Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie , DG COMP MERGER REGISTRY, 1049 Brussel, BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 10.11.2021  
C(2021 ) 8234  final 
PUBLIC VERSION  
 
 
CDP Equity S.p.A.  
Via Goito, 4  
00185, Rome  
Italy 
 
Macquarie Infrastructure and Real Assets 
(Europe) Limited  
Ropemaker Place  
28 Ropemaker Street  
EC2Y 9HD, London  
United Kingdom  
Subject : Case M.10450  – CDP/Macquarie/Open Fiber  
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 4 October 2021 , the Commission received notification of a proposed 
concentration pursuant to Article 4 of Coun cil Regulation (EC) No 139/2004, by 
                                                 
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 ( “TFE U ”) has introduced certain changes, such as the 
replacement of  “Community ” by “Union ” and “common market ” by “internal market ”. The terminology 
of the TFEU will be used t hroughout this decision.  
2  OJ L 1, 3.1.1994, p. 3 (the “ E E A Agreement ”). 
In the published version of this decision, 
some information has been omitted  
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
confidential information. The omissions are 
shown thus […]. Where possible the 
information omitted has been replaced by 
ranges of figu res or a general description.  
 
2 which Macquarie Infrastructure and Real Assets (Europe) Limited (“ MIRA ”, United 
Kingdom) and CDP Equity S.p.A. (“ CDPE ”, Italy, together with MIRA the 
“Notifying Parties ”) acquire joint contro l over Open Fiber S.p.A. (“ Open Fiber ”, 
Italy) within the meaning of Article 3(1)(b) and 3(4) of the Merger Regulation  (the 
“Transaction ”).3 
1. THE  PARTIE S  
(2) MIR A is an investment fund that manages infrastructure and other real assets, 
including real estate, en ergy and agriculture as well as critical infrastructure assets 
such as utilities and telecommunicatio ns networks, airports and ports.4 MIRA is 
ultimately controlled by Macquarie Group Limited (“ Macquarie ”, Australia) a 
multinational independent investment bank.  
(3) CDPE  is a long-term investor in companies of significant national Italian interest, 
through di rect and indirect shareholdings. CDPE is part of Cassa Depositi e Prestiti 
S.p.A. (“ CDP ”, Italy), ultimately controlled by the Italian Ministry for Economy and 
Finance.  
(4) Open Fiber  is a wholesale -only operator developing, managing and maintaining an 
optical fibre network, predominantly with fibre-to-the-home (“ FTTH ”) technology, 
across Italy . Open Fiber is currently jointly controlled by CDPE (50% of shares) and 
Enel S.p.A. (“ Enel ”) (50% of shares).  
2. THE  CONCE NTRATION  
(5) The Transaction is accomplished in two simultaneous steps. First, pursuant to a share 
purchase agreement signed on 29 July 2021, Fibre Networks Italy S.p.A. (“ FNI”), a 
company indirectly controlle d by MIRA, will acquire 40% of the share capital and 
voting rights in Open Fiber from Enel (“ 40% Transaction ”).5 Second, pursuant to a 
share purchase agreement signed on 4 August 2021, CDPE will acquire from Enel 
the remaining 10% participation of the shar e capital and voting rights in Open Fiber 
(“10% Transaction ”, together with the 40% Transaction, the “ 50% Transaction ”). 
Following the completion of these steps, Enel will no longer be a shareholder of 
Open Fiber, CDPE will own 60% of the shares in Open Fi ber and MIRA will own 
40% of the shares in Open Fiber. Since CDPE is already jointly controlling Open 
Fiber pre -Transaction, the specificity of the merger consists in MIRA replacing Enel 
as a jointly controlling parent (as explained below).  
                                                 
3  Publication in the Official Journal of the European Union No C 414, 13.10.202 1, p. 4. 
4  With regard to the telecommunications sector, MIRA controls an infrastructure owner and 
telecommunications operator in Poland.  
5  The transactional documents provide for the possibility of FNI to assign its full participation in Open 
Fiber to Fibre Network Holding S.à r.l. (“ FNH ”), a subsidiary controlled by MIRA. Any such assignment  
would  not have any effect on the nature of control being acquired by MIRA in Open Fiber. In this 
decision , MIRA should be read as including FNI or FNH, as the case may be , depending on FNI’s 
decision to assign its participation in Open Fiber to FNH.  
 
