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, 30.5.2018 
C(2018) 3569 final 
 
 
To the notifying Parties 
Subject: Case M.7000 – LIBERTY GLOBAL / ZIGGO 
Commission 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 
 
1. INTRODUCTION  
(1) On 14 March 2014, the European Commission received notification of a proposed 
concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (the "Merger Regulation") by which Liberty Global plc (''Liberty Global", the United Kingdom, also the "Notifying Party"), acquired within the meaning of Article 3(1)(b) of the Merger Regulation sole control over Ziggo N.V. ("Ziggo", the 
Netherlands) by way of a public bid ("the Transaction") in order to form an entity 
which would take over the parties' respective activities in the Netherlands 
("NewZiggo").  
(2) On 10 October 2014, the Commission declar ed the Transaction compatible with 
the internal market subject to the fulfilment of certain conditions (the 
"Conditional Clearance Decision" or "the 2014 Decision").  
(3) By judgment of 26 October 2017 (the "Judgment"), the General Court annulled 
the Commission's Conditional Clearance Decision on the ground that the 
Commission failed to state the reasons of its finding that the proposed merger 
would not lead to vertical anti-competi tive effects on the possible market for 
                                                 
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 terminology of 
the TFEU will be used throughout this decision. 
2  OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement'). PUBLIC VERSION 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omitted has been replaced by ranges of figures or a 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 Premium pay TV sports channels.3 The General Court found, in fact, that the 
Conditional Clearance Decision did not cont ain any analysis of the impact of the 
downstream structural changes, with the joining together of Liberty Global’s and 
Ziggo’s respective distribution platforms, on the relevant market in question. In 
addition, the Court argued, when discussing the ability and incentive of Liberty 
Global to engage in foreclosure of Sport1, the Commission should also have assessed the respective market positions and competitive relationships of Fox 
Sports and Sport1.
4 
(4) In order to comply with the Judgment, the Commission is undertaking a re-
assessment of the entire Transaction, including all affected markets, under current 
market conditions as stipulated by the text of Article 10(5) of the Merger Regulation.     
(5) On 4 April 2018, Liberty Global and Vodafone (the "Notifying Parties") 
submitted to the Commission a supplement Form CO providing information on 
the Transaction, on its effect on competition and on the changes in market 
conditions occurred since the Conditiona l Clearance Decision (the "Supplement 
Form CO"). 
(6) Since the Conditional Clearance Decision, Liberty Global and Vodafone have 
combined their telecommunications businesses in the Netherlands in 
VodafoneZiggo. This subsequent transa ction was conditionally cleared by the 
Commission on 3 August 2016
5 and was completed on 31 December 2016. As of 
that date, the target (which had become part of NewZiggo), was contributed by 
Liberty Global to VodafoneZiggo and is now indirectly jointly controlled by 
Liberty Global and Vodafone. 
2. THE PARTIES  
(7) Liberty Global owns and operates cable networks and some mobile networks 
worldwide and offers television, broa dband internet, mobile and telephony 
services as well as mobile services.  
(8) At the time of the Conditional Clearance Decision, Liberty Global owned a 
regional cable network in the Netherlands under the brand UPC. This was 
then merged with the Ziggo business into NewZiggo. Today, Liberty Global is active in the Netherlands via its joint venture with Vodafone – 
VodafoneZiggo - into which the NewZiggo entity was contributed.  
(9) The Conditional Clearance Decision found that John Malone, a United States 
citizen, is the largest shareholder (albeit a minority shareholder) of Liberty 
                                                 
3  Case T-394/15, KPN  v Commission,  EU:T:2017:756. 
4  KPN  v Commission , paragraphs 57-69.  
5  Commission decision of 3 August 2016, in case M.7978, Vodafone/Liberty Global/ Dutch JV . 
 
3 Global.6 He also held significant minority shareholdings in Liberty Interactive 
Corporation ("LIC"), Liberty Media Corporation ("LMC") and Discovery 
Communications, Inc. ("Discovery"). John Malone also held the positions of 
Chairman of the respective boards of Liberty Global, LIC and LMC, as well 
as of director of Discovery. None of LIC, LMC or Discovery was found to be 
part of Liberty Global. Discovery was found to be active in the wholesale supply of TV channels, including in the Netherlands, and had recently 
acquired Eurosport SAS ("Eurosport").
7 
(10) The issue of whether John Malone controls Liberty Global, LIC or LMC was 
left open in the Conditional Clearance Decision given that the outcome of the 
competitive assessment was considered not to change whether or not John Malone controlled those companies.
8  
(11) Today, John Malone still holds signifi cant minority shareholdings in Liberty 
Global, LMC, Discovery and LIC (which  was renamed Qurate Retail, Inc. 
("Qurate Retail") as of March 2018). In addition, John Malone today holds 
significant minority shareholdings in GCI Liberty, Inc ("GCI") and Liberty 
Broadband Corporation ("Liberty Broadband").9 
(12) The Commission has assessed whether the exercise of voting rights or powers 
related to corporate offices enable s John Malone to exercise either de jure  or 
de facto  control on, in particular, LMC and Discovery. The purpose of the 
assessment is to verify whether Libe rty Global and LMC (with its Formula 1 
broadcasting rights owned as of Janu ary 2017) may be subject to the control 
of the same individual, so that Libert y Global may be considered active in the 
supply of sports broadcasting rights in the Netherlands. The same analysis has 
been carried out in relation to Discovery, which controls the sports channel Eurosport.  
(13) In this respect, the Commission has requested and examined all relevant 
information concerning the corporate governance of the companies in which 
Mr John Malone owns voting rights and/or holds corporate offices. 
                                                 
6  Liberty Global was (and is) listed on the NASDAQ stock exchange with the largest shareholder, John 
Malone, ultimately holding approximately 28% of voting power in Liberty Global. To Liberty Global's 
knowledge, no other stockholder had a significant equity interest in Liberty Global. 
7  Commission's decision of 8 April 2014 in Case No M.7170 - Discovery Communications/Eurosport. 
8  The issue of possible control by John Malone over Liberty Global, LMC or Discovery was left open in 
the Commission's decision of 14 April 2013 in Case No COMP/M.6880 - Liberty Global/Virgin 
Media, because the transaction did not raise competition concerns, even when assuming that such control were to exist. The same was considered to apply in the Conditional Clearance Decision given 
that LCI has no activities in the Netherlands and LMC's interest in relevant companies (Viacom and 
Time Warner) equated to less than 3% voting rights. 
9  As of 31 March 2018, Mr John Malone controls 26.9% of the voting rights in GCI Liberty, a company 
that provides communication services in the United States. As of 28 February 2018, Mr John Malone 
controls 47.1% of the voting rights in Liberty Broadband, whose principal assets consist of its interest in Charter Communications, Inc. and its subsidiary TruePosition, Inc. Charter Communications, Inc. 
appears to be one of the largest providers of cable services in the United States. TruePosition, Inc. is a 
mobile positioning and contextual location intelligence solutions business.  
 
4 (14) Mr John Malone holds, with his spouse a nd trusts, 28% of the voting rights in 
Liberty Global. Voter turnout percentages at the shareholders meeting of the 
company have been [...] in the years 2017, 2016 and 2015 respectively. 
Therefore, Mr Malone has less than 50% of the voting rights in the 
shareholders meeting. His voting shares allow him to block the approval of 
special resolutions that require a pass majority of 75% (and do not concern strategic commercial decisions), but do not  allow Mr Malone to either pass or 
block the approval of ordinary resoluti ons that concern strategic commercial 
decisions. 
(15) Based on information publicly available and information provided by the 
Notifying Parties, GCI, Qurate Retail and Liberty Broadband, where Mr Malone has minority shareholdings too, carry out business activities unrelated 
to the Netherlands.
10  
 
(16) With respect to LMC, where Mr Malo ne holds a minority shareholding of 
47.7%, the Notifying Parties have not been able to provide updated voter 
presence data for the shareholders meeting. In any event, for completeness, the Commission will undertake an "even if" assessment of the hypothetical situation that John Malone de facto  controls both Liberty Global and LMC in 
which case there would be indirect control between Liberty Global’s activities 
and Formula 1.
11 
(17) With respect to Discovery, in the decision Liberty 
Global/Discovery/All3Media ,12 the Commission concluded that, based on the 
information available at the time, no single shareholder (including Mr John 
Malone) had the ability to exercise sole or joint control over Discovery. The 
Commission has found no evidence that the situation has changed since the 
adoption of that decision.13 Moreover, according to the most recent SEC 
disclosure from Discovery, John Malone currently holds a 28.5% interest in 
                                                 
10  GCI, Inc. provides communications services in the United States. Its business carries out a range of 
wireless, data, video, voice, and managed services to residential customers, businesses, governmental entities, and educational and medical institutions. Qurate Retail Group is a group of eight retail brands, 
reaching approximately 370 million homes worldwide through 16 television networks and multiple 
ecommerce sites, social pages, mobile apps, print cata logs and in-store destinations. It has subsidiaries 
worldwide and in Europe, but not in the Netherlands. Liberty Broadband’s principal assets consist of its interest in Charter Communications, Inc. and its subsidiary TruePosition, Inc. Charter 
Communications, Inc., according to the Notifying Parties, appears to be one of the largest providers of 
cable services in the United States, whose business includes a variety of entertainment, information and communications solutions to residential and commer cial customers. TruePosition, Inc. is a mobile 
positioning and contextual location intelligence solutions business. 
11  See section 5.1.1.3. 
12  Commission decision of 19.09.2014, Case COMP/M.7282, Liberty Global/Discovery/All3Media, para 
5 and footnote 7. 
13  In the recent case Discovery/Scripps, the Commission has rejected the application of the Polish 
Competition Authority to refer the case to it. One of the reasons at the basis of the Commission decision was precisely that the Polish Competition Authority could not provide evidence of Mr 
Malone's ( de iure  or de facto ) control over Discovery. See Commission decision of 06.02.2018, 
pursuant to Article 9(3) of the Merger Regulation, in case COMP/M.8665, Discovery/Scripps, para 44. 
 
5 Discovery, which is slightly less than what he held at the time of the 
aforementioned decision.14           
(18) In addition to the mentioned minority (although in some cases significant) 
shareholdings, the Commission has also taken into consideration the minority 
shareholdings of other natural and legal persons. It observes, in that respect, 
that certain members of Liberty Global's Board of Directors own shares in 
various companies (such as Liberty Global itself, LMC, Qurate Retail) in 
which Mr Malone is a shareholder. The same applies to investment funds and financial institutions, whose names recur in the shareholders' lists of the same 
companies. With specific respect to Liberty Global, the Commission notes 
that Mr John Malone is the chairman of the company's Board of Directors and, in the last ten years, has been one of the two members of the company's 
Executive Committee, to which the Board of Directors delegates some of its 
executive powers. 
(19) At the same time, however, Mr Malone is not able, solely relying on his 
voting rights and corporate powers, to  unilaterally appoint directors (whose 
appointment is based on the designation of a specific committee subject to the 
approval of the shareholders meeting) 
(20) Based on the above considerations, the Commission concludes that there is 
not sufficient evidence that Mr John Malone is capable of exercising either de 
jure or de facto  control over Liberty Global. In relation to his role in the 
companies in question, the Commission adds that, even if any form of 
"significant influence" (which is not "decisive influence") of Mr Malone over 
any of the companies at hand existed, it is a mere minority shareholding and 
there is no proof of a causal link between the business behaviour of each (otherwise independent) undertaking and the aforementioned minority 
shareholdings.    
(21) Vodafone is the holding company of a group primarily involved in the 
operation of mobile telecommunications networks and the provision of mobile 
telecommunications services, such as mobile voice, messaging and data services. 
(22) VodafoneZiggo is a provider of telecommunication services in the 
Netherlands. It was established on 31 December 2016 as a joint venture in 
which Liberty Global and Vodafone combined their respective 
telecommunication activities in the Netherlands. VodafoneZiggo operates a 
cable network under the Ziggo brand, which covers approx. 90% of 
households in the Netherlands. In addition, VodafoneZiggo provides retail mobile telecommunications services and mobile wholesale access and call 
origination services, under the Vodafone  and the Hollandse Nieuwe brands, as 
one of the four mobile network operators (MNOs) active in the Dutch market. 
It provides digital and analogue cable video, broadband internet, and digital 
telephony services to 3,978,600 customers as of December 31, 2016. VodafoneZiggo has approx. 4.97 million mobile customers as of 30 
September, 2017. In addition to its core cable and mobile operations, 
                                                 
14  The Notifying Parties mention this in Supplement to Form CO, para. 66. 
 
6 VodafoneZiggo has limited broadcasting activ ities in the form of (i) a suite of 
Pay TV sports channels, Ziggo Sport Totaal ("ZST") (which until 11 
November 2015, was called Sport1) and (ii) a basic package TV channel, 
Ziggo Sport ("ZSB", launched on 11 November 2015). 
(23) The target, Ziggo, was established on 1 February 2007 and has operated under 
the Ziggo brand since May 2008. At the time of the Conditional Clearance 
Decision, Ziggo owned and operated a cable network that span more than half 
of the Netherlands, including the third and fourth biggest cities, Den Haag and Utrecht. Ziggo's cable network did not overlap with that of UPC. In 2013, 
Ziggo provided digital and analogue cable video, broadband internet, mobile 
telephony and digital telephony (VoIP) services. 
(24) Liberty Global’s UPC, Ziggo, NewZiggo or VodafoneZiggo have never been 
under any regulated access obligations in the Netherlands and has never 
granted access to its cable network on a commercial basis. 
(25) For the purpose of this decision, Liberty Global and Vodafone are referred to 
as the "Notifying Parties". Liberty Global, Vodafone and VodafoneZiggo are 
together referred to as the "Parties".  
3. T
HE OPERATION AND THE CONCENTRATION  
(26) The concentration, which was notified on 14 March 2014, consisted of the 
acquisition of sole control over Ziggo by Liberty Global, which operated a 
non-overlapping regional cable network in the Netherlands under the brand UPC. For this purpose, in particular, Liberty Global would launch a public bid 
for the remaining shares in Ziggo that it did not already own. If the bid would 
be successful, Liberty Global would have a controlling interest in Ziggo. 
(27) This therefore constituted a concentr ation within the meaning of Article 
3(1)(b) of the Merger Regulation. 
(28) At the time of the 2014 notification the intention to launch a public bid had 
been publicly announced. After receiving approval by the relevant securities 
markets authorities and clearance by the Commission on 10 October 2014, the 
tender offer was successfully completed on 21 November 2014. 
4. EU
 DIMENSION  
(29) The Transaction had an EU dimension at the time of the 2014 notification. 
The undertakings concerned at the time had a combined aggregate worldwide 
turnover of more than EUR 5 000 million in 2012 (Liberty Global: EUR 13 
082 million; Ziggo: EUR 1 537 million). They each had a combined aggregate 
EU-wide turnover of more than EUR 250 million in 2012 (Liberty Global: 
EUR 11 260 million; Ziggo: EUR 1 537 million). While Ziggo achieved more than two-thirds of its aggregate EU-wid e turnover in the Netherlands, Liberty 
Global did not. The Transaction therefore had a Union dimension. The 
Transaction may be considered to be of an EU dimension also today. Based 
 
7 on 2016 data, the Parties have a combined aggregate world-wide turnover of 
more than EUR 5 000 million15 (Liberty Global: EUR 18 076 million; 
Vodafone: EUR 47 631 million). Each of them has an EU-wide turnover in 
excess of EUR 250 million (Liberty Global: EUR 14 371 million; Vodafone: 
EUR 34 516 million), while neither achiev ed two-thirds of its aggregate EU-
wide turnover within one and the same Member State.  
(30) The Transaction therefore has an EU dimension. 
5. RELEVANT MARKETS  
(31) The Transaction gave rise to certain  horizontal overlaps and vertical 
relationships between UPC’s and Ziggo’s activities in a number of relevant 
markets along the value chain for the distribution of audio visual TV content 
and the provision of telecommunication services (fixed and mobile telephony and broadband Internet) in the Netherlands. 
5.1. Television services 
(32) As regards the TV-related markets where the Parties are active, with respect 
to the licensing and distribution of content and channels, the Commission has 
in previous decisions made a distinction between the following markets: 
 Licensing and acquisition of broa dcasting rights for TV content; 
 Wholesale supply and acquisi tion of TV channels; and 
 Retail supply of TV services. 
(33) With reference to the abovementioned TV-related markets, it is possible to 
identify several levels of activity in the product chain. 
(34) Upstream, in the audio-visual chain, there are the holders of broadcasting 
rights for audio-visual content such as (i) films, (ii) sport events and (iii) other 
content (such as TV series and documentaries).
16 
(35) At the second level, the broadcasting ri ghts are licensed to: (i) broadcasters 
which then incorporate them into linear TV channels; or (ii) content platform 
operators which retail the content to end users on a (non-linear) VOD/PPV 
basis. Licenses for sports broadcasting rights are typically granted through tenders on an exclusive basis for a specific geography and for a limited 
period. 
(36) At the third level, TV channel suppliers  (such as ZST or Fox Sports) license 
their channels to providers of retail TV services for incorporation into broader 
                                                 
15  Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission 
Consolidated Jurisdictional Notice (OJ C95, 16.4.2008, p. 1). 
16  Commission decision of 21.12.2010, in Case COMP/M.5932, News Corp/BSkyB; Commission 
decision of 22.09.2006 in Case COMP/M.4353 Permira/All3Media Group and Commission decision 
of 15.04.2013 in Case COMP/M.6880, Liberty Global/Virgin Media. 
 
8 TV channel bouquets that are in turn sold to viewers. Some TV channel 
suppliers (such as ZST) are vertically-integrated as they own a technical 
platform and/or are active as retail Pa y TV operators. They broadcast their 
own channels together with third party channels via their own platform. Other 
TV channel suppliers (such as Fox Spor ts) are not vertically-integrated and 
depend on platform operators or retail pay-TV operators to broadcast their channels. 
(37) FTA channels are mainly financed by advertising and sometimes, public 
funds. Pay-TV channels are primarily financed by subscription fees paid by 
viewers; other sources of finance are carri age fees paid by retail operators and 
advertising. 
(38) At the final stage of the product chain, retail TV providers offer a TV 
subscription to end-users, which typically consist of a selection of packages combining a number of TV channels (different operators may package 
channels differently). In a ddition, certain TV channels may also be distributed 
on a standalone basis, either as an "add-on" to a traditional TV subscription or 
via an OTT service. 
(39) In addition, these TV propositions may be  offered standalone or as part of 
bundles with other fixed services (inter net, telephony) and/or in combination 
with services via a mobile network ("mobile services") (known as "multi-play" bundles). 
5.1.1.  Licensing and acquisition of broadcasting rights for TV content 
(40) Audio visual TV content comprises "entertainment products", such as films, 
sports, and TV programmes that can be broadcast via TV.
17 The broadcasting 
rights generally belong to the creators of the content. These rights owners, 
which constitute the supply side of this  market, license them to broadcasters 
for linear broadcasting, as part of TV channels, or to platform operators for non-linear distribution through pay-per-view ("PPV") or video-on-demand 
("VOD"). Those broadcasters and cont ent platform operators, together, 
comprise the demand side of this market.  
(41) In previous decisions, the Commission has divided the market for the 
licensing and acquisition of individual content in the following manner: (i) 
Pay TV versus Free-To-Air ("FTA") TV,
18 (ii) linear versus non-linear 
broadcast,19 (iii) by exhibition window, that is to say subscription VOD 
("SVOD"), transactional VOD ("TVOD"),20 PPV, first Pay TV window, 
                                                 
17  Commission's decision of 26 August 2008 in Case No COMP/M.5121 - News Corp/Premiere, 
paragraph 28. 
18  Commission's decision of 26 August 2008 in Case No COMP/M.5121 - News Corp/Premiere, 
paragraph 35. 
19   Commission's decision of 18 July 2007 in Case No COMP/M.4504 - SFR/Télé 2 France, paragraphs 
27-36.  
20  Subscription VOD designates a product where an end user obtains the right to watch multiple titles 
within a designated time frame (for example one month) through a single payment. Transactional 
VOD designates a product where an e nd user obtains the right to watch a single title within a 
designated time frame (for example 48 hours) through a single payment. PPV designates a product 
 
 
9 second Pay TV window,21 and FTA, (iv) by content type, that is to say films, 
sports, other content. 
(42) As regards content type, the Commission has further distinguished between: 
(i) exclusive rights to premium films, (ii)  rights to football events that are 
played regularly throughout every year (for example national league matches, 
national cup, UEFA Cup and UEFA Champions League), (iii) rights to 
football events that are played more intermittently, every four years, for 
example the FIFA World Cup and European Championship of Nations, and (iv) exclusive rights to other sport events,
22 and by type of supplier in respect 
of films, that is to say major Hollywood studios/smaller suppliers.23 
5.1.1.1.  Product market definition 
The Notifying Party's views in 2014  
(43) In the 2014 notification, the Notifying Party submitted that the exact 
definition of the market could be left open as the proposed concentration 
would not lead to a significant impediment to effective competition on any 
potential submarket.  
(44) With respect to specific market sub-segments, in particular, the Notifying 
Party indicated that no distinction sh ould be made between linear and non-
linear broadcasting. The Notifying Party considered that, from a demand side perspective, providers of linear TV services were facing increasing 
competition from over-the-top ("OTT") pl ayers, that is to say operators 
providing audio visual services over the Internet, providing non-linear 
services. According to the Notifying Party there was also a high degree of 
supply side substitutability between th e rights for linear and non-linear 
broadcast and those rights were often negotiated together and covered by a 
single agreement.  
(45) The Notifying Party also indicated a certain degree of demand-side and 
supply-side substitutability between the broadcasting rights for the different 
exhibition windows, including SVOD and TVOD, pointing out that TV channels and VOD services often offered a mix of first Pay TV window, 
second Pay TV window and library conten t. In addition, the Notifying Party 
considered that substitutability also existed on the supply side, with some 
content right owners creating second Pay TV windows in response to the 
increased demand for exclusive windows created by the emergence of OTT providers thus blurring the distinct ion between the different exhibition 
windows.  
                                                                                                                                                 
where an end user obtains the right to watch a single title during a specific time frame (for example 
Sunday between 2.00 pm and 3.45 pm) through a single payment. 
21   Audio-visual content is typically sold separately for usage in different retail services or points in time. 
These different offers are generally referred to as broadcast windows. 
22 Commission's decision of 13 November 2001 in Case No COMP/M.2483 – Group 
Canal+/RTL/GJCD/JV, paragraph 21; Commission's decision of 2 April 2003 in Case No 
COMP/M.2876 - Newscorp/Telepiù, paragraphs 61, 69 and 71. 
23  Commission's decision of 21 December 2011 in Case No COMP/M.6369 - HBO/Ziggo/HBO 
Nederland, paragraph 18. 
 
10 (46) As to the distinction between various type of content (sports, films and other 
content), The Notifying Party submitted that a single market existed for all 
individual content due to the high degree of supply-side substitutability. The 
Notifying Party argued that it was not always possible to make a strict 
distinction between the different content segments as TV products are highly 
differentiated and a given product could be aimed at various types of target audience. 
Commission's assessment and conclusions in 2014 
(47) In its assessment, the Commission noted that the market investigation 
confirmed the traditional distinction between FTA and Pay TV content. At the 
same time, as the Dutch market was essentially a Pay TV market with only 
three FTA channels, the Commission concluded that the distinction between 
FTA and Pay TV was of little relevance and the definition could be left open, because the assessment of the Transaction would remain the same, whether 
the licensing and acquisition of broadcasting rights for FTA TV and Pay TV 
were considered to belong to the same product market or to two separate 
markets. 
(48) In relation to the distinction between linear and non-linear broadcasting, the 
Commission noted that the information gathered during the market 
investigation, and in particular the differences in the pricing models and the licensing conditions, suggested the existence of separate markets for licensing 
and acquisition of broadcasting rights for (i) linear broadcasting and (ii) non-
linear broadcasting. In any event, since the Transaction did not raise 
competition concerns under any possible market segmentation, the 
Commission considered that the exact scope of the relevant product markets could be left open in that respect. 
(49) In relation to the market definition according to broadcasting windows, the 
Commission found that, given the differe nt conditions for the acquisition of 
rights for each exhibition window, and the limited instances in which a 
window could be replaced by another, there were indications that a different market for each exhibition window could be distinguished. 
(50) As regards VOD, the market investig ation indicated a clear distinction 
between SVOD and TVOD, mostly due to the fact that both types of VOD 
services had different business models , different pricing conditions, and fell 
into separate and distinct viewing windows. Those differences in business 
models and pricing conditions suggested that SVOD and TVOD could 
constitute two separate product markets.  
(51) Since the Transaction did not raise competition concerns under any possible 
market segmentation, the Commission left open the question whether licensing and acquisition of broadcasting rights for each exhibition window, 
including for SVOD and for TVOD, belo nged to the same or to separate 
markets. 
(52) As to a possible differentiation based on the type of content (sport, films, 
other content), the investigation revealed absence of interchangeability between the various types of content, different target audiences and the 
differences in licensing agreements as elements suggesting that the acquisition 
 
11 of rights for films could be distinguished from the acquisition of rights for 
sport events and from the acquisition of rights for other types of content. 
(53) Since, in any event, the Transaction did not raise competition concerns under 
any possible market segmentation, the Commission left open the exact scope 
of the relevant product market. 
(54) The Commission also assessed the existe nce of possible separate markets for 
premium and non-premium content both in sports and in film right licensing. 
The market investigation revealed differences in price and ability to attract viewers (e.g. films with high box office success and popular sports, such as 
Formula 1, Uefa Champions League and Fifa World Cup) and suggested the 
existence of a distinction between the acquisition of rights for premium 
content and the acquisition of rights for non-premium content. In any event, 
the Commission considered that for the purposes of the decision, the question 
whether broadcasting rights for premium and for non-premium content 
constituted different markets could be left open. 
(55) As regards a differentiation between Unit ed States and non-United States film 
productions, responses to the market inve stigation differed and it was unclear 
whether a differentiation between United States and non-United States films 
should indeed be made. However, this question was left open, since the 
Transaction did not raise competition concerns whether or not a differentiation was made between United States and non-United States film 
productions. 
(56) The Commission also considered, based on its investigation, that the 
differences in pricing, production model and terms of acquisition of 
broadcasting rights for Dutch-language content (film and series) and other 
content did not seem to justify the deli neation of a separate product market for 
Dutch-language content. In any event, the Commission concluded that even if a separate market for acquisition of Dutch-language content were to exist, the 
final commitments proposed by the Notifying Party would also address all 
possible concerns related to the acquisition of premium Dutch-language content. 
(57) Based on the previous considerations, the Commission left open the exact 
definition of the relevant product ma rket in the Conditional Clearance 
Decision. 
The Notifying Parties' views in their Supplementary Notification 
(58) With respect to the possible segmentation between Pay TV and FTA services, 
the Notifying Parties submit in the Supplement Form CO that there is no clear 
distinction between Pay TV and FTA services from Dutch consumers' 
perspective given that there are only three FTA channels (NPO 1, 2 and 3) 
broadcast via unencrypted terrestrial TV signals in a limited standard 
definition quality, while all other TV channels are available only through a Pay TV subscription. 
(59) As to the difference between linear and non-linear broadcasting, in the 
Supplement Form CO, the Notifying Parties indicate, as a key development in 
the broadcasting and television markets since 2014, the ongoing shift of the 
 
12 relative amount of time consumers spend watching linear television via 
"traditional" technologies versus accessing the internet and watching content 
on demand. More specifically, they submit that the growth of the offer of non-
linear services, which was identified in 2014, has been very significant, with 
the penetration of Netflix in the Nether lands (with 2.6 million subscribers in 
2017) being a key example.24 
(60) The Notifying Parties further argue that, from a demand side perspective, 
linear TV services are to a very considerable extent substitutable with non-linear TV services. This is evidenced by  the growth of non-linear services at 
the expense of linear services (in terms of viewing time). Several OTT players 
have successfully entered the market (e.g. NLZiet, Videoland, and Netflix) offering consumers a readily available, cost effective possibility to obtain high 
quality content. Actual competition in the acquisition of premium content is 
for instance exerted by players such as Netflix, which managed to secure 
exclusive deals for certain content with Disney and Sony. In the case of 
Netflix, that means that it secures linear rights together with the VOD rights, while it is of course only interested in the latter. Furthermore, they add, an increasing number of content creators are offering their content directly to consumers. An example is Netflix (with e.g. House of Cards), which creates 
its own content and broadcasts this directly to consumers via its OTT 
platform. This exerts even further competitive pressure on traditional linear services. Moreover, even though the terms under which linear and non-linear 
rights are licensed may differ to some extent, these rights are usually 
negotiated together and covered by a single agreement.  
(61) In the Supplement Form CO, the Notifying Parties submit that, given the 
increased competitive pressure that non-linear services exert on linear 
services, this potential segmentation is  no longer appropriate. This is further 
evidenced by the fact that, for the main types of content, the contractual structure for acquiring rights covers/typically involves both linear and non-
linear distribution.  
(62) In relation to sports, the Notifying Parties note that VodafoneZiggo's 
negotiations for sports rights are genera lly focussed on linear rights as from a 
commercial perspective the value of the rights is almost exclusively based on the linear content provided and non-linear  rights are perceived as an add-on 
since non-linear sports broadcasting is in  practice of little importance. Where 
rights-holders do make non-linear rights available, however, these are 
generally included in the same agreement.  
(63) The Notifying Parties also note that they purchase sport rights separately for 
the Ziggo GO app (both linear and non-linear exhibition) due to the high level 
of technical details this app requires. In addition, after the divestiture of 
                                                 
24  As further examples, in the Supplement Form CO, the Notifying Parties refer to the increased use of 
catch-up television and to the online (joint) efforts of broadcasters to offer this service via their own 
websites with key examples being Uitzending Gemist, RTLXL and NLZiet. Furthermore, they argue, these OTT players are also offering linear content via their OTT services. For instance, besides 
offering a variety of non-linear content (catch-up TV, VOD etc.) NLZiet also of fers live (linear) TV 
channels via its OTT platform (the channels of NPO, RTL and SBS). 
 
