ei Tower s and Rai Way , based on the results of the market 
reconstruction, the Commission further notes that they  are considered to be 
particularly focused  on the TV and radio customers. In fact, Rai Way is vertically 
integrated in the supply of broadcasting servic es. In addition, for each Ei Tower and 
Rai Way, [ …]. In fact, Ei Towers explained that [ …] and that it is particularly 
interested in Iliad’s entry on the market and its initiative to build up its own active 
infrastructure.188 In this context, the Commission considers it unlikely that either Ei 
Towers or Rai  Way would be negatively affected by a potential strategy aimed at 
customer foreclosure. Moreover, given their limited market share as outlined in 
Section 7.2.1., the Commission considers it unlikely that a  potential customer 
foreclosure strategy against  Ei Towers or Rai Way would have a negative impact on 
the customers in the downstream market. To the contrary, it is likely that the space 
freed up by the Parties on Ei Towers’ or Rai Way’s sites would become  available to 
other customers, MNOs, FWA suppliers or other customers.  
                                                 
188  Agreed minutes  of the conference call of 29 November 2019 with Ei Towers, paragraph 9.  
 
 
84 (339)  With regard to Wind Tre, based on the results of the market reconstruction, the 
Commission further notes that [ …]. In addition, Wind Tre has raised no customer 
foreclosure concern . In this context, the Commission considers it unlikely that Wind 
Tre would be negatively affected by a potential customer foreclosure  strategy . 
Moreover, given its limited market share as outlined in Section 7.2.1., the 
Commission considers it unlikely that a potential customer foreclosure strategy 
against  Wind Tre would have a negative impact on the customers in the downstream 
market. To the contrary, it is likely that the space freed up by the Parties on Wind 
Tre’s sites would become available to other custom ers, MNOs, FWA suppliers or 
other customers.  
(340)  Finally, with regard to Cellnex, the Commission recalls that it has in place strategic 
partnerships with Wind Tre and Iliad, as a result of the asset sale it undertook with 
each of these customers in, respectively 2015 and 2019, as explained in Section 5.2. 
Further, based on the results of the market reconstruction, the Commission notes 
that, […]. In this context, the Commission considers  that, whilst, as outlined in 
Section 7.2.1., Cellnex has a significant mark et share and it would be the main 
competitors of the Joint Venture , it unlikely that Cellnex would be negatively 
affected by a potential customer foreclosure. Likewise, it is unlikely  that a potential 
customer foreclosure strategy against Cellnex would have a negative impact on the 
customers in the downstream market. To the contrary, it is likely that the space freed 
up by the Parties on Cellnex’ sites would become available to other customers, 
MNOs, FWA suppliers or other customers  (albeit, as explained ab ove, such space 
may not fully compensate the reduction of capacity which may give rise to input 
input foreclosure to the detriment of MNOs and FWA suppliers) . 
(341)  For these reasons, the Commission considers that the Transaction does not give rise 
to serious doubts as to its compatibility with the internal market as a result of vertical 
non-coordinated effects to the detriment of suppliers of hospitality services on 
macro -sites.  
7.3.12. Vertical non- coordinated effects to the detriment of suppliers of hospitality servic es 
on micro- sites (customer foreclosure)  
7.3.12.1. Parties’ view  
(342)  The Parties have not submitted their views in relation to the  possibility that the  Joint 
Venture  would engage  in a customer foreclosure strategy to the detriment of 
suppliers of hospitality services on micro -sites. 
7.3.12.2. Commission’s assessment  
(343)  In the market investigation, the Commission has received a complaint in relation to 
the potential anticompetitive effects of the Transaction to the detriment of suppliers 
of hospitality services on micro- sites, in part icular independent TowerCos not 
vertically integrated in the operation of mobile networks, as a result of customer 
foreclosure.  According  to the complainant, the Transaction, in combination with the 
MSAs and the status of preferred supplier therein foresee n for the Joint Venture  with 
respect to TIM and Vodafone as customers of hospitality services on micro- sites, 
would prevent TIM and Vodafone from contracting with alternative suppliers of 
hospitality services on micro- sites. As TIM and Vodafone are two of the largest 
suppliers of retail (and wholesale) mobile services, competitors of the Joint Venture  
 
 
85 would thus be foreclose d from  access to a sufficient customer base and their ability 
and incentives to compete post -Transaction would be reduced.  
(344)  In this respect , the Commission does not consider that, even if the Parties have the 
ability and the incentive to insource their demand of micro- sites, this would have a 
foreclosure effect on suppliers of hospitality services on micro -sites, which would 
have a signifi cant detrimental effect on consumers in the downstream market, be it 
the supply of mobile or fixed services at retail or wholesale level, pursuant to 
paragraph  59 of the Non- Horizontal Merger Guidelines. 
(345)  First, the Commission notes that, as explained in Se ction 7.3.6, the market for the 
supply of hospitality services on micro -sites is still under development and aim at 
primarily satisfy ing the demand of MNOs . MNOs  have  in turn in-house capabilities  
to build micro -sites. This is in particular the case of th e Parties pre- Transaction , as 
illustrated by the market share figures including cap tive sales presented in 
Section  7.2.2. Indeed, if captive sales are considered, sales by MNOs would account 
to over [ …] in 2020 and over  […]% of the market in 2027. 
(346)  Second, based on the market reconstruction, the Commission notes that, for suppliers 
of hospitality services, sales of hospitality services on micro- cells represent a small 
percentage of the total sales of hospitality services ([ …]). In particular, for neither of 
the independent TowerCos, [ …]. 
(347)  For these reasons, the Commission considers that the Transaction does not give rise 
to serious doubts as to its compatibility with the internal market as a result of vertical 
non-coordinated effects to the detriment of suppli ers of hospitality services on 
micro -sites.  
7.3.13. Conglomerate  non-coordinated effects  in relation to TIM’s and INWIT’s activities  in 
the supply of fixed fiber backhaul services and INWIT’s activities in the supply of 
hospitality services  
7.3.13.1. Parties’ view  
(348)  The Parti es consider that the Transaction would not give rise to any negative 
competitive effect on the market for the provision of hospitality services and 
backhauling services. In particular, the Parties consider that there is no risk of 
foreclosing competing providers of fixed fiber backhaul services by either 
(i) bundling or tying INWIT’s hospitality services with TIM’s fixed fiber backhaul 
service, or (ii) preventing them from accessing  Vodafone as a customer for fixed 
backhaul services .  
(349)  First, the Parties con sider that they will lack the ability to foreclose since, first, 
Vodafone does not represent a substantial share of demand in the market and, 
second, INWIT will not have market power in the market for the supply of 
hospitality services on either micro or m acro sites.  
(350)  Second, the Parties consider that they will not have the incentive to foreclose since 
any attempt to enter in such a strategy would be unprofitable or not attractive to 
customers. Moreover, the Parties consider that Vodafone would likely not have the 
incentive to engage in bundling  or tying strategy since the increased revenue from 
the supply of fixed fiber backhaul services  would mainly benefit TIM . 
 
 
86 (351)  Lastly, the Parties consider that any hypothetical foreclosure strategy would not have 
a negati ve effect on effective competition. In particular, even if the Parties would 
engage in such strategy, rivals would not be disincentivised from investing in their 
fiber  networks since revenues from fixed fiber backhaul services, in particular fiber , 
are onl y marginal compared to the overall revenue that rivals generate from 
providing fiber services to end customers.  
7.3.13.2. Commission’s assessment  
(352)  As described in Section 5, wireless telecommunications networks are composed of a 
number of radio access network sites, essentially a mast with an antenna and a radio -
frequency system, linked to a core network by backhaul networks. Backhaul 
networks can be comprised of wireless backhaul (i.e. microwaves) or fixed backhaul.  
MNOs typically operates  their own microwave backha ul while fixed backhaul has 
been provided by fixed network operators such as TIM , Open Fiber  and Fastweb in 
Italy.  The upcoming 5G rollout has further impacted the way backhaul service s are 
provided in the markets with the Parties and respondents to the ma rket investigation 
highlight the need for fiber fixed backhaul connections to macro and micro sites to 
guarantee the achievement of 5G performance and the decreasing relevance of 
copper fixed backhauling189.  
(353)  In order to provide their services to end custome rs, MNOs and providers of fixed 
broadband services through FWA  acquire both (i) hospitality services on macro and 
micro sites, and (ii) fixed fiber backhaul services.  
(354)  With reference to hospitality services, Vodafone and INWIT are active in the supply 
of hospitality services on macro and micro -sites.  
(355)  With reference to fixed fiber backhaul services,  TIM is active in the market for the 
supply of (active and passive) fixed backhaul services and INWIT is active in the 
supply of (passive) backhaul services. Voda fone […].  
(356)  On the demand side of the market, TIM and Vodafone are both customers in the 
market for the supply of hospitality services. On the market for the supply of fixed 
fiber backhaul services, only Vodafone is active as a customer […].190 
(357)  The Commission  has also received a third party complaint indicating that the 
Transaction could reduce competition in the fixed fiber backhaul service market in 
Italy. The complainant indicates that, post -Transaction, INWIT may tie or bundle 
hospitality services with fix ed fiber backhaul services (offered by TIM) and to divert 
Vodafone’s demand for fixed fiber backhaul services to TIM. As a consequence, the 
majority of the demand from hospitality service market could be foreclosed to 
competing providers of fixed fiber bac khaul services.191 
                                                 
189  Replies to RFI Q4, question 29.  
190  TIM’s reply to RFI 20, question 3. […].  
191  […]’s  letter to the Comm ission of 7 February 2020.  
 
 
87 (358)  The Commission has therefore assessed the risk of foreclosure of competing 
suppliers of fixed fiber backhaul services by implementing the above presented 
foreclosing strategies.192  
(359)  Therefore, in the following sections, the Commission analy ses whether the Parties 
would have the ability and incentive to foreclose rival suppliers of fixed fiber 
backhaul services. The Commission then assesses whether the foreclosure strategy 
would likely result in a negative impact on prices and choice in each relevant market 
and potential sub- segment.  
Ability to foreclos e competing providers of fixed fiber backhaul services  
(360)  Respondents to the market investigation consider that INWIT and the Parties will 
have the ability to foreclose competing providers of backhaul services. In particular, 
INWIT could prevent its customers of hospitality service s from purchasing fixed 
backhaul connections from third parties.193 Respondents indicate that the Parties and 
INWIT would have the technical ability to tie or bundle such s ervices and that the 
Transaction increases the number of sites on populated areas where INWIT will be 
present. Moreover, Retelit indicates that Vodafone would start sourcing fixed fiber 
backhaul services from TIM therefore reinforcing TIM’s position in suc h market to 
the detriment of its competitors.  
(361)  The Commission considers that the Parties  would not likely have the ability to 
foreclose competing providers of fixed fiber backhaul services by either (i) bundling 
or tying INWIT’s hospitality services with TI M’s fixed fiber backhaul service, or 
(ii) denying access to Vodafone as customer in the market for the following reasons .  
(362)  First, with respect to INWIT’s market position in the market for the supply of 
hospitality services and all possible sub- segments, th e Commission refer to Sections 
7.3.2 to 7.3.6 where it analysed the merger specific change of the Joint Venture  in its 
ability to compete in such market and all possible sub- segments. In particular, the 
Transaction would not likely lead to an increase of m arket power in the market for 
the supply of hospitality services on micro sites  (see Section 7.3.6) , on macro sites to 
customers other than TV and radio broadcasters, MNOs and FWA suppliers  (see 
Section 7.3.4) and on macro sites to MNO s and FWA suppliers  in the areas below 
35 000 inhabitants  (see Section 7.3.2 and 7.3.3) .   
(363)  Second, there is no trend -  neither from the supply nor from the demand site -  to tie 
or bundle fixed fiber backhaul and hospitality services when offering or demanding 
such services to third parties in the market. Hospitality services and backhauling 
services are sourced largely by the same pool of customers. Indeed, customers such 
as MNOs or FWAs providers when acquiring access to a macro or micro site they 
also require fixed backhaul s ervices in order to link their active equipment on the site 
with their core network as shown in Figure 2.  
                                                 
192  The Commission has not received in the course of its market investigations any complaints on the 
potential foreclosure of competing providers of hospitality services by leveraging TIM’s position in the 
market for the supply of  fixed backhaul services. Nevertheless, the Commission note that, first, there 
would be no change in ability since […] . Second, even if already active in both markets pre- Transaction, 
TIM has not implemented any foreclosing strategy in the past. Third, any  strategy would not likely have 
an impact on effective competition since competing providers of hospitality services would have the 
ability to source fixed backhaul services from TIM’s competitors such as Open Fiber and Fastweb.  
193  Replies to RFI Q3, quest ion 31; RFI Q4, question 30.  
 
 
88 Figure 2: architecture of fixed and mobile networks  
 
(364)  Before the Transaction, customers such as MNOs or FWA  suppliers  generally 
sourced hospitality and fixed fiber backhaul services  separately. Moreover, no 
bundling or tying of such services was implemented by companies able to supply 
both services such as TIM and Vodafone. Indeed , TIM, while active on both the 
supply of hospitality servicers and bac khaul services , […].194 Likewise , even if it is 
technically capable to provide both backhauling and hospitality services, Vodafone  
only offers hospitality services to third parties , […]. 
(365)  The above trend is confirmed by respondents to the market investigation ac tive on 
both the supply and the demand side of the market. From the supply side, Retelit 
indicates that tower companies normally do not offer fixed fiber backhaul services 
together with hospitality services. Open Fiber indicates that backhauling services a re 
not bundled with hospitality services.195 From the demand side, [ …].196 Wind Tre 
procures fiber to sites through its own fiber network or through its partnership with 
fiber operators. It also indicated that g enerally no fiber  backhaul service  is provided 
by TowerCos. Similarly, Fastweb indicated that it mainly source fixed fiber backhaul 
services internally. For MNOs sites, Fastweb plans to source backhauling services 
captively , from WindTre and Open Fiber depending on infrastructure availability . 
For FWA si tes, Fastweb plans to source backhauling services internally.  
(366)  Third, INWIT and Vodafone already have in place agreements with third parties for 
the provision of hospitality services. On such sites, INWIT and Vodafone will 
continue to provide their services  and customers would continue to source fixed fiber 
                                                 
194  Form CO, paragraph 49.  
195  Replies to RFI Q4, question 28.  
196  Replies to RFI Q3, question 30.  

 
 
89 backhaul services from their preferred suppliers.197 Therefore, any impact of such 
strategy would be limited to new access to sites offered by the JV post -Transaction.  
(367)  Fourth, Vodafone is not an important customer on the demand side of the market for 
the supply of fixed fiber backhaul services. First, Vodafone similarly to other 
vertically integrated operators in the market (TIM, WindTre and Fastweb) relies on 
self-supply for fixed fiber backhaul  services. In 2019, […] % of Vodafone’s fixed 
fiber  backhauling costs in 2019 were attributable to Vodafone ’s own backhaul .198 
Vodafone is also relying more intensively  on internal supply for new fixed backhaul 
connections. In fact, over […] % of Vodafone’s new backhaul connections were self -
supplied in 2019, which increased from approximately […] % in 2018. Second, 
Vodafone does not represent a significant proportion of revenue for third party 
providers of fixed backhaul services. TIM estimates that in the period of 2019- 2022, 
Vodafone would account for […] % of TIM’s fixed fiber backhaul revenues  and only 
[…] % of TIM’s leased lines capacity revenue.199 In the same period, Retelit expects 
that […].200 Fastweb  […].201 Open Fiber [ …].202Third, the above conclusions would 
not cha nge looking to historic data.  Vodafone spent  for the provision of fixed 
backhaul services from third parties (excluding TIM and Vodafone) respectively 
EUR […]  in 2017 and EUR […]203 in 2018 corresponding to respectively […] % 
and […] % of third party’s revenues in the market.  
Incentive to f oreclos e competing providers of fixed fiber backhaul services  
(368)  Respondents to the market investigation consider that INWIT and the Parties will 
have the incentive to foreclose competing providers of fixed fiber backhaul  services  
by either (i) bundling or tying INWIT’s hospitality services to  TIM’s fixed fiber 
backhaul service, or (ii) denying access to Vodafone as customer of backhauling 
services .204 More in detail: 
(a) Fastweb consider s that, post -Transaction, INWIT will have  an increased 
incentive to leverage its site portfolio to provide also backhauling services to 
all hosted customers.  
(b) Retelit considers that Vodafone would have a greater incentive to divert its 
demand from competing providers of fixed fiber backhaul servi ces and 
source its needs of fixed fiber backhaul services needs from INWIT.  
(c) Iliad considers that the Transaction accelerates the pace and intensity of 
INWIT ’s entry in the market for the supply of fixed fiber backhaul services 
and that, post -Transaction, INWIT will have naturally an incentive to 
maximize its return on its investment providing the backhaul services 
together with the hosting services.   
                                                 
197  Parties’ reply to RFI 22, question 2. […].  
198  Form CO, table 25.  
199  Commission’s calculation based on TIM’s reply to RFI 9.  
200  Commission’s calculation based on Retelit’s reply to RFI 15.  
201  Commission’s calculation based on Fastweb’s reply to RFI 9.  
202  Open Fiber’s reply to RFI 14.  
203  Vodafone’s reply to RFI 7.  
204 Replies to RFI Q3, question 32; RFI Q4, question 31.  
 