3 2.1. Joint control  
(6) At completion of the 50% Transaction, the Notifying Parties will enter into a 
Shareholders’ Agreement, according to which the board of directors of Open Fiber 
will be composed of 7 directors, 4 appointed by CDPE and 3 by MIRA.6 The 
resolutions on some stra tegic matters, such as the approval and amendment of Open 
Fiber’s business plan, the approval of major contracts, acquisitions, transfer of 
shares, mergers and amalgamations and the approval of major disposals, will only be 
adopted with the attendance and favourable vote of at least 6 out of the 7 directors. 
Therefore, both CDPE and MIRA’s approval is necessary for these strategic matters. 
MIRA will be entitled to appoint the Chief Financial Officer of Open Fiber and will 
be involved in the appointment of t he Chief Executive Officer (through the 
possibility to veto the first two candidates put forward by CDPE).  
(7) Therefore, Open Fiber will be jointly controlled by CDPE and MIRA.  
2.2. Full functionality  
(8) Open Fiber is currently a ful l-function joint venture . This will not change as a result 
of the Transaction. Indeed, Open Fiber  has sufficient own staff  (over [NUMBER OF 
OPEN FIBER’S EMPLOYEES ] employees) , financial resources and dedicated 
management for its operation s and for the management of its portfolio and business 
interests.   
(9) Open Fiber  will have a market presence. In this regard, Open Fiber has exclusivity 
agreements in place with  [OPEN FIBER’S CUSTOMERS ] concerning the 
implementation of a FTTH optical fibre network and the subsequent provision of 
end-to-end connection for the access to such optical fiber network. No transactional 
agreement provides for the possibility of termination of these exclusivity agreements 
and the Notifying Parties further submit there is no intention to do so.7 
(10) Finally, Open F iber (i) will not take over any specific function of CDPE or MIRA’s 
business activities; (ii) will not have sale or purchase relations with its parent 
companies; and, (iii) will operate on a lasting basis as Open Fiber has been set up for 
an indefinite dur ation.8  
(11) Therefore, Open Fiber  is a full-function  joint venture . 
2.3. Assessment  of whether the Transaction and the Single Network Transaction 
should be treated as a single concentration  
2.3.1.  Introduction  
(12) Through a non -binding letter of intent dated 31 August 2020 (“LOI”), CDP and TIM 
S.p.A. (“ TIM ”) announced the possible creation of a single fixed network in Italy, 
commonly referred to as “ La Rete Unica ” (the “ Single Network ”), whereby CDP 
and TIM would acquire joint control of AccessCo, a newly established joint 
                                                 
6  Each director  will have one vote. No board member will have a casting vote.  
7  Form CO, paragraph 87.  
8  Form CO, paragraph 88.  
 
4 venture.9 Pursuant to the LOI, AccessCo would be established by combining the 
primary and secondary access networks of Open Fiber and of FiberCop S.p.A. 
(“FiberCop ”), a company established by TIM in partnership with KKR & Co Inc., 
to which TIM transferred i ts secondary passive access network. 10 The creation of the 
Single Network will be referred to hereinafter as the Single Network Transaction . 
(13) Under the terms of the LOI, AccessCo would be tasked  with developing and 
managing the national single network that would result from the integration of the 
networks of Open Fiber and TIM, with the aim of speeding up digital development 
and the diffusion of high -speed internet in Italy. To date, AccessCo has  not been 
established.  
(14) Article 21 of the Shareholders’ Agreement submitted to the Commission at the time 
of notification of the Transaction (“ Original SHA ”) provides that  “[NOTIFYING 
PARTIES’ POST CLOSING POSSIBLE BEHAVIOURS ]”. In addition, Article 21 
of t he Original SHA further provides that, [ NOTIFYING PARTIES’ POST 
CLOSING POSSIBLE BEHAVIOURS ]. 
(15) Section 6.2 of the 40% Transaction agreement provides for  an earn -out payment due  
by MIRA to Enel in the event that the Single Network Transaction materializes,  
regardless of the modality in which it may be achieved (the “ Single Network Earn -
Out”), capped at EUR 400 million.  
(16) In the following sections, the Commission assesses whether the Transaction and the 
Single Network Transaction should be treated as a single co ncentration or as 
independent transactions . 
2.3.2.  Legal context  
(17) Recital 20 of the Merger Regulation provides that it is “ appropriate to treat as a 
single concentration transactions that are closely connected in that they are linked 
by condition or take the form of a series of transactions in securities taking place 
within a reasonably short period of time ”. 
(18) The question of whether legally distinct transactions form a single concentration 
within the meaning of Article 3 of the Merger Regulation has been further cl arified 
by the General Court in the Cementbow  judgment,11 which underlines that,  for that 
purpose,  the C ommission should consider all the specific circumstances “ with a 
concern to ascertain the economic reality underlying the transactions ”.12 
(19) In particular, the General Court clarified that, “ when faced with a number of legally 
distinct transaction ”, the Commission should identify “ the economic aim pursued by 
the parties, by examining […] whether the undertakings concerned would have been 
inclined to conclude each transaction taken in isolation or whether, on the contrary, 
                                                 