13 Film1, VodafoneZiggo focuses on the purchase of film rights for SVOD 
distribution and agreements for such ri ghts may also include rights for linear 
distribution ([...]). 
(64) As to a market definition based on exhibition windows, the Notifying Parties 
maintain the position they had in 2014 and submit that a degree of 
substitutability exists between these distribution modes on the demand and 
supply side of the market. 
(65) As to a possible market segmentation based on the type of content (such as 
between sports, films and other TV content) the Notifying Parties argue that it 
is not always possible to apply a strict distinction between certain types of 
content. 
(66) On a market distinction based on the language of the content, the Notifying 
Parties submit that indeed, the differences in market conditions are not such as 
to justify a separate market for Dutch-language content. The negotiation 
position of a content provider depends for a large part on the commercial success of the content, rather th an the language of such content. 
(67) In general, the Notifying Parties conclude, a single market exists for all 
individual content types due to the high degree of supply substitutability and 
because individual rights can be sold for use in different products or channels 
without any modification. 
(68) As to a possible market segmentation based on the nature of the content 
supplier (such as Hollywood studios or small content producers), the 
Notifying Parties consider that no strict segmentation between “major” 
Hollywood studios and smaller suppliers can be made, particularly since the 
negotiation position of the relevant content supplier will depend mainly on the 
commercial success of the film that is being sold, rather than on the nature of 
the supplier. 
(69) Concluding on the relevant product market for broadcasting rights on TV 
content, the Notifying Parties still consider that the possible segmentations of the market as discussed above can be left open, as the Transaction has not led 
and does not lead to any competition concerns on even the narrowest 
conceivable market.  
Commission's assessment 
(70) The results of the market investigation confirm the Notifying Parties' view in 
relation to the large penetration of Pay TV in the Dutch market. The market 
investigation also confirms that a distinction between basic Pay TV and 
Premium Pay TV would be more appropriate in the Netherlands than a 
distinction between FTA and Pay TV .
25 This market structure impacts the 
market for content, making a distinction of content licenced for FTA or Pay 
TV broadcasting irrelevant.  
                                                 
25  Replies to Q2 to TV channel wholesale suppliers of 5 April 2018, question B.1. Replies to Q3 to retail 
Pay TV providers of 5 April 2018, question B.A.1 
 
14 (71) In light of the limited significance of FTA TV in the Netherlands, since 
essentially, the Dutch TV market is a Pay TV market, the assessment of the 
Transaction would remain the same whether the licensing and acquisition of 
broadcasting rights for FTA TV and Pay TV are considered to belong to the 
same product market or to two separate markets. As a consequence, the 
Commission considers that the market definition can be left open for the purpose of this decision. 
(72) As to the possible distinction between linear and non-linear content , the 
market investigation indicates that, on the demand side, content rights for the 
two distribution modes are not substitutable and, in some cases, are used as 
complementary offers by TV broadcasters.
26 At the same time, non-linear is 
increasingly constraining linear broadcasting, with viewers replacing linear 
broadcasting with a selection of thei r preferred non-linear content ("cord 
cutting"). On the supply side there is a degree of elasticity, as linear and non-
linear rights for content are licensed together.27 In any event, the Commission 
considers that, for the purposes of this decision, the question as to whether there exists a distinct market for linear and non-linear content can be left open, as the Commission considers that the Transaction does not raise serious doubts as to its compatibility with the internal market irrespective of the 
conclusion on this point.  
(73) As to the distinction between different types of content , the market 
investigation confirms the fundamental distinction, emerged already in the 
2014 market investigation, between (i) sport, (ii) film; and (iii) other content.
28 The market investigation includes indications that the distinction 
between popular films and popular TV series is fading, as also the latter can 
be considered premium content.29 The results of the market investigation 
indicate that US productions and non-US productions may not be considered 
alternatives.30 
(74) Within these content types, the replies of TV retailers to the market 
investigation indicate the existence of premium and non-premium 
content .31 The qualification of content as premium or not, however, seems to 
depend not solely on the nature of the content, but also on contingent 
                                                 
26  Replies to Q2 to TV channel wholesale suppliers of 5 April 2018, question B.2. Replies to Q3 to retail 
Pay TV providers of 5 April 2018, questions B.A.2 and B.A.2.1. 
27  Replies to Q1 to content providers of 5 April 2018, question 6; replies to Q2 to TV channel suppliers 
of 5 April 2018, questions B.2 and B.2.1; replies to  Q3 of 5 April 2018, questions B.A.2 and B.A.2.1. 
28  Replies to Q1 to content providers of 5 April 2018, question 7; Replies to Q3 to retail Pay TV 
providers of 5 April 2018, questio ns B.A.7, B.A.7.1 and B.A.7.2. 
29  Replies to Q2 to TV channels suppliers of 5 April 2018, question B.3.1 (particularly the explanation of 
TalpaTV); Replies to Q3 to retail Pay TV providers of 5 April 2018, question B.A.3.1. 
30  Replies to Q2 to TV channels suppliers of 5 April 2018, question B.4.1; Replies to Q3 to retail Pay TV 
providers of 5 April 2018, qu estions B.A.4 and B.A.4.1. 
31  Replies to Q3 to retail Pay TV providers of 5 April 2018, question B.A. 3, B.A.3.1 and B.A.3.2. 
 
15 circumstances (for instance the emergence of a national champion or talent in 
the case of sports).  
(75) The Commission considers that the differe nces in price and ability to attract 
viewers suggest the existence of a distinction between the acquisition of 
rights for premium content and the acquisition of rights for non-
premium content .  In any event, the Commission considers that, for the 
purposes of this decision, the question as to whether broadcasting rights for 
premium and for non-premium content (and, within premium films, US and non-US productions) can be left open, as the Commission considers that the 
Transaction does not raise serious doubts as to its compatibility with the 
internal market irrespective of the conclusion on this point. 
(76) In the above respect, some complainants and third interested parties have 
indicated that certain sports events (such as the Formula 1 World championship, the English Premier League, the Spanish La Liga and the 
Eredivisie football league) are to be considered "essential" competitive 
factors, so important for the business that, in order to realise a level playing 
field, all competitors should have access to them.  
(77) The Commission, however, considers that an essential factor is an input that 
forces out of the market (or prevents market entry of) those which do not have 
it. In the case at hand, the sport contents mentioned can attract viewers and generate revenues, but having access to them is not a requirement to continue 
to operate on the market for the wholesal e supply of TV channels or of retail 
supply of Pay TV services. Operators in the Pay TV value chain (TV channels 
providers and retail Pay TV providers), in fact, still have the possibility to 
differentiate themselves by investing in alternative content which can be (or become over time) equally or more attractive for viewers and subscribers. The 
replies to the market investigation point to a number of premium sports events 
(some traditionally considered premium,  others considered premium due to 
contingent circumstances, such as the presence of a Dutch athlete) that are 
substitutable among themselves.
32 The Commission therefore, considers that 
the narrowest plausible markets are those for broadcasting rights for premium 
and non-premium content, without any possible further distinction.    
(78) For films, the market investigation has also indicated that, from the demand 
side, a difference exists between various  broadcasting windows for films  
and, within VOD, between SVOD and TVOD . The replies to the market 
investigation, however, indicate a certain  degree of supply side substitutability 
in offering various content.33 In any event, the Commission considers that, for 
the purposes of this decision, the question as to whether the VOD market 
should be further segmented in SVOD and TVOD can be left open, as the 
Commission considers that the Transaction does not raise serious doubts as to 
                                                 
32  See replies to Q2 of 5 April 2018 to TV channel suppliers, questions B.3.1 and B.9.1.; replies to Q3 of 
5 April 2018 to retail Pay TV providers, questions B.A.3.1 and B.A.9.1.   
33  Replies to Q1 to content providers of 5 April 2018, questions 11 and 12; replies to Q2 to TV channel 
suppliers of 5 April 2018, questions B.5 and B.5.1 and B.6; replies to Q3 to retail Pay TV providers of 
5 April 2018, questions B.A.5 and B.A.6. 
 
16 its compatibility with the internal market irrespective of the conclusion on this 
point.34  
 Overall conclusion 
(79) In light of the above, the Commission concludes that the relevant product 
markets for the purpose of this decision are the markets for licensing and acquisition of TV broadcasting rights in  relation to (i) sports content, (ii) 
movies and series, and (iii) other content. The question as to whether these 
markets should be further segmented based on content for FTA or Pay TV, linear or non-linear broadcasting, premium or non-premium quality and 
broadcasting window can be left open, as the Commission considers that the 
Transaction does not raise serious doubts as to its compatibility with the 
internal market irrespective of the conclusion on this point.  
5.1.1.2.  Geographic market definition 
(80) At the time of the 2014 notification, the Notifying Party did not take a 
position on the geographic scope of the market but referred to the SFR/Télé 2 
France case,
35 where the Commission had found that the market was national 
in scope. 
(81) The Commission has previously considered that the market for the 
licensing/acquisition of broadcasting rights for audio visual TV content is either national in scope or potentially comprises a broader linguistically 
homogeneous area.
36 
(82) The Dutch Authority for Consumers and Markets (ACM) (previously the 
Nederlandse Mededingingsautoriteit (NMa )) concluded in its decision in 
UPC-Canal+37 that, since licenses for exclusive rights to premium film 
content are limited to the Netherlands, the market is national in scope. In its 
later decisions in cases Sanoma-SBS38 and RTL NL-Radio 538 ,39 the ACM 
(NMa) stated that the geographic scope of the market for the licensing and 
acquisition of content is national in scope or relates to a linguistically 
homogeneous area. However, in each case, it ultimately left the question open, as the geographic market definition did not impact on the competitive 
assessment. 
                                                 
34  Today, following the divestment of Film1 and the dissolvement of the HBO joint venture (see 
paragraph 138 of the Supplement Form CO), the Parties are only active in the purchase of VOD rights for films and series. 
35  Commission's decision of 18 July 2007 in Case No COMP/M.4504 - SFR/Télé 2 France, paragraph 48. 
36  Commission's decision of 2 April 2003 in Case No COMP/M.2876 - Newscorp/Telepiù, paragraph 62; 
Commission's decision of 21 December 2010 in Case No COMP/M.5932 - News Corp/BSkyB, paragraphs 73-75. 
37  ACM (NMa) decision of 28 June 2005 in case 4490/UPC-Canal+, paragraphs 42-43. 
38  ACM (NMa) decision of 22 July 2011 in case 7185/Sanoma-SBS, paragraphs 62-63. 
39  ACM (NMa) decision of 13 August 2007 in case 6126/RTL NL-Radio 538, paragraphs 39. 
 
17 (83) The vast majority of respondents to the 2014 market investigation considered 
that the geographic scope of the market for licensing and acquisition of 
broadcasting rights in general, but also  broken down by film, sport and other 
content is national. 
(84) As regards the geographic scope of a potential market for the licensing and 
acquisition of broadcasting rights for Dutch-language audio visual content, 
around half of the respondents to the 2014 second phase market investigation 
that replied to the relevant question considered that the geographic scope of such a market should cover the Netherlands only (excluding Dutch-speaking 
Flanders). Some respondents highlighted the fact that Dutch-language content 
produced in the Netherlands in general did not have the same commercial success in Flanders and vice versa. The other half of the respondents stated 
that the geographic market should naturally comprise both the Netherlands 
and Flanders because of their linguistic homogeneity. That being said, the 
rights for the Netherlands and Flanders were still licensed and acquired 
separately and, as mentioned by one respondent, not all purchasers of broadcasting rights for Dutch-language content would even be interested in acquiring the rights for both the Netherlands and Flanders.
 This latter point 
was indeed confirmed by the fact that the majority of respondents confirmed 
that the scope of the licensing contracts concluded for Dutch-language audio 
visual content encompass the Netherlands only. 
(85) In that regard, in 2014, the Commission noted that all of the relevant supply 
agreements covering (i) VOD rights, (i i) first and second window Pay TV 
rights, (iii) TVOD, as well as (iv) SVOD  rights at the time in force between 
the Notifying Party and suppliers of individual audio visual content [reference 
to supply agreements between the Parties and suppliers of audio-visual 
content].  Similarly, all such supply agreements in force between Ziggo and 
suppliers of individual audio visual content [reference to supply agreements between the Parties and suppliers of audio-visual content]. 
(86) Based on the above elements the Commission considered in the Conditional 
Clearance Decision that the relevant markets for the licensing and acquisition 
of broadcasting rights were national in scope. 
(87) In the Supplement Form CO, the Notifying Parties submit the market has a 
national dimension [reference to the geographic scope of supply agreements 
between the Parties and suppliers of audio-visual content]. Furthermore, they indicate that significant differences ex ist in Dutch language individual content 
produced for Dutch target audiences on the one hand and Flanders target 
audiences on the other hand. Although there is a degree of co-productions, 
most of the Dutch language series and programmes are targeted at either 
Dutch or Flemish audiences, but not both. The Notifying Parties therefore 
consider that there is no separate geographic market that covers both Dutch 
and Flemish individual content. 
(88) The market investigation undertaken fo r the reassessment indicated that 
broadcasting rights for sport events are generally sold on a country-by-country 
basis. With some exceptions, linked to the fact that the broadcaster purchasing 
 
18 content is active in multiple countries, film broadcasting rights are also 
licensed on a national basis.40  
(89) Therefore, for the purposes of this decision, the Commission concludes that 
the relevant geographic market is national. 
5.1.1.3.  Affected market 
(90) In 2014, as regards the acquisition of content, the Notifying Party could not 
rule out that the merged entity's market share would exceed 20% in the 
hypothetical market for the acquisition of film content and, in particular, the 
markets for the acquisition of first Pay TV window film content and TVOD 
film content. As such, those markets were considered to be affected for the purposes of that decision. 
(91) Today, the Notifying Parties submit that the combined market share of Liberty 
Global and Ziggo in the market for the acquisition of all content to be 
broadcast in linear and VOD mode was [5-10]% in 2013 and that the 
estimated market share of VodafoneZiggo in the same market in 2017 is [5-
10]%.
41 
(92) As indicated in paragraph (63) as a consequence of the divestiture of the 
Film1 channel, VodafoneZiggo only pu rchases rights for m ovies and series 
for non-linear, mainly SVOD, broadcasting. The Notifying Parties submit they are no longer active in the purchase of linear content rights, which may 
only still be licensed to VodafoneZiggo as a part of SVOD agreements.
42 
Therefore, the hypothetical market for movies and series broadcast in linear 
mode is not an affected market. 
(93) As to the acquisition of VOD rights only for movies and series (thus 
excluding sports), the Notifying Parties indicate that, while, in 2013, Liberty 
Global and Ziggo held a combined market share of [20-30]%, in 2017 the 
estimated market share of VodafoneZiggo in the same market is [5-10]%. 
Therefore, the market for movies and series broadcast in non-linear/VOD 
mode is not an affected market. 
(94) If the market for non-linear broadcasting rights for movies and series is split 
between SVOD and TVOD, the 2017 market share of the Parties amounts to less than 20% in SVOD, while the Notifying Parties cannot exclude that the 
                                                 
40  Replies to Q1 to content providers of 5 April 2018, question 14; replies to Q2 to TV channel suppliers 
of 5 April 2018, questions B.12; replies to Q3 of 5 April 2018, questions B.A.12. 
41  Such estimate, as indicated by the Notifying Parties, is conservative, as it includes the Parties' 
expenditure in VOD, while it excludes the expend itures of small broadcasters and VOD service 
providers. In relation to the supply of TV content, the Notifying Parties indicate that Liberty Global has, since 2014, become active in the market through the acquisition of All3Media in 2014. The 
Notifying Parties refer to that development as not being merger specific, but indicate that under current 
market conditions a potential vertical link exists between All3Media and what is now VodafoneZiggo. By virtue of very limited market shares of All3Media and VodafoneZiggo on the respective, 
potentially related markets, these cannot be considered vertically affected. 
42  See paragraphs (182) and (183) of the Supplement Form CO. 
 
19 market share of VodafoneZiggo in TVOD exceeds 20%. The market for non-
linear broadcasting rights for movies and series for TVOD distribution, 
therefore, is considered an affected marked. 
(95) The Notifying Parties indicate that the expenditure for other broadcasting 
rights excluding sports (that is, documentaries, concert broadcasts, etc.) is 
negligible. 
(96) As to the acquisition of sport content (where non-linear rights, according to 
the Notifying Parties, are generally included in the linear rights) the estimated market share of VodafoneZiggo is [10-20]% in 2017, while the combined 
market share of Liberty Global and Ziggo was [5-10]% in 2014. The market 
therefore is not horizontally affected. 
(97) In a hypothetical scenario where Mr. John Malone were considered to de facto  
control both Liberty Global (and thereby jointly control VodafoneZiggo) and 
LMC (and thereby Formula 1), Liberty Global would be then active in the 
supply (or licensing) of content rights for broadcasting in the Netherlands. The Notifying Parties have therefore submitted the estimated market shares of 
Formula 1 in the hypothetical relevant markets. On the hypothetical market 
segment for supply of broadcasting rights for all premium and non-premium 
sports content rights in the Netherlands, the market share of Formula 1 would 
be 1.2%.  Taking into account sports content supplied for premium sports channels, Formula 1’s estimated market share would still be limited to approx. 
2.2%. Formula 1's estimated market share would be even smaller (0.3%) in 
the market for the supply of all content for Pay TV and for linear and non-
linear distribution. Therefore, the Commission concludes that, even if Mr 
John Malone were to be considered as de facto  controlling both Liberty 
Global and LMC and, thus, the Parties we re to be considered active in the 
market for the supply of sports conten t (and various sub-segments), this 
market would not be either horizontally or vertically affected.   
(98) In the light of the figures and estimates provided by the Notifying Parties in 
the Supplement Form CO and subse quent submissions, the Commission 
concludes that the market for the acquisition of non-linear broadcasting rights 
for movies and series for TVOD di stribution is an affected market. 
5.1.2.  Wholesale supply and acquisition of TV channels 
(99) TV channels suppliers acquire or produce individual audio visual content and 
package it into TV channels. These TV channels are then broadcast to end 
users via different distribution infrastru ctures, for example cable, satellite, 
Internet, and mobile, either on a FTA basis or on a Pay TV basis, individually 
or as part of so-called "channel bouquets". Hence, the supply side of that 
market comprises TV channel suppliers. Its demand side comprises providers of retail TV services, which either li mit themselves to "carrying" the TV 
channels and making them available to end users, or also act as channel 
aggregators, which also "package" TV channels.  
 
20 5.1.2.1.  Product market definition 
The Notifying Party's views in 2014   
(100)  In the 2014 notification, the Notifying Party submitted that there was a 
separate wholesale market for the supply and acquisition of TV channels. 
Within the Netherlands, the traditional distinction between FTA and Pay TV channels appeared increasingly blurre d and a more appropriate distinction 
could be made between Basic Pay TV channels, including FTA channels and 
ordinary commercial channels available in standard bundles, and Premium Pay TV channels. The latter market could be split into two broad segments, 
namely Premium Pay TV sports channels (carrying high-value sport rights) 
and Premium Pay TV film channels (featuring blockbuster films or series).  
(101)  The Notifying Party also indicated that a strict distinction between general 
interest and thematic Pay TV channels could not be made as a wide range of 
highly differentiated channels was avai lable: although certain channels may 
not be always substitutable, depending on the content offered by the channel and viewers' preferences, channels in both segments overlapped in target 
audience and type of content. 
(102)  As regards a possible segmentation acco rding to distribution infrastructure, 
the Notifying Party argued that distribution via satellite or Direct to Home 
(DTH) exerted a similar competitive constraint on the Parties as other 
distribution infrastructures such as Inte rnet Protocol TV ("IPTV"), fibre and 
vDSL (very high bit-rate Digital Subscriber Line) in line with previous decisions of the Commission. 
Commission's assessment and conclusions in 2014 
(103)  In light of the limited significance of FTA TV in the Netherlands (essentially, 
the Dutch TV market is a Pay TV market ), the assessment of the Transaction 
would remain the same whether FTA TV channels and Pay TV channels are 
regarded as belonging to the same produc t market or to two separate markets. 
Therefore, for the purpose of the decision, the Commission decided to leave the exact market definition open. 
(104)  In light of the differences in content offering, pricing conditions and size of 
the audience attracted between Basic and Premium Pay TV channels, and for 
the purposes of the decision, the Commi ssion considered that Basic Pay TV 
channels and Premium Pay TV channels belonged to separate product markets 
with the latter being possibly further segmented between Premium Pay TV 
film channels and Premium Pay TV sports channels. In any event, the Commission left open the question whether the market for Premium Pay TV 
channels could be further segmented into areas of interest as the assessment of 
the Transaction would have remained the same. The Commission also left 
open the question whether all general interest Pay TV channels and all 
thematic Pay TV channels belonged to separate product markets, as the 
assessment of the Transaction would have remained the same. 
(105)  As to a possible market segmentation based on distribution infrastructure, the 
market investigation at the time indicated interchangeability of the different 
infrastructures. Therefore, also in consider ation of its precedents on this issue, 
 
21 the Commission considered that at least cable, IPTV over DSL, fiber and 
possibly Satellite (DTH) were part of the same product market. 
The Notifying Parties' views in their Supplementary Notification 
(106)  In the Supplement Form CO, the Notifying Parties refer to the Commission's 
precedents in defining the Dutch market for the wholesale supply and acquisition of TV channels. They agree with the distinction between Basic 
Pay TV channels and Premium Pay TV channels and indicate that Premium 
Pay TV sport channels were either being offered in the Basic Pay TV tier or increasingly subject to competition by Basic Pay TV sports channels.  
(107)  The Notifying Parties indicate that, even if there may be some competitive 
interaction between Premium Pay TV sports channels and Basic Pay TV 
sports channels, the exact market definition can be left open, since also on the 
more narrow segment for Premium Pay TV sports channels the Transaction 
has not led and will not lead to a significant impediment of effective 
competition. 
(108)  They refer to the fact that, until now, the Commission has left open the exact 
definition of the market and whether Premium Pay TV channels could be 
further segmented into areas of interest such as movies and/or sports. The 
Notifying Parties submit that also in this case the question whether Premium 
Pay TV channels should be further segm ented into sports and film channels 
can be left open as the Transaction has not and does not lead to any 
competition concerns even on the narrowest markets. 
(109)  The Notifying Parties also submit that it can be left open whether all general 
interest Pay TV channels and all themat ic Pay TV channels belong to separate 
product markets, as current market conditions demonstrate that the 
Transaction has not and does not lead to any competition concerns even on 
the narrowest markets. 
(110)  To conclude, the Notifying Parties submit that the exact definition of the 
relevant product market can be left open as the Transaction has not and does not lead to any competition concerns on even the narrowest market. 
Commission's assessment 
(111)  The market investigation has confirmed that the Netherlands is essentially a 
Pay TV market.
43 Therefore, the difference between FTA and Pay TV 
channels has a reduced relevance and the question as to whether they belong 
to separate markets can be left open, as the Commission considers that the 
Transaction does not raise serious doubts as to its compatibility with the internal market irrespective of the conclusion on this point. 
                                                 
43  Replies to Q2 to TV channel suppliers of 5 April 2018, question B.B.3; replies to Q3 of 5 April 2018 
to retailers, question B.B.2. 
 