 
90 (369)  Nevertheless, t he Commission considers that the Parties would not likely have the 
incentive  to foreclose c ompeting providers of fixed fiber  backhaul services  by 
bundling or tying INWIT’s hospitality services with TIM’s fixed fiber  backhaul 
service for the following reasons.  
(370)  First, the Commission notes that neither of the Parties engaged pre -Transaction in 
any tying and bundling strategy even if technically capable of implementing such 
strategy. In particular, as of December 2019, TIM provided approximately […]  
backhaul connections for over […]  INWIT sites where third party MNOs were 
present. Therefore,  it see ms that TIM did not consider such strategy profitable pre -
Transaction and that third party providers of fixed fiber backhaul services were able 
pre-Transaction to host third party MNOs on INWIT sites.  
(371)  Second, Vodafone would likely not have the incentive to engage in any foreclosure 
strategy. A tying or bundling strategy would exclusively benefit TIM and its 
revenues and profits in the market for the supply of fixed fiber  backhaul services.  
Vodafone would not benefit from any increased revenue/profit to TIM  because  of 
any arrangement benefiting, directly or indirectly TIM. To this end, the Commission 
further notes that also INWIT’s minority shareholders would try to oppose any such 
strategy.  
(372)  Third, the potential costs of JV’s revenue loss from the supply of hospitality services 
seem higher than any potential gain from TIM’s additional revenue from the supply 
of fixed fiber  backhaul services. In 2018, Vodafone and INWIT generated more that 
EUR […] from the supply of hospitality services to third parties. To re coup the 
potential loss of such revenues, TIM should increase its sales in the market for the 
supply of fixed fiber  backhaul services by over […] % from EUR […] revenues.  
(373)  The Commission further considers that the Transaction would not materially change  
the Parties’ incentive  to source fixed fiber backhaul services from third party 
providers post -Transaction.  
(374)  First, […]  and its incentive would not materially change post -Transaction.  
(375)  Second, as indicated in paragraph (367)  above,  […] and the Transaction does not 
change its incentive to implement such strategy in the next years.  
(376)  Third, the Commission has assessed whether, the Backhauling Agreement205, entered 
between the Parties at the same time of the signing of the Shareholders’ A greement, 
could lead to any merger specific change in the Parties’ incentive to source fixed 
backhaul services . […] . On access to existing fixed fiber  backhaul connections, the 
Commission notes that, first, the Backhauling Agreement  provides […], the 
Comm ission considers that such provisions further strengthen each of the Parties 
standalone incentive to rely mainly on captive sale for the provision of fixed fiber  
backhaul services as described in paragraphs (356)  and (367)  above .  
                                                 
205  See above Section 3.3.  
 
 
91 Impact on price and choice in the market for the supply of fixed fiber backhaul 
services  
(377)  Respondents to the market investigation consider that a potential foreclos ure strategy 
implemented by th e Parties and INWIT w ould have a significant detrimental effect 
on alternative suppliers of fixed backhaul services.206 In particular, Fastweb indicate s 
that the Transaction would lead  to a reduction of 25% of the contestable market for 
the supply of fixed backhaul services.  Retelit notes that, absent the Transaction, 
Vodafone would have sourced fixed backhaul services also from TIM’s competitors 
and that such additional demand will be lost over the next years.  
(378)  Regardless of whether the Parties  have either th e ability or the incentive to foreclose 
competing provider of fixed backhaul  services, the Commission assessed  whether 
any of the practices presented above would likely have a significant detrimental 
impact on effective competition. The Commission consider s that it is unlikely that 
any foreclosure of competing providers of fixed backhaul  services  will have a 
significant detrimental effect on effective competition for the supply of fixed 
backhaul  services, for the following reasons.  
(379)  First, the Transaction wi ll not lead to a significant reduction of sales for competing 
providers of fixed fiber  backhaul services. In the first place , any tying or bundling 
strategies would not affect the sites where third party tenants are already hosted by 
INWIT or Vodafone. On such sites, third parties would continue to source their 
services from competing providers of fixed fiber  backhaul services  if they were 
doing so pre -Transaction. In the second place , Vodafone […] . Moreover , as 
indicated above in paragraph (367) , Vodafone is not an important customers for 
competing providers of fixed backhaul services since it would account, at best for 
[…] of third party’s providers expected revenues from the supply of fixed fiber 
backhaul servic es. Therefore, the Transaction does not change materially the revenue 
that competing providers of fixed fiber  backhaul services would have generated from 
supplying their services to Vodafone absent the Transaction. .  
(380)  Second, the Commission considers that any foreclosure strategy would not affect 
existing competitors on the market for the supply of fixed fiber backhaul services, 
such as Fastweb and Open Fiber, and would not deter entry or expansi on of the 
Parties’ competitors in  fixed fiber backhaul service s or potential competitors. This is 
because revenue from fixed fiber  backhaul services is not an important driver for 
future investments in the roll -out of fiber networks  in Italy . TIM generated in 2018 
approximately EUR […] from the supply of such services  corresponding to […] % of 
TIM’s revenues from the supply of fixed- line services. Similarly, Fastweb’s [ …].207 
With reference to Open Fiber, the Commission considers unlikely that any loss of 
revenue from the supply of fixed fiber backhaul services would impa ct their future 
investments in the roll- out of fiber networks in Italy. Open Fiber [ …].208 It is 
unlikely that any potential loss of part of such revenue  would impact its fiber rollout 
plans in Italy to invest EUR 3.7 billion in Italy to reach approximately  9.5 million 
households in over 250 cities in Italy209 and to develop the ultra -broadband network 
in the “white areas” of the Italian government’s  broadband plan. Moreover, the 
                                                 
206 Replies to RFI Q3, question 3 3; RFI Q4, question 32.  
207  Commission’s calculation based on Fastweb’s reply to RFI 9.  
208  Commission’s calculation based on Open Fiber’s reply to RFI 14.  
209  Commission decision of 1 5 December 2016  in case M. 8234  – Enel / CDP Equity / Cassa Depositi E 
Prestiti / Enel Open Fiber / Metroweb Italia , paragraph 27.  
 
 
92 Commission considers that competing providers of fixed fiber backhaul services 
would remain active in the market since, as indicated in paragraph (379) , the 
Transaction does not change materially the revenue that they would have likely 
generated from supplying fixed fiber backhaul services ab sent the Transaction.  
Conclusion 
(381)  Based on the above , the Commission considers that the Transaction does not give 
rise to serious doubts as to its compatibility with the internal market as a result of 
conglomerate non -coordinated effects to the detriment o f competing providers of 
fixed fiber backhaul services.  
7.4. Coordinated effects  
7.4.1. Introduction 
(382)  A merger in a concentrated market may significantly impede effective competition 
due to horizontal coordinated effects where, through the creation or the 
strengthening  of a collective dominant position, it increases the likelihood that firms 
are able to coordinate their behaviour and raise prices, even without entering into an 
agreement or resorting to a concerted practice within the meaning of Article 101 
TFEU. A merge r may also make coordination easier, more stable or more effective 
for firms that were already coordinating before the merger, either by making the 
coordination more robust or by permitting firms to coordinate on even higher 
prices.210 
(383)  To assess whether a merger gives rise to horizontal coordinated effects, the 
Commission should examine, first, whether it would be possible to reach terms of 
coordination and, second, whether the coordination would be likely to be 
sustainable.211 
(384)  As regards the possibility of rea ching terms of coordination, coordination is more 
likely to emerge in markets where it is relatively simple to reach a common 
understanding on the terms of coordination.212 Coordination may take various forms, 
including keeping prices above the competitive l evel, or dividing the market, for 
instance by customer characteristics or by allocating contracts in bidding markets.213 
(385)  As regards the sustainability of coordination, three conditions are necessary for 
coordination to be sustainable.214 First, the coordinating firms must be able to 
monitor to a sufficient degree whether the terms of coordination are being adhered 
to.215 Second, discipline requires that there is a credible deterrent mechanism that 
can be activated if deviation is detected.216 Third, the reactions of outsiders, such as 
current and future competitors not participating in the coordination, as well as 
                                                 
210  Horizontal Merger Guidelines, paragraph 39.  
211  Horizontal Merger Guidelines, paragraph 42.  
212  Horizontal Merger Guidelines, paragraph 41.  
213  Horizontal M erger Guidelines, paragraph 40.  
214  Horizontal Merger Guidelines, paragraph 42.  
215  Horizontal Merger Guidelines, paragraph 42.  
216  Horizontal Merger Guidelines, paragraph 42.  
 
 
93 customers, should not be able to jeopardise the results expected from the 
coordination.217 
(386)  Moreover, in examining the possibility and sustainability of coor dination, the 
Commission should specifically consider the changes that the Transaction brings 
about.218 The reduction in the number of firms in a market may in itself be a factor 
that facilitates coordination.  
(387)  The Non- Horizontal Merger Guidelines set out a s imilar framework in relation to 
vertical coordinated effects.219 
7.4.2. Horizontal coordinated effects in the supply of hospitality services on macro-  and 
micro -sites 
7.4.2.1. Parties’ view  
(388)  The Parties submit that there is no plausible risk of horizontal coordinated effects  in 
the market for the provision of hospitality services in Italy , in all its configurations . 
(389)  First, the market would be already insufficiently symmetric for coordinated effects: 
Wind Tre  is partially integrated but with a proportion of its passive infrast ructure 
held by Cellnex: Iliad is a partially integrated market player; Cellnex is growing as a 
significant “pure” passive infrastructure player, managing a portfolio of towers in 
Italy and several other countries, with significant hosting arrangements wit h MNOS 
and smaller scale agreements with others; and finally Rai Way and EI Towers will 
likewise remain “pure” passive infrastructure players offering hosting to third 
parties.  
(390)  Second, the Transaction will increase asymmetry by creating a new type of Tower Co 
that operates a business plan that is different to any of the other TowerCos in Italy.  
(391)  Third, the non- public nature of contractual arrangements on the market would not be 
suited to firms reaching terms of coordination: TowerCos’ contractual relationships 
would be a mix of framework agreements, anchor tenant arrangements, “built -to-
suit” arrangements and/or other more ad hoc agreements. Even within each category 
of agreement, there could be significant differences. 
(392)  Fourth, the market is undergoing signifi cant change with the advent of 5G, implying 
significant investments and a reconfiguration and expansion of existing 
infrastructure networks. The market structure would not be fully settled, and thus not 
conducive to coordination. Barriers to entry would lower as the market is expected to 
grow significantly in the next 5 – 8 years with the roll out of infrastructure for 5G 
networks.  
(393)  Fifth, there is no evidence of past collusion on the market for access to passive 
infrastructure.  
                                                 
217 Horizontal Merger Guidelines, paragraph 42.  
218 Horizontal Merger Guidelines, paragraph 42.  
219  Non-Horizontal Merger Guidelines, paragraph s 79 and following.  
 
 
94 (394)  Sixth, firms would not have t he ability to monitor deviation nor have any mechanism 
to punish deviation, considering the limited transparency in the market and the long -
term agreements in place.  
(395)  Finally, new entrants and customers would be well placed to undermine the terms of 
any coo rdination. MNOs will have the option to self -supply by entering / expanding 
upstream to deter any such coordination. Equally, entrants such as Cellnex have 
expanded in recent years and would be capable of disrupting any coordination on the 
market. A range of other Tower companies would be able to offer hosting 
opportunities in important locations such as along highways and railways, and thus 
would be well positioned  to disrupt any attempts of price or any other 
anticompetitive coordination between the established service providers.  
7.4.2.2. Commission’s assessment  
(396)  As set out in the case law220 and the Horizontal Merger Guidelines,221 to find 
coordinated effects evidence is needed that the horizontal merger changes the nature 
of competition in such a way that firms that p reviously were not coordinating their 
behaviour are now significantly more likely to coordinate and raise prices or 
otherwise harm effective competition. A merger may also make coordination easier, 
more stable or more effective for firms that  were coordina ting prior to the merger.222 
(397)  As a preliminary remark, the Commission notes that the analysis below is relevant 
for all possible configurations of the markets for hospitality services in Italy, for both 
macro and micro -sites, irrespective of any possible segm entation by type of 
customers. Where relevant, reference will be done to specific segments.  
(398)  The Commission notes that only few  respondents to the market investigation pointed 
to the risk of coordinated effects. A respondent submitted that there could be a risk 
of coordinated effects  in the market for hospitality services on macro- sites, 
considering the transparency of the economic conditions proposed for hosting 
services (each tower company providing services to the MNOs controlling the other 
competing towe r company).  The only independent tower company would not be 
sufficient to eliminate the risk of coordinated effects and the entry of new players 
would be difficult.223 
(399)  In this respect, on the basis of the market investigation and of the analysis of the 
internal documents, the Commission has not found any element pointing to 
coordination already ongoing between the main market players – or some of them –  
in the markets for hospitality services (both macro and micro- sites). This appear s to 
suggest that the mark et conditions are currently not likely to be conducive to 
coordination. 
                                                 
220 Case C -413/06 P , Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and 
Labels Association (Impala)  [2008] ECRI- 4951, and in particular paragraphs  122-123 regarding the 
conditions for tacit coordination; Case T -342/99, Airtours v Commission  [2002] ECR II- 2585, and in 
particular paragraphs 58 and 82 regarding the fact that “[i] f there is no significant change in the level of 
competition obtaining pre viously, the merger should be approved because it does not restrict 
competition ”. 
221  Horizontal Merger Guidelines, paragraphs 22, 39 and followin g. 
222  Horizontal Merger Guidelines, paragraph 22(b).  
223  Iliad’s reply to RFI Q3, question 25.3.  
 
 
95 (400)  Furthermore , the Transaction appears to increase the current asymmetry in the 
markets for hospitality services in Italy. Irrespective of the metric used and of the 
different customers’ categories (MNOs, FWA suppliers , others ), after the 
Transaction the difference in market share between INWIT and the only other 
vertically integrated operator (Wind Tre) will increase substantially (see 
Section  7.2). INWIT will hold a market share (at lea st) more than double of that of 
Wind Tre. The only operator  of a comparable size  would be Cellnex ( to a certain 
extent depending on the market considered; see mar ket sh ares provided in 
Sections  7.2.1 and 7.2.2), that however is not vertically integrated an d has a 
completely different business model . Indeed, whilst the Joint Venture will be still 
controlled by the Parties, and thus be vertically integrated in the wholesale and retail 
fixed/mobile markets, this is not the case for Cellnex, which is an independent 
TowerCo. Moreover, other independent TowerCos  are and will remain active in the 
markets for hospitality services, with different market shares and different business 
models ( Ei Towers, Raiway).  
(401)  The Commission considers that changes in demand and suppl y are an element to be 
taken into consideration in the assessment of any possible coordinated effects. In 
particular, in the coming years there is likely to be  a significant growth in demand of 
hospitality services due to the upcoming launch of 5G mobile s ervices. That will 
probably introduce further instability in the market. Therefore, demand conditions do 
not look sufficiently stabl e to make coordination likely. This is particularly true with 
respect to micro -sites, as the market for the supply of hospit ality services on these 
sites has just started to develop. 
(402)  Furthermore, although a certain degree of transparency in the market cannot be 
excluded (in particular due to the cross supply of hospitality services by vertically 
integrated operators), the prese nce of independent tower companies and of different 
categories of agreements seems to limit this transparency. There is also no evidence 
to suggest that the Transaction would significantly alter the existing degree of 
transparency on the hospitality servic es market s, and therefore the Commission 
considers that any possible impact of the Transaction on transparency will not 
materially change the existing ability of firms to monitor deviations.  
(403)  The Commission concludes that the Transaction does not raise seri ous doubts as to 
its compatibility with the internal market in relation to horizontal coordinated effects 
in the markets for hospitality  services on macro and micro -sites in Italy . 
7.4.3. Vertical coordinated effects in relation to the supply of hospitality servi ces on 
macro - and micro- sites to the detriment of suppliers of retail and wholesale mobile 
services (input foreclosure)  
7.4.3.1. Parties’ view  
(404)  The Parties submit that there is no plausible risk of vertical coordinated effects given 
that the Joint Venture  will not meaningfully change the structure of the market. On 
the contrary, the Parties stress that the Joint Venture  will have the effect of 
decreasing symmetry in the market. This is mainly due to Vodafone and TIM ’s 
different structure from other MNOs due to partia l unbundling of their passive 
infrastructure as well as the mixed environment in which the Joint Venture  will 
operate, made of vertically integrated MNOs as well as independent TowerCos . 
 