9  See CDP’s press release of 31 August 2020 at the following link: CDP: via libera alla società della rete 
unica nazionale .  
10  The purpose of FiberCop is to rollout and to provide passive access  services to the secondary network. 
FiberCop is operational since April 2021.   
11  Judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission , T‑282/02, 
EU:T:2006:64.  
12  Cementbouw judgment, paragraph 106.  
 
5 each transaction constitutes only an element of a more complex operation, without 
which it would not have been concluded by the parties. In other words, in order to 
determine the unitary natu re of the transactions in question, it is necessary, in each 
individual case, to ascertain whether those transactions are interdependent, in such 
a way that one transaction would not have been carried out without the other. ” 13 
(20) Those criteria have been codi fied by the Commission in the Consolidated 
Jurisdictional Notice (“ CJN ”), which notes in particular that the conditionality 
referred to in recital 20 of the Merger Regulation can be de jure  or de facto .14 The 
CJN notes that de jure conditionality is achieve d when “ the agreements themselves 
are linked by mutual conditionality .”15 De facto  conditionality “ requires an 
economic assessment of whether each of the transactions necessarily depends on the 
conclusion of the others. Further indications of the interdepen dence of several 
transactions may be the statements of the parties themselves or the simultaneous 
conclusion of the relevant agreements. A conclusion of de facto interconditionality of 
several transactions will be difficult to reach in the absence of their  simultaneity .”16 
(21) Finally, paragraph 41 of the CJN states that “ several transactions, even if linked by 
condition upon each other, can only be treated as a single concentration, if control 
is acquired ultimately by the same undertaking(s) .” 
2.3.3.  Notifying Partie s’ views  
(22) The Notifying Parties submit that the Transaction and the Single Network 
Transaction  are not linked by a condition for the following reasons.  
(23) First, the Notifying  Parties argue  that Article 21 of the Original SHA does not 
constitute an implicit ap proval of the Single Network Transaction  by MIRA . In this 
regard, the Notifying Parties note that any potential transactions related to the Single 
Network Transaction  [DETAILS ON MIRA’S  RIGHTS SET FORTH IN THE 
ORIGINAL SHA ].17 The Notifying Parties note tha t this is supported by the 
language of Article 21 of the SHA, where it provides that the Notifying Parties 
[NOTIFYING PARTIES’ POST CLOSING POSSIBLE BEHAVIOURS ].18 In any 
case, the Notifying Parties clarify  that the LOI [LOI DURATION ].19 
(24) Second, the Notifying Parties submit that  the Single Network Earn -Out payment  
foreseen in the 40% Transaction agreement  is customary in transactions of this 
nature and is not able to materially affect any possible future decision of MIRA to 
proceed or not with the Sin gle Network Transaction, [FINANCIAL AGREEMENT 
BETWEEN MIRA AND ENEL ]. 20 
(25) Third, the Notifying Parties point out that the transactional documents provide for a 
minimum lock-up period of [LOCK -UP PERIOD DURATION ]. Although, for 
                                                 
13  Cementbouw  judgment, paragraphs 10 6-107. 
14  CJN, paragraph 43.  
15  CJN, paragraph 43.  
16  CJN, paragraph 43.  
17  Form CO, Annex 10, page 7.  
18  Form CO, Annex 10, page 3. 
19  Form CO, footnote 9.  [LOI DURATION ]. 
20  Form CO, Annex 10, page 11.  
 