22 (112)  The market investigation has confirmed the distinction between Basic and 
Premium Pay TV channels44 and between Premium Pay TV film channels and 
Premium Pay TV sports channels.45 With respect to sports channels, the 
market investigation has indicated that Premium Pay TV sports channels 
cannot be replaced by other (that is , non-sport) premium and/or thematic 
channels.46 For the same reasons indicated in section 5.1.1.1, the Commission 
rejects the argument that the market can be further segmented in order to 
include certain "essential" channels alone. The fact that these channels can 
attract subscribers and generate revenue does not mean that there are no 
alternatives for them and that retail TV providers cannot differentiate their 
offers otherwise.47  In any event, in section 6.3 the Commission carries out an 
assessment of the risk of foreclosure in relation to the channel ZST.  
(113)  A change in business model (Fox Sports has, since August 2016, shifted from 
a revenue-sharing model to a flat fee model with minimum guaranteed)48 and 
the availability of premium content for channels distributed in the Basic Pay 
TV tier (ZSB)49 seems to blur the distinction between Basic and Premium Pay 
TV sport channels to some extent.50 However, the Commission considers that 
those changes in business model and in market positioning are not the effect of reduced differences between the two categories of channels, but rather the 
effect of the greater attractiveness of the Premium Pay TV sports channels 
(and of their content) and the related in tention of the broadcasters to draw 
higher profits by offering them to a wider audience at a marginally lower rate. 
The Commission therefore considers that Basic Pay TV channels and 
Premium Pay TV channels belong to separate product markets.
51  
                                                 
44  Replies to Q2 to TV channel suppliers of 5 April 2018, question B.B.5; replies to Q3 of 5 April 2018 
to retailers, question B.B.5. 
45  Replies to Q2 to TV channel suppliers of 5 Ap ril 2018, questions B.B.9.1,  B.B.9.2.1, B.B.9.3.1, 
B.B.10.1, B.B.10.2.1; replies to Q3 of 5 April 2018 to retailers, questions B. B.10, B.B.10.1, B.B.10.2, 
B.B.10.2.1.  
46  Replies to Q2 to TV channel suppliers of 5 April 2018, question B.B.10; replies to Q3 of 5 April 2018 
to retailers, question B.B.10 and ss. 
47  The replies to the market investigation refer not to a single, but to a number of premium channels (and 
premium sports channels) which the respondents consider equally attractive. See replies to 
questionnaire Q2 to TV channel suppliers of 5 April 2018, questions B.B.6.1, B.B.11; replies to Q3 of 
5 April 2018 to retailers, questions B.B.10.1, B.B.10.2.1. 
48  Under the revenue-sharing model, Fox was charging retail TV providers a fee per each subscriber to 
the channel. Under the model implemented since August 2016, retail TV providers pay a fixed fee and 
a minimum amount guaranteed calculated in proportion to their customer base with access to Fox Sports. 
49  See Q3 of 5 April 2018 to retailers, non-confidential replies to question B.B.11.1. 
50  See Q3 of 5 April 2018 to retailers, reply by M7 to question B.A.3.1, reply by CAIW to question 
B.B.5.1. 
51  In case Basic Pay TV and Premium Pay TV channels were considered to be part of the same relevant 
product market, this market would include a large number of suppliers, including NPO, RTL, 
Eurosport, Fox Sports, SBS/Talpa, etc. 
 
23 (114)  As to a possible market segmentation based on distribution infrastructure, the 
market investigation revealed that cable and IPTV through DSL or fibre 
appear as interchangeable technical solutions, as they both allow TV 
distribution and interactivity. On the other hand, satellite (DTH) and digital 
terrestrial television (DTT) appear to be slightly less valid alternatives.52 In 
any event, based on the results of the market investigation and on its own precedents, the Commission considers that at least cable, IPTV over DSL, 
fiber and possibly satellite (DTH) are part of the same product market. 
Overall conclusion 
(115)  Based on the above considerations, therefore, the Commission considers that 
the market can be segmented in (i) Basic and Premium Pay TV channels, and, 
within the latter, between (ii) Premium Pay TV film channels and Premium 
Pay TV sports channels. The Commission also considers that at least cable, IPTV over DSL, fiber and possibly satellite (DTH) are part of the same 
product market. The question as to whether a distinction FTA vis-à-vis  Pay 
exist can be left open, as the Commission considers that the Transaction does 
not raise serious doubts as to its compatibility with the internal market 
irrespective of the conclusion on this point.    
5.1.2.2.  Geographic market definition 
(116)  In their notification of 2014, the Notifying Party submitted that the geographic 
market was national in scope. 
(117)  In a number of previous decisions, the Commission considered that the market 
for the wholesale supply and acquisition of TV channels was national in 
scope, or at most covering a single linguistically homogeneous area.
53 The 
exact geographic scope of the market was however ultimately left open.  
(118)  Based on the results of the market investigation and on other evidence 
available, the Commission concluded that the markets for the wholesale 
supply and acquisition of TV channels were national in scope. 
(119)  In the Supplement Form CO, the Notifying Parties submit that the geographic 
market in the present case is likely to comprise the Netherlands given the way 
the carriage agreements are concluded. Moreover, the Notifying Parties consider that generally, agreements in place for the acquisition of TV 
channels [reference to the geographic scope of supply agreements between the 
Parties and suppliers of audio-visual c ontent]. As such, the Notifying Parties 
                                                 
52  Replies to Q2 to TV channel suppliers of 5 April 2018, question B.B.2; replies to Q3 of 5 April 2018 
to retailers, questions B.B.1 and B.B.1.2. 
53  Commission's decision of 2 June 2006 in Case No COMP/M.4217 - Providence/Carlyle/UPC Sweden, 
paragraph 19; Commission's decision of 6 September 2006 in Case No COMP/M.4338 - Cinven/Warburg Pincus/Casema/Multikabel, paragraph 31; Commission's decision of 26 February 
2007 in Case No COMP/M.4521 - Liberty Global/Telenet, paragraph 35; Commission's decision of 18 
July 2007 in Case No COMP/M.4504 - SFR/Télé 2 France, paragraph 48 (French mainland); Commission's decision of 21 December 2010 in Case No COMP/M.5932 - News Corp/BSkyB, 
paragraph 88 and Commission's decision of 25 January 2010 in Case No COMP/M.5734 - Liberty 
Global Europe/Unitymedia, paragraph 30 (regional or national in Germany). 
 
24 consider that no subnational or regiona l market for the acquisition of TV 
channels exists. 
(120)  The market investigation confirms that the geographic scope of the wholesale 
market for the supply and acquisition of Pay TV channels mainly consists of 
the territory of the Netherlands.54  
(121)  Therefore, the Commission concludes for the purpose of this decision that the 
relevant market is national in scope. 
5.1.2.3.  Affected market 
(122)  The divestiture of the Premium Pay TV film channel Film1, offered as a 
remedy by the Notifying Party and approved with the Conditional Clearance 
Decision has addressed the horizontal and vertical concerns the Commission 
had raised in the wholesale market for the supply and acquisition of Premium Pay TV film channels (supply side). Since that divestiture and the dissolution 
of the HBO NL joint venture, VodafoneZiggo is no longer active on the 
wholesale market for Premium Pay TV film channels (supply side).
55  
(123)  Notwithstanding this, however, the Commission will still carry out56 the 
assessment of the possible vertical concerns in relation to the HBO content, now distributed by VodafoneZiggo through the Movies&Series VOD service. 
(124)  The OTT remedies offered by the Notifying Party and accepted by the 
Commission in the Conditional Clearance Decision addressed the concern of 
the increased buyer power of the entity resulting from the merger. 
(125)  In the Supplement Form CO,
57 the Notifying Parties estimate at [50-60]% the 
market share of VodafoneZiggo in the acquisition of Basic Pay TV channels, 
of Premium Pay TV film channels and of Premium Pay TV sports channels. 
The markets for the acquisition of Basic Pay TV channels, Premium Pay TV 
film channels and Premium Pay TV sports channels are therefore horizontally 
affected markets. These are also vertically affected markets, as VodafoneZiggo has a 53% market share on the downstream market for the 
retail supply of Pay TV services.  
(126)  In the Supplement Form CO, in relation to the supply side of the wholesale 
market for the acquisition and supply of Premium Pay TV sports channels, the 
Notifying Parties argue that ZSB is not a premium channel and that the 
                                                 
54  Replies to Q2 to TV channel suppliers of 5 April 2018, question B.C.1; replies to Q3 of 5 April 2018 
to retailers, questions B.B.12. 
55  Some third parties have raised the issue that the linear TV channel is no longer available and that the 
dissolution of the HBO NL joint venture is a direct effect of the Transaction. However, there is no linear channel available to the merged entity’s own retail customers either. In any event, the same 
arguments as discussed in section 6.2 also apply to linear distribution.  
56  See section 6.2.5, below. 
57  Supplement Form CO, paragraph 357. 
 
25 market share of VodafoneZiggo in the wholesale supply of Premium Pay TV 
channels (where VodafoneZiggo only s upplies ZST) is [10-20]%. In terms of 
subscribers at retail level, the penetration of ZST is just [5-10]% ([5-10]%, 
when disregarding subscribers on Vodaf oneZiggo's platform).Therefore, this 
is not a horizontally affected market. 
5.1.3.  Retail provision of TV services. 
(127)  In the market for the retail provision of TV services, the suppliers of linear 
and non-linear (mainly VOD) TV services serve end customers who wish to purchase such services. 
5.1.3.1.  Product market definition 
The Notifying Party's views in 2014 
(128)  In the 2014 notification, the Notifying Party claimed that the retail market for 
FTA TV services did not exist in the Netherlands. Instead, the Notifying Party 
considered it appropriate to distinguis h between the retail provision of Basic 
Pay TV channels and Premium Pay TV channels. As regards linear Pay TV 
services and non-linear services, the Notifying Party's view was that those 
should be considered to belong to the same product market given the competitive constraints which VOD services exercised on linear Pay TV services. As regards a possible distinction between the different distribution technologies for the provision of retail TV services, the Notifying Party 
recalled the different Commission an d ACM (OPTA and NMa) precedents 
where no distinction between distribution technologies had been made. 
Commission's assessment and conclusion in 2014 
(129)  In consideration of the limited offer of FTA channels in the Netherlands and 
given the fact that the assessment of the Transaction would remain the same 
whether FTA TV services and Pay TV services were considered to belong to the same product market or to two separate markets, the Commission 
considered that the market definition in that respect could be left open. 
(130)  In relation to the difference between linear and non-linear retail TV services, 
the Commission noted that the market investigation had highlighted a number 
of differences between the two distribution modes. In any event, the 
Commission considered that the exact scope of the relevant market for Pay 
TV services could be left open in that regard, as the Transaction did not raise competition concerns on the market for the retail provision of Pay TV services 
under any alternative product market definition considered. 
(131)  Taking into account the responses to the market investigation, and in 
particular considering the demand-side substitutability between retail Pay TV 
services provided through the different distribution technologies such as cable, DSL, Fibre-to-the-Home (FttH) and possibly DTH satellite, the 
Commission considered that the provision of retail Pay TV services through 
those different distribution technologies belonged to the same product market. 
  
 
26 The Notifying Parties' views in their Supplementary Notification 
(132)  In the Supplement to the Form CO, the Notifying Parties argue that, in 
relation to the Dutch market, a distinction between Basic Pay TV channels and Premium Pay TV channels is most appropriate. 
(133)  With respect to the distinction between linear and non-linear technology, the 
Notifying Parties are of the view that a distinction between linear and non-
linear Pay TV services is disappearing and is no longer appropriate, given the 
growing competitive constraint that VOD services exert on linear TV services 
and the continuing convergence between traditional linear Pay TV services 
and OTT services. They also refer to research conducted by Telecompaper, 
indicating that Dutch households spe nd approximately 38% of their daily 
viewing on linear TV channels and the remainder on VOD services (either 
TVOD, SVOD or other OTT services). The Telecompaper research also 
indicated that an increasing number of  households had access to a Smart TV 
which could be used for streaming SVOD (e.g. Netflix) services.  
(134)  However, the Notifying Parties conclude that, given that the Transaction has 
not raised and does not raise any comp etition concerns, the market definition 
can be left open. 
Commission's assessment 
(135)  The market investigation has confirmed that the Dutch market has a very 
limited offer of FTA TV services, whic h makes the distinction between Basic 
Pay TV and Premium Pay TV more appropriate.
58 The market investigation 
also indicated that some differences persist between linear and non-linear 
broadcasting, which are seen more as complements than as substitutes. Although the two distributions mode tend to converge and overlap, 
PPV/TVOD and OTT/SVOD do not yet seem as viable alternatives to Pay TV 
in case of switching.
59  
(136)  As to different distribution technologies, the market investigation indicates 
that switching appears possible from cable to IPTV over fibre or DSL, much less to satellite (DTH) and terrestrial (DTT) technologies.
60 
(137)  Based on the foregoing, the Commission considers that the question as to 
whether the TV retail market may be segmented in FTA TV and Pay TV, can 
be left open, as the Commission considers that the Transaction does not raise 
serious doubts as to its compatibility with the internal market irrespective of 
the conclusion on this point. For the same reason, it can also be left open the 
question whether there is a distinction between linear and non-linear 
                                                 
58  Replies to Q2 to TV channel suppliers of 5 April 2018, question B.C.2 and B.C.2.1; replies to Q3 of 5 
April 2018 to retailers, questions B.B.13 and B.B.13.1. 
59  Replies to Q2 to TV channel suppliers of 5 Apri l 2018, questions B.C.3, B. C.3.1, B.C.5 and B.C.5.1; 
replies to Q3 of 5 April 2018 to retailers, questions B.B.14, B.B.14. 1, B.B.15 and B.B.15.1. 
60  Replies to Q2 to TV channel suppliers of 5 Apri l 2018, questions B.C.6, B. C.6.1, B.C.7 and B.C.7.1; 
replies to Q3 of 5 April 2018 to retailers, questions B.B.16, B.B.16. 1, B.B.17 and B.B.17.1. 
 
27 distribution. As to the different distribution technologies, the Commission 
considers that they are all part of the same product market. 
5.1.3.2.  Geographic market definition 
(138)  In the notification of 2014, the Notifying Party did not take a view on the 
exact geographic scope of the market. Based on the results of the market investigation, and considering that following the Transaction the merged 
entity would have had almost national coverage, the Commission considered 
that the relevant market was national in scope. 
(139)  In the Supplement Form CO, the Notifying Parties submit that the question of 
geographic market definition is not of decisive importance for the assessment of competition in the market for the retail supply of TV services. However, 
for the purpose of the Supplement, the Notifying Parties provide data for a 
national market. 
(140)  The market investigation indicates that the market for retail supply of TV 
services is national in scope.
61 The Commission, therefore, considers that the 
relevant market is national in scope. 
5.1.3.3.  Affected market 
(141)  The retail market for the provision of Pa y TV services is an affected market 
considering that, as of Q3 2017, VodafoneZiggo holds a market share of 53% 
for services provided in linear mode (55% after the combination of Liberty 
Global/UPC's and Ziggo's networks) a nd of [20-30]% for VOD services.  
5.2. Fixed telephony and Internet services 
(142)  The Parties provide fixed telephony a nd fixed Internet services in the 
Netherlands. In particular, they provide services on the following markets: 
 fixed telephony/voice at retail level; 
 call termination on fixed networks at wholesale level; 
 fixed Internet access at retail level; 
 fixed Internet access at wholesale level; 
 business communication services; and 
 carrier services at wholesale level. 
                                                 
61  Replies to Q2 to TV channel suppliers of 5 April 2018, question B.C.8; replies to Q3 of 5 April 2018 
to retailers, questions B.B.18.    
 
28 5.2.1.  Fixed telephony/voice at retail level 
5.2.1.1.  Product market definition 
(143)  In the downstream market for the retail provision of fixed telephony and voice 
services, operators provide fixed voice services to end customers. Both Parties 
are active on this market offering fixe d voice services bundled together with 
fixed broadband Internet access and TV. 
The Notifying Party's view in 2014 
(144)  In the 2014 notification, the Notifying Party submitted that a product market 
existed for the retail provision of fixed telephony services, but that the 
definition of its exact scope and in pa rticular whether it  should be further 
segmented could be left open, as it would not significantly affect the 
competition assessment. 
Commission's assessment and conclusion in 2014 
(145)  In its assessment, the Commission considered that the exact scope of the 
product market definition, and specifically, whether fixed line and VoIP 
telephony services belonged to the same product market, and whether there 
was a separate market for residential and non-residential customers, could be 
left open as the Transaction did not raise competitive concerns under any 
alternative product market definition considered. 
The Notifying Parties' view in their Supplementary Notification 
(146)  In the Supplement Form CO, the Notifying Parties submit that the exact scope 
of the relevant product market can be left open as no competition concerns 
have arisen or will arise on any plausible market segment. 
Commission's assessment 
(147)  The market investigation confirmed the Commission existing definition of the 
market (including VOIP) in 2014. According to some respondents, additional 
fixed services (such as for business customers and for international calls) 
should also be included in the same market.62 In any event, the Commission 
considers that the exact scope of the product market may be left open for the 
purposes of this Decision. 
5.2.1.2.  Geographic market definition 
(148)  In the 2014 notification, the Notifying Party did not take any view on the 
geographic scope of the market. Consiste ntly with its previous practice and 
with the results of the market investig ation, the Commission considered that 
the market for the retail provision of fixed telephony services was national in 
scope. 
                                                 
62  Replies to Q3 of 5 April 2018 to retailers, questions B.C.1, B.C.2, B.C.3.    
 
29 (149)  In the Supplement Form CO, the Notifying Parties submit that no definite 
position has to be taken on the exact geographic scope of this market. 
However, in line with the previous approaches taken by the Commission and 
the ACM, the Notifying Parties will provide data for the smallest possible 
segment (a national market). 
(150)  The market investigation carried out by the Commission confirms that the 
market is national in scope.63 The Commission, therefore, considers the 
market to be national in scope. 
5.2.1.3.  Affected market 
(151)  In the Conditional Clearance Decision, the Commission assessed all the retail 
markets jointly. The Commission noted that all retail services, such as fixed 
telephony, were provided by Liberty Global and Ziggo in the respective, non-
overlapping footprints in the Netherlands. Therefore, no customer switching 
could take place between Liberty Global and Ziggo. Nonetheless, the 
Commission still considered whether Liberty Global and Ziggo took each other's actions into account before taking commercial decisions. The 
Commission found that there was insufficient evidence pointing to the risk of 
non-coordinated effects as a consequence of the elimination of an indirect 
constraint between Liberty Global and Ziggo. 
(152)  Under current market conditions (Q3 2017), VodafoneZiggo holds a market 
share of 41% in the retail market for fixed telephony services, which is 
therefore an affected market. The market is also technically a vertically affected market, due to its connection to the wholesale market for call 
termination on fixed network, where eac h operator holds by definition a 100% 
market share. 
5.2.2.  Call termination on fixed networks at wholesale level 
(153)  Call termination is a service provided by telephony operator B to telephony 
operator A, whereby a call originating on operator A's network is delivered to 
a user of B's network. This essentially allows users of different networks to communicate with each other. 
5.2.2.1.  Product market definition 
(154)  In the Supplement Form CO, the Notifying Parties recall that, in previous 
cases, the Commission found that there are no substitutes for call termination on each individual fixed network, since the operator transmitting the outgoing 
call can reach the intended recipient only through the operator of the network 
to which that recipient subscribed. Ea ch individual fixed network therefore 
constitutes a separate mark et for call termination and each network operator 
has, by definition, a 100% market share on that market. 
                                                 
63  Replies to Q3 of 5 April 2018 to retailers, question B.C.4.    
 
30 (155)  The ACM has taken a similar view as the Commission and the Notifying 
Parties therefore submit that the relevant product market is the wholesale 
market for call termination on each individual fixed network.  
(156)  In view of the above, the Commission considers that each individual fixed 
network constitutes a separate market for call termination.  
5.2.2.2.   Geographic market definition 
(157)  As to the geographic scope of the relevant market, the Notifying Parties 
submit in the Supplement Form CO that the market is national in scope, due 
to regulatory reasons, namely the fact that the geographic scope of regulatory 
licenses do not extend beyond the territory of a Member State. The Commission shares such view.   
5.2.2.3.  Affected market 
(158)  The Commission concluded in its Conditional Clearance Decision that the 
concentration could have no impact on the market, as each network constituted a market on its own. For that  reason, wholesale call termination on 
fixed networks was not discussed fu rther in the Commission's Conditional 
Clearance Decision. 
(159)  For the purposes of the re-assessment of the Transaction, the Commission 
considers this reasoning still holds, because Liberty Global and Ziggo provide 
call termination services each in its own footprint with a market share of 
100% and the Transaction does not thus bring about any horizontal overlap. The Commission, therefore, has granted a waiver to the Notifying Parties, in 
relation to the wholesale market for call termination on fixed network.  
(160)  The market for call termination on fixed network at wholesale level is also 
vertically related to the retail market for fixed telephony services. In this 
regard, the Commission notes that the markets of wholesale call termination services on fixed networks in the Netherlands are subject to ex-ante  regulation 
by the ACM. The Commission therefore considers that the Transaction does 
not give rise to serious doubts as to the compatibility with the internal market 
and has granted a waiver to this vertical relation as well. 
5.2.3.  Fixed Internet access at retail level 
5.2.3.1.  Product market definition 
(161)  As regards the retail provision of fi xed Internet access services, retail 
operators provide fixed Internet services to end customers. 
The Notifying Party's views in 2014 
(162)  The Notifying Party submitted that both Parties' activities should be qualified 
as provision of broadband Internet access and that the nature of access 
services requested by large corporate customers was materially different from 
the services provided to residential and small businesses. The Notifying Party also claimed that mobile broadband Internet accessible at retail level via 4G 
 
31 technology in the Netherlands exercised at least to a certain extent 
competitive constraint on fixed Internet access services. 
Commission's assessment and conclusion in 2014 
(163)  In light of a large majority of responses indicating that the distinction between 
the different infrastructures, that is to say DSL, cable and fibre, was not appropriate, the Commission considered that there was no reason to divide the 
relevant market according to those di fferent infrastructur es. However, the 
Commission considered that a distinction between the market for mobile Internet and the market for fixed broadb and Internet was justified. As regards 
the question whether fixed broadband Internet access services to residential 
and small business customers on one hand and large business customers on 
the other should be considered to belong to separate markets, the Commission 
left the question open given that the Transaction did not raise competition concerns whether those customer groups were considered together or 
separately. 
The Notifying Parties' views in their Supplementary Notification 
(164)  In the Supplement Form CO, the Notifying Parties submit that the relevant 
product market is the market for retail  internet access without it being 
necessary to define any hypothetical sub-segments. The Notifying Parties 
indicate that, from a demand-side perspective, the various internet offerings 
with various speeds are clear substitutes. There is also significant supply-side 
substitution in respect of internet offerings with various speeds, as confirmed by the ACM. The Notifying Parties submit that because of these demand-side 
and supply-side substitutability consider ations, it is neither necessary nor 
appropriate to define separate markets based on download speed. Referring to 
the results of the 2014 market investigation, the Notifying Parties also submit 
that the retail market for fixed intern et services should not be segmented 
according to distribution technology (i.e. DSL, cable or fibre) either. The 
Notifying Parties submit that also the question as to whether the market 
should be segmented by customer type can be left open by the Commission. 
Commission's assessment 
(165)  The market investigation has confirmed that different technologies (cable, 
fibre, DSL) for the provision of retail  fixed internet access are part of the 
same market.
64 It has also indicated that mobile and fixed internet access are 
not substitutable65 and that residential business and small business customers 
belong to a separate product market from that for large business customers.66 
(166)  The Commission considers therefore that the relevant market for internet 
access at retail level includes all di fferent technologies, while distinctions 
                                                 
64  Replies to Q3 of 5 April 2018 to retailers, question B.D.1.    
65  Replies to Q3 of 5 April 2018 to retailers, question B.D.2. 
66  Replies to Q3 of 5 April 2018 to retailers, question B.D.3. 
 
32 exist between mobile and fixed internet access and between residential 
business and small business customers, on the one hand, and large business 
customers, on the other. 
5.2.3.2.  Geographic market definition 
(167)  In the 2014 notification, the Notifying Party did not express a view on the 
geographic scope of the relevant market. Based on the results of the market 
investigation, the Commission considered that the relevant market was 
national in scope. 
(168)  In the Supplement Form CO, in line with the Commission’s and ACM’s 
previous decision practice, the Notifying Parties consider that the retail market for fixed internet access is national in scope. 
(169)  Based on the results of the market investigation,
67 the Commission takes the 
position that the relevant market is national in scope. 
5.2.3.3.  Affected market 
(170)  Information provided by the Notifying Parties in the Supplement Form CO 
indicates that VodafoneZiggo holds (as at Q3 2017) a market share of 44% on 
the retail market for Internet access. Therefore the market shall be considered an affected market for the purposes of this decision. 
5.2.4.  Fixed Internet access at wholesale level 
(171)  In 2015, the ACM issued ex ante  regulation requiring KPN to continue to 
provide access to its DSL and fibre-opt ic networks in the period 2016 - 2019 
(LLU regulation). At the beginning of 2017, the ACM announced that it 
would perform an early revision of its 2015 analysis, given the significant change in market conditions following the creation of the joint venture 
VodafoneZiggo. The ACM has issued a draft decision on 27 February 2018,
68 
from which it follows that the ACM intends to impose access obligations on 
VodafoneZiggo, in addition to access obligations on KPN. This is the result of 
perceived consumer harm resulting from, in the absence of regulation, the risk of joint dominance of KPN and VodafoneZiggo at retail level and the finding 
of joint dominance on the wholesale market including LLU, VULA and 
WBA. 
(172)  In the Conditional Clearance Decision, the Commission did not assess the 
wholesale market for fixed internet access because neither UPC nor Ziggo was active on that market. Only KPN provided regulated access to its copper 
and fiber-optic networks. 
                                                 
67  Replies to Q3 of 5 April 2018 to retailers, question B.D.4. 
68  ACM draft decision of 27 February 2018, Market analysis Wholesale Fixed Access, Annex E Analysis 
of the retail market for (bundled) internet access, paragraphs 1048-1056. 
 