 
96 7.4.3.2. Commission’s assessment  
(405)  The Commission has assessed whether the Trans action would change the nature of 
competition in the market in such a way that the Parties and Wind Tre would be 
significantly more likely to coordinate their behaviour in relation to the supply of 
hospitality services and thus foreclose Iliad as supplier of retail and wholesale 
mobile services.  
(406)  In this respect, the Commission considers that it is unlikely  that the Transaction 
would make coordination between the Parties and Wind Tre more likely be it in 
relation to the supply of hospitality services on mac ro- or micro -sites.  
(407)  First, the same considerations outlined in Section 7.4.2. above apply.  
(408)  Second, the level of symmetry between the Parties and Wind Tre in relation to the 
supply of hospitality services would not increase as a result of the Transaction, but 
rather decrease.  
(409)  Third, other that the increase of the number of sites controlled by the Parties, the 
Transaction does not change the level of vertical integration of the Parties and Wind 
Tre. 
(410)  Fourth, several colocation contracts between Wind Tre and Iliad in relation to the 
supply of hospitality services on macro- sites are mandated by the commitments 
accepted by the Commission in Cases M.7758 and M.9041.224 
(411)  Finally, the Commission notes that no specific complaint in relation to vertical 
coordinated effe cts to the detriment of Iliad has been made in the market 
investigation.  
(412)  The Commission concludes that the Transaction does not raise serious doubts as to 
its compatibility with the internal market in relation to vertical  coordinated effects to 
the detrime nt of suppliers of retail and wholesale mobile services . 
7.4.4. Vertical coordinated effects in relation to the supply of hospitality services on 
macro -sites to the detriment of suppliers of retail and wholesale fixed services (input 
foreclosure)  
7.4.4.1. Parties’ view  
(413)  The Parties have not submitted their views in relation to potential vertical 
coordinated effects in relation to the supply of hospitality services on macro- sites to 
the detriment of suppliers of reta il and wholesale fixed services . 
7.4.4.2. Commission’s assessment  
(414)  The Commission has assessed whether the Transaction would change the nature of 
competition in the market in such a way that the Parties and Wind Tre would be 
significantly more likely to coordinate their behaviour in relation to the supply of 
                                                 
224  Commission d ecision of 1 September 2016 in case M.7758 –  Hutchison 3G Italy / Wind / JV ; 
Commission decision of 30 August 2018 in case M.9041 –  Hutchison 3G Italy / Wind Tre.  
 
 
97 hospitality ser vices and thus foreclose FWA suppliers  of retail and wholesale fixed 
services.  
(415)  In this respect, the Commission considers that it is unlikely  that the Transaction 
would make coordination between the Parties and Wind Tre more likely in relation 
to the suppl y of hospitality services on macro- sites.  
(416)  First, the same considerations outlined in Section 7.4.2. above apply.  
(417)  Second, the level of symmetry between the Parties and Wind Tre in relation to the 
supply of hospitality services would not increase as a resul t of the Transaction, but 
rather decrease.  
(418)  Third, other that the increase of the number of sites controlled by the Parties, the 
Transaction does not change the level of vertical integration of the Parties and Wind 
Tre. 
(419)  Finally, the Commission notes that n o specific complaint in relation to vertical 
coordinated effects to the detriment of FWA providers has been made in the market 
investigation.  
(420)  The Commission concludes that the Transaction does not raise serious doubts as to 
its compatibility with the inter nal market in relation to vertical  coordinated effects to 
the detriment of suppliers of retail and wholesale fixed  services . 
7.5. Cooperative effects  
7.5.1. Introduction 
(421)  Under Article 2(4) of the Merger Regulation, to the extent that the creation of a joint  
venture co nstituting a concentration pursuant to Article 3 has as its object or effect  
the coordination of the competitive behaviour of undertakings that remain  
independent, such coordination shall be appraised in accordance with the criteria of  
Article 101(1) and ( 3) of the Treaty, with a view to establishing whether or not the  
operation is compatible with the common market. 
(422)  Under Article 2(5) of the Merger Regulation, in making this appraisal, the  
Commission shall take into account in particular: (i) whether two or  more parent  
companies retain, to a significant extent, activities in the same market as the joint  
venture or in a market which is downstream or upstream from that of the joint  
venture or in a neighbouring market closely related to this market; and (ii) whether  
the coordination which is the direct consequence of the creation of the joint venture  
affords the undertakings concerned the possibility of eliminating competition in 
respect of a substantial part of the products or services in question. 
(423)  A restrictio n of competition under Article 101(1) TFEU is established when the  
coordination of the parent companies’ competitive behaviour is likely and  
appreciable and results from the creation of the joint venture, be it as its object or its  
effect . 
(424)  INWIT will consolidate the Parties’ mobile passive infrastructure and  will provide 
the Parties with access to their combined passive infrastructure for hosting their 
radio access networks , under the terms of the MSAs. As both Parties are and will 
remain independently acti ve in the downstream markets of (i) retail and 
 
 
98 (ii) wholesale mobile services in Italy, the Commission has assessed the potential 
cooperative effects in those downstream markets.225 
7.5.2. Retail mobile markets  in Italy  
7.5.2.1. Parties’ view  
(425)  The Parties submit that the Tra nsaction cannot give rise to any risk of collusive 
effects in relation to Vodafone ’s and TIM’s downstream mobile businesses. 
(426)  First, the Transaction will only marginally increase the degree of cooperation in 
relation to passive infrastructure which would be  in place between the Parties absent 
the Transaction. Vodafone and TIM already engage in extensive sharing of their 
passive infrastructure in approximately half of the country , which will expand to 
cover all of Italy  under the P assive Sharing Agreement  (irrespective of the 
Transaction) . Moreover, the Active Sharing Agreement and the B ackhaul Agreement 
will expand the scope of network sharing to include, inter alia, partial sharing of 
their respective radio access network equipment as well as their backhauli ng 
arrangements. The creation of the Joint Venture  will not result in a material change 
in relation to the degree of passive sharing between the Parties or in the degree of 
cooperation between the Parties.  
(427)  Second, in any case the Parties’ passive sharing w ould not be capable of leading to 
spill- over effects in relation to retail mobile services, because:  
(a) INWIT  will not have significant market power for the supply of passive 
infrastructure , considering MNOs ability to switch to self -supply and that its 
prima ry function will continue to be to act as the pr eferred supplier to its 
parents;  
(b) the Transaction will equally not lead to a direct limitation of competition 
between the Parties, as (i) INWIT will be able to supply third parties on 
market terms as it sees f it; (ii) passive infrastructure is a relatively small 
component of network infrastructure and does not affect the key facets of 
competition between the Parties in the downstream markets  for retail mobile 
services; and (iii) there is no risk of the Joint Ve nture ’s pricing leading to a 
price increase in the downstream market s for retail mobile services;  
(c) passive infrastructure will not constitute a large proportion of the Parties’ 
variable costs incurred in the provision of retail mobile services. Also 
conside ring total costs, overall passive sharing costs will only make up a 
small ( […]%) proportion of both Parties’ overall costs. 
(428)  Third, the downstream market s for retail mobile services is  not susceptible to 
restrictive spill- over effects, given the very compet itive structure of the retail mobile 
                                                 
225  Some respondents to the market investigation submitted that the Transaction could have coo perative 
effects in other markets, notably backhauling services/leased lines, fixed telecommunications markets 
(Cellnex’s and Irideos’ reply to RFI Q4, question 33.3.1; Tiscali’s reply to RFI Q5, question 3.3.1). In this 
respect, the Commission notes that the activity of Vodafone in the market for leased lines and backhauling 
services is limited , […] . As for fixed services in general, hospitality services of the kind offered by 
INWIT do not represent a relevant input for the provision of any fixed services provided by the Parties, 
[…]. Therefore, the Commission will not consider those markets as candidate markets for cooperative 
effects within the meaning of article 2(4) of the Merger Regulation.  
 
 
99 market s in Italy, in particular following the entry of the new MNO operator in Italy, 
Iliad, and the evolution of Fastweb from MVNO to a fifth MNO.  
(429)  Fourth, the Joint Venture  will create significant efficiencies through ( i) the release of 
equity to the Parties by enabling them to reduce their shareholding over their passive 
infrastructure to generate capital for inv estment in their 5G networks; (ii) INWIT 
being better placed to monetise Vodafone’s passive infrastructure b y increasing third 
party tenancies ; and ( iii) enabling INWIT to save on variable costs vis -a-vis the 
counterfactual of the Parties  continuing to operate independent tower businesses. 
Further efficiencies will result from the wider network sharing agreements between 
the Parties.  
7.5.2.2. Commission’s assessment  
(430)  A number of  respondents to the market investigation submitted that the Transaction 
could lead to some form of coordination between TIM and Vodafone in the market s 
for retail mobile communications.226 
(431)  One respondent submitted that the Joint Venture , managing a single radio network 
for the two main MNOs, will lead to a levelling of retail service quality among 
operators, and this will likely have a negative impact on competition. The Joint 
Venture  will include the two best national networks  – for coverage, capacity, 
technology, performance – and will segment the market in two categor ies of 
operators, with very limited differentiation of quality inside each category.227 
Another respondent submitted that TIM and Vodafone were found in the past to 
adopt coordinated behaviour  and that the Transaction will enhance their symmetry 
(in terms of costs, network development strategies) on the market and their ability to 
cooperate and coordinate their market behaviour. T he planned active network 
sharing agreement , if implemented, will further enhance the Parties’ ability to 
coordinate their commercial and technology strategies.228 
(432)  Another  respondent submitted that the Transaction may result in an increased risk of 
co-ordination of t he competitive behaviour of the parties in the market s for retail 
mobile services in Italy as the Joint Venture  will create structural links between the 
parties, a sharing of significant profits at the level  of the Joint Venture  and an 
extensive commonalit y of costs and technology (especially with regard to new 
technology, new sites and backhauling services). According to the respondent, t he 
Italian retail mobile markets  would display several structural characteristics, which 
would make co- ordination betwee n INWIT's parent companies likely : 
(a) First, the market is highly concentrated with TIM, Vodafone and Wind Tre 
accounting for a share of sales of approximately 90%. These operators would 
have somehow symmetrical market shares and the remaining competitors all  
have market shares, which do not exceed 10%.  
(b) More importantly, the parent companies of INWIT would be close 
competitors, competing for premium customers on the basis of "superior" 
networks and technology. In light of the closeness of competition between 
                                                 
226  Replies to RFI Q3, question 34.1; RFI Q4, question 33.1; RF I Q5, question 3.1.  
227  Coop Italia’s reply to RFI Q5, question 3.1.1.  
228  Fastweb’s reply to RFI Q3, question 34.1.1.  
 
 
100 the Parties, any co -ordination between the Parties would cause the 
elimination of competition in respect of a substantial part of the market.  
(c) Any co -ordination between the Parties  would furthermore be appreciable. 
Both Parties will jointly hold a share of  sales greater than 60% and will be 
the largest competitor s with Wind Tre accounting for around 30% but 
lagging significantly in terms of profitability.229 
(433)  Another participant submitted that a serious concern could arise with respect to the 
risk of the exch ange of competitively sensitive information , as TIM and Vodafone 
would continue to compete with one another outside of INWIT. Therefore, i t should 
be ensured that INWIT could not be used as a conduit for the coordination of 
Vodafone’s and TIM’s activities in Italy and/or in other countries.230  
(434)  In this respect, the Commission first notes that the activities of the Joint Venture  are 
expected to be relatively limited in terms of value, compared to the Parties' 
respective activities in the retail mobile markets  in Italy. According to internal data 
and estimates provided by the Parties, costs for hospitality services  would make up 
less than […] % and […]% of Vodafone’s and TIM’s  overall costs for providing 
retail mobile services respectively. Commonality of costs increases the risk of a 
collusive outcome only if those costs constitute a large proportion of the variable 
costs concerned .231 Whilst a more detailed review of the Parties’ internal documents 
would be needed to assess whether the costs for hospitality servic es are treated  (to 
some extent)  as variable costs (directly affecting their pricing behaviour) or as  fixed 
costs, from a general point of view the former option seems to be unlikely 
considering the nature of the services at stake .232 Given the limited percen tage 
represented by the costs for hospitality services compared to the overall costs for 
providing retail mobile services, the Transaction in itself appears unlikely to create a 
sufficiently strong incentive for the Parties to coordinate their competitive behaviour 
in the market s concerned.  
(435)  Secondly, as already mentioned at S ection 5.4, since 2007  the Parties have a number 
of passive sharing arrangements  in Italy , mainly in municipalities with a population 
of up to 35 000 inhabitants (and in certain cases u p to 50 000 inhabitants). Moreover, 
the Parties plan  to increase their passive sharing arrangements up to 100% of Italy  to 
establish a fully combined grid of mobile passive infrastructure/sites, via a specific 
agreement […]233 (see previous section 7.2.1.1) . Finally, they also plan to engage in 
active sharing in cities with less than 100  000 inhabitants. Therefore, the Transaction 
in itself will add little to the cooperation already in place between the Parties and to 
the future one envisaged by the cooperati on agreements to be implemented in the 
next months , irrespective of the Transaction .  
(436)  As for the alleged risk of exchang ing competitive sensitive information within 
INWIT , the limited importance  of the Joint Venture’ s activity  with respect to the 
commercial activities of the Parties in the downstream retail mobile markets  seems 
                                                 
229  Iliad’s submission of 17 January 2020, Iliad’s observations in case M.9674 – Vodafone Italia/TIM/Inwit 
JV. 
230  Cellnex’s submission of 29  January 2020, Cellnex Position Paper . 
231  Commission’s Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the 
European Union to horizontal co- operation agreements , in OJ C 11, 14.1.2011, p. 1– 72, paras. 178-180. 
232  […].  
233  See article 20 of the Passive Sh aring Agreement.  
 
 
101 to limit the relevance of any information related to one party that will be available to 
the other party thanks to the common participation in INWIT. As for any further 
exchange of s ensitive information – not directly connected to INWIT’s activity –  
that the Parties could plan to undertake within INWIT, the Transaction does not 
appear to change the current situation,  taking into account that the Parties already 
have several opportunit ies to meet, considering that they cooperate extensively via 
the passive agreement s in force and will continue to do so under the new network 
agreements under discussion and presented in Section 3.3 above .  
(437)  As for the characteristics of the Italian retail mobile markets , which would make co -
ordination between the Parties likely, although past episodes of collusion took place 
in this market, the recent entries of a new aggressive operator (Iliad) and of a fifth 
MNO (Fastweb) seems to indicate that collusion could be less stable. The 
Transaction does not appear to change this ongoing  evolution of the retail mobile 
market s. Further, the Final Commitments will ensure that the competitive constraints 
played by new entrants in process of rolling out autonomously t heir networks would 
not be harmed by the Transaction and thus will preserv e their ability to prevent or 
destabilise collusion.  
(438)  Therefore, the  Commission concludes that the Transaction does not raise serious 
doubts as to its compatibility with the internal market in relation to cooperative 
effects i n the  retail mobile  market s in Italy . 
7.5.3. Wholesale mobile market  in Italy  
7.5.3.1. Parties’ view  
(439)  The Parties submit that the Transaction cannot give rise to any risk of collusive 
effects in relation to Vodafone’s and TIM’s downstream activities in the wholesale 
mobile market for the same reasons outlined in Section 7.5.2.1. 
7.5.3.2. Commission’s assessment  
(440)  A number of respondents to the market investigation submitted that the Transaction 
could also lead to some form of coordination bet ween TIM and Vodafone in the 
market for wholesale  mobile communications.234 A respondent submitted that T IM 
and Vodafone could coordinate their strategy on pricing of the call origination 
wholesale market,  as this market in Italy is  not subject to ex -ante re gulation .235 Two 
respondents to the market investigation maintained that the same observations 
submitted with respect to possible negative effects on the retail mobile markets  are 
valid for the wholesale mobile market  as well , as the situation of the two mar kets 
would be quite similar: limited number of market players, symmetric nature of their 
market position and shared characteristics of the MNOs party to the Transaction.236 
(441)  In this respect the Commission considers that the same observations made for the 
retail mobile markets  can be extended to the wholesale mobile market:  
(a) the activities of the Joint Venture  are expected to be relatively limited in 
terms of value , compared to the Parties' respective activities in the wholesale 
                                                 
234  Replies to RFI Q3, question 34.2; RFI Q4, question 33.2; RFI Q5, question 3.2.  
235  Irideos’ reply to RFI Q4, question 33.2.1.  
236  Iliad’s and Fastweb’s reply to RFI Q3, question 34.2.1.  
 