6 completeness, [EXCEPTIONS TO TH E LOCK -UP PERIOD ], the Notifying Parties 
submit that MIRA will act as a long -term investor in Open Fiber.21 
(26) Fourth, the Notifying Parties submit that the Transaction and the Single Network 
Transaction are not de jure or de facto inter-related within the mea ning of the CJN. 
In particular, the Notifying Parties submit that : (i) the Transaction is not conditional 
upon the Single Network Transaction and would take place anyway; (ii) both 
transactions would not occur at the same time; and, (iii) the execution of Single 
Network Transaction is hypothetical,22 uncertain and subject to further negotiations 
and agreements. 23 
2.3.4.  Commission’s assessment  
(27) The Commission considers that the Transaction and the Single Network Transaction  
constitute independent transactions.  
(28) First, the Commission notes  that the agreements underpinning the Transaction do not 
provide that the Transaction is conditional upon the Single Network Transaction (nor 
vice versa) . In addition, the conclusion of the Single Network Transaction is 
uncertain and the respective transaction agreements have not been entered into.   
(29) The Commission notes that Article 21 of the  Original  SHA [NOTIFYING 
PARTIES’ POST CLOSING POSSIBLE BEHAVIOURS ], but does not  contain an 
express obligation  on the part of MIRA to unconditionally agr ee to the completion of 
the Single Network Transaction . In this regard, the Commission notes that, under the 
SHA,24 MIRA formally retains the right to  [DETAILS ON MIRA’S  RIGHTS SET 
FORTH IN THE SHA ]. Accordingly, the Commission concludes that the 
agreements do not  give rise to any de jure conditionality between the Transaction 
and the Single  Network Transaction.  
(30) In any case, on 8 November 2021, the Notifying Parties signe d an agreement laying 
down an amended version of the Shareholders’ Agreement (“ Amended SHA ”). The 
Amended SHA no longer contains the provisions referred to in paragraph (14) 
above, including any references to [NOTIFYNG PARTIES’ POST CLOSING 
POSSIBLE BEHAVIOURS ].  
(31) Second, on the assessment of a possible de facto  conditionality, the Commission 
notes t hat the Transaction and the Single Network Transaction  will not take pl ace 
simultaneously. Notably, the Single Network Transaction remains hypothetical, as 
confirmed by the Notifying Parties,25 and its main terms and conditions have not yet 
been agreed upon. Furthermore, t he Commission also understands that the terms for 
the S ingle Network Transaction set out in the LOI [LOI DURATION ] and that in 
any case they would have been subject to further negotiations. 26 Therefore, there is 
                                                 
21  Form CO, Annex 10, page 10.  
22  Form CO, Annex 10,  page 7.  
23  Form CO, paragraphs 18 – 19. 
24  As also confirmed by the Notifying Parties,  [DETAILS ON MIRA’S RIGHTS SET FORTH IN THE 
SHA ]. 
25  Among others, Form CO, Annex 10, page 7: “ [The Single Network Transaction] is a separate and 
hypothetical deal… ”. 
26  Form CO, paragraph 19 and footnote 9.  
 