33 (173)  Today, VodafoneZiggo is still not providing wholesale access to its cable 
networks. Up to today, only KPN has been regulated to provide wholesale 
fixed internet access. 
(174)  The ACM finds in its draft decision of 27 February 2018, that there is a single 
wholesale market for access to copper,  fiber-optic and cable networks in 
which KPN and VodafoneZiggo are both players. According to the ACM, a 
broader market definition is justified on the basis of technological 
developments, as physical unbundled access becomes less attractive and alternative providers opt for access to a higher level in the network. In the 
ACM's view, for comparable types of access, VodafoneZiggo’s cable network 
is increasingly becoming a good alternative for offering services to end-users. 
(175)  The ACM has already consulted stakeholders on its proposal at national level 
and is analysing stakeholders' contributions.  
(176)  For completeness, the Commission, in section 6.6, will assess the impact of 
the Transaction on this potential market.     
5.2.5.  Business communication services 
(177)  Business-to-business (B2B) telecommunication services are value added 
corporate services offered by teleco mmunication providers to corporate 
business customers. Customers of business communication services in the Netherlands can be broadly categorised into three main groups: (i) Small 
office/home office (SOHO); (ii) Small and medium-sized enterprises (SME); 
and (iii) Large enterprise customers. 
5.2.5.1.  Product market definition 
(178)  In its 2014 notification, the Notifying Party estimated that the Parties 
combined market share on a national market for business connectivity 
services in the Netherlands would be [10-20]%. As a consequence, there was no affected market and those services were not discussed further in the 
Conditional Clearance Decision. 
(179)  In the Supplement Form CO, the Notifying Parties recall the Commission’s 
previous practice in relation to telecommunication services provided to 
business customers and argue that voice services provided to corporate clients 
are part of the broader market for business connectivity services. 
(180)  As to a possible market segmentation, based on the type of customers, the 
Notifying Parties recall that in Vodafone/Liberty Global/Dutch JV ,
69 the 
Commission ultimately left the question open, after the market investigation 
had indicated a difference between residential, SME and SoHo customers, on 
the one hand, and large businesses on the other. 
(181)  The Commission considers that, for the purposes of assessing the impact of 
the Transaction, the exact definition of the relevant product market may be 
                                                 
69  Commission decision of 03 August 2016, in case M.7978, Vodafone/Liberty Global/Dutch JV . 
 
34 left open, as the Transaction does not raise serious doubts as to its 
compatibility with the internal market irrespective of the conclusion on this 
point.  
5.2.5.2.  Geographic market definition 
(182)  As to the geographic dimens ion of the market, the Notifying Parties recall that 
in previous cases the Commission found that the relevant market was national, 
if not wider, in scope. They submit that sometimes these services are provided 
cross-border, but that, however, the exact definition of the geographic scope of the market may be left open for the purposes of assessi ng the Transaction. 
(183)  The Commission considers that, for the purposes of assessing the impact of 
the Transaction, the exact definition of the relevant geographic market may be 
left open, as the Transaction does not raise serious doubts as to its 
compatibility with the internal market irrespective of the conclusion on this 
point.   
5.2.5.3.  Affected market 
(184)  In assessing the Transaction in 2014, the Commission found that, based on the 
limited combined market share of the merging parties (less than 11%), there was no affected market and these services  were thus not further discussed in 
the Conditional Clearance Decision. 
(185)  As to the present market conditions, in the Supplement Form CO, the 
Notifying Parties note that the current, estimated market share of VodafoneZiggo is approximately 27.4%, which would then lead to an affected 
market. 
(186)  In this respect, however, the Notifying Parties submit that VodafoneZiggo has 
achieved the current market share as a consequence of the combination with 
Vodafone, which held a market share of 10%-15% (such combination and the related impact of competition was assessed by the Commission in the 
Vodafone/Liberty Global/Dutch JV  decision).  
(187)  The Commission, therefore, considers that such growth in market share is 
non-merger specific.
70   
(188)  If the two segments for (i) single busines s customers (that is, individuals with 
a business subscription), SME and SoHo, and (ii) large businesses are 
considered, VodafoneZiggo has market shares of [10-20]% and [5-10]% respectively (excluding mobile services that the Notifying Parties indicate 
were added in 2016 and are thus not merg er-specific). These, therefore, are 
not affected markets for the purpose of assessing the Transaction. 
                                                 
70  In any event, based on the information provided by the Notifying Parties, the market leader in the 
sector is (by far) KPN, with an estimated market share of 51.7%. Therefore, even considering the 
market shares, the Transaction does not raise serious doubts as to its compatibility with the internal 
market. 
 
35 5.2.6.  Carrier services at wholesale level 
(189)  The market for carrier services at wholesale level involves the provision of 
transmission capacity on telecommunications infrastructure (typically international cable networks) to other telecommunications companies and 
business communications providers. 
5.2.6.1.  Product market definition 
(190)  In the Supplement Form CO, the Notifying Parties submit that, in order to 
operate their services, telecommunications companies such as internet service 
providers and mobile network operators lease transmission capacity on 
telecommunications infrastructure.  
(191)  The Notifying Parties further recall that the Commission has previously 
described this market as a market for " the lease of transmission capacity and 
the provision of related services to third party telecommunication traffic 
carriers and service providers. " The market investigation in Vodafone/Liberty 
Global/Dutch JV , they also argue, confirmed this product market definition, 
and the Commission therefore concluded that the market for wholesale 
international carrier services comprises the lease of transmission capacity and 
the provision of related services to third party telecommunication traffic 
carriers and service providers. 
(192)  For the purposes of the present decisi on, the Commission considers that the 
exact market definition may be left ope n, as the Transaction does not raise 
serious doubts as to its compatibility with the internal market irrespective of 
the conclusion on this point. 
5.2.6.2.  Geographic market definition 
(193)  In the Supplement Form CO, the Notifying Parties argue that the relevant 
market is likely to be global in scope. In Vodafone/Liberty Global/Dutch JV , 
the Commission left open the exact definition of the geographic scope of the 
market. The Commission considers that in this case too, the exact geographic 
scope may be left open, as it will not affect the outcome of the Commission 
assessment.  
5.2.6.3.  Affected market 
(194)  In the Conditional Clearance Decision, on the basis of the Parties' limited 
market shares, the Commission concluded that there was no affected market and therefore did not further discuss the market in its assessment. 
(195)  In the Supplement Form CO, the Notifying Parties estimate at USD 47.8 
billion the size of the global market for wholesale carrier services in 2016. In 
such market, VodafoneZiggo has an estimated market share of less than 0.2%. 
The market, therefore, would not be horizontally affected.  
(196)  The Notifying Parties also mention a small vertical relationship, created by 
the Vodafone/Liberty Global/Dutch JV  transaction, in the upstream market for 
carrier services at wholesale level and, downstream, in the retail mobile and 
 
36 business communication services market s. Based on the information provided 
by the Notifying Parties, such vertical relationship leads to an affected market. 
(197)  The Commission considers, in this respect, that, because the vertical relation 
between Vodafone and Ziggo is a result of the Vodafone/Liberty 
Global/Dutch JV  transaction, such effect is not merger specific.71  
5.3. Mobile services 
(198)  The Parties are also active in the following markets for mobile services in the 
Netherlands: 
i. Mobile telecommunication services at retail level 
ii. Call termination on mobile networks at wholesale level 
5.3.1.  Mobile telecommunication services at retail level 
(199)  Mobile telecommunication services to end customers, or "retail mobile 
services", encompass services for nati onal and international voice calls, SMS 
(including MMS and other messages), mo bile Internet with  data services, 
access to content via the mobile network and retail international roaming 
services. Those servi ces are provided on 2G/GSM, 3G/UMTS and 4G/LTE 
networks with the 2G network historically having better coverage and the 3G network being better adapted for larger  amounts of data and faster download 
speeds. 4G/LTE, the last technology to be launched, is a mobile technology 
which increases the speed and capacity of the network and is adapted for 
improved voice quality and high speed data transmission from wireless devices, for example, to stream video,  Internet TV and to use broadband 
Internet. 
5.3.1.1.  Product market definition 
The Notifying Party's views in 2014  
(200)  The Notifying Party did not take a view on the exact product market 
definition. 
Commission's assessment and conclusion in 2014 
(201)  In its previous decisions, the Commiss ion had assessed the concentrations on 
the basis of a single market for mobile telecommunication services without 
segmenting according to the type of customers, services or network 
technology. In particular, the Commission had not defined separate markets 
for pre-paid and post-paid customers in light of supply-side substitution. 
Therefore, the Commission considered that the exact definition of the product 
                                                 
71  In addition, based on information submitted by the Notifying Parties, the market share of 
VodafoneZiggo has remained modest and there are sufficient alternative suppliers which compete to provide wholesale access to downstream retail service providers. Therefore, even considering the 
market specific characteristics and structure, the Transaction would not raise serious doubts as to its 
compatibility with the internal market. 
 
37 market could be left open as the Transaction did not raise competition 
concerns, regardless of the precise product market definition retained. 
The Notifying Parties' views in their Supplementary Notification 
(202)  In the Supplement Form CO, the Notifying Parties agree with the 
Commission’s previous assessment and submit that the relevant product market is the overall retail market for mobile telecommunications services. 
The Notifying Parties submit that it is not necessary for the Commission to 
further segment this well-established market, inter alia  by reference to 
customer or service type, for the following reasons. 
(203)  First, with respect to the type of service, usually internet access, data services 
and content access are part of the same retail offering, or are separate 
components alongside voice and text serv ices, which are invo iced or charged 
together in the same way as the other services. Monthly allowances or topped-
up credit can be used to buy either service. It is therefore not useful or 
practical to distinguish mobile internet from voice and text services for market 
definition purposes; 
(204)  Second, with respect to the type of cu stomer, there is no logical distinction 
between business and private users. While business customers are generally 
considered to be heavier users of mobile  services than private customers, there 
is no significant difference between the types of services provided to both 
groups. Furthermore, business customers regularly use business phones for 
personal calls and private phones fo r business calls, which blurs the 
distinction between the two categories. In any event, on the supply side, the 
same mobile networks can be used to supply both business and private 
customers; 
(205)  Third, with respect to the type of tariff, although tariff plans for pre-paid and 
post-paid contracts may be different, customers can switch easily between them. Furthermore, the distinction between pre-paid and post-paid tariffs has 
become blurred due to, for example, the ability to automatically top-up and 
predetermined commitments to pay through monthly invoices; and, in post-
paid, the ability to obtain lower cost “SIM only” contracts which are sold 
without a handset and which are an alternative to pre-paid SIM offers; and 
(206)  Fourth, with respect to the type of network technology, it is not possible to 
distinguish between services that are provided through different technologies. 
The choice of network technology used for a particular service is simply a 
function of the providing MNO’s preference, although there is generally a 
preference to use 3G and 4G technology for the provision of data services. 
Moreover, all 3G phones have the capacity to support both 2G and 3G 
networks, while 4G phones have the capacity to support all networks. 
Commission's assessment 
(207)  In the present case, the Commission has not detected any element justifying a 
departure from its previous position that there is an overall market for retail 
mobile telecommunication services. In any event, for the purpose of this case, 
the definition of the relevant product market may be left open. 
 
38 5.3.1.2.  Geographic market definition 
(208)  The Notifying Party did not take a view on the exact geographic market 
definition.  
(209)  The Commission had consistently found that the markets for the retail mobile 
services provided to end consumers were  national in scope. Because nothing 
in the course of the investigation jus tified a deviation from previous findings, 
the Commission considered that the mobile telecommunication services 
market(s) was national in scope. 
(210)  In line with previous Commission decisions, in the Supplement Form CO, the 
Notifying Parties submit that the relevant geographic market is national in scope. The relevant criteria on which the Commission has based its past 
decisions are also directly relevant to the Netherlands: operating licences for 
mobile services (including spectrum licences) are granted by the Dutch 
government for the territory of the Netherlands and each of the operators 
active on the Dutch market sell, market and price their services on a national level. 
(211)  The Commission considers that the relevant market is national in scope. 
5.3.1.3.  Affected market 
(212)  At the time of the Conditional Cleara nce Decision (and before the completion 
of the Vodafone/Ziggo joint venture) , Liberty Global and Ziggo operated as 
MVNOs with very modest market shares, which did not support the conclusion that the relevant market was a horizontally affected market. 
Technically, the market for mobile telep hony was a vertically affected market 
as Liberty Global and Ziggo held more than 25% market share on the upstream market for wholesale call term ination services on fixed networks. 
The Commission however granted a waiver in that respect, as there were no 
competitive concerns. 
(213)  For the purposes of this re-assessment, the Commission considers this 
reasoning still holds in relation to the retail market for mobile telephony 
services.  
5.3.2.  Call termination on mobile networks at wholesale level 
(214)  Call termination is a service provided by operator B to operator A, whereby a 
call originating on operator A’s network is delivered to a user of B’s network. This essentially allows users of different networks to communicate with each 
other. 
5.3.2.1.  Product market definition   
(215)  In the Supplement Form CO, the Notifying Parties submit, in line with 
previous Commission decisions, that each network constitutes a separate 
wholesale market for call termination. The Commission shares that view. 
 
39 5.3.2.2.  Geographic market definition 
(216)  In line with previous Commission deci sions, the Commission considers that 
the relevant market should be considered as national in scope, consistently with the extension of the network of each operator. 
5.3.2.3.  Affected market 
(217)  In the Conditional Clearance Decision, the Commission considered that each 
mobile network constituted a separate market and that therefore there was no 
horizontally affected market. Still, from a vertical perspective, the relevant 
market for wholesale mobile call termination was connected to the retail 
mobile operations of Liberty Global and Ziggo. The Parties had already a 
monopoly on their respective networks and would have, after the Transaction, 
a monopoly on the combined network. The Commission therefore granted a 
waiver in relation to the wholesale market for call termination on mobile 
network, which was no longer disc ussed in the Conditional Clearance 
Decision. 
(218)  As nothing has changed in market conditions since 2014, the Commission 
considers this reasoning still holds and has granted a waiver to the Notifying 
Parties, in relation to the wholesale market for call termination on mobile 
network. 
5.4. Hypothetical retail market for mu lti-play and triple play services 
(219)  “Multiple play" offerings comprise a bundle of usually three or more of the 
following retail services to end customers: fixed telephony services, mobile 
services, fixed Internet access services and TV services. Such packaged offers 
may consist of so-called "triple play" comprising three services or even "quadruple play" comprising all those services. 
5.4.1.1.  Product market definition 
The Notifying Party's views in 2014 
(220)  In the 2014 case, the Notifying Party’s view was that multiple play did not 
constitute a separate market. 
Commission's assessment and conclusion in 2014 
(221)  In its assessment of the case, in 2014, among other things, the Commission 
noted that, based on the results of the market investigation, TV services, along with Internet services, were key driver s for multiple play services and there 
was therefore a strong link between the strength of a market participant's TV 
offering (as well as its In ternet offering) and its success in the provision of 
multiple play services. Finally, the Commission noted that the Netherlands in 
particular had a high penetration rate of  multiple play customers with around 
50% of the market being served through triple play subscriptions. In any 
event, the Commission considered that the exact product market definition 
could be left open since the Transaction did not raise competition concerns 
regardless of whether multiple play services were considered a separate 
market or included in the markets for unbundled offers. 
 
40 (222)  ACM has also consistently refrained from defining a market for multi-play 
services separate from its components.72 Similarly, in their regulatory 
decisions, ACM and the OPTA have not found that multi-play services 
constitute a separate market.73 
The Notifying Parties' views in the Supplementary Notification 
(223)  In this instance, the Notifying Parties submit that there is no separate retail 
market for multi-play services. In particular: 
(224)  First, also in light of the absence of pure bundling in the Netherlands, there is 
no indication of any lack of demand-side substitutability between multi-play 
offerings and the separate services which they comprise. Consumers can and do switch easily between purchasing their services as part of a multi-play 
offering (whatever the combination may be) or individually (i.e. “unpicking” 
the bundle), depending on their needs. Indeed, the most important reason for 
customers choosing to purchase different products as part of a mixed bundle is 
the reduction in price they achieve compared to purchasing the same products separately. Accordingly, from a demand-side perspective, multi-play offerings 
and the individual services they comprise are perfect substitutes. 
(225)  Second, there is no indication of any lack  of supply-side substitutability, since 
suppliers offering all (or some) the indivi dual services (either using their own 
networks or via wholesale access to other operators’ networks) can start 
offering these services as part of a multi-play offering without incurring extra 
costs. Accordingly, also from a supply-si de perspective, mu lti-play offerings 
and the individual services they co mprise are perfect substitutes. 
(226)  Third, furthermore, from a practical perspective, given the large number of 
possible permutations of dual-play, triple -play, or quad-play offers that are 
increasingly being sold in the market, it is unclear which package of services 
should be taken as a possible candidate  market and which different types of 
bundles are seen by customer s as potential substitutes in the event of a price 
rise. For instance, in Vodafone/ONO
74 and Vodafone/Kabel Deutschland ,75 the 
Commission itself recognised that triple-play offers could combine either 
fixed telephony, fixed internet and TV , or mobile telephony, fixed telephony 
                                                 
72  ACM Decision of 8 December 2006 in case 5796 Cinven/Warburg Pincus/Essent Kabelcour; ACM 
Decision of 22 December 2006 in case 5807 KPN Telecom/Tiscali; ACM Decision of 19 December 
2008 in case 6397 KPN/Reggefiber, para. 45. 
73  See e.g. OPTA decision of 17 March 2006, De markten voor de doorgifte en verzorging van omroep 
transmissiediensten —Multikabel, OPTA/BO/2006/200536, para. 284; OPTA decision of 19 
December 2008, Marktanalyse Vaste Telefonie, OPTA/AM/2008/202721, para. 337; OPTA decision of 19 December 2008, Marktanalyse Breedband, Wholesale-breedbandtoegang, 
OPTA/AM/2008/202717, para. 270; OPTA decision of 5 March 2009, Analyse van de wholesalemarkt 
voor doorgifte van rtv-signalen via en het op wholesale niveau leveren van de aansluiting op het omroeptransmissieplatform van CAIW in het verzorgingsgebied van CAIW, OPTA/AM/2009/200369-
), para. 355. 
74  Commission decision of 02 July 2014, in  case COMP/M.7231, Vodafone/ONO. 
75  Commission decision of 20 September 2013, in case COMP/M.6990, Vodafone/Kabel Deutschland. 
 
41 and fixed internet. Similarly, in Orange/Jazztel ,76 the Commission considered 
that if multi-play services were to be regarded as a market  separate from their 
components, there are five possible ma rkets for multi-play services: (i) a 
general market for all multi-play services , (ii) separate markets for dual play 
services, (iii) triple-play services, (iv)  quad-play services, and (v) a market 
combining triple and quad-play services. This is not yet possible considering the different combinations for each of the dual play, triple-play and quad play 
packages, nor are there any possible co mbinations with products such as 
Premium Pay TV. 
(227)  The Notifying Parties further argument that, in any event, even if the 
Commission were to define a market fo r multi-play services separate from the 
markets for unbundled offers, such a market would not include undiscounted 
joint purchasing. Adopting the approach of the Commission in Liberty 
Global/Base ,
77 undiscounted joint purchasing should be excluded from the 
notion of multi-play services and shoul d not be considered as a bundle in the 
sense of the Non-Horizontal Merger Guidelines. This is because if a customer does not benefit from purchasing components jointly, it is likely to switch to purchasing these components separately as a result of a small but permanent increase in the price of the joint offer. 
(228)  What ultimately matters, the Notifying Parties argue, is to take account of the 
competitive dynamics pre- and post-merger in the areas where the activities of 
the Parties overlap. In any event, even if one were to assume the existence of 
a hypothetical multi-play retail market, which is separate from its individual services, no competition concerns have arisen and would arise. As such, 
according to the Notifying Parties, the exact definition of the relevant product 
market can be left open. 
Commission's assessment 
(229)  The market investigation does not appear to support the conclusion that a 
separate market for multi-play services exist.
78 Some respondents have 
highlighted the increasing penetration of bundled offers in the Netherlands 
and the competitive strength that such bundle have in attracting consumers 
and in providing them with discounted mobile services offers. It was noted, at 
the same time, that the transition to this new business model is by no means 
completed and that consumer still have and exercise the option to buy 
unbundled services.  
(230)  For such reasons, the Commission considers that the question whether 
separate product markets for multi-play or bundled services exist may be left open for the purposes of this decision. 
                                                 
76  Commission decision of 19 May 2015, in case COMP/M.7421, Orange/Jazztel. 
77  Commission decision of 04 February 2016, in case COMP/M.7637, Liberty Global/Base Belgium. 
78  Replies to Q3 of 5 April 2018 to retailers, questions B.E.7 and B.E.7.1. 
 
42 5.4.1.2.  Geographic market definition 
(231)  In the 2014 notification, the Notifying Party did not take view as to the 
definition of the geographic market for multiple play offers. Respondents to the market investigation mostly considered that the hypothetical market for 
multiple play services would be national in scope. Therefore, the Commission 
considered that the geographic scope of the possible market for multiple play 
offers is national. 
(232)  The market investigation does not appear to support the conclusion that a 
separate market for multi-play or bundled offers exist. In any event, 
respondents pointed out that bundles display their competitive effects on a 
national basis. 
5.4.1.3.  Affected market 
(233)  In the Conditional Clearance Decision, the Commission assessed the retail 
markets (that is, those for the supply of TV services, fixed telephony, Internet 
access and multiple play services) jointly. In this respect, the Commission 
noted that retail services (such as those provided in the hypothetical market 
for multiple play services) were only provided in Liberty Global's and Ziggo's 
respective footprints in the Netherlands, with no overlap or possibility for 
direct customer switching. In addition,  indirect competitive pressure that 
would be removed as a result of the Transaction, would only cause a 
significant impediment to effective competition if it was particularly strong. 
The Commission also excluded other potential anticompetitive effects. 
(234)  Information submitted by the Notifying Parties in the Supplement Form CO 
shows that the market share of VodafoneZiggo has been decreasing since 2014. Nonetheless, VodafoneZiggo still holds a market share of 52.4% in the 
market for fixed triple-play subscriptions. Therefore, the hypothetical market 
for multi-play services shall be considered an affected market. 
6. COMPETITIVE  ASSESSMENT  
Introduction 
(235)  Based on the analysis of the information and the market shares submitted by 
the Notifying Parties in the Supplement Form CO, the Commission considers 
that the following are the relevant product markets which are horizontally 
and/or vertically affected, as a consequence of the Transaction.  
(a) Licensing and acquisition of broadcas ting rights for movies and series 
content for non-linear distribution (and when segmented further into 
SVOD and TVOD); 
(b) Markets for the supply and acquisition of Basic Pay TV channels, 
Premium Pay TV film channels and Premium Pay TV sports channels; 
(c) Retail market for the provision of Pay TV services; 
(d) Retail market for fixed telephony services; 
 
43 (e) Retail market for fixed Internet access; 
(f) Hypothetical retail market for multi-play and triple-play services; 
 
Television services 
6.1. Licensing and acquisition of broad casting rights for TV content 
(236)  In 2014, there was a horizontal overlap between the activities of Liberty 
Global and Ziggo on the acquisition side of the market for licensing and 
acquisition of broadcasting rights for individual audio visual TV content in 
the Netherlands. 
(237)  Liberty Global owned the Premium Pay TV film channel Film1 and the 
Premium Pay TV sports channel Sport1 and Ziggo owned the Premium Pay TV film channel HBO NL jointly with HBO, Inc.  
(238)  Today, after the divestiture of Film1 and the dissolution of the HBO NL joint 
venture, VodafoneZiggo is no longer active in the purchasing of film content 
for linear distribution. It does, however,  acquire content for the purpose of its 
downstream activities in the fields of VOD services (called Movies & Series) 
and Premium Pay TV sports offerings. 
6.1.1.  The Notifying Party's views in 2014 
(239)  In 2014, the Notifying Party submitted that the merged entity would have a 
market share of [5-10]% in the overall market for the acquisition of all individual audio visual TV content, if the geographic market is limited to the 
Netherlands. 
(240)  On the possible market for the acquisition of non-linear audio visual TV 
content only, Liberty Global and Ziggo would have a combined market share 
of around [20-30]%. The Notifying Party al so submitted that if this product 
market were to be segmented fu rther between non-linear SVOD and non-
linear TVOD services, the merged entity’s market share might exceed 20% on the segments of non-linear TVOD services. The Notifying Party was not able 
to provide the market share of the merged entity on the segment of non-linear 
SVOD services. Within the possible market segments for the acquisition of first Pay TV window and second Pay TV window film TV content, the 
merged entity would have a combined market share of 100% in both 
segments. 
(241)  The Notifying Party first submitted that the merged entity would not have 
increased buyer power vis-à-vis  the suppliers of premium audio visual 
content, major producers operating on a global scale. Moreover, it also 
submitted that there were a number of OTT VOD services providers in the Netherlands that competed for the purchase of broadcasting rights for the first 
Pay TV window and second Pay TV window as well as for TVOD.  
(242)  In addition, the Notifying Party argued, TVOD services often provided access 
to both films and TV series on a non-exclusive basis prior to the first and 
 
44 second Pay TV exhibition windows thus f acilitating the access of consumers 
to films and TV series and reducing the importance of first Pay TV window. 
Finally, the Notifying Party stated that content right owners had a significant 
freedom in negotiating the level of exclusivity of their broadcasting rights for 
the different windows with different buyers, which further made the 
distinction between them unclear. 
6.1.2.  Commission's assessment in 2014 
(243)  The Commission noted that the increa se post-Transaction would be very 
limited in the overall market for the acquisition of individual content, while it 
would be more significant in a number of possible narrower segments (first 
Pay TV window; non-linear broadcasting rights (VOD) and, in particular, 
TVOD rights). According to the Commission, this could have led to two 
potential negative effects on competition: (i) the merged entity might have an incentive to buy less audio visual content in order to obtain lower prices 
(ultimately resulting in consumer harm in the form of less choice and 
diversity) and; (ii) it could also have demanded stricter conditions for example 
over more content in order to limit the availability of premium content for its 
rivals in the downstream markets for the wholesale supply and acquisition of 
Pay TV channels and the retail provision of Pay TV services. 
(244)  The market investigation carried out in 2014 revealed that the majority of TV 
services retailers who replied to the Co mmission's market investigation were 
concerned that the Transaction could ha rm their position on the market. This 
could have happened because either the merged entity would have been able 
to negotiate more favourable price conditions from content owners and these 
would have charged higher prices to the other players in the market, in order to recoup any decrease in revenue or because the content owners would have 
had an incentive to deal exclusively with the merged entity, through which a 
substantial portion of potential viewers could be reached. The market 
investigation also showed that the majority of content owners who replied to 
the Commission's market investigation did not consider that the merged entity would have an incentive to acquire less content post-merger. 
(245)  The Commission noted that most of the licensors of premium content were 
large Hollywood film studios whose negotiating position vis-à-vis  the merged 
entity was unlikely to deteriorate as a result of the Transaction. As for Dutch-
language content, the market investigation carried out in 2014 revealed that some respondents considered that the ability to offer Dutch-language content 
to the local audience was an important advantage in terms of product 
differentiation. However, other responde nts expressed the view that even 
though Dutch content was undoubtedly important, United States Hollywood 
film content was even more important. 
6.1.3.  Commission's conclusion in 2014 
(246)  The Commission held that it did not need to reach a conclusion on whether 
the Transaction would have been likely to impede effective competition on 
the market for the acquisition of Dutch-language content or on the markets for the acquisition of individual audio visual  content for first and second Pay TV 
windows. Indeed, the remedies proposed by the Notifying Party would 
eliminate also the possible anti-competitive effects on these markets. 
 