 
102 mobile market in Italy. Accordin g to internal data and estimates provided by 
the Parties, costs for hospitality services  would make up less than […] % and 
[…]% of Vodafone ’s and TIM’s  overall costs for providing wholesale mobile 
services respectively . Whilst a more detailed review of the Parties’ internal 
documents would be needed to assess whether the costs for hospitality 
services are treated as (to some extent) variable costs ( directly affecting their 
pricing  behaviour) or fixed costs, from a general point of view the former 
option seem s to be unlikely considering the nature of the services at stake . 
Given the  limited percentage  represented by the costs for hospitality services  
compared to the overall costs for providing wholesale mobile services , the 
Transaction in itself appears unlike ly to create a sufficiently strong incentive 
for the Parties to coordinate their competitive behaviour in the market 
concerned ; 
(b) the Transaction in itself will add little to the cooperation already in place 
between the Parties and to the future one envisaged by the cooperation 
agreements to be implemented in the next months  and illustrated in 
Section  3.3. 
(442)  The Commission further notes that, although the Italian wholesale mobile market 
display some structural characteristics that would make co -ordination possi ble, as a 
matter of fact past difficulties for MVNOs in obtaining a wholesale access in Italy 
appears more connected to the fact that  MNOs are vertically integrated and operate 
at both retail and wholesale level, and the resulting  risk of them losing some of their 
retail subscribers to the MVNOs they host (so called "risk of cannibalization"). Thus, 
only if the MNOs and the MVNOs target different customer segments in the retail 
market, the risk of cannibalisation is lower, and MNOs may be more inclined to 
provide wholesale access to the MVNO. Considering that both Parties are already 
vertically integrated, there is no indication that the Transaction would have any 
impact  on the extent of this risk of cannibalization and therefore on the incentive of 
the Part ies to cooperate in denying wholesale access . 
(443)  Therefore,  the Commission concludes that the Transaction does not raise serious 
doubts as to its compatibility with the internal market in relation to cooperative 
effects i n the market for wholesale mobile serv ices in Italy . 
7.6. Conclusion  
(444)  On the basis of the above, the Commission considers that the Tra nsaction give s rise 
to serious doubts as to its compatibility with the internal market as a result of vertical 
non-coordinated effects to the detriment of Iliad (or a ny new MNO entrant with the 
same needs in terms of access to the Parties’ sites as Iliad237) as supplier of retail and 
wholesale mobile services.  
(445)  Furthermore, the Commission cannot exclude that the Transaction gives rise to 
serious doubts as to its compatibi lity with the internal market as a result of : 
(a) Horizontal non- coordinated effects in relation to the supply of hospitality 
services on macro -sites to MNOs;  
                                                 
237  See footnote 164.  
 
 
103 (b) Horizontal non- coordinated effects in relation to the supply of hospitality 
services on macro -sites t o FWA suppliers;  
(c) Horizontal non- coordinated effects in relation to the supply of hospitality 
services on macro -sites to customers other than TV and radio broadcasters ; 
(d) Vertical non -coordinated effects to the detriment of FWA operators as 
suppliers of retai l and wholesale fixed services.  
8. COMMITMENTS  
8.1. Introduction 
(446)  With a view to removing the serious doubts  arising from the Transaction described 
in Section 7, on 14 February 2020 the Parties submitted commitments  pursuant to 
Article 6(2) of the Merger Regulation  (the “Initial Commitments ”).  
(447)  The Commission launched a market test of the Ini tial Commitments on 
17 February  2020, seeking responses from MNOs, FWA suppliers and other 
customers, as well as TowerCos and providers of fixed backhauling services. The 
Commis sion also received comments from national competition authorities and in 
particular from the Italian competition authority, AGCM.  
(448)  The Commission informed the Parties of the results of the market test on 
27 February 2020.  
(449)  Following the feedback received fro m market participants in the market test, the 
Parties submitted revised commitments on 3 March 2020 (the “Final 
Commitments ”), which are annexed to this Decision and form an integral part 
thereof . 
8.2. Description of the proposed commitments  
8.2.1. The Initial Commitm ents 
(450)  The central element of the Initial C ommitments is the undertaking by the Partie s to, 
over a period of 8 years, make available Free Space on a minimum number of 4 000 
Available S ites on the Joint Venture ’s network to host third party MNOs  and FWA  
provi ders in municipalities with more than 35  000 inhabitants  based on Reasonable  
Requests . Such sites shall be evenly distributed across the main regions in Italy . 
Requests for access will be processed on a “first come, first served” basis, with an 
exception f or “New Entrant MNO” (defined as an MNO that has entered the Ital ian 
market in the last 4 years or that will enter in the period of duration of the Initial 
Commitments), which  shall benefit from a one month exclusive period to make a 
request for access.  
(451)  Hospitality services on each  of the  Joint Venture ’s site s will be offered by the Joint 
Venture  for a term of  between […]  years from the date of the relevant agreement and 
renewable for another […] years (unless a different duration is agreed with the 
relevan t third party). Such hospitality services will further be offered on fair, 
Reasonable and Non- Discriminatory Terms which include standard contractual 
terms and conditions that are not worse than those applied by the Parties prior to the 
Transaction . 
 
 
104 (452)  In addition, the Initial Commitments guarantee that third parties are made aware of 
the available capacity in a timely fashion. The Joint Venture  will, within 6 months of 
closing, publish on its website (or other channels as per market practice and 
regularly upd ate on a three- monthly basis) details of all anticipated sites on which 
space is expected to be available and for which third parties may request access from 
the Joint Venture .  
(453)  Additional safeguards in favour of third parties requesting access will include the 
obligation on the Joint Venture  to:  
(a) respond to third party requests on a non-discriminatory basis and thus on a 
first come, first served principle, provided requests contain the minimum 
required information and are in line with the prevailing market  standard for 
hosting services;  
(b) respond to requests for hospitality services pursuant to a defined process and 
within a maximum time -frame; and  
(c) only decline to provide the requested hospitality services for specific and 
identified technical reasons (e.g. electromagnetic frequency changes) or force 
majeure.  
(454)  The Parties  have also committed to ensure that all existing third party hosting 
contracts in place with Vodafone or INWIT shall not be terminated pursuant to any 
early termination right that may exist und er such contracts. Such third parties shall 
also be offered the opportunity to extend their existing hosting contracts up to the 
duration of these Initial Commitments.  
(455)  The Parties  will appoint a monitoring trustee, to be approved by the Commission, to 
ensure their compliance with the Initial Commitments. The monitoring trustee will 
report periodically to the Commission.  
(456)  Furthermore, the Initial Commitments also provide for a fast track expert dispute 
resolution procedure as means of resolving possible disputes regarding a decision not 
to provide hospitality services on technical grounds. This procedure provides for 
such disputes to be referred to an independent expert approved by the monitoring 
trustee whose determination shall be binding on the Joint Ventur e and the Parties. 
Standard mediation and arbitration processes will apply to any other disputes in 
relation to the Initial Commitments.  
(457)  The Initial Commitments will expire eight years from first publication of available 
sites.  
8.2.2. Results of the market test 
(458)  In the market test, several respondents reiterated the concerns they put forward in the 
market investigation, which the Commission has dismissed in Section 7, in particular 
in relation to cooperative effects in the wholesale mobile market, the conglomerate 
effects to the detriment of fixed backhauling service providers and customer 
foreclosure effects to the detriment of suppliers of hospitality services. In such 
context, the majority of respondents stated that the Initial Commitments were not 
 
 
105 suitable to re move the competition concerns they considered as arising from the 
Transaction.238 
(459)  The respondents that  focused on the suitability of the Initial Commitments to 
effectively remove the Commission's serious doubts resulting from the horizontal 
overlaps and the vertical links between the Parties outlined in Section 7 of this 
Decision  expressed mixed views, with two respondents considering the Initial 
Commitments suitable, and other two  requiring several improvements along the lines 
summarised below.239 The same view was expressed by AGCM, which consider s the 
remedy conceptually  suitable to solve the Commission's serious doubts (in line with 
similar remedies it accepted in Italy  for the provision of hospitality services on 
macro -sites to TV and radio broadcasters in Italy240), subject to improvements also 
summarised below.241 
(460)  As regards the specific provisions of the Initial Commitments, the results of the 
market test have been the following.  
(461)  Whilst the majority of the respondents to the market test considered that the 
provisions of the Initial Commitments (including its Schedules) are sufficiently clear 
and capable of being implemented ,242 the same majority  consider ed that several  
definitions included in the Initial Commitments were not appropriate .243 In 
particular , responde nts to the market test indicated that the following definitions 
need ed to be  improved:  
(a) “Reasonable and Non -Discriminatory Terms ”: according to some 
respondents, such terms should refer to terms and conditions that are not 
worse than those appli ed by INWIT to Vodafone and TIM, whilst another 
respondent considered this benchmark not appropriate as the Parties  may 
accept terms and conditions which are specific to the economics of their 
transactions with INWIT (to which they have sold their sites) and also of 
their controlling shareholder status. Respondents suggested that the  elements 
of the agreements that allow for non- discriminatory and reasonable contracts  
should be specified , especially if there are no previous  agreements between 
the parties, and, if contr acts are already in place, these should remain 
applicable. Considering the possibility that the different conditions and terms 
are applied between the Parties and INWIT prior to the T ransaction , a 
respondent  suggested that the definition of Reasonable and Non -
Discriminatory Terms should refer to the “best available” terms and 
conditions applied prior to the Transaction, whilst another respondent 
suggested that the temporal reference should be to the conditions “[…] 
applied prior to the announcement of the C oncentration”, in order to avoid 
                                                 
238  Replies to Market Test questionnaire, question 21.  
239  Replies to Market Test questionnaire, question 21.  
240  AGCM’s decision n. 23117 of 14 December 2011, case C11205 –  Elettronica Industriale/Digital 
Multimedia Technologies ; and AGCM’s decision n. 27984 of 12 November 2019, case C12245 – F2I 
SGR/Persidera . 
241  AGCM’s letter of 25 February 2020.  
242  Replies to Market Test questionnaire, question 20.  
243  Replies to Market Test questionnaire, question 4.  
 
 
106 any negative impact from intentional changes implemented by the Parties in 
anticipation of the application of the Initial Commitments .244 
(b) “Free Space” : according to respondents it should be better qualified in terms 
of minimu m requirements to ensure that it corresponds to enough capacity in 
terms of electromagnetic  emissions limits to allow one or more party to 
install and operate their equipment with all the relevant spectrum and 
technologies available at the moment and prosp ectively for the duration of 
the Initial C ommitments .245 
(c) “Reasonable Request ”: according to respondents , this term should be 
applied in a proportionate way taking into account the costs and effectiveness 
of the technologies  to be used by the requestor . To this effect, a reference to 
reasonable market best practice shoul d be inserted in the definition.246 
(d) "Available Sites ": according to a respondent , to avoid a dilution of the scope 
of the Initial Commitments, the definition should include only those sites that 
INWIT owns.247 
(e) A respondent248 and a competition authority indicated that the Initial 
Commitments lack a definition of the “ hosting services ” to be provided.  
(462)  As regards the identification of the sites over which access should be provided, the 
majority of respo ndents considered that these should not be limited to sites in 
municipalities in Italy with more than 35  000 inhabitants .249 However, this is mainly 
because, according to these respondents, the scope of the serious doubts arising from 
the Transaction should go beyond these areas  and be nationwide. Likewise, the 
majority of respondents, as well as AGCM, did not consider the provision of the 
Initial Commitments (paragraph 4) concerning the distribution of the sites  
appropriate to ensure that access to hospitali ty services is in principle available on all 
areas in Italy .250 According  to respondents, population density, lack of alternatives 
and thus difficulties of deployment in the site location should be considered as 
criteria for the selection of the sites. Furth er, to ensure no selection bias, and thus 
that these criteria are properly applied, the number of sites to be made available 
could be increased. Alternatively, it is suggested that the number of sites to be made 
available should replicate the geographical distribution characterizing all the sites in 
INWIT availability .251  
(463)  As regards the number of sites covered by the Initial Commitments and /or the 
timetable for their release , the majority of the respondents , as well as AGCM,  
consider them not to be adequate to ensure that access to hospitality services in Italy 
would not be restricted following the Transaction.252 In particular, all respondents 
and AGCM stressed that the release should be faster and occur in the next 2 to 
                                                 
244  Replies to Market Test q uestionnaire, questions 4 and 9.  
245  Replies to Market Test questionnaire, question 4.  
246  Replies to Market Test questionnaire, question 4.  
247  Replies to Market Test questionnaire, question 4.  
248  Replies to Market Test questionnaire, question 4.  
249  Replies to Market Test questionnaire, question 5.  
250  Replies to Market Test questionnaire, question 7.  
251  Replies to Market Test questionnaire, questions 5 and 7.  
252  Replies to Market Test questionnaire, question 6.  
 
 
107 3 years, which is the expected timefram e for the roll -out of 5G networks in 
municipalities with more than 35  000 inhabitants. A respondent notes that, out of the 
4 000 sites to be made available, at least the 75% sh ould be released in the first 
3 years.  
(464)  The majority of respondents to the market  test expressed the view that the 
effectiveness of the Initial Commitments and the number of sites offered to third 
parties  would be limited as a result of the application of the provision in 
paragraph  10 of the Initial Commitments .253 According  to this provision, in the 
absence of requests by Third Parties 12 months from publication on the 
Transparency Register, the Joint Venture  shall have the right to (i) remove sites on 
which no tenants are present from the Transparency Register (ii) make a different 
use of those sites (including, without limitation, offering the Free Space to 
prospective customers other than Third Parties) . In this respect , several respondents 
explained that an  operator’s deployment plans go far beyond the 12- month foreseen 
by the Initial Commitment. In this context, an assessment as to whether a site is 
needed or  not could be done only in a context in which third parties will have 
visibility on a large share of the sites available, rather than a limited share of the 
same (with the risk in  this last case that third parties will be forced to book sites they 
would not have done otherwise and vice -versa).  Thus, lack of interest on a site  over a 
12-month period would not be lack of interest in absolute terms and the situation 
could change once other sites are made available. At the same time,  a respondent 
added that if a site is removed from the list it should not count towards the number of 
sites set out in Schedule A  if it were to be the case that the site has limited appeal 
because of its location. In this context, a site that has not received interest from third 
parties for 12 months should be replaced, at least once, with an “equivalent” site.  
(465)  As regards the procedure foreseen in the Initial Commitments, the majority of the 
respondents cons iders the publication of information regarding available capacity in 
the Transparency Registry adequate and proportionate, to the extent that it is put in 
place in a manner that does not increase the risk of collusion (for example via a log -
in process) .254 Nonetheless, respondents also indicated that the update should be 
more frequent than on a 3-month basis and/or the publication of the full list of sites 
should occur within 2 years from closing with indication  of the date when the sites 
will be available. S uggestions were also made as to the content of schedule D of the 
Initial Commitments, which contains a template for the Transparency Reg istry. In 
this respect, it was in particular indicated that the registry should include an 
indication of the available p hysical and electromagnetic space, the site's height at 
ground level and the date on which the site is likely to be available for use.  
(466)  As regards the other elements of the procedure, the majority of the respondents did 
not consider that they would be suffi cient to ensure unrestricted and timely access 
for third parties to the hospit ality services on the Available Sites,  as they would not 
be in line with market practice.255 This is in particular due to the length of the 
procedure, w hich would be too long, the lack of possibility to visit the sites before 
making a request to the Joint Venture  as per market practice and the limited number 
of requests that the Joint Venture  would process over the guaranteed timeframe as 
per Schedule C of the Initial Commitments. R espondents also stressed how the 
                                                 
253  Replies to Market Test questionnaire, questio n 8. 
254  Replies to Market Test questionnaire, question 12.  
255  Replies to Market Test questionnaire, questions 13 and 15.  
 
 
108 procedure would not cater for the FWA suppliers ’ needs: for example, the spectrum 
bands used by them would not be included in the templates to request access.  
(467)  In addition, respondents  noted that the compensation mechanism foreseen at 
paragraph  19 of the Initial Commitments ( whereby “ INWIT shall be entitled to 
charge a fee where INWIT makes the third party a Firm Hospitality Offer and the 
Third Party opts not to proceed with the hosting agreement without a justified 
reason” ) is too onerous for third parties and it is not justified given  that the Initial 
Commitments have been submitted to address the competitive concerns raised by the 
Transaction .  
(468)  Finally,  a respondent stated that the procedure should prevent companies requir ing 
access to “book” spaces for a long time without transforming “booked spaces” in 
“ordered spaces”.  
(469)  As regards the priority  rule for New Entrant MNOs, most of the respondents 
consider that this provision is not adequate to safeguard New Entrant MNOs.256 
Whilst FWA providers and Wind Tre consider this provision discriminatory with 
respect to them, others stated that a distinction should be made between New Entrant 
MNOs that have no plan to autonomously roll -out a national network and those 
which have this pl an, to avoid that the former opportunistically use the sites to the 
detriment of the latter. As regards the possibility to exclude from the priority rule 
New Entrant MNOs that significantly rely on an existing network through sharing 
partnership with other  MNOs, the majority of respondents consider that this is 
appropriate.257  
(470)  As regards the duration of the contracts for hospitality services on  the Available 
Sites, the majority  of market participants considers it appropriate .258  
(471)  As regards the provision where by INWIT/Vodafone will not exercise any early 
termination right and will also offer third parties the opportunity to extend their 
existing contracts, on market conditions terms, up to the duration of the Initial 
Commitments, the majority of respondents do not consider that this could be 
adequate to prevent INWIT from exercising increased market power in the provision 
of hospitality services in Italy on the sites that INWIT and Vodafone are currently 
locating to third parties.259 Nonetheless, also in this inst ance respondents have 
justified their reply in relation to the additional concerns that the Transaction would 
raise in their view, dismissed by the Commission in Section 7. Importantly, several 
players have not expressed concerns in relation to the early t ermination, but with 
denial of access of specific requests under a framework agreement in force. Further, 
a respondent stated that the continuity of existing hosting contracts is only a part of 
the necessary provision needed to prevent INWIT from exercising increased market 
power.  
(472)  As regards the provisions regarding the Fast Track Dispute Resolution Mechanism 
(Section E  of the Initial Commitments ), the majority of respondents  consider s them 
                                                 
256  Replies to Market Test questionnaire, question 14.1.  
257  Replies to Market Test questionnaire, question 14.2.  
258  Replies to Market Test questionnaire, question 10.  
259  Replies to Market Test questionnaire, question 11.  
 