7 currently no agreement or draft agreement which summarises the key terms and 
conditions under which the Single Network Transaction  could be achieved. Indeed, 
[DETAILS ON MIRA’S RIGHTS SET FORTH IN THE SHA ], as MIRA is 
currently unaware  of the main terms at which the Single Network Transaction could 
occur. Furthermore, the Commission notes that the existence of the Single Network 
Earn-Out in itself will not reduce  the possible incentive  for MIRA [DETAILS ON 
MIRA’S RIGHTS SET FORTH IN THE  SHA].  If anything, the Single Network 
Earn-Out may increase such incentive as it would make it more expensive for MIRA  
[STRATEGIC DECISIONS ]. 
(32) The Commission therefore concludes that there is no evidence to support that the 
Transaction and the Single Netwo rk Transaction  could be de facto  conditional upon 
each other.  
(33) Finally, and in any event, the Commission notes that, on the basis of the [ LOI 
DURATION ] LOI, the Single Network Transaction  would lead to joint control over 
AccessCo  by CDPE and TIM. However, as is evident from paragraph 41 of the CJN, 
two transactions can only be treated as a single concentration  if the ultimate 
undertakings acquiring control in the two cases are the same. Accordingly, since 
there is no evidence suggesting that, should the Single Network Transaction  ever 
occur, the target  would be controlled by CDPE an d MIRA, the Transaction and the 
Single Network Transaction  cannot in any event be considered to constitute  a single 
concentration . 
2.3.5.  Conclusion  
(34) In light of the assessment above, the Commission considers that the Transaction and 
the Single Network Transaction constitute independent transactions.  
(35) Therefore, the Commission concludes that it only has jurisdiction to review the 
Transaction as notified by the No tifying Parties under the Merger Regulation.  
(36) At the same time, the Commission notes that, should  the Single Network Transaction  
materialise, in whichever form, it may  be reviewed by the relevant  competition 
authority under the applicable competition law fr amework . 
3. UNION  DIME NSION  
(37) The undertakings concerned have a combined aggregate world -wide turnover of 
more than EUR 5 000 million27 (Macquarie: EUR [ FINANCIAL INFORMATION ] 
million; CDP: EUR [ FINANCIAL INFORMATION ] million; Open Fiber: EUR  
[FINANCIAL INFORMAT ION] million ). Each of them has a Union -wide turnover 
in excess of EUR 250 million (Macquarie: EUR [FINANCIAL INFORMATION ] 
million; CDP: EUR [FINANCIAL INFORMATION ] million; Open Fiber: EUR 
[FINANCIAL INFORMATION ] million) but they do not achieve more than  two-
thirds of their aggregate Union -wide turnover within one and the same Member 
State. The notified operation therefore has a Union dimension.  
                                                 
27  Turnover calculated in accordance with Article 5 of the Merger Regulation . 
 
8 4. COMPE TITIVE ASSE SSME N T 
(38) The specific change brought by the Transaction in Open Fiber consists in the 
replacemen t of Enel by MIRA as a jointly controlling parent and in the increase of 
CDPE’s stake from 50% to 60%, even though CDPE already jointly controlled Open 
Fiber prior to the Transaction.  
(39) Open Fiber is active in the market for the wholesale supply of fixed int ernet access 
services in Italy28 and in the market for the wholesale supply of fixed backhaul 
services in Italy .29 
(40) None of MIRA’s (or Macquarie’s) portfolio companies  is active in market for the 
wholesale supply of fixed internet access services in Italy or in the market for the 
wholesale supply of fixed backhaul services in Italy, or in a product market which is 
upstream or downstream from those markets.  
(41) Beyond the activities of Open Fiber, CDPE and CDP are  not active in the market for 
the wholesale supply o f fixed internet access services in Italy or in  the market for the 
wholesale supply of fixed backhaul services in Italy, or in a product market which is 
upstream or downstream from those markets . CDP only has a non -controlling 
minority shareholding in TIM (since 2018). Through FiberCop, TIM is Open Fiber’s 
main competitor on the market for the wholesale supply of fixed internet access 
services in Italy and on the market for the wholesale supply of fixed backhaul 
services in Italy. Moreover, s ince 31 March 2 021, the chairman of the board of 
directors of CDP and CDPE (“ CDP’s Chairman ”) also sits on TIM’s board of 
directors (“ TIM’s Board ”) as a non -independent director (“ CDP’s Entry in TIM’s 
Board ”). 
4.1. Feedback from market participants and the AGCM  
(42) The Commission  has reached out to a number of market participants to seek their 
views on the Transaction. The Commission has also received a submission from the 
Italian Competition Authority (“ AGCM ”). 
(43) Some market participants as well as the AGCM expressed a concern that  the 
Transaction would facilitate coordination between Open Fiber and TIM by 
weakening the competitive constraints between Open Fiber and TIM in the market s 
for the wholesale supply of fixed internet access services and the supply of fixed 
backhaul service s in Italy. Such concern is based on the following arguments.  
(44) First, market participants and the AGCM consider that the Transaction will increase 
CDP’s “strategic and operational control over Open Fiber ” by virtue of the increase 
from 50% to 60% of CDP’s s take in Open Fiber .  
                                                 