45 (247)  As for VOD content the Commission held that the merged entity was unlikely 
to purchase less VOD content. In addition, the Commission considered also a 
further segmentation of the market into a market for TVOD and SVOD 
windows and held that TVOD deals we re in general concluded on a non-
exclusive basis to retailers and that there was no reason why this could change 
post-Transaction. With reference to SVOD rights, which could also be 
negotiated exclusively, the Commission held that the Transaction would not 
change the pre-merger situation. It concluded that the Transaction would not 
have led to a significant impediment to effective competition on the possible 
markets for acquisition of VOD, be it SVOD or TVOD and that in any event 
the commitments proposed by the Notifying Party would in any event remove also any increment added by the Transaction to the possible market for 
acquisition of SVOD rights. 
6.1.4.  The Notifying Parties' views in their Supplementary Notification 
(248)  The Notifying Parties submit that the overall market for the acquisition of all 
individual audio visual TV content would not be affected as Liberty Global's 
and Ziggo's combined acquisition expenditure for individual TV content in 
2017 would amount to a combined market share of [5-10]% if the geographic 
market is limited to the Netherlands. 
(249)  The Notifying Parties have been unable to collect reliable estimates for the 
sizes of the various possible separate relevant product markets involving TV 
content that were previously identified by the Commission. However, on the 
possible market for the acquisition of non-linear audio visual TV content only, 
Liberty Global's and Ziggo's combined ex penditure for VOD content rights in 
2017 would give them a combined market share of around [5-10]% in the Netherlands. The Notifying Parties estimate that the market shares for the 
merged entity on the segment of non-linear SVOD is less than 20%, while the 
market share for non-linear TVOD services might exceed 20%. 
(250)  The Notifying Parties submit that sinc e 2016, VodafoneZiggo has ceased to 
acquire individual content for first Pay-TV window and second Pay-TV window, inter alia , as a result of the divestment of Film1 and the termination 
of HBO NL, VodafoneZiggo is thus no lo nger active on the potential market 
segments for the acquisition of individual linear content for first Pay-TV 
window and second Pay-TV window. 
(251)  With reference to the acquisition of sports rights, the Notifying Parties were 
not able to provide actual information on the size of the market for the 
acquisition of sports content rights. However, it provides figures according to which the total of sport content spend by VodafoneZiggo has increased from 
EUR [...] in 2014 to EUR [...] in 2017.  Moreover, VodafoneZiggo's market 
share based on spending on sports content increased from [5-10]% in 2014 to 
[10-20]% in 2017. 
(252)  According to the Notifying Parties, following the divestment of Film1, none 
of the possible segments within the market for the acquisition of individual 
content can be considered affected for the purpose of the reassessment of the 
Transaction. Moreover, the Notifying Parties submit that the market presence 
of OTT players increased since 2014 and they are actually concluding 
exclusive deals for first Pay-TV window. The proliferation of OTT players 
 
46 (such as Netflix and Amazon, both of which have vast budgets) has led to 
rapidly increasing demand for quality content and reduced buyer power of the 
traditional market players, including VodafoneZiggo.  
(253)  The Notifying Parties also submit that their content acquisition activities are 
significantly reduced since 2014 and they are mainly focused on linear sports 
rights and non-linear movies/serie s content for VOD distribution. 
Furthermore, the Transaction has not led to any increase in buyer power in 
relation to sports content given the lack of horizontal overlap. 
(254)  With respect to the acquisition of broad casting rights for movies and series for 
TVOD distribution, the Notifying Parties emphasise that this hypothetical 
market segment is rather competitive and is characterised by a wide variety of 
different types of players. Market players, in fact, include Pathé Thuis, 
iTunes, Amazon Prime, KPN, T-Mobile, M7 and Tele2. It must also be noted, the Notifying Parties argue, that broad casters offer TVOD OTT services via 
their websites (such as RTL XL) and may therefore allocate some of their 
content acquisition costs to their TVOD services. The Notifying Parties 
finally indicate that they have no reliab le estimates available on the individual 
TVOD spend of these players. 
(255)  Finally, the Notifying Parties submit that there are contractual limitations 
preventing issues arising due to exclusive content use. According to the Notifying Parties, the practice of granting exclusive licensing has not changed 
but more third party bidders have be come active and this means that 
competition for these licence windows has increased over the past years.  
6.1.5.  Commission's assessment 
(256)  In response to the market investigation, a number of broadcasters and retail 
TV distributors indicated that the merged entity is in a better position to buy 
content due to the Transaction and that this bargaining position negatively affects smaller providers.
 79,80 
(257)  On the other hand, the majority of content owners who replied to the market 
investigation do not consider that the merged entity will be in a better 
bargaining position post-Transaction81 and, in general, they did not see the 
Transaction as problematic.82 
(258)  Furthermore, the Commission notes that most of the licensors of premium 
content, which is the only content usi ng first and second Pay TV windows, are 
large Hollywood film studios whose negotiating position vis-à-vis  the merged 
entity is unlikely to deteriorate as a result of the Transaction. 
                                                 
79  Replies to Q2 to TV channel suppliers of 5 April 2018, questions D.1.1 and D.2.1.1.  
80  Replies to Q3 to retail Pay TV providers of 5 April 2018, question D.2.1.1. 
81  Replies to Q1 to content providers of 5 April 2018, question B.A.12. 
82  Replies to Q1 to content providers of 5 April 2018, question C1. 
 
47 (259)  With reference to sports rights, the Commission observes that these rights 
come up for tender regularly and that the merged entity faces effective 
competition from a large number of TV channels as well as from major OTT 
operators, such as Amazon and Facebook (the Notifying Parties provide 
evidence of recent bids for sports rights).83  
(260)  Moreover, the increase in spending in sports content does not appear to be 
linked to the fact that the Transaction allowed the merged entity to spread the 
investment costs to acquire content over a larger customer base. Indeed, pre-Transaction, Ziggo already distributed Liberty Global's Sport1 channel to its 
subscribers. When bidding to acquire content for its Sport1 channel, Liberty 
Global must therefore already have taken into account the value it could extract from selling the channel to Zi ggo. The Transaction would therefore 
not have led to any change in that respect (apart from the elimination of 
double-marginalisation). Given the differe nt geographic footprints of Liberty 
Global and Ziggo it is easy to understand that Liberty Global had pre-
Transaction every incentive to provide its Sport1 channel to Ziggo. 
(261)  With respect to the acquisition of movies and series for TVOD distribution, 
the Commission considers that the segment is highly competitive
84, also in 
consideration of the entry of new players in the market. 
6.1.6.  Overall conclusion 
(262)  In light of the above, the Commission concludes that the Transaction does not 
raise serious doubts as to its compatibility with the internal market as regards the market for licensing and acquisition of broadcasting rights for TV content 
in the Netherlands.  
6.2. Market for the supply and acquisition of Premium Pay TV film channels 
(supply side) 
6.2.1.  The Notifying Party's views in 2014 
(263)  Horizontal non-coordinated effects. The Notifying Party acknowledged at 
the outset that if a separate product market for the supply and acquisition of 
Premium Pay TV film channels were to exist, the Transaction would combine 
the only two TV channels in this category in the Netherlands, namely Film1 and HBO Nederland. 
(264)  According to the Notifying Party, however, the two channels represented 
complementary, rather than competing entertainment offers, given that they 
had a different focus. Moreover, the No tifying Party submitted that Premium 
Pay TV film channels were competitively constrained by the growing number of SVOD and TVOD offerings, includi ng Internet-based OTT services. In 
addition, the availability of wholesale offers for non-linear content would 
have rendered it relatively easy for prov iders of retail TV services to introduce 
                                                 
83  Supplement Form CO, paragraph 242. 
84  There is a significant number of small and large players active in this market, such as Apple, Pathé 
Thuis, YouTube, or Google Play as well as several Dutch providers of retail Pay TV services. 
 
48 or continue to expand their own VOD offerings, thus increasing the 
competitive constraint exerted on Film1 and HBO Nederland. 
(265)  The Notifying Party also submitted that Film1 and HBO Nederland constitute 
recent services, with a relatively low penetration rate with Dutch households. 
For this reason, the two TV channels would have an interest in not raising 
price, thereby aiming at generating additional profits by increasing subscriber 
numbers. Moreover, according to the Notifying Party, there is a large degree 
of price sensitivity for Premium Pay TV channels. 
(266)  In addition, the Notifying Party considered that the Transaction would not in 
any way influence that situation, suggesting that HBO Nederland had at most 
a limited effect on Film1 subscribers. The Notifying Party therefore 
contended that if post-merger, it coul d simultaneously raise both Film1 and 
HBO Nederland prices, the resulting decline in the Film1 and HBO Nederland subscriber base would not have been less significant than the decline that 
would have resulted, pre-Transaction, from an individual price increase for 
Film1. 
(267)  To conclude, the Notifying Party argued that the Transaction would not have 
given rise to either the ability or the incentive to increase the prices of either 
Film1 or HBO Nederland, which the Notifying Party claimed would have 
been unlikely due to the expected continuation of the HBO joint venture. 
(268)  Foreclosure effects . The Notifying Party submitted that Film1was neither a 
TV channel with significant market power, nor an important "must-have" TV channel. Moreover, in the case of HBO Nederland, the merged entity noted 
that it did not enjoy unilateral control, but only had joint control of the 
company and, as such, was unable to restrict the supply to its downstream 
rivals.  
(269)  As regards incentives to foreclose, the Notifying Party submitted that this 
would be both commercially unattrac tive and inconsistent with those 
channels’ business strategies of enhancing overall viewership and market 
penetration. As regards HBO Nederland,  the Notifying Party highlighted that 
even if a foreclosure strategy were theoretically attractive to the merged 
entity, would likely to be vetoed by Time Warner/HBO and could thus be disregarded. At the Commission's request, the Notifying Party performed a 
margin analysis for a merged entity stra tegy of complete foreclosure of Film 1 
and/or HBO Nederland from rival platform s. According to the calculation of 
the Notifying Party, the critical level of switching that is required for such a 
foreclosure to be profitable is too high, and therefore, it is unlikely that this 
could be a commercially attractive option for the merged entity. As regards a 
scenario of ‘partial’ foreclosure, in which the merged entity continues to offer 
the retained Premium Pay TV channel to competitors but on worse terms, the 
Notifying Party submitted that competing TV platform operators have the 
option to continue offering the other Premium Pay TV channel as well as the presence of the premium OTT SVOD alternatives.  
(270)  As regards the overall competitive effect on competition, the Notifying Party 
contended that even if it were the case that the merged entity foreclosed for 
example KPN with respect to Film1, no anti-competitive effect could 
reasonably be envisaged. The Notifying Party did not regard Film1 channel as 
 
49 having "must-have" content whose absence could prevent an operator from 
competing effectively. 
6.2.2.  Commission's assessment in 2014 
(271)  Horizontal non-coordinated effects. The Commission first noted that the 
Transaction would have combined the only two linear Premium Pay TV film channels (Film1 and HBO Nederland) that are present in the Netherlands.  As 
a result of the merger,  retail providers of Pay TV services would have no 
possibility of switching supplier for those services in that market, making them particularly vulnerable to price increases. Indeed, the merger would have 
likely resulted in higher wholesale prices  for the retail providers of Pay TV 
services and this would have, in turn, likely resulted in higher subscription 
fees for subscribers of Premium Pay TV services in the Netherlands. 
(272)  The Commission then analysed the relationship between HBO and Film1, 
concluding that the two were substitutes, and not complements, pre-
Transaction. According to the Comm ission, although both Premium Pay TV 
film channels were offering inherently largely complementary content, due to 
their generally exclusive distribution models, significant competitive pressure 
seemed to be exerted between them. Moreover, with reference to the potential 
competitive pressure exerted by provider s of SVOD services such as Netflix, 
RTL's Videoland and Pathé Thuis on Film1 and HBO Nederland, the Commission concluded that Film1 and HBO Nederland constitute the only 
two linear Premium Pay TV film channels in the Netherlands which, as 
opposed to for instance Netflix, are only available as part of or an add-on to a 
retail TV services provider's Pay TV subscription. The Commission also 
noted that linear and non-linear Pay TV services are not fully substitutable. To conclude, the Commission expressed the view that OTT SVOD services were 
still nascent in the Netherlands and, ther efore, it was not clear to what extent 
they could constrain post-merger price increases. 
(273)  With reference to the broader market for the wholesale supply of Premium 
Pay TV channels, the Commission noted that the Transaction would have brought together three out of the four Premium Pay TV channels in the 
Netherlands. However, the Commission considered that, in light of the 
competitive situation in the market for the wholesale supply of Premium Pay 
TV film channels, the conclusions reached with regard to the latter applied 
equally to the broader Premium Pay TV channels market. 
(274)  Foreclosure effects.  As regards the ability to engage in complete or partial 
foreclosure, the starting point of the Commission's analysis was the fact that the merged entity would control the only two linear Premium Pay TV film 
channels in the Netherlands. Accordingly, the Commission considered that the 
merged entity would hold a significant degree of market power in the relevant 
upstream market (in effect, it arguably had the ability to prevent competitors 
from being able to provide any Premium Pay TV film channels). 
(275)  In terms of incentive, the Commission considered that there was more 
incentive to foreclose Film1 (over which the merged entity had sole control) than HBO given that the other controlling shareholder of the HBO Nederland 
joint venture, Time Warner/HBO, would advocate for the widest possible 
 
50 distribution of its TV channels and would get no direct benefit from additional 
retail Pay TV subscribers to the merged entity.   
(276)  The Commission considered that the Transaction would increase the 
profitability of any foreclosure of Liberty Global's Film1 Premium Pay TV 
film channel due to the increase in the downstream footprint. The 
Commission assessed the margin analysis carried out by the Notifying Party 
and established that the critical level of switching was much lower than 
submitted by the Notifying Party. Theref ore, the Commission considered that 
the margin analysis supported the finding of a likely financial incentive to 
foreclose Film1.   
6.2.3.  Commission's assessment and conclusion in 2014 
(277)  Horizontal non-coordinated effects. The Commission concluded that the 
Transaction as originally notified was unlikely to be compatible with the 
internal market in that it was likely to create a significant impediment to 
effective competition in the possible market for the wholesale supply and acquisition of Premium Pay TV film channels in the Netherlands as well as in 
any broader market for the wholesale supply and acquisition of Premium Pay 
TV channels in the Netherlands. 
(278)  Foreclosure effects.  The Commission concluded that the Transaction as 
originally notified was likely to create a significant impediment to effective 
competition in the upstream market for the wholesale supply and acquisition 
of Premium Pay TV (film) channels on the one hand, and the downstream markets for the retail supply of Pay TV services which would also form part 
of the possible market for the retail supply of multiple play services in the 
Netherlands on the other hand.  
Film1 Commitment 
(279)  In order to maintain effective competition in relation to Premium Pay TV film 
channels in the Netherlands, the Notifying Party committed to divest, or 
procure the divestiture of the Film1 Divestment Business, by the end of the Trustee Divestiture Period, as a going concern to a purchaser and on terms of 
sale approved by the Commission. 
(280)  To carry out the divestiture, the Notifying Party committed to find a purchaser 
and to enter into a final binding sale and purchase agreement for the sale of 
the Film1 Divestment Business within the First Divestiture Period.  
(281)  The Notifying Party also committed to exercise reasonable efforts to ensure 
that the Film1 business would be remain viable in the future, e.g. by entering into a [...]year carriage agreement for the distribution of Film1 on the merged 
entity’s Pay TV platform in the Netherlands on reasonable commercial 
conditions or by transferring to the Pu rchaser all current Film1 main exclusive 
content licence agreements. 
(282)  In order to maintain the structural effect of the Commitments, the Notifying 
Party shall, for a period of 10 years after the Effective Date, not acquire, 
whether directly or indirectly, the possibility of exercising influence, as defined in paragraph 43 of the Remedies Notice, over the whole or part of the 
 
51 Film1 Divestment Business, unless, following the submission of a reasoned 
request from the Notifying Party showing good cause and accompanied by a 
report from the Monitoring Trustee, the Commission finds that the structure of 
the market has changed to such an extent that the absence of influence over 
the Film1 Divestment Business is no longer necessary to render the proposed 
concentration compatible with the internal market. 
(283)  The Commission considered that the Final Commitments contained all 
necessary safeguards to ensure the successful transfer of the Film1 Divestment Business to a suitable purchaser. 
(284)  The Commission considered that the Film1 Divestiture Commitment was 
suitable and sufficient to remove the competition concerns expressed. The 
Commission also concluded that it could be implemented effectively within a 
short time period. 
6.2.4.  The Notifying Parties' views in their Supplementary Notification 
(285)  Key developments. The Notifying Parties explain the key developments that 
have taken place in the Premium Pay TV film channel segment since the 
Conditional Clearance Decision. 
(286)  Pursuant to the Conditional Clearance Decision, Film1 was divested to Sony 
in March 2015. The Notifying Parties consider that Film1 continues to compete as a Premium Pay TV film channel. Further, they note that this 
segment only includes the offers from Film1 since HBO is no longer offered 
as a Premium Pay TV channel. 
(287)  The HBO Nederland ("HBO NL") joint venture was terminated in December 
2016.
 In 2017, VodafoneZiggo replaced its VOD service My Prime with the 
rebranded VOD service Movies & Series which contains some of the former 
HBO NL content. There are three different Movies & Series packages 
available. Movies & Series contains all SVOD content, except the exclusive 
HBO content, and is included in certain triple-play packages or available as 
paid subscription add-on. Movies & Series L includes all SVOD content, including the HBO content and is available as free-add on for quad-play 
customers only. Movies & Series XL additionally includes 50 linear TV 
channels and is included in a high-tier triple-play package or available as paid 
subscription add-on.  
(288)  Horizontal non-coordinated effects. The Parties argue that, following the 
divestment of Film1 in the context of the Transaction notified in 2014 and the 
winding up of the HBO NL joint venture, VodafoneZiggo is no longer active on the market for Premium Pay TV film channels. Therefore, any pre-merger 
overlap in relation to Premium Pay TV film channels has been removed. 
(289)  Foreclosure effects.  The Parties argue that, following the divestment of 
Film1 in the context of the Transaction notified in 2014 and the winding up of 
the HBO NL joint venture, VodafoneZiggo is no longer active on the market for Premium Pay TV film channels. Therefore, any pre-merger vertical 
concerns in relation to Premium Pay TV film channels have been removed. 
 
52 6.2.5.  Commission's assessment 
(290)  Horizontal non-coordinated effects. According to the Horizontal Merger 
Guidelines, "increased market power" means the ability of one or more firms to profitably increase prices, reduce output, choice or quality of goods and 
services, diminish innovation, or otherwise influence parameters of 
competition.
85 The Horizontal Merger Guidelines state, that in assessing the 
competitive effects of the merger, the Commission shall compare the 
competitive conditions that would result from the merger with the conditions that would have prevailed without the merger.
86 
(291)  In this regard, the Commission considers that, following the divestment of 
Film1 in the context of the Transaction notified in 2014 and the winding up of 
the HBO NL joint venture, any overlap in relation to Premium Pay TV film 
channels has been removed. Therefore, the Transaction does no longer have an effect on the competitive conditions. 
(292)  In order to maintain the structural effect of the Film1 divestment, the 
Notifying Parties have re-committed not to acquire Film1 for the remaining 
period of the 10 years after the Effective Date. Film1 was divested to Sony in 
March 2015. The Notifying Party's Film1 non-acquisition commitment in the 
Final Commitments ensures that the divestiture of Film1 remains in effect 
until 11 October 2024 (see section 7.3). 
(293)  Foreclosure effects.  During the pre-notification phase and the market 
investigation
87, competitors of the Parties in the market for retail TV services 
raised the concern that the merged entity foreclosed competing providers of 
retail TV services by withholding access to the HBO content which was 
formerly broadcast on the HBO NL linear Pay TV channels and is now 
available to the merged entity's customers with access to Movies & Series 
only. They claim that HBO produces very important content, such as the popular series "Game of Thrones". 
(294)  First of all, the Commission investigated the reasons for the termination of the 
HBO NL joint venture and the subsequent exclusive licensing agreement 
between HBO Inc. and VodafoneZiggo. At the request of the Commission, the 
Notifying Parties provided a detailed desc ription of the chain of events that 
have led to the termination of the HBO NL joint venture and the inclusion of 
the HBO content in the merged entity's VOD service Movies & Series.
88 
                                                 
85 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings (OJ C 31, 05.02.2004, p.5), (the "Horizontal Merger 
Guidelines"), paragraph 8. 
86  Horizontal Merger Guidelines, paragraph 9. 
87  Replies to Q3 to retailers of 5 April 2018, question A.3 and C.D.7.2; Submission of T-Mobile 
Netherlands dated 15 May 2018. 
88  Supplement Form CO, p. 34 ff. 
 
53 (a) The HBO NL joint venture was not economically viable. In fact, HBO NL 
was loss-making; in the financial year 2014 for instance losses amounted 
to approx. EUR [...]. In that light, HBO Inc. and NewZiggo contemplated 
to end their joint venture. 
(b) Subsequently, the change of control over Ziggo as a result of the 
acquisition of Ziggo by Liberty Global gave HBO Inc. the option to 
exercise its put option contained in the joint venture agreement. 
(c) HBO Inc. contemplated exercising its put option and withdrawing from 
the joint venture by requiring NewZiggo to purchase its interests. In the 
event of such termination, Liberty Global would have had to pay at least 
EUR [...] (equivalent to HBO's initial capital contribution) to HBO Inc. in 
accordance with the agreement and as a direct result of their acquisition of 
Ziggo. In addition, it would have to take over the liabilities, debt and obligations of the joint venture; the total cost of which was estimated to 
amount to at least EUR [...]. 
(d) Meanwhile, HBO NL continued to be loss making (in financial year 2015 
losses still amounted to approx. EUR [ ...] and in financial year 2016 losses 
amounted to approx. EUR [...]). 
(e) The acquisition of the additional Ho llywood studio first-pay movies at 
significant cost had resulted in a relatively high subscription fee for the 
linear HBO channel. The linear channel also required programming and 
editorial work and was labour intensive. 
(f) In that light, NewZiggo considered its options to better monetise HBO 
content and HBO Inc. and NewZiggo decided to negotiate a settlement of the termination of the joint venture. Subsequently HBO Inc. and 
NewZiggo negotiated a sepa rate contract on the exclusive rights to HBO 
content bilaterally, which resulted in the current agreement for the exclusive rights to HBO content. 
(g) NewZiggo's rationale for seeking and agreeing a licence agreement with 
HBO after the termination of the joint venture was that it considered that 
including the HBO content in its SVOD service Movies &Series offerings 
would be a commercially viable alternative. 
(h) [...]. 
(i) Consequently, the linear HBO NL Pay TV channels were terminated in 
December 2016 and some of the HBO content was subsequently broadcast 
on the merged entity's SVOD platform  Movies & Series starting in 2017. 
(295)  The presented reasoning is consistent with the merged entity's internal 
documents.
89 
                                                 
89  Reply to RFI 1, questions 1 and 2, e.g. Annex B.87. 
 
54 (296)  In light of this reasoning, the termination of the HBO NL joint venture was 
linked to the Transaction as the change in ownership of Ziggo gave HBO Inc. 
the possibility to exercise its put option which led to the negotiation of the 
settlement agreement and the subsequent exclusive licensing agreement. The 
Commission found that the merged entity had the merger-specific opportunity 
to stop the distribution of the linear HBO NL Pay TV channels and to include some of the HBO content in its SVOD platform Movies & Series. 
(297)  The Commission investigated whether the termination of the HBO NL linear 
Pay TV channels as well as the withholding of the VOD service Movies & 
Series, which includes some of th e HBO content, prevents downstream 
competitors from effectively competing in the market for retail Pay TV 
services.  
(298)  With regard to the HBO NL Pay TV channels, the Commission notes that it is 
no longer available in the Dutch Pay TV  market, neither to VodafoneZiggo's 
own customers nor to customers of comp eting retail TV providers. Therefore, 
the merged entity is indeed no longer active in the supply of Premium Pay TV 
film channels.
90 
(299)  With regard to the SVOD service Movies & Series, the Commission notes 
that some of the former content of the HBO NL Pay TV channels is made 
available exclusively to a part of the merged entity's own downstream subscriber base.  
(300)  For the withholding of the SVOD service M ovies & Series to translate into an 
ability to foreclose competitors from the downstream market, the merged 
entity must have a significant degree of market power in the upstream market. 
It is only in those circumstances that the merged entity can be expected to 
have a significant influence on the conditions of competition in the upstream 
market and thus, possibly, on prices and supply conditions in the downstream 
market.
91 In this respect, the Commission concluded that Movies & Series is 
not a sufficiently important input to foreclose downstream competitors for the 
following reasons. 
(301)  First, the VOD market in the Netherlands is not concentrated. There are many 
different providers of VOD services acti ve in the Netherlands, including both 
national players, such as public and commercial Dutch broadcasters, 
European players, such as Pathé Thuis, as well as international players, such 
as Apple.92 The market share estimates provided by the Notifying Parties 
show that Movies & Series has a share of below 30% both in terms of 
revenues and subscribers as well as both in the overall VOD segment and 
                                                 
90  [Reference to distribution agreements with third parties]. Hence, any anti-competitive effects would 
arise from the exclusive distribution via the SVOD platform Movies & Series, which will be discussed in the following paragraphs. In addition, with regard to Premium Pay TV film channels, the divestment 
of Film 1 to Sony had fully addressed the Commission's concerns.  
91  Commission's non-horizontal Guidelines, paragraph 35. 
92  Reply to RFI 7, question 1. 
 