 
109 sufficient to ensure the proper functioning of the Initial Commitm ents.260 Likewise, 
the majority of the respondents to the market test consider s that the provisions of the 
Initial Commitments regarding monitoring are sufficient to ensure that the Initial 
Commitments are complied with.261 
(473)  Conversely, the majority of responde nts does  not consider that the provisions of the 
Initial Commitments regarding arbitration are sufficient to ensure that the Initial 
Commitments are complied with .262 This is because it would not be clear what the 
role of the Arbitrator is, and to what extent the provision may be interpreted as 
precluding Third Parties' rights to bring proceedings before national courts , as well 
as because the higher costs of arbitration compared to judicial proceedings.  
(474)  Finally, a s regards the duration of the Initial Commitments, the majority of the 
respondents  consider s that it is not sufficient.263 The view s in relation to the proper 
duration are however mixed. According to a respondent , the duration should be 
shortened and the site release be quicker, whilst others indicate that the duration 
should be longer, up to 10 years.  
8.2.3. The Final Commitments  
(475)  The Final Commitments present the following changes compared to the Initial 
Commitments:  
(a) Clearer definitions in relation to: 
(i) Avail able Sites: it is specified that newly built sites s hall make up a 
maximum of […] % of the total number of sites the Parties shall cause 
INWIT to make available over the first four years of duration of the 
Final Commitments starting from the publication of the Transparency 
Register, and a maximum of […] % of the total number of sites the 
Parties shall cause INWIT to make available over the total period of 
the Final Commitments.  
(ii) The services to be provided or "Hosting Services", which include the 
rent of space on the Available Sites and all related services, as  per 
market practice, to enable one or more Third Parties to install, 
operate, maintain and use their equipment for the provision of  mobile 
and FWA services.  With all the relevant spectrum and technologies 
available at the point at which the site becomes a n Available Site and 
is added to the Transparency Register . 
(iii)New Entrant MNO: it is clarified that the beneficiary of the 
exclusivity period is an MNO that is in the active process of rolling 
out autonomously its own spectrum coverage, through its own radio 
sites and equipment, in municipalities with more than 35  000 
inhabitants . 
                                                 
260  Replies to Market Test questionnaire, question 16.  
261  Replies to Market Test questionnaire, question 17.  
262  Replies to Market Test questionnaire, question 18.  
263  Replie s to Market Test questionnaire, question 19.  
 
 
110 (iv) Reasonable and Non- Discriminatory Terms: it is clarified that, to the 
extent that framework agreements are already in place between the 
Third Parties and the Parties/INWIT prior to the announcement of the 
Transaction, the terms of such framework agreements shall remain in 
place and shall be regarded as corresponding to Reasonable and Non-
Discriminatory Terms, insofar as they cover the same or equivalent 
relevant services as those bei ng requested.  
(v) Reasonable Request: it is specified that such request shall ensure that 
the use of power is consistent with the relevant emitted frequencies, 
uses up- to-date equipment and all reasonable electromagnetic 
frequency efficiency  options which opti mise the use of 
electromagnetic and physical space as per best market practice.  
(b) A commitment that at least […]% of the Availabl e Sites would be located in 
[…] municipalities listed in Sched ule C of the Final Commitments. This 
percentage applies both over t he 8 year period of duration of the  Final 
Commitments and over the first four years.  
(c) A revised Schedule A for the release of the Available Sites, whereby […] % 
of the sites will be made available over the first three years and […] % over 
the first four years , as illustrated in the below table:  
Table 38 – Schedule A  
 
Year 1  Year 2  Year 3  Year 4  Year 5  Year 6  Year 7  Year 8  
[…]  […]  […]  […]  […]  […]  […]  […]  
 
(d) It is clarified that the Parties' right to (i) remove sites on which no tenants are 
present from the Tran sparency Register  would apply only to sites on which 
there are no longer tenants and in the absence of Reasonable Requests within 
[…] months from the publicat ion on the Trans parency Registry  (ii) make a 
different use of other  sites in the absence of Reason able Requests within […] 
months from the publicat ion on the Trans parency Registry . In both cases, the  
Parties' exercise of the right is subject to agreement of the monitoring trustee.  
(e) As regards the procedure to make the sites available:  
(i) It is clarified th at the access to the Transp arency Registry would be 
done on the basis or a  user ID and a password provided by INWIT 
within 5 working day s from the request as a result of a process where 
the requester  is qualified as New Entrant MNO or other Third Party. 
The status of New Entrant MNO/Third Party can be reviewed as 
appropriate during the duration of the Final Commitments.  
(ii) The Available Sites will be published on the Transparency Registry 
as soon as it is sufficiently clear to INWIT that the relevant site will 
become an Available Site, with monitoring of the Parties' network 
planning to ensure compliance, irrespective of the date when the sites 
will become available. The Transparency Registry will be updated on 
a […] basis and  it will also indicate the date on which the Available 
Site is expected to be ready for use for Hosting Services . Additional 
information on the sites are included in the tem plate Trans parency 
 
 
111 Registry, to add an indication of the available physical space and  the 
site's height at ground leve l. 
(iii)The template to submit a request in Schedule D has been am ended to 
allow the use of different spectrum bands and configurations.  
(iv) The processing of requests has been shortened with the Parties 
committing that the Joint Venture  will review […]  requests per month 
in […] working days and enabling the possibility of a site visit as per 
market practice.  
(v) A clarification that any denial for EMF changes should have origin in 
causes outside of the Parties ' control. 
(vi) A clarification that, in cases of abuses by Third  Parties, the Joint 
Venture  could make use of remedies foreseen by the applicable laws, 
including Italian contract law, with the agreement of the monitoring 
trustee.  
(vii) A clarification that, w here a Third Party (including  New 
Entrant MNOs) does not make effec tive use of the relevant Available 
Site within 12 months from the date it received an offer from the Joint 
Venture  or the date of availability/release of site according to the 
Transparency Registry (the latter if the date of the offer is before the 
date of  availability/release of site) without justified reason to be 
assessed by the m onitoring trustee, the Parties shall cause the Joint 
Venture  to terminate the hosting contract for the relevant s ite and 
such site shall be re- included in the Transparency Regis try and be 
made available to other Third Parties . 
(f) A clarification that the exclusivity period for the New Entrant MNO applies 
only if the sites are used by the latter for the purposes of  coverage and 
deployment of a stand -alone network, without any possibi lity to use it to 
implement any RAN sharing agreement with an MNO, in force or to be 
concluded within 4 years following the date of publication of the relevant 
sites in the Transparency Register, or otherwise to transmit frequencies of an 
MNO within 4 year s following the date of publication of the relevant s ites in 
the Transparency Register . Should such restrictions be infringed or 
circumvented by the relevant New Entrant MNO, the Parties shall cause the 
Joint Venture  to terminate the hosting contract for the relevant s ite and such 
site shall be re -included in the Transparency Registry and be made available 
to other Third Parties. The relevant New Entrant MNO shall be prevented 
from access to the relevant s ite with respect to which it infringed the use 
restrictions for a period of 2 years.  
(g) A clarification that the new c ontra cts to be offered by the Joint Venture  relate 
only to the case where no existing hosting or framework contract  existed at 
the date of this Decision. 
(h) A clarification that the option offered  to third parties (including but not 
limited to Third Parties) for the exten sion of existing contracts covers also 
framework contracts, whatever their geographic scope.   
 
 
112 8.3. Commission’s assessment  
8.3.1. Introduction 
(476)  When a concentration raises serious doubts as to its compatibility  with the internal 
market , the parties may undertake to modify the concentration so as to remove the 
grounds for the serious doubts identified by the Commission and thereby gain 
clearance of their merger  in Phase I .264 
(477)  It is for the parties to the concentration to put forward commitments.265 The 
Commission only has power to accept commitments that are deemed capable of 
rendering the concentration compatible with the internal market.266 In Phase I , 
commitments can only be accepted where the compet ition problem is readily 
identifiable and can easily be remedied. The remedies  therefore need  to solve the 
competition problem identified in a  clear -cut manner, so that it is not necessary to 
enter into an in -depth investigation and that the commitments ar e sufficient to clearly 
rule out serious doubts within the meaning of Article 6(1)(c) of the Merger 
Regulation. Where the assessment confirms that the proposed commitments remove 
the grounds for serious doubts on this basis, the Commission clears the merge r in 
Phase I.267 
(478)  As concerns the form of acceptable commitments, the Merger Regulation leaves 
discretion to the Commission as long as the commitments meet the requisite 
standard.268  
(479)  While  divestiture commitments are generally the best way to eliminate competition 
concerns resulting from horizontal overlaps, other structural commitments, such as 
access remedies, or other non- divestiture remedies  may be suitable to resolve 
concerns if they  are equivalent to divestitures in their effects.269  
(480)  In the ultimate assess ment of  proposed commitments, the Commission considers all 
relevant factors including inter alia  the type, scale and scope of the proposed 
commitments, judged by reference to the structure and particular characteristics of 
the market concerned , including t he position of the parties and other participants on 
the market.270 The commitments must be capable of being implemented effectively 
within a short period.271 
8.3.2. Assessment of the Final Commitments  
(481)  The Commission considers that the Final Commitments are sufficien t to remove the 
serious doubts regarding the compatibility of the Transaction with the internal 
market outlined in Section  7. 
                                                 
264 Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under 
Commission Regulation (EC) No 802/2004 (the “Remedies Notice”), OJ C 267, 22.10.2008, p.1, 
paragraph 5.  
265  Remedies Notice, paragraph 6.  
266  Remedies  Notice, paragraph 9.  
267  Remedies Notice, p aragraph 81.  
268  Case T -177/04 easyJet v Commission  [2006] ECR II- 1913, paragraph 197.  
269  Remedies Notice, p aragraph 19.  
270  Remedies Notice, p aragraph 12.  
271  Remedies Notice, p aragraph 9.  
 
 
113 (482)  More in detail , the Commission considers that the commitment to make available 
4 000 available sites to MNOs and FWA suppliers  during a period of 8 years, as per 
the revised Schedule A and with a cap to the new sites to be included in such 
commitment, addresses the Commission ’s serious doubts in relation to the horizontal 
effects in the supply of hospitality services on macro- sites set out in Sections 7.3.2, 
7.3.3. and 7.3.5. as well as the input foreclosure concerns related to access to the 
same sites for MNOs and FWA suppliers set out in Sections 7.3.7 to 7.3.10 for the 
following reasons.  
(483)  First, based on the Commission’s  market reco nstruction presented in 
paragraphs  (279) -(280)  and (305) -(306) , the main custome rs of the Parties which 
would need access to the Parties’ sites for expanding their network declared a need 
of around [ …] tenancies up until 2027. As more than one tenant can be hosted on a 
site and assuming all sites to be made available by the Parties will be vacated and 
could host two  customers272, these tenancies would translate in a minimum of around 
[…] sites, [ …]. This number would be largely covered by the existing sites that the 
Parties commit to make available , that is at least […] . There is no indi cation that new 
MNO (other than Fastweb)  or large FWA only -players would enter in Italy, but even 
if it were to be the case, the Final C ommitments would be able to satisfy demand of 
such new entrant , in the same way as pre- Transaction . 
(484)  Importantly , the Com mission notes that: 
(a) Currently Vodafone owns […]  sites in the municipalities with more than 
35 000 inhabitants of which around […]  already  pre-Transaction  in co -
location or sharing with TIM. In turn TIM owns […]  sites in the 
municipalities with more than 35  000 inhabitants of which around 
[…]already pre-Transaction in co -location or sharing with Vodafone.273 In 
such context, the fact that the Parties guarantee free space for one or more 
customers over 4 000 sites corresponds to more than the overlap  of site 
brought by either Vodafone or TIM, where  both the Parties are not currently 
hosted and thus the Transaction, due to the preferential rights stemming from 
the MSAs, could bring about a reduction of the capacity to be made available  
to Third Parties.  
(b) Further, to ensure the quality of the sites to be made available to third parties, 
the Final Commitments include a guarantee that at least […] % of the sites, 
i.e. at least […]  will be located in […]  municipalities listed in Schedule C. 
Based on the market investigation and in particular [ …]’s submission, the 
[…] cities included in Schedule C are the most densely populated 
municipalities with more than 35 000 inhabitants and/or those with more 
difficulties for rolling out sites due to historical reasons. In the Parties’ 
portfolio and network plans for their common grid, […] % of the sites in areas 
with more than 35 000 inhabitants are located in the municipalities included 
in Schedule C. In this respect the Commission notes that the Final 
Commitments guarantee that at least […]% of the sites would be located in 
                                                 
272  See above paragraph (242) . 
273  Parties' reply to RFI 19, question 6.e.  
 
 
114 these municipalities, which corresponds to almost [ …] of the [ …] sites 
needed by [ …].274 
(c) In addition, to prevent circumvention by the Parties, by terminating existing 
hosting or framework contracts with customers i n the areas covered by the 
Final Commitments, the Parties committed that the Joint Venture  shall not 
exercise any early termination right and neither shall Vodafone prior to the 
transfer of the sites to the Joint Venture . Moreover, the Final Commitments 
afford third parties  a further protection by offering them an option to extend 
the duration of  all existing hosting or framework contracts , which are due to 
expire during the implementation of the Final Commitments, at least up to 
the duration of these Comm itments (unless a different duration is agreed with 
the third party). This commitment applies to framework contracts whatever is 
their geographic scope (i.e. also national ) and more generally  to contracts 
which relate to sites in both municipalities in Ita ly with more than 35 000 
inhabitants and municipalities in Italy with less than 35  000 inhabitants .275 
(485)  Second, based on the revised Schedule  A, the Commission considers that the release 
of the sites would be appropriate. Indeed, […] % of the total sites to be  made 
available (i.e. […] ) will be made available over the first three years and […] % of the 
total sites (i.e. […] ) over the first four years. If benchmarking  the number of sites to 
be rele ased every year with the actual incremental needs of the Parties’ m ain 
competitors on the basis of the market reconstruction presented in 
paragraphs  (279) -(280)  and (305) -(306) , the situation would be the follow ing. 
Table 3 9 – Schedule A compared to site needs of competitors  
 
 Year 
1 Year 
2 Year 
3 Year 
4 Year 
5 Year 
6 Year 
7 Year 
8 Total  
Sites to be 
releases  […]  […]  […]  […]  […]  […]  […]  […]  […]  
Competitors’ 
sites needs  […] […] […] […] […] […] […] […] […] 
% of 
competitors’ 
needs covered 
by released sites  […] […] […] […] […] […] […] […] […] 
 
                                                 
274  The Commission considers that the size of the Final Commitments in terms of sites to which access is to 
be given is not affected by the revised pr ovisions of paragraph 10 of the Final Commitments, whereby 
“for Available Sites on which tenants are no longer present, in the absence of requests by Third Parties 
within […] months from publication, INWIT shall have the right to remove them from the Trans parency 
Register (for sale or other purposes), subject to the agreement of the Monitoring Trustee. For all other 
Available Sites, in the absence of requests by Third Parties […]  months from publication INWIT shall be 
entitled to offer the Free Space to pro spective customers other than Third Parties, subject to the 
agreement of the Monitoring Trustee .” Indeed, the period of time the sites should remain on the 
Transparency Registry, coupled with the commitment of the Parties to cause INWIT to publish on the 
Transparency Registry as many sites as possible as soon as it is sufficiently clear that they will become 
available, and the oversight of the monitoring trustee provide sufficient guarantee that the number of these 
sites will be limited and/or the Parties w ill not be able to circumvent the Final Commitments.  
275  This commitment applies also to third parties, other than MNOs and FWA suppliers, the latter being the 
only beneficiaries of the access commitment.  
 