28  Commission decisions of 6 March 2020 in Case M.9674 – Vodafone Italia/TIM/Inwit JV , paragraphs 123 -
133; Commission decision of 20 Septem ber 2013 in Case M.6996 – Vodafone/Kabel Deutschland , 
paragraphs 157 -164; Commission decision of 29 June 2009 in Case M.5532 – Carphone 
Warehouse/Tiscali UK , paragraphs 28 -34 and 48 -53. 
29  Commission decisions of 6 March 2020 in Case M.9674 – Vodafone Ital ia/TIM/Inwit JV , paragraphs 115 -
122; Commission decision of 1 September 2016 in Case M.7758 – Hutchinson 3G Italy/Wind/JV , recitals 
206-211. 
 
9 (45) Second, the AGCM considers that Article 21 of the Original SHA limits MIRA’s 
ability to oppose the Single Network Transaction , whatever its form, and would 
determine an increased convergence between Open Fiber and TIM. Market 
participa nts also stressed that the provision at hand further undermines MIRA’s 
ability to effectively replace Enel ’s driving force in Open Fiber.  
(46) Third, market participants and the AGCM stress that CDP’s Entry in TIM’s Board  – 
an event which occurred after the announcement of the Transaction – consolidates 
CDP’s commitment and involvement in TIM.30 Market participants and the AGCM 
also pointed to CDP’s pre -existing shareholding in TIM.  
(47) In light of this market feedback, the Commission will assess whether the Trans action 
(on its own, without considering possible independent  developments  unrelated to it, 
such as those  that might occur in  connect ion with the Single Network Transaction) is 
likely to increase the likelihood of coordination between Open Fiber and TIM as 
compared to the situation pre -Transaction.  
4.2. Assessment of the feedback from market participants and the AGCM  
4.2.1.  Legal framework  
(48) Under the Merger Regulation, the Commission assesses whether a concentration 
would significantly impede effective competition in the  internal market or in a 
substantial part of it. 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 i ncreases 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 merger may also make pre -existing coordinatio n 
easier or more stable, either by making the coordination more robust or by 
permitting firms to coordinate on even higher prices.31 
(49) To assess whether a merger gives rise to horizontal coordinated effects, the 
Commission should examine whether, as a consequ ence of the merger, first, it would 
be possible to reach terms of coordination and, second, such coordination would be 
sustainable.32 
(50) In examining the possibility and sustainability of coordination, the Commission 
should specifically consider the changes th at the Transaction brings about.33 The 
reduction in the number of firms in a market may in itself be a factor that facilitates 
coordination.  
                                                 
30  The Transaction was anno unced on 17 December 2020, see Enel’s communication at the following link: 
https://www.enel.com/media/explore/search -press -releases/press/2020/12/enel -board -of-directors -
resolves -to-sell-40---50-of-open -fiber -to-macquarie . 
31  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings (" Horizontal Merger Guidelines "), OJ C 31, 05.02.2004, 
paragraph  39. 
32  Horizontal Merger Guidelines, paragraph  42. 
33  Horizontal Merger Guidelines, paragraph  42. 
 