55 narrower SVOD segment in 2017 and in previous years.93 Looking at the 
potential market for SVOD services, there are several non-vertically 
integrated SVOD providers active in th e Netherlands, such as the following 
ones: 
(a) Netflix has been growing significantly over the last years and has 
increased its number of subscribers from 863 000 in 2014 to 2.6 million in 
2017. Netflix is now the largest provider of SVOD services in the 
Netherlands.  
(b) Videoland, owned by RTL Nether lands, increased its number of 
subscribers from 105 000 in 2014 to 435 000 subscribers in 2017.  
(c) The Premium Pay TV film channel Film1, that was divested to Sony and 
had more than 230 000 subscribers in 2017, also offers SVOD services to 
its subscribers. 
(d) Public and commercial broadcasters, such as NPO and RTL respectively, offer paid SVOD services in additi on to their free advertisement-based 
VOD services. 
(e) Other commercial providers of SVOD services, such as MUBI or Cinetree. 
(302)  Respondents to the market investigation generally confirmed that the movies 
and/or series offered by Netflix, Fi lm1, RTL's Videoland and Pathé Thuis 
qualify as premium content comp eting with Movies & Series.
94 
(303)  The above mentioned providers of VOD services are non-vertically integrated market players. While retail TV provide rs have the possibility to promote 
certain VOD services together with their retail Pay TV subscription, VOD services are generally offered on a stand-alone basis. Customers may 
complement their retail Pay TV subscription with a VOD service of their choice, irrespective of the provider of their retail TV subscription. Hence, 
customers of competing retail TV providers have access to a large pool of 
(S)VOD services offered by non-ve rtically integrated providers.  
(304)  Second, beyond the VOD offerings alre ady established in the Netherlands, 
entry of further VOD players is ongoing. Examples include Amazon, which 
launched its "Prime Video" service in the Netherlands in November 2017.
95 
Content available via Amazon Prime Video is overall high profile and 
considered very attractive by consumers.96  
                                                 
93  Reply to RFI 13, question 5. 
94  Replies to  Q3 to retailers of 5 April 2018, question B.A.3.1. 
95  https://www.dutchnews nl/news/2017/11/online-retailer-amazon-launches-prime-in-netherlands/  
[accessed on 25 May 2018].  
96  Reply to RFI 12, question 6. 
 
56 (305)  Third, as explained in section 6.1.5, the upstream market for the licensing and 
acquisition of broadcastings rights is highly competitive. In particular, the 
merged entity itself has a market share of less than 20% in the acquisition of non-linear audio visual TV content for VOD and SVOD services. In addition, 
beyond the HBO content, the merged entity does not hold many exclusive 
broadcasting rights for distribution on Movies & Series.
97 The Commission 
notes that competing retail TV providers can launch their own VOD services 
either by entering into licencing agreements with content providers or by 
producing content themselves. For instance, KPN also offers SVOD services 
to its customers (KPN TV Plus, KPN Play). In addition, KPN produces its 
own content, such as the successful Dutch series "Brussel", for its TV channel and VOD service "KPN Presenteert"
98, which is exclusively offered to KPN 
customers. The ACM notes that retail TV operators also react to the loss of the HBO content by adding extra linear TV channels or giving price reductions.
99  
(306)  In addition, respondents to the market investigation referred mainly to one 
popular HBO-produced content only, namely the series Game of Thrones (of which the final season will be broadcast in 2019). In this respect, the Commission refers to section 5.1.1.1 where it has explained that a narrower 
possible market definition with respect to allegedly particularly important 
content is not plausible. The attractiveness of one series is not sufficient to 
justify the "must-have" nature of a SVOD service. In addition, the popularity 
of film and series content changes over time. The next large commercial 
success may be broadcast on Netflix or KPN Presenteert.  
(307)  Even if the HBO content was particularly important to Dutch consumers, the Commission notes that the exclusive agreement between HBO Inc. and the 
merged entity only runs until [...]. It is uncertain what will happen with the 
HBO rights thereafter. Competing retail TV providers will have the possibility to enter into negotiations with HBO Inc.  
(308)  As regards the effects
100, the Commission notes that the merged entity was not 
able to foreclose downstream competitors by offering Movies & Series to its 
own customers and withholding it from downstream competitors. As shown in 
Table 1, the market share of the merged entity has further decreased in 2017 after the introduction of Movies & Series at the beginning of 2017. Therefore, 
the Commission considers that the exclusivity of the HBO content has not led 
to churn from other platforms. 
(309)  This view is confirmed by retail competitor M7 which stated: " We do not 
think that the exclusivity of HBO cont ent has le[a]d to churn from other 
                                                 
97  Reply to RFI 12, question 2. Indeed, the list of exclusive content is very limited. Moreover, exclusivity 
is sometimes obtained for only one or two seasons and/or for a very limited period only.  
98  https://www kpn.com/entertainment/kpn-presenteert htm  [accessed on 25 May 2018]. 
99  ACM report of July 2017, " Bundling of telecom services and content in the Netherlands ", p. 23 f. 
100  Commission's non-horizontal Guidelines, paragraph 32. 

 
58 6.3.  Market for the supply and acquisition of Premium Pay TV sports channels 
(supply side) 
6.3.1.  The Notifying Party's views in 2014 
(314)  Horizontal non-coordinated effects.  The Notifying Party acknowledged that 
if a separate product market for the supply and acquisition of Premium Pay TV sports channels were to exist, this segment would only include the offers 
from Sport1 and Fox Sports.  
(315)  According to the Notifying Party, Sport1 realised total revenues of EU [...] 
million and had a subscriber base of around [...] in 2013. However, the 
Notifying Party was not able to obtain a reliable estimate of the size of the market for Premium Pay TV sports channels and was therefore not in a 
position to accurately determine the market share of Sport1. The Notifying 
Party provided market shares based on viewing share data. According to 
these, Sport1 had a viewing share of le ss than 15% in the sports segment. 
(316)  The Notifying Party concluded that irrespective of Sport1’s market share, the 
Premium Pay TV sport channel segment c ould not be an Affected Market as 
Ziggo was not active in this market.  
(317)  Foreclosure effects.  The Notifying Party submitted that the merged entity 
would not have the ability or the incentive to foreclose retail competitors with regard to Sport1. 
(318)  As regards ability to foreclose, the Notifying Party argued that Sport1 was 
neither a channel with significant market power nor an important ("must-
have") channel. The Notifying Party estimated Sport1 to have a market share 
of less than 15% in the possible market for Premium Pay TV sports channels and a penetration of just 2% in the to tal Dutch Pay TV market. Therefore, the 
Notifying Party concluded that Sport1 would not have the market power 
required to foreclose competitors. 
(319)  In addition, the Notifying Party noted that the key sports content rights in the 
Dutch market, such as the Dutch football league Eredivisie, were held by Fox 
Sports and that its rights would remain  under contract with Fox Sports until 
2025.  
(320)  As regards incentive to foreclose, the Notifying Party explained that Sport1 
was just breaking even in the face of competition from Fox Sport's superior content offer.  With sports rights paid on a fixed-fee basis and operating 
expenses (marketing and play-out) anyway sunk, Sport1 would be best served 
by expanding its subscriber base by any means. Moreover, the Notifying Party submitted that Sport1 would be an unlikely candidate to drive switching onto 
the merged entity's network, given its negligible market penetration and lack 
of key sports content rights.  
6.3.2.  Commission's assessment in 2014 
(321)  Horizontal non-coordinated effects. The Commission found that there was 
no horizontal overlap with respect to the supply of Premium Pay TV sports 
channels, as Ziggo was not active in (that) possible market. 
 
59 (322)  Foreclosure effects. The Commission did not find vertical foreclosure 
concerns with respect to the supply of Premium Pay TV sports channels but 
did not explicitly state its reasoning for the absence of vertical anti-
competitive effects in the Conditional Clearance Decision.  
6.3.3.  Commission's assessment and conclusion in 2014 
(323)  The Commission concluded that the Transaction would not lead to a 
significant impediment to effective competition in the possible market for the 
wholesale supply of Premium Pay TV sports channels.102 
6.3.4.  The Notifying Parties' views in their Supplementary Notification 
(324)  Key developments.  The Notifying Parties explain the key developments that 
have taken place in the Premium Pay TV sports channel segment since the 
Conditional Clearance Decision. 
(325)  On 11 November 2015, Sport1 was rebra nded to Ziggo Sport Totaal ("ZST"). 
At the same time, NewZiggo launched the Ziggo Sport basic ("ZSB") which it provides to subscribers to its retail basic package TV service. While ZST 
consists of six linear TV channels, ZSB is one single linear TV channel. ZSB 
includes only a selection of the content included in the ZST channels in addition to certain other sports related content (e.g. sports documentaries, the Dutch Field Hockey League and the Dutch Basketball League). ZSB has never been made available on a wholesale basis to retail competitors. 
(326)  Similar to ZST's distribution model, Fox Sports was initially offered to retail 
TV providers through a revenue share model. Under this model, the 
commercial risk in principle remains with the channel provider.
 In contrast, 
under the minimum wholesale guarantee model, which is applied by Fox Sports in relation to Fox Sports Eredivisie channels, as of August 2016, to 
contracts with retail TV providers, w hose distribution contracts expire, retail 
TV providers pay a minimum fee per TV customer that could potentially 
subscribe to Fox Sports via their platform.
 This ensures that retailers have a 
greater incentive to distribute Fox Sports Eredivisie. VodafoneZiggo's contract with Fox Sports is still under the old revenue share model. 
(327)  The Notifying Parties note that the distinction between Premium and Basic 
Pay TV sports channels has become increasingly blurred. Market participants 
from both segments sometimes compete to acquire the same content and 
Basic Pay TV sports channels hold attractive sports rights. At the same time, 
Premium Pay TV sports channels have become available to a broader 
audience due to Fox's new business model and retail TV providers' practice of including them as free optional add-ons to multi-play bundles. This is the case 
for Fox Sports with multi-play offers  of KPN and T-Mobile Netherlands and 
for ZST with multi-play offers of VodafoneZiggo. 
                                                 
102  As explained in paragraph (3) above, the General Court annulled the Commission's Conditional 
Clearance Decision on the ground that the Commission failed to state the reasons of its finding that the 
proposed merger would not lead to vertical anti-competitive effects on the possible market for the 
wholesale supply of Premium Pay TV sports channels. 
 
60 (328)  Foreclosure effects. The Notifying Parties submit that the merged entity 
would not have the ability or the incentive to foreclose downstream 
competitors with respect to ZST and that any potential foreclosure strategy 
would not have a detrimental impact on competition. 
(329)  As regards ability to foreclose, the Notifying Parties argue that ZST, as 
previously Sport1, is not a sufficiently important input for the downstream 
product. 
(330)  First, the Notifying Parties highlight that ZST has a very limited subscriber 
base. According to the Notifying Parties, ZST had a subscriber base of about 
[...] in 2017, of which [...] subscribers are on third platforms. This corresponds 
to a market penetration of [5-10]% of Dutch households (and [5-10]% when 
disregarding the VodafoneZiggo base).   
(331)  Second, according to the Notifying Parties, any sports rights currently held by 
ZST are contestable. The Notifying Parties note that sports rights are 
generally acquired for a limited period of time only, made available to broadcasters via open tenders and often change hands. The Notifying Parties 
face competition from public and commercial broadcasters as well as 
dedicated sports channels in the ac quisition of sports rights which then 
compete with ZST in the downstream market. In addition, the Notifying 
Parties point out that retail TV operators, that are not yet active in this segment, can themselves acquir e sports broadcasting rights. 
(332)  Third, the Notifying Parties submit that there are a number of alternative TV 
channels to ZST with attractive content, such as Eurosport, NPO, RTL 
Netherland and SBS/Talpa.  
(333)  Fourth, the Notifying Parties highlight that Fox Sports, in particular, provides 
more attractive sports content and has more subscribers. The Notifying Parties 
point out that Fox Sports currently has more than double the amount of subscribers than ZST. Moreover, as a result of entering into a joint venture 
with Dutch football clubs in 2012, Fox S ports holds the Dutch football league 
broadcasting rights until 2025. The Notifying Parties explain that Fox Sports 
committed to the ACM to distribute the Eredivisie live channels on non-
discriminatory terms to all distribution platforms at the creation of the joint venture. Therefore, the Fox Sports Eredivisie channels will be available to all 
retail TV operators until at least 2025. 
(334)  Fifth, the Notifying Parties refer to statements made by the ACM which 
confirm that ZST is not an important input. In its study into bundling of 
telecom services and content in the Netherlands, the ACM notes that " Ziggo 
Sport and Ziggo Sport Totaal have not led to a significant shift in the 
television market ". In addition, in its investigation of Fox's new business 
model following a complaint by CAIW, the ACM found that there were 
insufficient indications that Fox Sports Eredivisie channels were an essential 
input for retail providers. For in stance, the ACM found that Tele2 
Netherlands, who had terminated its contract with Fox Sports, did not suffer 
any significant loss of customers as a result. The ACM also noted that other factors than content, including price and internet speed are more relevant to 
consumers when choosing retail telecommunications services. 
 
61 (335)  Finally, the Notifying Parties point out that ZST faces rights holders' pressure 
for maximal exposure which limits V odafoneZiggo's ability and incentive to 
foreclose retail competitors with regard to ZST.  
(336)  As regards incentive to foreclose, the Notifying Parties first of all notes that 
ZST, as previously Sport1, has always been offered to all retail TV providers 
in the Netherlands. In addition, the Notifying Parties give three key reasons 
for distributing rather than withholding ZST. 
(337)  First, the Notifying Parties submit that they benefit from the wholesale 
revenues gained from distributing ZST. The Notifying Parties acknowledge 
that in an internal assessment from August 2016, the modelling of the gains 
and losses associated with the decision whether to supply ZST to KPN 
showed a financial upside of about EU R [...] from a withholding strategy. The 
Notifying Parties note, however, that the financial gain is very limited compared to a total downstream fixed market size of EUR 114.2 million and 
that it was outweighed by the potential risks as explained below. In addition, 
the Notifying Parties emphasise that the underlying assumptions were not 
based on market research.  
(338)  Second, the Notifying Parties highlight the risk of reputational damage in the 
eyes of both customers and TV providers attached to withholding ZST. 
(339)  Third, the Notifying Parties highlight the risk of relational damage in 
discussion with content rights holders. The Notifying Parties explain that 
content rights holders consider broad distribution a key criterion for licensing sports content. Withholding ZST would create the risk that content rights 
holders would no longer be willing to license rights to ZST in the next round 
of negotiations. 
(340)  As regard the impact on competition, the Notifying Parties reiterate that ZST 
is not a sufficiently important input having a market penetration of only [5-10]% of the Dutch TV base. In addition, the Notifying Parties argue that while 
content differentiation is currently not an important factor of competition in 
the Dutch market as most content is widely available (as applied to ZST), 
content differentiation should not ne cessarily lead to any competition 
concerns. Differentiation at retail leve l follows from factors such as price, 
internet, speed, hardware and service. The availability of content could be one 
further means of differentiation. 
(341)  The Notifying Parties submit that the same reasoning also applies to any 
potential partial foreclosure strategies which would also not be achievable as 
ZST is not a sufficiently important input.  
(342)  Lastly, the Notifying Parties note that there are no input foreclosure concerns 
in relation to ZSB. The ZSB Pay TV channel includes only a selection of the 
content included in the ZST channels in addition to certain other less 
attractive sports related content. The Notifying Parties submit that the introduction of ZSB was not merger specific. 
 
62 6.3.5.   Commission's assessment 
(343)  Foreclosure effects . During the pre-notification phase and the market 
investigation103, competitors of the Parties in the market for retail TV services 
raised the concern that the merged entity might foreclose ZST from 
competing providers of retail TV services. They claim that VodafoneZiggo 
controls very important exclusive sports content and that it has already 
engaged in partial input foreclosure in the past, by deteriorating the terms and 
conditions for distributing ZST. 
(344)  The Commission has investigated whether the merged entity would have the 
ability and the incentive to engage in an input foreclosure strategy in relation 
to ZST, in particular full input forecl osure by refusing to provide access to 
ZST to its retail competitors. The Commission has also assessed whether such 
foreclosure strategies would have a significant detrimental effect on 
competition downstream.104 In the case of partial input foreclosure, that is to 
say an increase in the wholesale price for ZST channels, downstream competitors on the market for the retail provision of Pay TV services would 
likely pass on, at least partially, those increased costs to end consumers.
105 
Partial input foreclosure can also take more subtle forms such as the 
degradation of the quality of the input supplied. Input foreclosure would 
hence result in ZST no longer being available or being available, at higher 
retail prices or at lower quality on competitors' platforms. The Commission 
considers that this would induce at least a proportion of customers valuing 
such services to switch away from the foreclosed competing retail Pay TV platforms to the merged entity's product. The Commission has also 
investigated if the merged entity has already made any attempts to withhold 
ZST from its retail competitors since the Transaction and if such attempts 
have had an impact on competition in the downstream market. 
(345)  In carrying out such assessment, the Commission must take into account only 
the changes brought about by the Transaction. In this respect, the Commission 
notes that Liberty Global already controlled Sport1, the predecessor of ZST, and could therefore, in theory, already have withheld the channel to 
downstream providers of retail TV services pre-Transaction. The change as a 
result of the Transaction is the addition of Ziggo's downstream customer base.  
(346)  The aim of such a foreclosure strategy would be to increase demand for the 
merged entity's own downstream reta il Pay TV services simultaneously 
reducing demand for competitor's retail services thereby increasing the 
merged entity's downstream profits. 
                                                 
103  Replies to Q3 to retailers of 5 April 2018, question C.B.6.1; Submission of KPN dated 20 December 
2017; Submission of T-Mobile Netherlands dated 15 May 2018. 
104  In line with the Commission's Guidelines on the assessment of non-horizontal mergers under the 
Council Regulation on the control of concentrations  between undertakings (OJ C 265,18.10.2008, p.6) 
(the "Commission's non-horizontal Guidelines"), paragraph 32. 
105  To achieve this, the merged entity could worsen wholesale conditions for ZST such that it increases 
downstream rivals' costs of serving ZST customers. 
 
63 (347)  In order for input foreclosure to be a co ncern, three conditions need to be met 
cumulatively post-merger: (i) the merged entity needs to have the ability to 
foreclose its rivals; (ii) the merged entity needs to have the incentive to 
foreclose its rivals; and (iii) the fo reclosure strategy needs to have a 
significant detrimental effect on competition on the downstream market.106 
Ability to engage in input foreclosure 
(348)  As prerequisite for the ability to engage in input foreclosure, the Commission 
has investigated whether the merged entity would have the technical ability to withhold ZST. 
(349)  The bilateral agreements between the merged entity and its retail competitors 
regarding the distribution of ZST are the outcomes of commercial 
negotiations. The merged entity has neith er a legal obligation to supply ZST 
to its rivals nor a legal obligation to pr ovide it at non-discriminatory terms and 
conditions. The Notifying Parties confirm that the distribution agreements 
concluded with retail TV providers, wh ile being broadly similar, can differ 
with respect to pricing and other terms and conditions.
107 
(350)  The Notifying Parties note that sports rights holders favour maximal exposure 
given the importance of sponsorship and advertisement income in addition to 
the income accrued through the licensing of the content. Therefore, some 
rights holders, [reference to third party], push broadcasters, such as 
VodafoneZiggo, to distribute their content as widely as possible.108 However, 
the Notifying Parties acknowledge that [reference to distribution agreement with third party].
109 The Commission concludes that it remains in the hands of 
the merged entity whether to prioritise the future relationship with the sports 
rights holders or potential immediate financial upsides from withholding ZST. 
(351)  Therefore, the Commission considers that the merged entity has the technical 
ability to withhold ZST from its downstream competitors. 
(352)  For the technical ability to withhold ZST to translate into an ability to 
foreclose competitors from the downstream market, the vertically integrated firm resulting from the merger must have a significant degree of market 
power in the upstream market. It is only in those circumstances that the 
merged entity can be expected to have a significant influence on the 
conditions of competition in the upstrea m market and thus, possibly, on prices 
and supply conditions in the downstream market.
110 In the following 
paragraphs, the Commission analyses whether the merged entity holds a 
                                                 
106  Commission's non-horizontal Guidelines, paragraph 32. 
107  Supplement Form CO, p. 101. 
108  Supplement Form CO, p. 110. 
109  Reply to RFI 4, question 14. 
110  Commission's non-horizontal Guidelines, paragraph 35. 

 
65 [80-90]% in 2014. The Commission notes that the total number of ZST 
subscriptions on third-party platforms is only [...] in 2017 and has been 
increasing slowly while Fox Sports almost doubled its presence from 2014 to 
2017. Overall, the Commission concludes that Fox Sports is by far the largest 
player in the possible market for Premium Pay TV sports channels. 
(356)  For completeness, the Commission also indicates ZST's market share in terms 
of total subscribers of Premium Pay TV sports channels. Although ZST’s 
absolute number of subscribers increased strongly from 2016 to 2017, ZST's share of subscribers decreased from [20-30]% in 2014 to [20-30]% in 2017. 
At the same time, Fox Sports increased its market share from 71.1% in 2014 
to 72.6% in 2017. The Commission notes that Fox Sports is still more than twice as large when taking into account ZST's subscribers on 
VodafoneZiggo's platform. Fox Sports has also been able to grow its total 
subscriber base by more than ZST between 2014 and 2017. 
(357)  The increasing number of total Premiu m Pay TV sports channel subscriptions 
is linked to two of the key market developments explained above. First, Fox 
Sports changed its distribution model in August 2016 to incentivise wider 
distribution of the Fox Sports Erediv isie channels. Second, since summer 
2017, VodafoneZiggo's quadplay customers have the option to choose ZST as 
free add-on. [...] of ZST s ubscribers on VodafoneZiggo's network, that is [...] 
out of a total of [...] subscrib ers, receive ZST as free add-on.
112 It appears 
likely that a part of these customers would not be willing to pay for ZST if it 
was not offered for free. The Commission considers that these developments relativise the increase in the total market size and hence the importance of the 
Premium Pay TV sports segment as th e increase in subscribers is supply- 
rather than demand-driven. It is also worth noting that VodafoneZiggo's 
customers who opted for the free ZST package only represent [20-30]% of 
their quad-play subscriptions while [40-50]% of eligible customers did not take up a free add-on at all.  
(358)  Table 3 shows the market penetration of ZST and Fox Sports channels in 
terms of Dutch TV customers over time. From 2014 to 2017, ZST's market 
penetration increased from [0-5]% to [5-10]% of all Dutch TV customers and 
to [5-10]% when excluding VodafoneZiggo's customer base.
113 By contrast, 
Fox Sports currently has a market pe netration of [10-20]%. The overall 
market penetration of Premium Pay TV channels increased from [10-20]% to 
[20-30]%.114 The Commission notes that ZST's market penetration remains 
low.115 
                                                 
112  Supplement Form CO, p. 105; Reply to RFI 7, question 3. 
113  Supplement Form CO, p. 102. 
114  The overall market penetration is overstated as some Dutch TV customers subscribe to both ZST and 
Fox Sports. This effect is not taken into account in the data shown in Table 3 and therefore the share of subscribers that have at least one Premium Pay TV sports channel is in fact lower than [20-30]% in 
2017. 
115  According to reply to RFI 9, question 2, the low penetration also holds on a per platform basis with the 
exception of M7 which has a ZST penetration of [10-20]% of its customer base. The Notifying Parties 
 

 
67 (a) Fox Sports has 1 190 000 subscribers in 2017 and is hence more than 
twice as large as ZST. 
(b) At the request of the Commission, the Notifying Parties have submitted a 
market research report ("SKIM report") from March 2017 that was 
commissioned in the context of discussions on the evolution of ZST's 
sports portfolio.116 The SKIM report shows that the most appealing sports 
content in the Netherlands, in terms of the net score117, is football, and in 
particular Dutch football. The top ranked sports content is World Cup football (49%), Euro Cup football ( 42%) and Dutch league football (41%), 
followed by winter sports (25%), Champions League football (23%), 
Formula 1 (19%) and Europa League (16%).
118 After the World and Euro 
Cup football content, which are more important in years when the Dutch 
national team participates, the most important content is the Dutch League 
football content which Fox Sports owns and distributes at least until 2025.  
(c) Similarly, the market research repor t submitted by KPN ("Blauw report") 
from March 2018 underlines the stronger market position of Fox Sports 
compared to ZST.119 While 28% of respondents receive the Fox Sports 
Eredivisie channel at home, 11% receive ZST.120 Similarly, 22% of 
respondents indicate that they " really want to watch " Fox Sports 
Eredivisie, while 10% indicate the same for ZST.121 The majority of TV 
customers has " no interest " to watch Fox Sports Eredivisie (53%) or ZST 
(65%). Fox Sports Eredivisie also ranks better in terms of prominence. 
39% of respondents " know well " Fox Sports and 11% " don't know it ", 
while ZST is well known by 18% and not known by 31% (the remaining 
50% have heard of both channels respectively).122  
(d) Retail TV providers responding to the market investigation agree that Fox 
Sports has very attractive content rights.123 When referring to premium 
sports content and "must-have" sports content, the respondents 
consistently point to both content rights held by ZST, such as Formula 1, 
as well as content rights held by Fox Sp orts, such as Dutch football league 
Eredivisie. 
                                                 
116  Reply to RFI 5, question 5, Annex R5.11. 
117  Presented on a scale of – 100 to +100%, indicating how appealing the content is. 
118  SKIM report of March 2017," Premium content strategy ", slide 9.  
119  Reply of KPN to Q3  to retailers of 5 April 2018, Annex 4. 
120  Blauw report of March 2018, " The role of (exclusive) content when choosing a TV provider ", slide 15. 
121  Blauw report of March 2018, " The role of (exclusive) content when choosing a TV provider ", slide 13. 
122  Blauw report of March 2018, " The role of (exclusive) content when choosing a TV provider ", slide 14. 
123  Replies to Q3 to retailers of 5 April 2018, questions B.A.3.1 and B.A.9. 
 