 
115 (486)  Based on the above table, the Commission notes that for the first four years, the sites 
to be released under the Final Commitments will cover almost [ …] the needs of their 
main competitors.276 
(487)  Likewise, the Commission considers that the temporal scope of the Final 
Commitments is adequate. Indeed, it is sufficiently long to ensure that ma cro-site 
capacity will remain in the market in the crucial years for the deployment of 5G and  
expansions of FWA networks .  
(488)  Third, the Commission considers that the exclusivity period granted to the New 
Entrant MNO s is appropriate to ensure that competitors of the Parties in greater need 
of access to their sites would be protected against a reducti on of the capacity in the 
market resulting from the Transaction, in combination with the MSAs . Indeed, 
MNOs need to deploy a greater number of sites than FWA suppliers, as illustrated by 
the market reconstruction presented in paragraphs (279) -(280)  and (305) -(306) . 
Further, they need more space on the sites, compared  to FWA suppliers.  
(489)  The amendments  made in the Final Commitments as to the definition of New MNO 
Entrant as well as the limitation to the eligibility of a New MNO Entrant for the 
exclusivity (in cases where the sites are used to implement any RAN sharing 
agreement with an  MNO  other than a New MNO Entrant , in force or to be concluded 
within 4 years following the date of publication of the relevant sites  in the 
Transparency Register, or otherwise to transmit frequencies of an MNO other than a 
New MNO Entrant  within 4 years following the date of publication of the relevant 
sites in the Tran sparency Register ) appear to be appropriate to limit the applicability 
of the exclusivity to the instances where it is really needed as well as to avoid abuses 
by competing MNO to the detriment of new entrants.  
(490)  Fourth, the Commission considers that the def initions  foreseen in the Final 
Commitments as well as the procedure for making the sites available to third parties 
are sufficiently  clear for the latter to be effectively implemented.  
(491)  Indeed, several definitions have been improved so to clarify the servic es to be 
offered by the Joint Venture , as well as the requirements for requests  being made by 
third parties to qualify as Reasonable Requests. The Commission considers that no 
burden is imposed on third parties so to make for them more difficult to obtain 
access compared to what is usual market practice. In particular, the requirement to 
use up- to-date equipment and all reasonable electromagnetic frequency efficiency 
options which optimise the use of electromagnetic and physical space appears indeed 
to corr espond to correspond to market practice. For example, Wind Tre explained 
that “ [s]ome agreements between towercos and customers include clauses requiring 
tenants to actively cooperate to ensure that space on a given site is efficiently used. 
These agreemen ts are negotiated for each individual hosting agreement, balancing 
the incentives of towercos to increase co -tenancy ratios, with MNO concerns of 
ensuring no adverse impact on their equipment and coverage. Lack of cooperation 
                                                 
276  As the size of the pool of sites to be made avail able under the Final Commitments has been tailored to 
match the actual needs of tenancies on the Parties’ sites by customers in a pre- Transaction scenario, with 
an additional number of sites to cater for potential new entrants’ demand, and the release of s uch sites will 
be done over a period of 8 years, the Commission does not consider that the Final Commitments will give 
rise to any issue of customer foreclosure for competing providers of hospitality services on macro- sites.  
 
 
116 by current tenants may de fact o result in an additional obstacle for new customers to 
access a site.”277 
(492)  Further, the Commission  finds also appropriate the revised definition of Reasonable 
and Non- Discriminatory Terms . Indeed, as all main customers have already in place 
contracts (includ ing framework contracts ) with either or both the Parties, a clear 
reference point is provided for the assessment of such Terms.278 
(493)  As regards the revised access procedure  as outlined in paragraph (475)(e), the 
Commission consider  that it has been aligned to market practice279 and revised so to 
cater also to the needs of FWA suppliers . Importantly, the publication on the 
Transparency Registry has been disconnected (and thus anticipated) from the actual 
date of release of the site, what gives third parties greater visibility on capacity 
availability for network planning purposes. Further, the duration of the request 
review has been shortened and it has been clarified that the EMF responsibility is 
only on the third parties requesting ac cess.280 Further, it has been clarified that the 
possibility for the Parties to use of remedies  (including compensation) in cases of 
abuses by third parties requesting access would be subject to applicable laws and to 
trustee oversight. Similarly, against po tential third party abuses, a provision has been 
added, in response to market test feedback , to ensure that, if a third party does not 
make effective use of a site within 12 months, as described at 
paragraph  (475)(e)(vii) , the s ite is re -included in the Transparency Registry and be 
made available to other third parties . 
(494)  Finally, the Commission considers that the procedures for monitoring and dispute 
resolution are clear and in line with Commission’s precedents . 
(495)  In light of the  above, the Commission considers the Final C ommitments entered into 
by the Parties  are sufficient to eliminate the serious doubts as to the compatibility of 
the Transaction with the internal  market  outlined in Section 7.  The commitments in 
                                                 
277  Agreed minutes of the confer ence call of 26 November 2019 with Wind Tre, paragraph 10.  
278  As outlined by Iliad in the market test, the Commission notes that if the term of reference for third parties’ 
Reasonable and Non -Discriminatory Terms for access were to be the commercial condi tions in the MSAs, 
these would be more onerous than market terms for non- anchor tenants. In this respect, see above 
paragraph (16). 
To the extent hosting or framework contracts do not exist, paragraph 6 of the Final Commitments foresee 
that the new contracts would have a duration of between […]years from the date of the relevant agreement 
and renewable for another […]  years (unless a different duration is agreed with the relevant third party) . 
Based on a review of […]  as well as the replies to RFI Q3, question 17, and the results of the market test, 
the Commission considers that such duration corresponds to market practice.  
279  See in particular responses of Ei Towers’ and Wind Tre’s to Market Test questionnaire, question 13.  
280  For this reason the Parties cannot provide on the Transparency Registry an indication of the estimated 
electromagnetic space available on the site to be made available. Nonetheless, for a site to be considered 
an Available Site within the meaning of the Final Commitments, it shall contain Free Space, that is to say 
sufficient space “ in terms of physical and electromagnetic space to provide, from a technical perspective, 
a Reasonable Request for Hosting Services to one or more Third Parties ”, where Hosting Ser vices are 
“the rent of space on the Available Sites and all related services, as per market practice, to enable Third 
Parties to install, operate, maintain and use their equipment for the provision of wireless and wireline 
(e.g. FWAs) communication service s, with all the relevant spectrum and technologies available at the 
point at which the site becomes an Available Site and is added to the Transparency Register ”. In such 
context, for the Parties to comply with the Final Commitments, free electromagnetic sp ace should exist on 
the sites to be made available, albeit the Parties may not be able to exactly quantify it. A denial on an 
Available Site for changes to the available electromagnetic space could occur only as a result of changes 
which are outside the co ntrol of the Parties or due to force majeure.  
 
 
117 sections A to D and  H of the a nnex to this Decision constitute conditions attached to 
this D ecision, as only through full compliance therewith can the structural changes in 
the relevant markets be achieved. The other commitments set out in the a nnex to this 
Decision constitu te obligations, as they concern the implementing steps which are 
necessary to achieve the modifications sought in a manner compatible with the 
internal  market.  
9. CONCLUSION  
(496)  For the above reasons, the Commission has decided not to oppose the notified 
operatio n as modified by the commitments and to declare it compatible with the 
internal market and with the functioning of the EEA Agreement, subject to full 
compliance with the conditions in sections A to  D and H  of the Final C ommitments 
annexed to this  Decision and with the obligations contained in the other sections of 
the Final  Commitments . This Decision is adopted in application of Article 6(1)(b) in 
conjunction with Article 6(2) of the Merger Regulation and Article 57 of the EEA 
Agreement . 
For the Commission 
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice -President  
 
 
1 Dated 3 March 2020  
 
 
Vodafone Group Plc  
and 
Telecom Italia S.p.A.  
CASE NO. COMP/M. 9674 - VODAFONE ITALIA / TIM / INWIT JV  
Commitments to the European Commission  
   
   
  
  
  
  
  
 
 
2 CASE NO.  COMP/M. 9674 - VODAFONE ITALIA / TIM / INWIT JV  
Commitments to the European Commission  
Pursuant to Article 6(2) of Council Regulation (EC) No. 139/2004 (the “Merger Regulation”), 
Vodafone Group Plc (“Vodafone Group ”) and Telecom Italia S.p.A. (“Telecom Italia ”) hereby 
enter into the following c ommitments (the “Commitments ”) vis-à-vis the European Commission 
(the “Commission ”) with a view to rendering the creation of the joint venture which will combine 
Vodafone Italia S.p.A. ’s (“Vodafone Italia ”) passive mobile telecommunications infrastructure with 
Infrastrutture Wireless Italiane S.p.A. (“INWIT ”) (the “Concentration ”) compatible with the internal 
market and the functioning of the EEA Agreement.  
This text shall be interpreted in the light of the Commission’ s decision pursuant to Article 6(1)(b) of 
the Merger Regulation to declare the Concentration compatible with the internal market and the 
functioning of the EEA Agreement (the “Decision ”), in the general framework of European Union 
law, in particular in the  light of the Merger Regulation, and by reference to the Commission Notice 
on remedies acceptable under Council Regulation (EC) No 139/2004 and under the Commission 
Regulation (EC) No 802/2004 (the “ Remedies Notice”).  
Section A.  Definitions  
1. For the purpose of the Commitments, the following terms shall have the following meaning:  
Affiliated Undertakings : undertakings controlled by the Parties and/or by the ultimate 
parents of the Parties, including INWIT, whereby the notion of control shall be interpreted 
pursuant to Article 3 of the Merger Regulation and in the light of the Commission 
Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the 
control of concentrations between undertakings (the “ Consolidated Jurisdictional Notice” ). 
Arbitration Institution : means the International Chamber of Commerce as set out in 
paragraph 38. 
Arbitral Tribunal : means the three- person arbitral tribunal or, as the case may be, sole 
arbitrator as set out  in paragraph 43. 
Available Sites:  means all sites  of INWIT , following Closing,  which have Free Space in 
municipalities with more than 35,000 inhabitants (including both existing and new sites). 
Newly built  sites shall make up a maxim um of […]% of the total number of sites the Parties 
shall cause INWIT to make available pursuant to paragraph 3  below, over the first four years 
of duration of the Commitments  starting from the publication of the Transparency Register , 
and a maximum of […]% of the total number of sites the Parties shall cause INWIT to make 
available pursuant to paragraph 3 below over the total period of the Commitments . A list of 
existing sites in municipalities with m ore than 35,000 inhabitants is provided at Schedule B.  
Closing : means the completion of the Concentration whereby the Parties create the notified 
joint venture.  
Confidential Information : any business secrets, know -how, commercial information, or any 
other  information of a proprietary nature that is not in the public domain.  
Conflict of Interest: any conflict of interest that impairs the Monitoring Trustee's objectivity 
and independence in discharging its duties under the Commitments.  
Effective Date: the date of adoption of the Decision.  
 
3 Fast Track Expert Dispute Resolution Mechanism : has the meaning given in paragraph  
23. 
Firm Hospitality Offer : means an offer by INWIT to provide hospitality services on the 
terms set out in the offer as set out in paragraph 18.  
Free Space: means available space on sites that, as at the date on which an Available Site 
is added to the Transparency Register, is sufficient in terms of physical and electromagnetic 
space to provide, from a technical perspective, a Reasonable Request for Hosting Services 
to one or more Third Parties.  
FWA : a provider of fixed wireless access services in Italy.  
Hosting Services : the rent of space on the Available Sites and all related services,  as per 
market practice, to enable Third Parties to install, operate, maintain and use their  equipment 
for the provision of wireless and wireline (e.g. FWAs) communication services, with all the 
relevant spectrum and technologies available at the point at which the site becomes an 
Available Site and is added to the Transparency Register . Related services include but are 
not limited to works & s tudies activities necessary to enable the installation, power supply 
and other ancillary services of facility management (including, but not limited to cleaning 
services, maintenance of green areas, control and maintenance of the state of integrity of 
the infrastructures and equipment, such as electrical equipment, energy systems, 
generators, signalling systems, heating and air conditioning equipment; beacon lights on 
towers).   
Incumbent MNO : any MNO other than the New Entrant MNOs.  
Indemnified Party : means the Monitoring Trustee and its employees and agents as set out 
in paragraph 69 .  
MNO:  a mobile network operator that provides wireless voice and data communication 
services in Italy.  
Monitoring Trustee : one or more natural or legal person(s), who is/are approved by the 
Commission and appointed by Vodafone Group and Telecom Italia, and who has/have the 
duty to monitor the Parties ’ compliance with the conditions and obligations attached to the 
Decision.  
New Entrant MNO : means any MNO that has been authorised to operate a mobile network 
in Italy in the last 4 years, or that will be authorised to operate a mobile network in Italy in 
the period of  the duration of the Commitments , which is in the active process of rolling out 
autonomously its own spectrum coverage, through its own radio sites and equipment, in 
municipalities with more than 35,000 inhabitants . 
Parties : Vodafone Group and Telecom Italia and their Affiliated Undertakings . 
Reasonable and Non -Discriminatory Terms: means the provision of Hosting Services on 
fair, reasonable and non- discriminatory terms and conditions (“FRAND”) which, for  the 
avoidance of doubt, shall include standard contractual terms and conditions  as commonly 
interpreted in the telecommunications industry . For the avoidance of any doubt, to the extent 
that framework agreements are already in place between the Third Part ies and the 
Parties/INWIT prior to the announcement of the Concentration, the terms of such framework 
agreements shall remain in place and shall be regarded as corresponding to Reasonable 
and Non- Discriminatory Terms , insofar as they cover the same or equi valent relevant 
services as those being requested.   
 
4 Reasonable Request : means, from a technical perspective, a request for Hosting Services 
by a Third Party which, in particular, shall ensure that the use of power is consistent with the 
relevant emitted fr equencies, uses up- to-date equipment and all reasonable electromagnetic 
frequency efficiency options which optimise the use of electromagnetic and physical space 
as per best market practice.  
Requesting Party: means a Third Party that requests access to an  Available Site as set out  
in paragraph 13 . 
Third Party: means any MNO or FWA other than the Parties and their Affiliated 
Undertakings which submits a Reasonable Request .  
Transparency Register : means the registe r of Available Sites  expected to be available  as 
set out in paragraph 8. 
Section B.  Commitments to offer access to space 
2. The Commitments apply only to sites in municipalities in Italy with more than 35,000 
inhabi tants.  
I. Commitment to offer Available Sites  
3. The Parties shall cause INWIT to make available to Third Parties at least the number of 
Available Sites  set out in Schedule A and in accordance with  the timetable set out therein . 
Schedule A sets a minimum number  of Available Sites to be made available per year (the 
first year starts on the first day of the month following the publication of the Transparency 
Register). The Parties may vary, by up to 10% of the total number, the Available Sites set for 
a particular  year, provided that they meet the cumulative threshold number over the period 
set out in Schedule A.  
4. The Parties shall cause INWIT to ensure that the Available Sites will be distributed across 
municipalities with more than 35,000 inhabitants. At least […]% of the Available Sites which 
must be made available pursuant to paragraph 3 (as set out in Schedule A ), shall be located 
in municipalities listed in Schedule C. Such percentage applies over the aggregate period of 
the Commitments  (i.e. 8 years)  and over  the aggregate of the municipalities listed in 
Schedule C. In particular , during the first four -year period (starting from publication of the 
Transparency Register), at least […]% of such Available Sites  (i.e. at least […]) which must 
be made available pur suant to paragraph 3 (as set out in Schedule A ) shall be located in the 
municipalities listed in Schedule C. Such percentage applies over the aggregate of the first 
four-year period and over the aggregate of the municipalities listed in Schedule C.  
5. The Par ties shall cause INWIT to offer Hosting Services for the Available Sites to Third 
Parties  subject to the provisions set out in Section D below and on Reasonable and Non-
Discriminatory Terms.  
6. To the extent a hosting or framework  contract between the Parties or INWIT and the Third 
Party do es not exist at the Effective Date and subject to paragraph  7 below,  the Parties shall 
cause INWIT to offer Hosting Services for between […] years starting from the execution of 
the relevant agre ement between INWIT and the Third Party, renewable for another […] 
years, unless a different duration is agreed with the Third Party (for the avoidance of doubt, 
the agreed terms may be shortened but they shall not be shorter than […] years for the 
initial term and […] years for the renewed term).  
 