10 4.2.2.  The Commission’s assessment  
(51) As described above in paragraph (38), the Transaction under review mainly consists 
in the replacement of Enel by MIRA as a jointly controlling shareholder in Open 
Fiber alongside CDP. The Commission will assess the main arguments  submitted by 
market participants and the AGCM (as set out in section 4.1 above) in support of 
their view that the Transaction would increase the like lihood of coordination 
between Open Fiber and TIM compared to the situation pre -Transaction. The 
Commission concludes that the Transaction is unlikely to give rise to coordinated 
effects on the market for the wholesale supply of fixed internet access servi ces in 
Italy and in the market for the wholesale supply of fixed backhaul services in Italy.34 
4.2.2.1.  The 10% increase of CDPE’s shareholding in Open Fiber  
(52) In relation to CDPE’s increased shareholding in Open Fiber as a result of the 
Transaction, the Commission no tes that prior to the Transaction, CDPE already 
jointly controlled Open Fiber.35 As explained in section 2.1 and paragraph (38) 
above, the Transaction does not affect the nature of the control exercised by CDPE 
over Open Fiber within the meaning of the CJN. Therefore, as the Transaction does 
not bring about a change in the quality of CDPE’s control over Open Fiber, it will 
not increase the ability of CDP  to determine the strategic competitive behaviour of 
Open Fiber.  
(53) At the same time, as explained in section 2.1 above, MIRA will obtain a veto right 
over all strategic matters relating to Open Fiber’s business. Notably, Article 21 of 
the Amended SHA confirms that such strategic matters include decisions on 
[DETAILS  ON MIRA’S VETO  RIGHTS SET FORTH  IN THE SHA ]. 
(54) Therefore, any hypothetical coordination of Open Fiber and TIM’s behaviour in the 
roll-out of Open Fiber and FiberCop’s networks respectively would require both 
CDPE and MIRA’s approval. However, MIRA is unlikely to have the incentive  to 
approve such coordination. Indeed, any revenues foregone by Op en Fiber to the 
benefit of TIM would only profit CDP since MIRA does not have a participation in 
TIM or FiberCop. Rather, MIRA is more likely to have an incentive to ensure that 
Open Fiber will maximise its profits.  
(55) Moreover, already pre -Transaction CDP ha d a significant (50%) participation in 
Open Fiber (granting it joint control over that company) and a minority participation 
in TIM. Even assuming that such a pre-existing situation might have given CDP an 
incentive to favour a possible coordination betwee n Open Fiber and TIM, the 
observations  received by the Commission  did not provide any element suggesting 
that CDP’s increased participation in Open Fiber as a result of  the Transaction would 
appreciably increase such an alleged pre -merger incentive. If any thing, CDP’s 
increased participation in Open Fiber would appear to make any possible 
coordinated outcome favouring TIM more than Open Fiber  slightly less attractive for 
CDP . 
                                                 
34   For the sake of clarity, antitrust rules, in particular Article 101 TFEU, will continue to apply to possible 
anticompetitive effects not stemming directly from the Transaction.  
35  Commission decision of 15 December 2016 in Case M.8234 – Enel/CDP Equity/Cassa Depositi e 
Prestity/Enel Open Fiber/Metroweb Italia , paragraph 13.  
 
11 (56) In light of the above, the Commission considers that CDPE’s increased shareholding  
in Open Fiber will not affect CDP’s ability and incentive to coordinate Open Fiber 
and FiberCop. The Commission further considers that MIRA will maintain an 
incentive to ensure that Open Fiber will maximise its profits. Therefore, the 
Commission concludes  that the 10% increase in CDP’s shareholding in Open Fiber 
is unlikely to increase the likelihood of coordination on the market for the wholesale 
supply of fixed internet access services in Italy and on the market for the wholesale 
supply of fixed backhaul  services in Italy.  
4.2.2.2.  MIRA’s obligation [NOTIFYING PARTIES’ POST CLOSING POSSIBLE 
BEHAVIOURS ] under Article 21 of the Original SHA  
(57) On the relevance of Article 21 of the Original SHA, the Commission notes, as 
explained in paragraph (30), that the Amended SHA no longer contains the 
provisions referred to in paragraph (14) above, including any references to 
[NOTIFYING PARTIES’ POST CLOSING POSSIBLE BEHAVIOURS ]. Article 21 
of the Amended SHA now contains a wider commitment by both Notifying Parties 
to develop Ope n Fiber’s network,  [DETAILS ON THE PROVISIONS OF THE 
AMENDED SHA ]. Therefore, the grounds on the basis of which the AGCM 
submitted its concern on this point are no longer existing.  
4.2.2.3.  CDP’s presence  in TIM  
(58) Regarding CDP’s presence in TIM, the Commission notes  that CDP’s current 
minority shareholding in TIM dates back to 2018 and as such pre -dates the 
Transaction. CDP’s Chairman was appointed as director in TIM on 31 March 2021, 
whereas the Transaction was notified  to the Commission later, on 4 October 2021. 
Thus, the Commission notes that CDP’s Entry in TIM’s Board also pre -dates the 
notification of the Transaction. As such, it cannot be considered that the appointment 
of CDP’s Chairman in TIM’s board stems from the Transaction itself.  
(59) Moreover, as regards CDP’ s Entry in TIM’s Board, the Notifying Parties submitted 
the following information to the Commission. TIM’s Board is composed of 15 
directors. Only one member of TIM’s Board is a representative of CDP. In this 
regard, the Notifying Parties explain that CDP’ s Chairman does not have any 
executive role in TIM ,36 and that CDP is not part of any shareholders agreement with 
other TIM shareholders.37 In addition, CDP holds a purely minority stake in TIM, 
which does not confer on CDP any specific governance rights.  As a result, both 
before and after the Transaction, CDP will not be able to exercise any decisive form 
of influence over TIM’s Board.  
(60) The Notifying Parties point to a number of legal, regulatory and contractual 
safeguards already in place pre -Transaction, ai med at preventing any exchange of 
sensitive information or coordination between CDP and TIM through the common 
board member.38  
                                                 