68 (e) These findings are also in line with the results of the market investigation 
in case Vodafone/Liberty Global/Dutch JV , where the majority of 
respondents noted that Fox Sports' channels have equally or more 
attractive and valuable content offers than ZST.124 
(362)  In this respect, the Commission notes that the ACM has in a recent decision 
rejected a complaint by Dutch cable  operator CAIW, who contested Fox 
Sports' new distribution fees and claimed in particular that access to the 
channel was essential to compete on the market for retail TV services.125 
ACM observed among other factors that, based on the number of customers 
that terminated their relationship with Tele2 Netherlands since it stopped 
offering Fox Sports, the channel could not be considered as an important element for competition on market for retail TV services.
126 There is no 
reason to assume that the importance of  ZST (which has a significantly lower 
number of subscribers than Fox Sports) would be different, or it would even 
appear that ZST's importance would be smaller.  
(363)  Third, next to ZST and Fox Sports, there are a number of Basic Pay TV sports 
channels as well as non-dedicated public and commercial channels 
broadcasting attractive sports content. In particular, the Commission notes the 
competitive pressure exercised by the following broadcasters: 
(a) Eurosport127, which amongst others has the rights to Wimbledon, the 
Italian and French football league s, cycling and the Olympic Games 
(jointly with NPO); 
(a) NPO, which holds the broadcasting rights to the Eredivisie football 
highlights, Dutch national football team matches, ice skating, cycling and 
the Olympic Games (jointly with Eurosport);  
(b) SBS/Talpa, which holds the broadcasting rights for the Champions League 
matches of the Dutch teams; 
(c) RTL Netherlands, which holds broadcasting rights for the Europa League, 
and darts; and 
                                                 
124  Commission decision of 3 August 2016, in case M.7978, Vodafone/Liberty Global/Dutch JV, 
paragraph 501. 
125  ACM decision of 10 July 2017 in case  CAIW/Fox Sports . 
126  ACM decision of 10 July 2017 in case  CAIW/Fox Sports , paragraph 47. 
127  Eurosport is owned by Discovery in which John Malone holds a minority stake. As explained in 
section 2, John Malone does not de jure  or de facto  control Discovery. However, even if John Malone 
was able to jointly control both Liberty Global and Discovery, it would be highly unlikely that 
Eurosport would change its business model in the Netherlands as Eurosport is generally included in all 
basic tier TV packages throughout Europe. If Eurosport were to depart from this business model in the Netherlands, it would stand to lose sports content registered on the Dutch Events list to competing 
open channels. Hence, the position of the remaining Basic Pay TV sports channels would be 
strengthened.     
 
69 (d) Foreign channels broadcasting attractiv e sports content, such as German 
(ARD, ZDF and RTL Germany), British (BBC One and Two), and 
Belgian (EEN, canvas) channels. 
(364)  Retail TV providers responding to the ma rket investigation agree that these 
channels compete to a certain extent in the premium segment.128 In particular, 
market respondents highlight the role of Eurosport. KPN states: "At the same 
time, it should be noted that also basic (non-premium) sports Pay TV channels tend to acquire more and more rights which could be considered as 
must-have. Eurosport, for instance, ac quired the rights to the Olympic Games, 
Giro, Ligue 1, and the Flem ish classic cycling races. "
129 T-Mobile 
Netherlands states: " To a (much) lesser extent other "Basic Pay TV" channels 
also offer sports that could sometimes be considered 'premium' (like 
Eurosport)."130 Similarly, M7's response reads:  "Eurosport only competes 
within the premium sport channels segment on specific sports content 
(cycling)."131 M7 also explicitly refers to non-dedicated sports channels: " RTL 
and SBS/Talpa might compete in some areas of Premium as well as non-
premium Sport ."132 The foreign channels, irrespective of their sports content 
rights, are considered to mainly compete in the non-premium segment only. 
(365)  The sports content shown on the Dutch Basic Pay TV channels are partly 
registered on the Dutch Events List because they qualify as important sports 
events.133 Pursuant to the Dutch Media Act, these events can only be 
broadcasted on an open channel reaching 75% of Dutch households. Premium 
Pay TV sports channels, such as ZST, are hence precluded from acquiring rights for these events.
134 ZST could hence in any case not foreclose the most 
important sports content in the Netherlands.  
(366)  Fourth, the Commission notes that there are counter-strategies available to 
providers of retail Pay TV services. Fo r instance, the merged entity's retail 
competitors have the possibility to bid for sports rights themselves. At the 
request of the Commission, the Notifying Parties have provided a list of 
                                                 
128  Replies to Q3 to retailers of 5 April 2018, question B.B.11. 
129  Reply of KPN to Q3 to retailers of 5 April 2018, question B.A.9.1. 
130  Reply of T-Mobile Netherlands to Q3 to retailers of 5 April 2018, question B.A.3.1. 
131  Reply of M7 to Q3 to retailers of 5 April 2018, question B.B.11.1. 
132  Reply of M7 to Q3 to retailers of 5 April 2018, question B.B.11.1. 
133  The most popular sports content in the Netherlands are subject to media regulation (based on the 
Media Decree 2008 - Mediabesluit 2008) and must be broadcast to at least 75% of Dutch households, 
on so called "open channels". The list covers, inter alia, the following sports and sports events:  Dutch 
football league highlights, Dutch national football team matches; World and European football cups matches of national teams;
 World and European ice skate championship (all-round, sprint and 
distances); and tennis tournaments Wimbledon and Roland Garros. 
134  Supplement Form CO, p. 66. 
 
70 recent entries of European retail TV pr oviders in the acquisition of sports 
rights and distribution of their own channels.135 
(367)  The examples listed below illustrate that entry in this market is possible: 
(a) Telekom Sport, Germany: Retail TV provider Deutsche Telekom launched 
the Pay TV sports channel Telekom Sport (at the time: Telekom Basketball) in 2017. Telekom Sports initially mainly broadcasted 
basketball and has since included combat sports such as boxing, MMA 
and kickboxing, the 3rd division of the German football league (Bundesliga), the German ice hockey league, top games of the women’s 
Bundesliga and Bayern München’s own TV production to its content 
offering.  
(b) SFR Sport, France: Retail TV provid er SFR launched the Pay TV sports 
channel SFR Sport in 2016. SFR Sport broadcasts the English football 
league (Premier League), Premiership rugby, French Pro A and Pro B 
basketball, circuit WTA tennis, Champions League volleyball, and various other sports including extreme sports and combat sports.  
(c) O2 Sport, Czech Republic: Retail TV provider O2 launched three Pay TV 
sports channels from 2015 to 2017, including a dedicated football channel 
and a dedicated tennis channel. O2 Sport broadcasts inter alia Champions 
League, the English football league (Premier League), WRC Rally, Euro 
league basketball, European Championship volleyball and a variety of 
martial arts sports.  
(d) BT Sport, UK: Retail TV provider British Telecom launched the pay TV 
sports channel BT Sport in 2013. BT Sport acquired broadcasting rights 
for instance for Premiership Rugb y, the German football league 
(Bundesliga), Scottish Premier League, the French (Ligue 1) and Italian 
(Serie A) football leagues, WTA Tennis as well as Champions- and Europa League.  
(e) In addition, the Irish retail TV provider Eir purchased the Setanta Group, 
including sports TV channels Setant a Ireland and Setanta Sports, in 2016 
and rebranded them as Eir Sport 1 and Eir Sports 2. This exemplifies that 
retail TV providers also have the option of purchasing established sports 
channels instead of bidding for sports rights and creating a sports channel 
themselves 
(368)  Retail providers of Pay TV services re sponding to the market investigation 
claimed that they would not be able to acquire broadcasting rights for sports events to launch a (Premium) Pay TV sports channel. First, some retailers 
were of the opinion that they were disa dvantaged because their activities were 
limited to the Netherlands. However, as explained in section 5.1.1.1, 
broadcasting rights for sport events are generally auctioned on a country-by-
country basis and therefore the Commission concluded that the relevant geographic market is national.  Dutch pr oviders of retail Pay TV services are 
                                                 
135  Reply to RFI 4, question 12. 
 
71 hence able to bid for the broadcasting rights for sports events for the 
Netherlands. 
(369)  Second, retail providers of Pay TV services claimed that they do not have the 
financial resources needed to bid for the acquisition of broadcasting rights for 
sports events. The investments needed to start a sports channel include 
expenses related to marketing, personnel (commentators etc.), and technical 
costs, such as hardware and application fees for a playout facility. These 
amount to about EUR [...] for ZST. However, the vast majority of upfront investments needed relate to the acquisition of sports content rights. For 
instance, the merged entity spent over EUR [...] on individual sports content 
rights in 2017.
136 In this regard, the Commission agrees that retail Pay TV 
providers' ability to enter the markets for the acquisition of broadcasting rights 
and for the supply of (Premium) Pay TV sports channels depends on their 
ability to finance the investments needed to acquire sports content. Therefore, 
this counter-strategy is more appropriate for incumbent players, such as KPN, 
but also subsidiaries of incumbents from other countries, such as T-Mobile Netherlands or Tele2 Netherlands. With regard to the latter, the Commission notes that Tele2 Netherlands held the rights for the Dutch football league Eredivisie from 2005 to 2008.
137 
(370)  With regard to the downstream subscriber base, the Commission notes that it 
is easier for larger downstream players to monetarize a newly created sports 
channel. However, any market player with the required financial resources is 
able to set up a sports channel and sell it on the wholesale market for (Premium) Pay TV sports channels to providers of retail Pay TV services, 
hence reaching the total Dutch TV market. 
(371)  Moreover, sports content (and ZST in particular) is only one possible source 
of differentiation. Competing retail Pay TV providers have the ability to 
differentiate using other means such as  by offering bundled products, better 
speed or other types of content. With  regard to the latter, the Commission 
notes that KPN produces its own film and series content as explained in section 6.2.5. In addition, KPN and T-Mobile Netherlands have reacted to the 
merged entity's free ZST option for quad-play customers by offering the Fox 
Eredivisie channels as a freebie option to their quad-play customers.
138 This 
example shows that content differentiation may be in the interest of the 
consumers.  
(372)  A downstream rival can also differentiate  itself by not offering a specific or 
any Premium Pay TV sports channel and thereby placing itself in the market 
as a “no frills” provider able to offer lower prices (which is what Tele2 
Netherlands has chosen to do in 2016 when it decided to stop carrying Fox 
Sports). In this respect, M7 confirms the Commission's understanding that the availability of Premium Pay TV Sports channels is the key driver for sports 
                                                 
136  Supplement Form CO, p. 60. 
137  Supplement Form CO, Annex 19. 
138  Supplement Form CO, p. 76. 
 
72 fans' decision only when they chose a Pay TV retailer: " In general, consumers 
choose on the basis of their needs which are mainly a fast internet connection and a cheap bundle of TV with the main channels and telephony.
 Sports fans 
of course might also choose on the base of the availability of the sports 
channels."139 
(373)  Recent findings of the ACM support the Commission's view that there are 
several possible ways of differentiation and that content differentiation can be 
pro-competitive.   
(a) The results of a consumer survey carried out on behalf of the ACM 
confirm that price remains the most important reason to switch for multi-
play customers.140 
(b) ACM's CAIW/Fox Sports  decision confirms that the main drivers for 
consumers switching between retail TV  providers are rather the price of 
the package and the speed of the internet connection.141 
(c) The ACM has analysed the possible consequences of bundling telecom 
services and content and has come to the following conclusion in a recent 
report of July 2017: " In the short term, ACM believes it is more likely that 
competition based on content will have a pro-competitive effect on the 
market. This is what ACM is currently also seeing in the market, with ISPs 
endeavoring to distinguish themselves from each other with their content 
propositions. The responses from market participants do not lead to any 
different conclusion.  In its analysis, ACM has examined the current 
market situation and, on that basis, has come to the conclusion that having 
regard to the content that is currently being offered exclusively, this is 
unlikely to lead to the exclusion of pr oviders. Possible exclusionary effects 
of content will have to be analyzed on a case-by-case basis, and it cannot 
necessarily be assumed that exclusive content will lead to exclusion. At 
present, ACM notes that the content that is currently offered exclusively 
has not hitherto led to major shifts in the market. ACM also has no 
indications at present that this will be the case in the near future. ACM 
therefore believes a must-offer provision for premium content would 
currently be disproportionate."142 (emphasis added).  In relation to the 
long-term risks of exclusive content, the ACM will continue to monitor 
the market, examine the availability of content and take action if particular 
conduct among market participants is a serious restriction of competition.  
(374)  Despite ZST's limited market share in the upstream market and its low market 
penetration in terms of subscribers, all retail Pay TV providers responding to 
the market investigation consider ZS T to be a "must-have" in order to 
                                                 
139  Reply of M7 to Q3 to retailers of 5 April 2018, question C.B.5.1. 
140  ACM report of 21 June 2017, " Switch binnen de telecommarkt blijft gelijk: een op de vijf stapt over", 
p. 41. 
141  ACM decision of 10 July 2017 in case CAIW/Fox Sports , paragraph 37. 
142  ACM report of July 2017, " Bundling of telecom services and content in the Netherlands ", p. 27 ff. 
 
73 effectively compete on the market for the provision of retail TV services.143 
They consider that ZST contains very important content such as the English 
and Spanish football leagues, UEFA Champions League and Formula 1 
(currently very popular in the Netherlands due to the success of Dutch driver 
Max Verstappen). In addition, the majority of respondents considers that the 
only other Premium Pay TV channel, Fox Sports, is complementary (not substitutable) to ZST as it offers a different portfolio of (premium) sports.
144  
(375)  As explained in section 5.1.2.1, the Commission considers that the market for 
the wholesale supply of Pay TV (sports) channels can be segmented further in 
premium and non-premium, without any plausible further segmentation 
possible. 
(376)  Even if, as alleged by the retail Pay TV providers responding to the market 
investigation, ZST or certain spor ts content broadcast on ZST were 
considered to be particularly important, the Commission does not consider 
ZST to be a sufficiently important needed to effectively compete on the 
downstream market for the following reasons. 
(377)  First, ZST has [...] subscribers only, representing [5-10]% of Dutch TV 
customers.  
(378)  Second, VodafoneZiggo faces pressure from sports rights holders for maximal 
exposure. Although, as explained above (see paragraphs (348)-(351)), the 
merged entity is not legally impeded from and thus “technically” able to 
withhold ZST from other operators, nevertheless, [reference to distribution agreement with third party].
145 During the market investigation, Formula 1 
confirmed that " the reach of a channel is one of the factors that we consider 
when assessing a bid for our rights "146. Hence, a strategy of withholding ZST 
may negatively impact the broadcasting rights VodafoneZiggo will be able to 
(re)acquire in the future.  
(379)  Third, the merged entity's position is contestable in the upstream market for 
the licensing and acquisition of broadcasting rights for TV content. The 
broadcasting rights are typically tendered by sports rights holders on an 
exclusive basis for a specific geography and for a limited period.147 This 
allows both competing broadcasters and retail TV providers to regularly bid for sports content, including that currently aired by ZST.  
(380)  There are numerous examples of broadcasting rights that have changed hands 
in recent years:
148 the English Premier League was with Fox Sports and is 
                                                 
143  Replies to Q3 to retailers of 5 April 2018, question C.D.3. 
144  Replies to Q3 to retailers of 5 April 2018, question C.B.1. 
145  Reply to RFI 4, question 14. 
146  Reply of Formula 1 to Q1 to content providers of 5 April 2018,  question B.A.6. 
147  Reply to RFI 4, question 1. 
148  Supplement Form CO, Annex 19. 
 
74 since mid-2016 with VodafoneZiggo; the German football league Bundesliga, 
the Italian football league Serie A and French football league Ligue 1 were 
with Sport1 and are since mid-2014 with Fox (Bundesliga) and since mid-
2015 with Eurosport (Serie A and Ligue 1), and ATP tennis was with Sport1 
and is since 2013 with Fox.  
(381)  The current agreements for VodafoneZiggo's football rights come to an end in 
[...] (English Premier league), [...] (Spa nish football league La Liga) and [...] 
(Champions League). The outcome of the next tender process is uncertain and may change the alleged "must-have" nature of ZST. 
(382)  The Formula 1 contract expires at the end of 2018.
149 During the market 
investigation, Formula 1 has confirmed that the contract for 2016-2018 was 
awarded " following a competitive tender process "150. Formula 1 notifies all 
potential licensees of the availability of the content and invites them to indicate an interest, provides interested parties a broad specification of the 
rights available and invites them to submit a proposal. Formula 1 also 
confirmed that they  "could licence to other pa y TV or FTA broadcasters 
including Fox, Eurosport, RTL Group. Talpa TV (SBS6, Net5, Veronica) and 
NOS"
151 and are hence not bound to stay with ZST.  However, some third 
parties consider that the Formula 1 rights are owned by Liberty Global 
following the purchase of Formula 1 by LMC in 2017 and given the minority 
stake held by John Malone in both Liberty Global and LMC.152  
(383)  Even if John Malone controlled both Liberty Global and LMC and 
consequently the merged entity kept the rights for Formula 1 for the next 
licensing periods, the Commission does not consider that this would give 
market power to the merged entity for the following reasons. 
(384)  First, as explained above, Formula 1 is less popular than the Dutch football 
league Eredivisie which was not found to be an essential input to compete.  
(385)  Second, the alleged "must-have" nature of sports fluctuates over time and 
heavily depends on the success of Dutch athletes. This is also acknowledged 
by the respondents of the market investigation. For instance, KPN notes: " The 
must-have character of content is not fixed [for], for instance, cycling, 
athletics and Formula 1 racing, but became premium due to the successes by Dutch participants Dumoulin, Daphne Schippers, Max Verstappen and the Netherlands women’s national football team ."
153 Similarly, T-Mobile 
                                                 
149  Formula 1 is currently in discussion about the licensing of the broadcasting rights to Formula 1 for the 
period 2019-2020. While the Notifying Parties understand that several market players have confirmed 
their interest and placed a bid for these rights, the Parties are not aware of the identity of these market players [...] (Reply to RFI 2, question 13). Therefore, it is currently unclear which broadcaster will 
hold the broadcasting rights for Formula 1 in the next licensing period. 
150  Reply of Formula 1 to Q1 to content providers of 5 April 2018, A.2.1 and B.A.2. 
151  Reply of Formula 1 to question B.A.7 of Q1. 
152  Reply of T-Mobile Netherlands to Q3 to retailers of 5 April 2018, question B.A.3.1. 
153  Reply of KPN to Q3 to retailers of 5 April 2018, question B.A.3.1. 
 
75 Netherlands refers to Max Verstappen as reason for the increased popularity 
of Formula 1 popular in the Netherlands154, while Tele2 Netherlands mentions 
the " Max Verstappen effect "155. 
(386)  Third, the Dutch Events List ensures that the most important sports content is 
shown on open channels. The list has last been amended in 2015, inter alia, to 
include certain swimming and tennis events. In 2016, after Max Verstappen 
had won his first Grand Prix, the Secretar y of State for Education, Culture and 
Science was specifically asked by public broadcaster NOS to extend the events list to include Formula 1. In the written response, the Secretary of State 
explains that the Events List had been amended very recently and frequent 
changes should be avoided for sake of legal certainty. The written response further states that " there has been an enormous increase of media-offer and 
individual choice for consumers with the ongoing digitalisation which 
distribution companies are engaged in. This means that more so than 
previously, access to the broadcasting of events of general importance can be 
safeguarded without intervention of the Events List. For Formula 1 this means that the races are not only offered to  the customers of Ziggo, but that 
individual races are also offered for sale online ."
156 Given the State 
Secretary's reasoning, the Commission notes that it considers it likely that the 
Events List would be amended if the merged entity were to withhold ZST 
from consumers of competing retail TV competitors (and if popularity of Formula 1 continued). This also applies to any other sports content that may 
become popular in the future. 
(387)  Fourth, as pointed out by the State Secretary, there are indeed alternative ways 
to watch Formula 1.
157 Viewers in the Netherlands are able to watch Formula 
1 via ZST either through (i) a subscription to ZST, (ii) a stand-alone 
subscription to the ZST Go app or (iii) online via Pay-Per-View (available for 
Formula 1 races and many other sports). This also applies to any other sports content that may become popular in the future. 
(388)  Assuming that the merged entity would also withhold the stand-alone 
subscriptions it currently offers directly to end customers, Formula 1 is also 
broadcast live on RTL Germany, which is part of the basic TV package of all 
retail Pay TV operators in the Netherlands, and UK SKY Sports (via satellite TV). In addition, the highlights of each race are shown on the Belgian 
Flemish speaking VRT, which is also part of the basic TV package in the 
Netherlands.  
Conclusion: No ability to foreclose downstream competitors 
                                                 
154  Reply of T-Mobile Netherlands to Q3 to retailers of 5 April 2018, question B.A.8. 
155  Reply of Tele2 Netherlands to Q3 to retailers of 5 April 2018, question C.D.3 of Q3. 
156  Reply to RFI 4, question 3 (translation of Dutch text by Notifying Parties). 
157  Reply to RFI 4, question 13. 
 
76 (389)  The Commission concludes that while the merged entity has the technical 
ability to stop providing ZST on a wholesale basis to third parties in the 
future, it would lack the ability to foreclose its downstream competitors. The 
market penetration of ZST is low, custom ers can switch to alternatives to ZST 
and retail TV providers have counter-strat egies available. Even if particularly 
important sports content was broadcast on ZST, the Commission considers that this would not give a significant degree of market power to the merged 
entity. This is because the broadcas ting rights for sports content are 
contestable in the upstream market and the popularity of certain sports content 
fluctuates over time. In addition, the most popular sports content is likely to 
be added to the Dutch Events List in the medium term, especially if there were attempts to withhold such content. 
Incentive to engage in input foreclosure  
(390)  As regards the incentive of the merged entity to engage in a full foreclosure 
strategy in relation to ZST, that is to say a refusal to supply ZST to competing 
retail Pay TV distributors post-Transaction, it is important to recall that the 
merger increases the downstream footprint of the merged entity. Accordingly, 
the Transaction would increase the prof itability of any foreclosure of ZST. 
Indeed, pre-merger, the Notifying Parties would stand to lose all revenues 
from ZST subscribers located outside its geographic footprint if it were to 
completely foreclose ZST from its retail competitors. By combining the 
respective geographic footprints of UPC and Ziggo, the Transaction ensures 
that a much greater proportion of subscr ibers of ZST in the Netherlands on 
retail competitors' networks could switch their subscription to the merged 
entity's network which covers about 90% of the Dutch territory. 
(391)  Following the Transaction, the merged entity has continued to provide its 
downstream retail competitors access to ZST. Therefore, four years after the 
Transaction, the merged entity has not engaged in any attempts to implement 
a full input foreclosure strategy. 
(392)  However, the Commission notes that the merged entity has carried out an 
internal assessment of the impact of no longer providing ZST to KPN in the 
context of the negotiations on a distribution contract starting in September 
2016.
158 The Commission assessed the analysis carried out by the merged 
entity. 
(393)  As regards the profitability of withholding ZST from KPN, the Commission 
notes that the merged entity's analysis shows a financial upside of withholding 
ZST from KPN based on the following assumptions presented in Table 4:   
 
  
                                                 
158  Supplement Form CO, Annex 24. 

 
78 that are not covered by the merged entity's network would not have the 
possibility to switch to the merged entity to keep their subscription.   
(b) Relational risk: [...], all content rights holders favour a wide distribution. 
(c) Regulatory risk: The merged entity fears a regulatory reaction as there is a 
strong political, ministerial and regulatory preference for a wide distribution of sports content.           
(396)  The financial impact of the associated risks was not quantified. As regards the 
outcome of negotiations with KPN, it was decided not to withdraw ZST from 
KPN. However, this is no guarantor for the future that the related risks will 
always outweigh the financial upside.    
(397)  Therefore, the Commission concludes that it cannot be excluded that the 
merged entity would have the merger-specific incentive to engage in foreclosure of ZST on competing retail Pay TV platforms post-Transaction. 
(398)  The Commission has not assessed whether complete or partial foreclosure 
would be the most profitable strategy. 
Impact of engaging in input foreclosure 
(399)  As to the effect of any full foreclosur e of ZST, the Commission is not able to 
assess actual effects based on the past market evolution as the merged entity continued to offer ZST to all retail TV providers. 
(400)  In line with the Commission's non-horizontal Guidelines
159, the three limbs of 
the foreclosure test are closely intertwined, as they share the need for a 
sufficiently important input. Where the absence of the ability to foreclose 
competition from the retail TV market has been demonstrated because of the lack of a sufficiently important input, the impact of such a foreclosure strategy 
could not result in a significant detrimental impact on competition. Therefore, 
the reasoning proving that ZST is not a sufficiently input for the merged entity 
to have the ability to foreclose also serves to show that any attempts to 
foreclose downstream competitors with regard to ZST would have a very limited effect. 
(401)  The Commission recalls the following competitive characteristics of ZST and 
the market conditions in the wholesale market for the supply of Premium Pay 
TV sports channels that demonstrate th at a withholding of ZST would have no 
detrimental impact on competition: 
(402)  In a full foreclosure scenario, the withdrawal of ZST by the merged entity 
would affect only a limited number of retail Pay TV customers. ZST has [...] subscribers only, representing [5-10]% of Dutch TV customers. [...] 
subscribers of ZST on third party platforms would be deprived of the channel. 
In addition, [...] subscribers on Vodafone Ziggo may be less likely to change to 
a competing provider. 
                                                 
159  Commission's non-horizontal Guidelines, paragraph 32. 
 
79 (403)  In addition, it has been demonstrated that  only a part of this group of affected 
ZST customers would be likely to switch to or stay with the merged entity if 
ZST was no longer available on competing platforms. First, ZST subscribers 
can switch to similar alternatives, such as Fox Sports or the commercial and 
public non-dedicated sports channels that  have been increasingly investing in 
sports content. Second, retailers have effective counter-strategies available to 
attract customers by replicating a similar sports offering or by competing 
based on other means of differentiation. 
(404)  The Blauw report submitted by KPN actually supports the Commission's view 
that the withholding of ZST would affect a limited share of ZST subscribers 
only. In its submission, KPN suggests that the results of the Blauw report 
indicate that withholding of ZST w ould have a large market impact.160 
However, this is not correct. According to the report, only 26% of ZST 
viewers (and 29% of ZST viewers among KPN's customers) would switch to 
another provider if ZST was no longer available while 41% of them would not 
readily consider an offer by a competitor not offering ZST (and 39% of ZST viewers among KPN's customers).
161 These results are based on and apply 
only to current ZST viewers who have shown to attach a greater importance to ZST. It is not conceivable that custom ers that do not subscribe to ZST would 
consider switching if ZST was no longe r available. Given ZST's penetration 
of [5-10]%, the results from the Blauw report demonstrate that: 
(a) Only about 1.5% of all TV customers would switch to another provider if 
ZST was no longer available on their current platform; 
(b) Only about 2.5% of all TV customers would not consider an alternative 
retail Pay TV offer if ZST was not available on that alternative offer.
162 
(405)  Therefore, the withholding of ZST may negatively impact the addressable 
market of competing retail TV providers, however, to a very limited extent only. As ZST is not a sufficiently important input, the Commission does not 
consider that the withholding of ZST could have a detrimental effect on 
competition in the downstream market for the provision of retail TV services, or the hypothetical market for the reta il supply of multiple play services 
including Pay TV services in the Netherlands, for instance in form of higher 
prices or by raising barriers to entry.  
Alleged partial foreclosure strategies 
(406)  As the Commission considers that the merged entity lacks the ability to 
foreclosure competing providers of retail Pay TV services with regard to ZST, 
the same conclusion holds for any attemp ts to partially foreclosure retail 
                                                 
160  Reply of KPN to Q3 to retailers of 5 April 2018, question C.B.5. 
161  Blauw report of March 2018, "The role of (exclusive) conten when choosing a TV provider", slide 20.  
162  The Commission did not receive the requested information on the quality of the online panel used by 
Blauw. With regard to ZST viewers, the sample size is only about 150 and the results may involve a 
significant margin of error. Nevertheless, the Commission shows that the obtained results, as presented 
in the report, do not raise any competition concerns. 
 