5 II. Commitment as regards existing hosting contracts  
7. The Parties shall ensure that, as regards all existing hosting contracts (including framework 
contracts whatever their geographic scope) in place as of the date of these Commitments 
between Vodafone Italia and / or INWIT with third parties (including but not limited with Third 
Parties) , INWIT shall not exercise any early termination right and neither shall Vodafone 
prior to the transfer of the sites to INWIT. The Par ties shall also offer all such third parties 
the option to extend the duration of  all existing hosting contracts (including framework 
contracts whatever their geographic scope), which are due to expire during the 
implementation of the Commitments,  at leas t up to the duration of these Commitments 
(unless a different duration is agreed with the third party). For the avoidance of any doubt, 
this paragraph applies also to contracts which relate to sites in both municipalities in Italy 
with more than 35,000 inhabitants and municipalities in Italy with less than 35,000 
inhabitants.  
Section C: Publication of information regarding available capacity  
8. Within 6 months  of Closing, the Parties shall cause INWIT to publish on its website (or such 
other channels as per current market practice) a register of Available Sites  (the 
“Transparency Register ”). The Transparency Register will also indicate the date on which 
the Available Site is expected to be ready for use  for Hos ting Services (the “ Ready for 
Service Date”), subject to the Relevant Third Party obtaining all necessary permits (for the 
avoidance of doubt, the Ready for Service Date is also not subject to, and is independent 
from, the actions needed by the relevant Third Party to make use of the relevant site). The 
Parties commit that: (a) they will cause INWIT to publish Available Sites on the 
Transparency Register as soon as it is sufficiently clear to INWIT that the relevant site will 
become an Available Site; and (b) on the Ready for Service Date, the Available Sit es will be 
ready to host one or more Third Parties subject to any events or actions beyond the control 
of the Parties or INWIT.  
9. All Available Sites published on the Transparency Register shall count towards the number 
of sites which the Parties have commi tted to make available under paragraph 3  (for the 
avoidance of doubt, this shall include sites where such sites are subsequently delisted in 
accordance with paragraph 10 below).  
10. For the avoidance of doubt, after publication on the Transparency Register, Available Sites 
might become unavailable due to actions or events of third parties beyond the Parties ’ and 
INWIT ’s control, namely changes to the electromagnetic space and/or force majeure. In 
addition, for Available S ites on which tenants are no longer  present , in the absence of 
requests by Third Parties within […] months from publication, INWIT shall have the right to 
remove them from the Transparency Register  (for sale or other purposes ), subject to the 
agreement of the Monitoring Trustee.  For all other Available Sites, in the absence of 
requests by Third Parties […]  months from publication INWIT shall be entitled to offer  the 
Free Space to prospective customers other than Third Parties , subject to the agreement of 
the Monitoring Trustee.  
11. Information to be published in the Transparency Register in relation to each Available Site 
shall include, on a site by site basis, the relevant site code, the owner of the site, the GPS 
coordinates, the site characteristics (including available physical space for installation 
(based on INWIT ’s best estimates  possible at the time of publication) and the infrastructure 
height , as per the form set out in Schedule F ). The Parties shall cause INWIT to update on a 
 
6 […] basis  the information published in the Transparency Register. Access to the  
Transparency Register shall be managed in accordance with  Schedule G. 
12. At the request of a Third Party, the Parties shall cause INWIT to provide any such additional 
information and documentation reasonably necessary for such Third Party to make a 
request for hospitality services, with the same level of detail that the Parties and/or INWIT 
provided Third Parties with prior to the Concentration and in line with best market practice.   
Secti on D: Procedure for obtaining access to Available Sites  
13. The Parties shall cause INWIT to adopt a procedure whereby it will respond to Third Parties 
who make a request (the “ Requesting Party ”) for access to Available Sites on a non-
discriminatory basis and thus on a first come first served basis  subject to paragraph 14  
below . 
14. The Parties shall cause INWIT to ensure that, as of the date of publication in the 
Transparency Register  of an Available Site, a New Entrant MNO will benefi t from a one-
month exclusive period to make a request for Available Sites.  The Available Sites accessed 
by a New Entrant MNO benefiting from the one- month exclusive period (the “ Priority Sites ”) 
shall be effectively used by the relevant New Entrant MNO wit hin 12 months from the date 
of the Firm Hospitality Offer pursuant to paragraph 18  or the date of availability/release of 
site according to the Transparency Registry (the latter if the date of the Firm Hospitality 
Offer is befor e the date of availability/release of site) and be employed only for the purposes 
of coverage and deployment of the relevant New Entrant MNO's stand- alone network.  
15. For the avoidance of doubt  a New Entrant MNO shall not use the Priority Sites to implement 
any RAN sharing agreement with an Incumbent MNO, in force or to be concluded within 4 
years following the date of publication of the Priority Sites in the Transparency Register, or 
otherwise to transmit frequencies of an Incumbent MNO within 4 years follow ing the date of 
publication of the Priority Sites in the Transparency Register. Such restrictions on the use of 
the Priority Sites will cease to exist after 4 years following the date of publication of the 
Priority Sites in the Transparency Register. Shoul d such restrictions be infringed or 
circumvented by the relevant New Entrant MNO, the Parties shall cause INWIT to terminate 
the hosting contract for the relevant Priority Site and such Priority Site shall be re- included in 
the Transparency Registry and be  made available to other Third Parties. The relevant New 
Entrant MNO shall be prevented from access to the Priority Site with respect to which it 
infringed the use restrictions for a period of 2 years.  
16. Any request by a Requesting Party for Hosting Services  on an Available Site submitted to 
INWIT must contain as a minimum information relating to required configuration in terms of 
physical and electromagnetic space required. The request must be submitted using the 
template provided for as Schedule D. This tem plate may be updated, from time to time, to 
adapt to best market practice with the approval of the Monitoring Trustee.  
17. The Parties shall ensure that INWIT will communicate to the Requesting Party within […] 
days from receipt of the request with a copy to the Monitoring Trustee, when a request in 
relation to an Available Site does not satisfy the conditions set out Schedule D .  
18. Following receipt of a r equest, the Parties shall cause INWIT to follow the procedure set out 
in Schedule E and either (i) agree to provide the H osting Services on the terms set out in 
the offer which shall be on Reasonable and Non- Discriminatory  Terms  (“Firm Hospitality 
Offer ”) to be accepted within a reasonable period, in line with market practice and INWIT ’s / 
 
7 the Parties ’ framewor k contracts with the relevant Third Party in force prior to announcement 
of the Concentration  (if applicable) or  (ii) formally decline  to provide H osting Services for 
specific and identified technical  reasons  (with in this instance a copy of any such denia l to 
be sent to the Monitoring Trustee) .  
19. As it is the case for all prospective tenants on towers, following receipt of a Firm Hospitality 
Offer, Third Parties  shall remain in charge of any administrative step necessary to obtain the 
relevant permissions b y the competent public administration, including  for those instances 
where a joint request by INWIT and the Third Party is to be submitted (e.g. infrastructural 
adjustments to be implemented on the site) . The Parties shall cause INWIT to cooperate in 
good faith with the Third Party for the purposes of obtaining all relevant permissions. For the 
avoidance of doubt, Third Parties shall retain responsibility for obtaining the necessary 
permits.   
20. The Parties shall cause INWIT to set up, for the duration of the Commitments, a repository 
that guarantees that all the requests made to it and the related offer or refusal can be 
retrieved and traced by the appropriate persons (including the Monitoring Trustee), taking 
into account appropriate confidentiality requirements.  
21. The Parties reserve the right to adopt any appropriate procedural rules deemed necessary 
to ensure that the proper and efficient functioning of INWIT is not jeopardised by (the timing, 
size, frequency of) requests for Hos ting Services and/or abuses of  the procedure by Third 
Parties (including where appropriate, and in compliance with the applicable laws, including 
Italian contract law,  the right to compensation, indemnification and / or temporary 
suspension where a Third Party engages in abuse of the procedure)  in agreement with the 
Monitoring Trustee. For the avoidance of doubt, the timing, size, frequency of requests 
made by potential customers other than Third Parties shall not be a factor justifying the 
adoption of any procedural rule affecting the timeliness of processing requests by Third 
Parties.   
22. Where  a Third Party  (including New Entrant MNOs) , which has accepted the Firm 
Hospitality Offer, does not make effective use of the relevant Available Site (including 
Priority Sites)  within 12 months fr om the date of the Firm Hospitality Offer or the date of 
availability/release of site according to the Transparency Registry (the latter if the date of the 
Firm Hospitality Offer is before the date of availability/release of site) without justified reason  
to be assessed by the Monitoring Trustee, the Parties shall cause INWIT to terminate the 
hosting contract for the relevant Available Site and such site  shall be re- included in the 
Transparency Registry and be made available to other Third Parties. A provis ion to this 
effect shall be included in hosting contracts for Hos ting Services with Third Parties.  
Section E.  Fast Track Expert Dispute Resolution  
23. In the event that there is a dispute between INWIT and the Requesting Party as to any 
matter arising from par agraph 18 in Section D (Procedure for obtaining access to Available 
Sites) in relation to an Available Site , the Requesting Party shall have recourse to the 
following fast track dispute resolution mechanism (the “ Fast Track Expe rt Dispute 
Resolution Mechanism ”).  
I. Pre-dispute escalation  
24. If the Requesting Party wishes to avail itself of the Fast Track Expert Dispute Resolution 
Mechanism, it shall send a written request to that effect to the Parties and INWIT, with a 
 
8 copy to the Mon itoring Trustee. In the request, the Requesting Party  shall set out in detail 
the reasons leading it to believe that the determination declining access is not correct . The 
Parties and INWIT shall provide a response, by no later than 15 working days followi ng the 
receipt of the request, with copies to the Monitoring Trustee.  
25. If the Parties and the Requesting Party  have failed to resolve their differences under within 
20 working days following the receipt of the request, the dispute resolution procedure belo w 
shall apply.  
II. Fast Track Expert Dispute Resolution Mechanism  
26. At the latest a month after Closing, the Parties and INWIT shall propose a list of names for 
the Monitoring Trustee and the Commission to consider as potential experts to adjudicate in 
disputes (the “Experts ”). The Experts shall be independent, suitably qualified, and have 
sufficient relevant experience in mobile telecommunication networks.  
27. Where paragraph 23 applies, the Monitoring Trustee shall appoint one of the Experts to 
adjudicate on the dispute within 5 working days of expiry of the period set out therein.  
28. The process shall be conducted in private and shall be confidential. The language of the 
process shall be in English or Italian.  
29. The Expert shall act on the f ollowing basis:  
(a) the Expert shall act fairly and impartially;  
(b) each party shall submit to the Expert its brief and its submission in relation to the 
matter in dispute within 10 working days of the Expert's appointment;  
(c) Each party shall assist and provide such documentation as the Expert reasonably 
requires to consider the matters referred to it ; 
(d) the Expert ’s determination shall be given within a maximum period of 20 working  
days of the Expert ’s appointment;  
(e) the Expert's determination in relation to any matter pursuant to paragraph 23 shall 
(save for manifest error or fraud) be final and binding on the Parties and the 
Requesting Party, and the Parties shall cause INWIT to comply ;  
(f) any challenge to the Expert ’s determination in ac cordance with the clause above 
shall be made according to Section F below ;  
(g) each party shall carry out the actions required to comply with the obligations  set out 
in the Expert ’s determination in relation to any matter pursuant to paragraph 23 
within any time -limits specified by the Expert; and  
(h) the Requesting Party  shall pay  the Expert ’s costs if the Expert ’s determination 
upholds INWIT ’s decision. The Parties shall cause INWIT to pay the Expert ’s costs if 
the Expert ’s determinat ion overturns INWIT ’s decision. The Expert shall otherwise 
determine how and by whom the costs of the determination are to be paid.  
III. Involvement of the Commission  
30. The Commission shall be allowed and enabled to participate in all stages of the procedure 
by:  
(a) receiving all written submissions (including documents and reports, etc.) made each 
party to the procedure;  
 
9 (b) receiving all documents exchanged by the Expert with the parties to the procedure;  
(c) filing any written submissions; and  
(d) being present at the heari ng(s) and being allowed to ask questions to the parties.  
31. The Expert shall forward, or shall order the parties to forward, the documents mentioned in 
the previous paragraph to the Commission without delay.  
32. The Monitoring Trustee shall receive copies of:  
(a) all submissions made by the parties to the procedure in relation to the matters they 
wish to have resolved by the Expert, on the day when these have been submitted to 
the Expert;  
(b) all other documentation provided by the parties, on the day when these have been 
submitted to the Expert; and 
(c) the determination made by the Expert, on the day when the determination has been 
provided to the parties.  
Section F.  Arbitration  
33. The Parties shall abide by the terms of the dispute resolution procedure as described below , 
and consent to submit any dispute with any Third Party relating to compliance by the Parties 
with the requirements of the Commitments above vis -à-vis such Third Party to the dispute 
resolution procedure set out herein, subject to the terms set out below.  
34. The dispute resolution procedure detailed in this Section shall apply to disputes between the 
Parties  and any Third  Party as to any matter arising in relation to Sections B, C and D of 
these Commitments.  
I. Mediation  
35. In the event that a Third Party claims th at the Parties are failing to comply with Sections B, 
C or D of the Commitment s vis-à-vis that Third Party, the Third Party shall utilise the 
mediation process . 
36. If so, the Third Party  shall send a written request to the Parties , with a copy to the 
Monitori ng Trustee,  setting out in detail the reasons leading that party to believe that the 
Parties are failing to comply with the requirements of these Commitments. The Parties shall  
use their commercially reasonable efforts to resolve all differences of opinion  with the Third 
Party about the application of the Commitments and to settle all disputes that may arise 
through cooperation and consultation within a reasonable period of time not exceeding 15 
working days after receipt of the request.  
37. The Monitoring Trus tee shall present its own proposal for resolving the dispute within 8  
working days specifying in writing the action, if any, to be taken by the Parties in order to 
ensure compliance with the Commitments vis -a-vis the Third Party, and be prepared, if 
reques ted, to facilitate the settlement of the dispute.  To the extent that the dispute is settled 
and the Parties comply with such settlement, the Parties shall be deemed not to have 
breached the Commitments.  
 
10 II. Arbitration  
38. Should the Parties fail to resolve t heir dispute with the Third Party in the mediation phase 
described above , the Third Party may, within 20 working days of such failure, serve a 
request for arbitration, to the International Chamber of Commerce (the “Arbitration 
Institution ”), with a copy of  such request to the Parties and the Monitoring Trustee.  
39. The request for arbitration shall provide, in addition to what is set out in the applicable 
arbitration rules of the Arbitration Institution, in detail the dispute, difference or claim and 
shall cont ain, inter alia, all issues of both fact and law, including any suggestions as to the 
procedure, and all documents relied upon shall be attached. The request for arbitration shall 
also contain a detailed description of the action to be undertaken by the Parties  and the 
Monitoring Trustee’ s proposal, including a comment as to its appropriateness.  
40. The Parties shall, within 10 working days from receipt of the request for arbitration, submit 
their answer, which shall provide, in addition to what is set out in the applicable arbitration 
rules, detailed reasons for their conduct and set out, inter alia, all issues of both fact and 
law, including any suggestions as to the procedure, and all documents relied upon. The 
answer shall, if appropriate, contain a detailed description of the action which the Parties 
propose to undertake vis -a- vis the Third Party (without such proposal being construed as 
any admission of breach of the Commitments) and the Monitoring Trustee’ s proposal (if not 
already submitted), including a comment as to its appropriateness.  
41. Any dispute, controversy or claim related to the subject matter of the request for arbitration 
shall be finally settled by arbitration in accordance with the applicable arbitration rules of the 
Arbitration Institution. The seat of arbitration shall be Rome and the arbitration shall be 
conducted in English or Italian, at the choice of the Third Party.  
42. The Third Party and the Parties shall each nominate one arbitrator in the request for 
arbitration and the answer, respect ively. The two arbitrator s nominated shall, within 5 
working days of the nomination of the latter, nominate  the chair person, making such 
nomination known to the parties to the arbitration and the Arbitration Institution which shall 
forthwith confirm the appointment of the 3 arbitrators . Should the parties to the arbitration 
wish to have the dispute decided by a sole arbitrator, they may agree on a sole arbitrator 
and communicate this to Arbitration Institution which shall confirm the appointment.  Absent 
such joint appointment, the three- person panel default option shall be followed. Should the 
Parties  fail to nominate an arbitrator, or if the 2 arbitrators fail to agree on the chair person or 
should the parties to the arbitration fail to agree on a sole arbi trator  (if they have chosen to 
do so) , the default appointment(s) shall be made by the Arbitration Institution.  
43. The three- person panel or, as the case may be, the sole arbitrator, are herein referred to as 
the arbitral tribunal (the “ Arbitral Tribunal ”). The procedure shall be a fast track procedure. 
For this purpose, the Arbitral Tribunal shall shorten all applicable procedural time- limits 
under the applicable arbitration rules of the Arbitration Institution as far as admissible and 
appropriate in the circ umstances. The parties to the arbitration shall consent to the use of e-
mail for the exchange of documents.  
44. The Arbitral Tribunal shall, as soon as practical after the confirmation of the Arbitral Tribunal, 
hold an organisational conference to discuss any  procedural issues with the parties to the 
arbitration. Terms of reference shall be drawn up and signed by the parties to the arbitration 
and the Arbitration Tribunal at the organisational meeting or thereafter and a procedural 
time-table shall be establis hed by the Arbitral Tribunal. An oral hearing shall, as a rule, be 
established within two months of the confirmation of the Arbitral Tribunal.  
 
11 45. In order to enable the Arbitral Tribunal to reach a decision, it shall be entitled to request any 
relevant infor mation from the parties to the arbitration, to appoint experts and to examine 
them at the hearing, and to establish the facts by all appropriate means. The Arbitral 
Tribunal is also entitled to ask for assistance by the Monitoring Trustee in all stages of the 
procedure if the parties to the arbitration agree.  
46. The Arbitral Tribunal shall not disclose Confidential Information and apply the standards 
attributable to confidential information under the Merger Regulation.  The Arbitral Tribunal 
may take the meas ures necessary for protecting Confidential Information in particular by 
restricting access to Confidential Information to the Arbitral Tribunal, the Monitoring Trustee, 
and outside counsel and experts of the opposing party.  
47. The burden of proof in any dispute under the applicable arbitration rules shall be borne as 
follows: (i) the Third Party who has requested the arbitration must produce evidence of a 
prima facie case and (ii) if the Third Party produces evidence of a prima facie case, the 
Arbitral Tribun al must find in favour of the Third Party unless the Parties can produce 
evidence to the contrary. If the Parties produce such evidence and the arbitration is not 
decided in favour of the Third Parties on the basis of prima facie evidence, then the issues 
in dispute in the arbitration will be decided on the basis of the evidence presented by the 
parties on the balance of probabilities.  
III. Involvement of the Commission  
48. The Commission shall be allowed and enabled to participate in all stages of the procedur e 
by:  
(a) receiving all written submissions (including documents and reports, etc.) made by 
the parties to the arbitration ; 
(b) receiving all orders, interim and final awards and other documents exchanged by the 
Arbitral Tribunal  with the parties to the arbitrati on (including terms of reference and 
procedural timetable) ; 
(c) having the opportunity to file amicus curiae briefs; and  
(d) being present at the  hearings and being allowed to ask questions to the p arties to 
the arbitration, witnesses and experts . 
49. The Arbitral Tr ibunal shall forward, or shall order the parties to the arbitration  to forward, the 
documents mentioned in the previous paragraph to the Commission without delay.  
50. In the event of disagreement between the p arties to the arbitration regarding the 
interpretat ion of the Commitments, the Arbitral Tribunal may seek the Commission's 
interpretation of the Commitments before finding in favour of any p arty to the a rbitration and 
shall be bound by the interpretation.  
IV. Decision s of the Arbitral Tribunal  
51. The Arbitral Tri bunal shall decide the dispute on the basis of the Commitments and the 
Decision. Issues not covered by the Commitments and the Decision shall be decided (in the 
order as stated) by reference to the Merger Regulation, European Union law and general 
principl es of law common to the legal orders of the Member States without a requirement to 
apply a particular national system. The Arbitral Tribunal (in case of a three- person panel) 
shall take all decisions by majority vote.  
 