36  Notifying Parties response to RFI 3  of 26 October 2021, page 2.  
37  Notifying Parties response to RFI 3  of 26 October 2021, pages 1 – 2. 
38  Notifying Parties response to RFI 3  of 20 October 2021, pages 2 – 6. For instance, from a legal and 
regulatory perspective, the Notifying Parties refer to (i) Article 2391(5) of the It alian Civil Code, which 
provides that each member of the board shall be responsible for any damage suffered by the company as a 
 
 
12 (61) In addition , the Notifying Parties submit that CDP’s shareholding in TIM has a 
lesser value than the one in Open Fiber. On the basis of TIM’s stock price at the date 
of notification, CDP’s interest in TIM can be valued at approximately EUR 513 
million.39 In comparison,  CDP’s shareholding in Open Fiber will be worth EUR 
[OPEN FIBER’S SHARE VALUE ] after the Transaction.40 Therefore, C DP submits 
that it would have the economic incentive to grow Open Fiber’s business to 
maximize the returns of its significant investment in Open Fiber . 
(62) The Commission considers that the Transaction does not increase the risks of 
coordination by virtue of C DP’s position in TIM because CDP’s shareholding in 
TIM and CDP’s Entry in TIM’s Board pre-date the Transaction. As such, possible 
anticompetitive effects stemming from CDP’s position in TIM do not arise as a 
result of the Transaction.  
4.2.3.  Conclusion  
(63) For the r easons set out above, t he Commission concludes that the Transaction as 
such would not increase the  risk of coordination of conduct between Open Fiber and 
TIM on the markets for the wholesale supply of fixed internet access services in Italy  
and for the who lesale supply of fixed backhaul services in Italy . Therefore, the 
Commission considers that the Transaction does not give rise to serious doubts as to 
its compati bility with the internal market . 
5. CONCLUSION  
(64) For the above reasons, the European Commission has  decided not to oppose the 
notified operation and to declare it compatible with the internal  market and with the 
EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the 
Merger Regulation and Article 57 of the EEA Agreement .  
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice-President  
                                                                                                                                                      
result of the use of the information received by virtue of its role; and, (ii) Regulation (EU) No 596/2014 of 
the European Parli ament and of the Council of 16 April 2014 on market abuse and the respective 
implementing procedures adopted by TIM, which provide that the confidentiality of information acquired 
as a result of being a member on TIM’s board shall be ensured. From a contra ctual perspective, the 
Notifying Parties refer to (i) CDP’s antitrust compliance policy which prevents the exchange of sensitive 
information with competitors; and, (ii) Regulation of CDP’s board of directors which provides for an 
obligation on the members of the board of directors to keep confidential all the information received by 
virtue of their role.  
39  Notifying Parties’ response to RFI 4, question 1(a).  
40  Notifying Parties’ response to RFI 4, question 1(b).