12 52. Upon request of the Third Party having made the request for arbitration, the Arbitral Tribunal 
may make a preliminary ruling on the dispute. The preliminary ruling shall be rendered 
within 1 month after the confirmation of the Arbitral Tribunal, shall be applicable immediately 
and, as a rule, remain in force until a final decision is rendered.  
53. The Arbitral Tribunal shall, in the preliminary ruling as well as in the final award, specify the 
action, if any, to be taken by the Parties in order to comply with the Commitments vis -à-vis 
the Third Par ty. The final award shall be final and binding on the parties to the arbitration 
and shall resolve the dispute and determine any and all claims, motions or requests 
submitted to the Arbitral Tribunal. The arbitral award shall also determine the reimbursement 
of the costs of the successful party and the allocation of the arbitration costs. In case of 
granting a preliminary ruling or if otherwise appropriate, the Arbitral Tribunal shall specify 
that terms and conditions determined in the final award apply ret roactively.  
54. The final award shall, as a rule, be rendered within 6 months after the confirmation of the 
Arbitral Tribunal. The time- frame shall, in any case, be extended by the time the 
Commission takes to submit an interpretation of the Commitments if ask ed by the Arbitral 
Tribunal.  
55. The parties to the arbitration shall prepare a non- confidential version of the final award, 
without business secrets. The Commission may publish the non- confidential version of the 
award. The parties to the arbitration, the Arb itral Tribunal, all other persons participating in 
the proceedings and all further persons involved, i.e. in the administration of the arbitral 
proceedings, shall maintain confidentiality towards all persons regarding the conduct of 
arbitral proceedings. A ll proceedings will be held in private and remain confidential.  
56. Nothing in the arbitration procedure shall affect the power to the Commission to take 
decisions in relation to the Commitments in accordance with its powers under the Merger 
Regulation.  
Sectio n G:  Monitoring Trustee  
I. Appointment procedure  
57. The Parties  shall appoint a Monitoring Trustee to carry out the functions specified in these 
Commitments for a Monitoring Trustee. The Parties commit not to close the Concentration 
before the appointment of the Monitoring Trustee. They shall make a proposal to this effect 
pursuant paragraph 60 below.  
58. The Monitoring Trustee shall:  
(e) at the time of appointment, be independent of Vodafone Group and Telecom Italia 
and their Affiliated U ndertakings;  
(f) possess the necessary qualifications to carry out its mandate, for example have 
sufficient relevant experience as an investment banker or consultant or auditor; and 
(g) neither  have nor become exposed to a Conflict of Interest.  
59. The Monitoring Trustee shall be remunerated by the Parties  in a way that does not impede 
the independent and effective fulfilment of its mandate.  
 
13 Proposal by the Parties  
60. No later than two weeks after the Effective Date, the Parties shall submit the name or 
names of one or more natural or legal persons whom the Parties  propose to appoint as the 
Monitoring Trustee to the Commission for approval. The proposal shall contain sufficient 
information for the Commission to verify that the person or persons proposed as Monitoring 
Trustee fulfil the requirements set out in paragraph 58 and shall include:  
(a) the full terms of the proposed mandate, which shall include all provisions necessary 
to enable the Monitoring Trustee to fulfil its duties under these Comm itments;  
(b) the outline of a work plan which describes how the Monitoring Trustee intends to 
carry  out its assigned tasks.  
Approval or rejection by the Commission  
61. The Commission shall have the discretion to approve or reject the proposed  Monitoring  
Trustee( s) and to approve the proposed mandate subject to any modifications it deems 
necessary for the Monitoring Trustee to fulfil its obligations. If only one name is approved, 
the Parties  shall appoint or cause to be appointed the person or persons concerned as  
Monitoring Trustee, in accordance with the mandate approved by the Commission. If more 
than one name is approved, the Parties  shall be free to choose the Monitoring Trustee to be 
appointed from among the names approved. The Monitoring Trustee shall be appointed 
within one week of the Commission’ s approval, in accordance with the mandate approved 
by the Commission.  
New proposal by the Parties  
62. If all the proposed Monitoring Trustees are rejected, the Parties  shall submit the names of at 
least two more natural or legal persons within one week of being informed of the rejection, in 
accordance with paragraphs 57 and 61 of these Commitments.  
Monitoring Trustee Nominated by the Commission  
63. If all further proposed Monitoring Trustees are rejected by the Commission, the Commission 
shall nominate a Monitoring Trustee, whom the Parties  shall appoint, or cause to be 
appointed, in accordance with a trustee mandate approved by the Commission.  
II. Functions of the  Monitoring  Trustee  
64. The Monitoring Trustee shall assume its specified duties and obligations in order to ensure 
compliance with the Commitments. The Commission may, on its own initiative or at the 
request of the Monitoring Trustee or the Parties , give any order s or instructions to the 
Monitoring Trustee in order to ensure compliance with the conditions and obligations 
attached to the Decision.  
 
14 Duties and obligations of the Monitoring Trustee  
65. The Monitoring Trustee shall:  
(i) propose in its first report to the Commis sion a detailed work plan describing how it 
intends to monitor compliance with the obligations and conditions attached to the 
Decision;  
(ii) monitor  the implementation of and compliance by the Parties with the conditions and 
obligations attached to the Decision;  
(iii) propose to the Parties such measures as the Monitoring Trustee considers 
necessary to ensure the Parties ’ compliance with the conditions and obligations 
attached to the Decision;  
(iv) act as a contact point for any requests by third parties, in particular Third Parties , in 
relation to the Commitments;  
(v) provide to the Commission, sending the Parties a non- confidential copy at the same 
time, a written report in relation to the Commitments, within 15 days  after the end of 
every month,  from the appointment of the M onitoring Trustee until the first 
publication of Available Sites on the Transparency Registry, and thereafter within 15 
days after the end of a 6 month period until expiry of the Commitments;  
(vi) promptly report in writing to the Commission, sending the Parti es a non- confidential 
copy at the same time, if it concludes on reasonable grounds that the Parties are 
failing to comply with these Commitments;  
(vii) assume the functions assigned to the Monitoring Trustee in relation to the F ast Track 
Expert Dispute Resolutio n Mechanism ; 
(viii) monitor the implementation of the provisions in paragraph 8 above in in relation to 
the obligation to publish sites on the Transparency Register as soon as it is 
sufficiently clear that they will become Available Sites . 
(ix) monitor the implementat ion of the provisions  in paragraphs 14 and 15 above in 
relation to the rights and obligations of New MNO Entrants;  
(x) assume the other functions assigned to the Monitoring Trustee under the conditions  
and obligations attached to the Decision.  
66. The documents provided for above shall be prepared in English (or in Italian with an English 
translation, if the Parties so prefer).  
III. Duties and obligations of the Parties  
67. The Parties  shall provide and shall cause its advisors to provide the Mo nitoring Trustee with 
all such co- operation, assistance and information as the Monitoring Trustee may reasonably 
require to perform its tasks. The Monitoring Trustee shall have full and complete access to 
the Transparency Registry, repository pursuant to p aragraph 20 above and any of the 
Parties ’ (including INWIT ’s) books, records, documents, management or other personnel, 
facilities, sites and technical information necessary for fulfilling its duties under the 
Commitments and th e Parties  shall provide the Monitoring Trustee upon request with copies 
of any document . In relation to paragraph 65(viii) specifically, the Parties shall provide 
quarterly  updates to the Monitoring Trustee on their respective  progress in terms of their 
own network planning. The Parties  shall make available to the Monitoring Trustee one or 
 
15 more offices on their premises and shall be available for meetings in order to provide the 
Monitoring Trustee with all information necessary for the performance of its t asks.   
68. The Parties  shall provide the Monitoring Trustee with all administrative support that it may 
reasonably request.   
69. The Parties  shall indemnify the Monitoring Trustee and its employees and agents (each an 
“Indemnified Party ”) and hold each Indemnified Party harmless against, and hereby agree 
that an Indemnified Party shall have no liability to the Parties for, any liabilities arising out of  
the performance of the Monitoring Trustee’ s duties under the Commitments, except to the 
extent that such liabilit ies result from the wilful default, recklessness, gross negligence or 
bad faith of the Monitoring Trustee, its employees, agents or advisors.  
70. At the expense of the Parties , the Monitoring Trustee may appoint advisors (in particular for 
technical  advice), s ubject to the Parties  approval (this approval not to be unreasonably 
withheld or delayed) if the Monitoring Trustee considers the appointment of such advisors 
necessary or appropriate for the performance of its duties and obligations under the 
Mandate, pro vided that any fees and other expenses incurred by the Monitoring Trustee are 
reasonable. Should the Parties  refuse to approve the advisors proposed by the Monitoring 
Trustee the Commission may approve the appointment of such advisors instead, after 
having heard the Parties . Only the Monitoring Trustee shall be entitled to issue instructions 
to the advisors. Paragraph 69 of these Commitments shall apply mutatis mutandis . 
71. The Parties  agree that the Commission may share Confidenti al Information proprietary to 
the Parties  with the Monitoring Trustee. The Monitoring Trustee shall not disclose such 
information and the principles contained in Article 17 (1) and (2) of the Merger Regulation 
apply mutatis mutandis . 
72. The Parties  agree that  the contact details of the Monitoring Trustee are published on the 
website of the Commission's Directorate- General for Competition and they shall inform 
interested third parties  of the identity and the tasks of the Monitoring Trustee.  
73. For a period of 10 y ears from the date of adoption of the Decision the Commission may 
request all information from the Parties that is reasonably necessary to monitor the effective 
implementation of these Commitments.  
IV. Replacement, discharge and reappointment of the Monitoring  Trustee  
74. If the Monitoring Trustee ceases to perform its functions under the Commitments or for any 
other good cause, including the exposure of the Monitoring Trustee to a Conflict of Interest:  
(a) the Commission may, after hearing the Monitoring Trustee and the Parties, require 
the Parties to replace the Monitoring Trustee; or  
(b) the Parties may, with the prior approval of the Commission, replace the Monitoring 
Trustee.  
75. If the Monitoring Trustee is removed according to paragraph 74 of these Commitments, the 
Monitoring Trustee may be required to continue in its function until a new Monitoring Trustee 
is in place to whom the Monitoring Trustee has effected a full hand over of all relevant 
information. The new Monitoring Trustee shall be  appointed in accordance with the 
procedure referred to in paragraphs 57 to 63 of these Commitments.   
76. Unless removed according to paragraph 74 of these Commitments, the Monitoring Trustee 
shall cease to act as Monitoring Trustee only after the Commission has discharged it from 
 
16 its duties after all the Commitments with which the Monitoring Trustee has been entrusted 
have been implemented. However, the Commission may at any t ime require the 
reappointment of the Monitoring Trustee if it subsequently appears that the relevant 
remedies might not have been fully and properly implemented.  
Section H.  Duration  
77. The Commitments will expire 8  years from the first publication of the Transparency Register , 
unless in response to a request by Parties  in accordance with the Review Clause, the 
Commission decides to waive, modify or substitute these Commitments on grounds that the 
conditions of competition would no longer justify the undiminish ed continuation of these 
Commitments.  
Section I.  Review Clause  
78. The Commission may extend the time periods  foreseen in the Commitments in response to 
a request from the Parties  or, in appropriate cases, on its own initiative. Where the Parties  
request an extension of a time period, they shall submit a reasoned request to the 
Commission no later than one month before the expiry of that period, showing good cause. 
This request shall be accompanied by a report from the Monitoring Trustee, who shall, at the 
same time send a non- confidential copy of the report to the Parties .  
79. The Commission may  further, in response to a reasoned request from the Parties  showing 
good cause waive, modify or substitute, in exceptional circumstances, one or more of the 
undertakings  in these Commitments. This request shall be accompanied by a report from 
the Monitoring Trustee, who shall, at the same time send a non- confidential copy of the 
report to the Parties . The request shall not have the effect of suspending the application of 
the undertaking and, in particular, of suspending the expiry of any time period in which the 
undertaking has to be complied with.  
Section J.  Entry into force  
80. The Commitments shall take effect upon the date of adoption of the Decision.  
 
duly authorised for  and on behalf of  
___________________  
Vodafone Group Plc  
___________________  
Telecom Italia S.p.A.  
 
 
17 SCHEDULE A  
NUMBER OF AVAILABLE SITES PURSUANT TO PARAGRAPH 3 OF THE COMMITMENTS  
[…] 
 
18 SCHEDULE B 
LIST OF VODAFONE ITALIA’S AND INWIT’S EXISTING SITES  IN MUNICIPALITIES WITH MORE THAN 35,000 INHABITANTS  
 
[…]. 
 
 
19 SCHEDULE C 
LIST OF SPECIFIC  CITIES  
[…] 
 
 
 
20 SCHEDULE D 
REQUEST TEMPLATE  
 
 
[…] 
 
 
21 SCHEDULE E  
PROCEDURE FOR REQUESTING ACCESS TO AVAILABLE  SITES  
 
[…]
 
22 SCHEDULE F  
FORM AND CONTENT OF SITE LIST  
 
[…]
 
 SCHEDULE G 
PROCESS FOR OBTAINING ACCESS TO THE TRANSPARENCY REGISTER  
Process for obtaining access to Transparency Register  T0 (e.g. beginning of each 
month ) T0 to "T0 + 30 days"  "T0 + 30 days"  onwards  
 
 
 
 INWIT verifies suitability of the 
request  according to the 
Commitments (MT shall 
adjudicate on any dispute)  Request not suitab le 
according to INWIT 
and MT (only if 
under disputes)  
Request suitable  as 
New Entrant MNO 
or other Third Party  
INWIT produces Userid and 
Password  Third Party  
receives Userid and 
Password from INWIT and 
can enter the TR  Third Party sign s NDA  and 
terms and conditions  related 
to TR access  This is a 
mandatory condition to have 
access to the TR  INWIT publishes on the 
TR each relevant new site 
(i e  new Available Sites) , 
identifying them as such 
and indicating that New 
Entrant MNOs have one -
month exclusivity for any 
new Available Sites 
published at the beginning 
of each month  
Pursuant to Schedule D, 
INWIT shall process: (a) 
requests relating to sites 
added in the ongoing 
month made by New 
Entrant MNOs  only and  
(b) requests relating to 
previously added sites by 
any Third Party INWIT shall also process 
requests (pursuant to 
Schedule D) relating to sites 
added in ongoing month  
made by other Third Parties 
(as well as previously added 
sites)  
New Entrant MNO that 
requests access to the TR 
after the expiry of "T0+30 
days" can make requests 
(pursuant to Schedule D) 
with no exclusivity  on a first 
come first served basis for 
the relevant month  En
 
INWIT shall  respond to a request for access to the TR within 3 working days  The timing of the MT response (after a potential Third Party disputes INWIT’s response to a request for access to the TR) sha ll be determined by the MT according to its best pract ices  
INWI T shall produce a Userid and Password in 2 working days following confirmation of  a New Entrant MNO’s or other Third Party’s suitability for obtaining access  Userid and Password will be subject to security rules  For security reasons, Third Parties shall change 
passwords every 3 months  The status of New Entrant MNO/Third Party can be reviewed as appropriate during the period of the Commitments  
Third Parties will have access to all Available Sites  Third Parties other than New Entrant MNOs can  also make r equests (pursuant to Schedule D ) relating to new sites  during the New Entrant MNO exclusivity period (T0 to “T0+30 days”) but such requests  will only be 
processed after the expiry of the New Entrant MNO exclusivity period   
In determining the ranking of New Entrant MNOs ’ and other Third Parties’ requests to new sites, INWIT will take into account the date of the request made pursuant to Schedule D   → 
↗ 
↘ ↓ ↓ ↓ Third Party request s access to 
the Transparency Regist er 
("TR") to INWIT (cc the 
Monitoring Trustee “ MT”) 
↘ 
↘ ↘