80 competitors. As explained above, the merged entity lacks the ability to 
foreclose competing retail TV competitors and the impact of such a 
foreclosure strategy on retail TV competitors would be limited, irrespective of 
whether such foreclosure would be complete or partial. 
(407)  Some respondents to the market invest igation have, however, alleged that the 
merged entity has been engaging in partial foreclosure strategies post-
Transaction. In particular, respondents to  the market investigation raised the 
following concerns: 
(a) The merged entity increased the wholesale price of ZST to an anti-
competitive level;163 
(b) The merged entity withholds the ZST Go App from retail competitors for 
resale as stand-alone proposition and discriminates between retail 
competitors and OTT players such as Apple;164  
(c) The merged entity's launch of ZSB has decreased the relative 
attractiveness of other retail providers' offering of ZST.165 In addition, the 
merged entity refuses to supply ZSB to retail competitors. 
(408)  The Commission has investigated for each of these claims whether they are an 
accurate description of the merged entity's conduct, whether the merged entity's conduct represents an attempt to implement a partial foreclosure strategy and if so, which impact such strategy has had on the market.  
(409)  First, the Commission disagrees with the claim that the increase in wholesale 
prices for ZST is mainly attributable to a partial foreclosure strategy. At the 
request of the Commission, the Notifyi ng Parties have provided the wholesale 
price evolution for ZST as well as the evolution of content costs.
166 The 
minimum cost per subscriber for ZST [...]. VodafoneZiggo’s expenditure on 
the ZST offering has increased from EUR [...] in 2013 to EUR [...] in 2017; 
hence the merged entity's content costs have tripled. This was partly the result 
of the increase in price for content.167 In addition, VodafoneZiggo’s increase 
in content spend can further be explained by the fact that VodafoneZiggo has also extended the ZST content portfolio significantly. Compared to 2013, ZST 
has for instance added Premier League and UEFA World Qualifiers. 
Furthermore, VodafoneZiggo enhanced the quality of the service of the ZST 
offering, for instance the ZST Go App is now provided as part of ZST 
                                                 
163  Replies to Q3 to retailers of 5 April 2018, questions of A.3 and C.B.6; Submission of KPN dated 20 
December 2017. 
164  Replies to Q3 to retailers of 5 April 2018, questions A.3, B.A.3.1 and C.B.6; Submission of KPN dated 
20 December 2017; Submission of T-Mobile Netherlands dated 15 May 2018. 
165  Replies to Q3 to retailers of 5 April 2018, question C.B.2; Submission of KPN dated 20 December 
2017;  Submission of T-Mobile Netherlands dated 15 May 2018.  
166  Reply to RFI 4, question 5. 
167  […]. 
 
81 wholesale offering. The Commission considers that the increase in certain of 
the wholesale prices can be explained by the more significant increase in the 
cost of content of ZST.  
(410)  In addition, the Commission notes that the merged entity's retail price for paid 
ZST subscriptions is at the same level as those of its competitors. According 
to the latest information from May 2018, the merged entity offers ZST for 
EUR 14.95. While CAIW offers ZST for the same price, some competitors' 
prices lie slightly above the merged entity's retail price (KPN: EUR 14.99; Tele2 Netherlands: EUR 15.00) and other competitors below it (Delta: EUR 
14.50; M7: EUR 13.95
168). 
(411)  Second, the Commission disagrees with the claim that the merged entity's 
refusal to give retail competitors access to the ZST Go App on stand-alone 
basis is part of a partial foreclosure strategy. 
(412)  At request of the Commission, the Notifying Parties have explained in great 
detail which ZST related OTT services ar e available to retail competitors and 
directly to end customers:169 
(a) First, any retail TV provider may – but is not obliged to – offer its ZST 
subscribers access to the ZST GO App as part of the ZST subscription. 
All larger retail competitors170 offer the ZST GO App together with the 
linear subscription. However, a limited selection of small retail TV 
providers has not yet allocated sufficient technical resources to support the 
ZST GO App. For instance, in order to provide the ZST GO App (or any other app), a retail TV provider must en sure that its customers can create a 
ZST GO App account and that its administration can process all customer 
information required for the ZST GO App. VodafoneZiggo has always 
offered this combination on a wholesale level and never offered a more 
restrictive version of the ZST packag e (e.g. without the ZST GO App) to 
other retail TV providers. It is s ubsequently up to the distributors 
themselves whether to use it or not. To the best of VodafoneZiggo’s 
knowledge, all parties who are technically able to do so, offer the ZST GO app as part of the ZST offering. 
(b) Second, VodafoneZiggo provides all its ZST wholesale customers the 
possibility to offer PPV services  in relation to ZST sports content, subject 
to VodafoneZiggo having been able to purchase a licence for PPV 
broadcasting from the rights holder (e.g. VodafoneZiggo does not have the 
rights to offer Premier League football matches on a PPV basis). 
However, at this point in time, KPN is the only retail TV provider which is interested in offering this service to its customers. VodafoneZiggo is not 
                                                 
168  Contrary to the other providers of retail TV services, M7 is the only company which also provides 
retail TV via satellite and faces capacity constraints. Therefore, VodafoneZiggo accepted M7's request to broadcast only three out of six ZST channels. 
169  Replies to RFI 4 and RFI 7. 
170  This includes KPN (including XS4all of Telfort), CAIW, Tele2 Netherlands, Delta, Kabelreus 
Helmond, Kabeltex, SKV, Solcon, Kabelnoord, T-Mobile Thuis, SKP, and M7 (Canal Digitaal). 
 
82 aware of the reasons why other retail TV providers do not have an interest 
in offering the PPV services. 
(c) Third, VodafoneZiggo confirms that it has never granted any retail TV 
provider the right to offer the ZST GO App on a stand-alone basis.  
However, TV customers of such providers can directly purchase the ZST GO App from VodafoneZiggo without the need to purchase or have a TV 
subscription with VodafoneZiggo as well. Hence, any customer in the 
Netherlands can access the ZST GO App irrespective of the retail provider.
171 
(d) Fourth, VodafoneZiggo does not price discriminate between retail 
competitors and OTT players. In fact, VodafoneZiggo does not have 
wholesale contracts in place with OTT players. These parties merely 
function as the “middle-man” or an agent.  VodafoneZiggo determines the 
retail prices for these offerings of ZST GO App and directly contracts with 
the end user. The subscription offered in Apple’s app store for EUR 9.99 
only relates to the ZST OTT service, the ZST GO App. The ZST GO App 
does not guarantee the same “quality of service” as the ZST television 
service but is provided on a “best effort” basis. This means that the signal, 
quality of the broadcast and other factors are not guaranteed. By contrast, 
the regular TV ZST service does include such a quality of service 
guarantee. Moreover, as indicated, the monthly ZST subscription 
comprises both the higher quality ZST TV service and the ZST GO App. 
This is reflected in the higher subscription fee. 
(413)  The Commission concludes that the merged entity is currently not attempting 
to foreclose retail competitors with regard to the ZST GO App. Any individual in the Netherlands can view the ZST channels on devices with an 
internet connection, irrespective of whether they also acquire a traditional Pay 
TV subscription (or multi-play bundle)  with VodafoneZiggo, KPN or any 
other provider. 
(414)  Third, as regards the claim that ZSB decreases the relative value of ZST as 
well as the claim that it is not offered to retail competitors, the Commission 
has investigated whether ZSB can be considered as attempt to foreclose retail 
competitors. 
(415)  The Commission notes that it is correct that ZSB has never been offered to 
third parties on wholesale basis. 
(416)  ZSB predominantly contains a best-of of the content available on ZST. It does 
not contain any attractive content that is not available on ZST.
172 This was 
                                                 
171  Therefore, the Commission also does not consider that the merged entity's approach would discourage 
or prevent new OTT incentives (as claimed in reply of T-Mobile Netherlands to Q3 to retailers of 5 April 2018, question C.H.1.1), as the ZST Go App could always be purchased as stand-alone product. 
172 The following sports are only available on ZSB: Field Hockey Dutch League, Volleyball Dutch 
League, Basketball Dutch League, Netball (Kortbal) Dutch League and Netball European League. In 
addition, ZSB broadcasts some sport documentaries a nd films. Generally, if ZSB carries sports which 
are not available on ZST, this concerns less popular niche sports which are not sufficiently attractive 
for the Premium Pay TV sports channel ZST. These sports have very limited viewers. 
 
83 also confirmed by the respondents of the market investigation.173 On the 
contrary, as ZST has six linear TV channels and ZSB only one, ZST can 
broadcast much more content live and simultaneously than ZSB can.174 ZSB 
has to make choices on which sport to broadcast in any given timeslot. In 
addition, certain broadcasting rights have restrictions in place  with regard to 
the distribution on basic tier channel ZSB.175 Overall, it follows that ZSB is 
significantly less attractive than ZST and not an important input in itself. 
(417)  However, ZSB is marketed for free by the merged entity as it is included in 
the basic tier Pay TV packages at no extra charge. In this regard, the 
Commission notes that ZSB may represent an attractive offer for ZST 
subscribers who are satisfied with the mo re limited content available on ZSB.  
(418)  While the Notifying Parties explain that ZSB was introduced to find a solution 
for Sport1, that was already barely breaking even before the Transaction, they also confirm that the idea behind ZSB was to reduce churn.
176 
(419)  In addition, while the Notifying Parties submit that it is not unreasonable to 
assume that ZSB would have been introduced in the absence of the 
Transaction177, the Commission considers that the introduction of ZSB may at 
least be partially linked to the Transac tion. First, the merged entity introduced 
ZSB after the Transaction only. Second,  the Transaction had increased the 
merged entity's downstream footprint and hence offered an even better possibility to generate value from the sports content rights.  
(420)  For these reasons, the Commission c onsiders that the merged entity has 
attempted to engage in a potentially merger-specific partial foreclosure 
strategy with regard to ZSB, which reduces the relative value of ZST on third 
party platforms. As the Commission has found that the merged entity did not 
have the ability to fully foreclose its competitors with respect to ZST, the 
same holds for the introduction of the less attractive ZSB.  
(421)  This is also confirmed by the actual effects. These show that the merged 
entity's attempt to put competitors at a competitive disadvantage by only 
offering ZSB to its own customers, did not have an impact on the downstream 
market.  
(422)  First, the introduction of ZSB has not decreased the number of ZST 
subscribers on third party platforms (see Table 2). This suggests that the 
introduction of ZSB has not led to significant switching of ZST subscribers from third party platforms to the merged entity's platform. 
                                                 
173  Replies to Q3 to retailers of 5 April 2018, questions C.B.1.2 and C.B.2. 
174  Supplement Form CO, p. 37. 
175 […]. 
176  Supplement Form CO, p. 114. 
177  Reply to RFI 5, question 9. 

 
85 watch it frequently. Only 20% of customers watch ZSB 6 days a month or 
more.181 
(425)  Fourth, the ACM has come to a similar conclusion in its analysis of the 
bundling of telecom services and content: " So far, however, Ziggo Sport and 
Ziggo Sport Totaal have not led to a significant shift in the television market  
".182 
6.3.6.  Overall conclusion 
(426)  In light of the above, the Commission concludes that the Transaction does not 
raise serious doubts as to its compatibility with the internal market as regards 
the vertical relationship between the market for the supply and acquisition of Premium Pay TV sports channels and the market for the retail provision of 
Pay TV services,  or the hypothetical market for the retail supply of multiple 
play services including Pay TV services, in the Netherlands. The merged 
entity may have the incentive but lacks the ability to foreclose downstream 
competitors from effectively competing in the downstream market. Even if the merged entity were to engage in a full or partial foreclosure strategy in the 
future, the impact on the market would be very limited. This finding is 
confirmed by the stable market share of the merged entity in the last four 
years.
183 
6.4. Markets for the supply and acquisition of Basic and Premium Pay TV channels 
(acquisition side) 
6.4.1.  Introduction 
(427)  The Transaction would combine the retail Pay TV operations of the two 
largest cable operators in the Netherlands. In 2014 the Commission found that the merged entity would control access to around [60-70]% of the Pay TV 
subscribers in the Netherlands. This could in turn strengthen the market power 
that the merged entity would have as a purchaser of the Basic and Premium 
TV channels that are included in such Pay TV subscriptions. Against that 
background, the Commission has assessed whether the merger would strengthen the merged entity's buyer power on the upstream markets for the 
supply and acquisition of Basic and Premium Pay TV channels, and whether 
this would significantly impede effective competition.  
                                                 
181  Reply to RFI 5, question 2. The following definitions apply: Never (0 days per month); Rarely (1 day 
or less); Occasionally (2 days); Frequently (3 to 6 days); Heavily (6 days or more). 
182  ACM report of July 2017, " Bundling of telecom services and content in the Netherlands ", p. 23. 
183  As the Commission concluded that the merged entity's sports channels (ZST, including ZSB) as well 
as its VOD platform Movies & Series are no sufficiently important inputs to foreclose downstream competitors, the Commission considers that also the combination the two inputs does not raise any 
competition concerns. The Commission has demonstrated that for both inputs customers can switch to 
attractive alternative offerings while providers of retail Pay TV services have counter-strategies available. Therefore, if the merged entity were to bundle these products for its own customers and 
withhold both inputs from downstream competitors, the discussed individual alternative offerings and 
counter-strategies could be employed jointly to react to such a foreclosure strategy. 
 
86 (428)  According to the Horizontal Merger Guidelines, "increased market power" 
means the ability of one or more firm s to profitably increase prices, reduce 
output, choice or quality of goods and services, diminish innovation, or 
otherwise influence parameters of competition.184 Throughout the Guidelines, 
the expression "increased pr ices" is used to refer to those various ways in 
which a merger may result in competitive harm.  
(429)  The Horizontal Merger Guidelines expressly recognise that both suppliers and 
buyers can have market power that is likely to produce such effects.185 Thus, 
the Commission has to assess whether a merger brings about a degree of 
buyer power in an upstream market that is likely to have negative effects on 
the availability of high-quality products, on the existence and availability a wide selection of services, and on innovation on a downstream market. 
(430)  As concerns buyer power in particular, the Horizontal Merger Guidelines state 
that the Commission may analyse to what extent a merged entity will increase 
its buyer power in an upstream market.
186 The Guidelines explain that 
increases in a buyer's bargaining power may be beneficial for competition. In 
particular, lower input costs resulting from increased buyer power are likely to 
at least partly be passed on to consumers in case neither downstream 
competition nor total output is restricted.187  
(431)  The Horizontal Merger Guidelines also make clear that a merger that creates 
or strengthens the market power of a buy er may significantly impede effective 
competition, in particular by creating or strengthening a dominant position. 
Competition in downstream markets may be adversely affected if the merged 
entity were likely to restrict output in the downstream market, or to use its 
buyer-power vis-à-vis its suppliers to foreclose its rivals.188 
6.4.2.  Effect of the Transaction on the me rged entity's bargaining power 
vis-à-vis broadcasters 
6.4.2.1.  The Notifying Party's views in 2014 
(432)  The Notifying Party disputed that it can exert market power vis-à-vis TV 
broadcasters.  
                                                 
184 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings (OJ C 31, 05.02.2004, p.5), (the "Horizontal Merger 
Guidelines"), paragraph 8. 
185 Horizontal Merger Guidelines, paragraph 8. 
186 Horizontal Merger Guidelines, paragraph 61. 
187 Horizontal Merger Guidelines, paragraph 62. 
188 Horizontal Merger Guidelines, paragraph 61. 
 
87 (433)  In that context, the Notifying Party submitted that the merged entity's share of 
expenditure on the acquisition of linear TV channels in the Netherlands would 
be [50-60]%.189 
(434)  The Notifying Party submitted that such share of expenditure on TV channels 
is not indicative of buyer power. It advanced a number of arguments to 
support that contention. It argued, first, that content rights are intangible assets 
that are not susceptible to economies of  scale. It argued second, that there 
would be a mutual dependency between TV broadcasters, who rely on the widest possible distribution to secure advertising income, and retail TV 
service providers, who need attractive co ntent in order to be competitive at 
retail level. It argued third, that the Transaction would have, if any, a limited impact on the negotiation position of TV broadcasters, as it would create an 
unavoidable trading partner for only a limited number of them. It also argued 
that in any event, many TV broadcasters are large multinational companies 
with significant bargaining power vis-à-vis retail TV providers. 
(435)  The Notifying Party also submitted that it would not be able to restrict the 
availability of TV content in the downst ream market for reta il TV services. In 
that context, the Notifying Party referred to the conclusion drawn by the 
Dutch competition authority in a previous case. In that case, the ACM found 
no link between the number of subscribers of a given TV service provider and 
the number of TV channels offered as part of the Basic Pay TV package in the 
Netherlands. Accordingly, the ACM concluded that there was no indication that 
an increase in the size of a given retail TV service provider would lead to a lower quality TV offering.
190 The Notifying Party has submitted further 
correlation analysis to argue that this is still the case.191 
(436)  Moreover, the Notifying Party argued that at most, the Transaction would 
create a new unavoidable trading partner for a very small number of TV 
channels only.192 The Notifying Party further argued that the specific 
characteristics of the Tr ansaction make it significantly less likely that 
bargaining power could be materially enhanced through the merger than in the (then) recent Universal/EMI case
193 and that the idea that becoming a 
                                                 
189 Form CO, paragraphs 289, 454 and Annex 33. The Notifying Party considered that the merged entity's 
share of expenditure on Basic Pay TV channels would be broadly in line with its share of the market 
for the retail provision of Pay TV. With respect to Premium Pay TV film channels and Premium Pay 
TV sports channels, the position of the merged entity would be different as there were a small number 
of retail Pay TV providers who did not offer Film1, Sport1 and/or HBO Nederland. As a result, the Notifying Party expected that the merged entity's share of spend on Premium Pay TV channels would 
be slightly higher than its market share on the ma rket for the retail provision of Pay TV services. 
190 Reference was made to the ACM (NMa) decision 5796/ Cinven – Warburg Pincus – Essent Kabelcom, 
of 8 December 2006. 
191 Liberty Global submission "Comments on the European Commission's Decision pursuant to Article 
6(1)(c) of Council Regulation No 139/2004", prepared by Oxera, 21 May 2014. 
192 Liberty Global submission "Comments on the European Commission's Decision pursuant to Article 
6(1)(c) of Council Regulation No 139/2004" prepared by Oxera 21 May 2014. 
193 Commission's decision of 21 September 2012 in Case No COMP/M.6458 – Universal Music 
Group/EMI Music.  
 
88 "pivotal" buyer would increase bargaining power is incorrect. It also argued 
that it would not be possible to empiri cally verify the relationship between the 
number of downstream customers served by TV services providers and their 
bargaining power vis-à-vis TV broadcasters because contracts with 
broadcasters vary along many dimensions and because there are too few 
contracts to systematically distinguish bargaining effects from other influences.
194 
6.4.2.2.  Commission's assessment in 2014 
(437)  The Commission noted that the merging companies purchased TV channels to 
include those channels into the Pay TV packages that they offered to their 
subscribers. The Pay TV packages included both Basic Pay TV channels and 
Premium Pay TV channels (hereinafter referred to as "Pay TV channels"). 
The market position that the merged entity would have in the acquisition of both types of Pay TV channels was de rived from similar market conditions, 
such as the position of the merged entity as a large distribution channel to 
reach subscribers, the size of their customer base and the scope of their 
network footprint. When assessing the likely competitive impact of the 
Transaction, the Commission undertook its  analysis for both sets of Pay TV 
channels together.
195  
(438)  The Commission considered that the Transaction would lead to the creation of 
a merged entity that would account for [50-60]%196 of the market for the 
acquisition of Pay TV channels in the Netherlands. The increment that the 
merger brought was very sizeable, namely [10-20]%.197 The Commission 
considered that this market share was likely to understate the degree of buyer 
power that the merged entity would have on this market. This was due to the fact that the merged entity would have a far more significant market position 
downstream, namely on the market for the retail provision of Pay TV services. 
(439)  Both the Commission
198 and the Dutch Competition Authority have in the 
past confirmed that the market position of purchasers of Pay TV channels is 
                                                 
194 Liberty Global submission "On the applicability of insights from bargaining models in Universal/EMI" 
prepared by Cristina Caffarra, Kai-Uwe Kühn, Perre Régibeau of CRA, 9 June 2014. 
195 The Commission noted that this approach was favourable to the Parties. In relation to the acquisition 
of Premium Pay TV channels, the merged entity would itself own three out of four Premium Pay TV 
channels in the Netherlands. The operator of the remaining fourth Premium Pay TV channel, Fox, was also a TV broadcaster that would have to negotiate the distribution of its Basic Pay TV channels with 
the merged entity. The combination of the merged entity's position as a purchaser of Premium Pay TV 
channels and its ownership of competing Premium Pay TV content could only aggravate any negative impact that the proposed transaction may have on the merged entity's ability and incentive to exert its 
buyer power vis-à-vis the owner of the remaining Premium Pay TV channel in an anticompetitive 
manner. 
196 Form CO, paragraphs 289, 454 and Annex 33. 
197 Form CO, Annex 33. 
198 Commission's decision of 16 April 2004 in Case No COMP/M.2876 - Newscorp/Telepiù, paragraphs 
21, 42 and 186. 
 
89 closely related to the number of househ olds those purchasers serve as retail 
providers of TV services.  
(440)  In Liberty Media/Casema199, the ACM assessed the then proposed merger 
between the Notifying Party and Casema Holding B.V. ("Casema"), which 
would later form Ziggo, together with Multikabel B.V. ("Multikabel") and 
Essent Kabelcom B.V. ("@Home"), in the Netherlands. In its decision to open 
in-depth proceedings, the ACM underlined that a combined Liberty/Casema 
would have served 60% of all cable subs cribers in the Netherlands. According 
to the ACM, there were concerns that this could increase Liberty's market 
power in the market for the acquisition of Pay TV channels to such an extent 
that it could dictate the TV content that consumers in the Netherlands could access. The ACM did not take a final decision on the case since Liberty 
Media abandoned the proposed acquisition.
200  
(441)  The Commission considered that the Notifying Party's reference to the ACM's 
decision in Essent Kabelcom/Multikabel/Casema201, where that authority 
reached a different conclusion, was not relevant to this case. The ACM 
concluded that that merger of the companies that now form Ziggo was not 
likely to significantly impede effective competition on the market for the 
acquisition of Pay TV channels. However, first, the market position of those 
companies was significantly more modest than the market position that a 
merged Liberty/Ziggo would have.202 Second, the ACM took its decision 
based on the market features as they existed in the Netherlands at the time. 
Most notably, the ACM concluded that Ziggo's alleged market power in the acquisition of Pay TV channels would be constrained by the potential 
competition from alternative digital distribution channels such as the 
Internet.
203 The ACM reached that conclusion whilst Liberty Global and 
Ziggo would still be active as independent competitors on the market. In this 
case, the Commission had to assess the likely impact that the proposed merger between Liberty Global and Ziggo would have on that potential competition, 
and needed to makes that assessment on the basis of the competitive situation 
in relation to Internet services as they exist today. Third, the ACM also 
distinguished Ziggo from Liberty insofar as Liberty Global is a vertically 
integrated undertaking that has interests in content providers as well and whose strategy it is to expand those upstream interests. The ACM considered 
that this vertical integration could give it a further incentive to limit the 
                                                 
199 Decision of the ACM of 6 November 2002 in Case 3052, Liberty Media/Casema , points 264-267, and 
272. 
200 http://online.wsj.com/news/articles/SB1037655917540774628  [accessed on 4 September 2014]. 
201 Decision of the ACM of 8 December 2006 in Case 5796, Cinven/Warburg Pincus/Essent Kabelcom . 
202 At that time, the companies that now form Ziggo had an approximate [40-50]% share of the retail 
market for the provision of Pay TV services in the Netherlands. 
203 Decision of the ACM of 8 December 2006 in Case 5796, Cinven/Warburg Pincus/Essent Kabelcom , 
paragraph 96. 
 
90 availability of certain TV content, in particular competing TV content, to 
consumers in the Netherlands.204 
(442)  In this case, therefore, the Commission needed to make its own assessment of 
the likely market power of the merged entity on the market for the acquisition 
of Pay TV channels. 
(443)  The Commission noted that the theoretical framework used in 
Universal/EMI205 could easily be applied to the present case and that a 
"pivotal" buyer does not always have increased bargaining power.  
(444)  The Commission also noted that, given in particular the limited number of 
contracts with TV broadcasters and their complexity,  it is difficult to calculate 
the effect of the merger on the merged entity's bargaining power while fully 
accounting for other factors such as variat ions in contract terms. Nevertheless, 
data collected during the market investigation by the Commission on annual 
payments received by TV broadcasters  from different TV services providers 
confirmed that there is a negative correlation between the price paid by TV services providers per TV household to TV broadcasters and the number of 
TV households served by the TV services  providers. This is consistent with 
TV services providers' bargaining po wer increasing with the number of 
subscribers they serve.  
(445)  Furthermore, the merged entity's share of the downstream market would 
amount to [60-70]% by value
206 and to [60-70]% by TV homes controlled.207 
The merged entity would thus control at least twice if not three times as many TV subscribers as the second-largest market participant KPN, which had an 
estimated retail market share of between 20% and 25%.
208 The Commission 
considered that the fact that the Parties' combined share of expenditure on 
broadcasters' TV channels was significantly smaller than their combined share 
of revenue generated from reselling those same TV channels was an indication that they already held some  degree of bargaining power vis-à-vis 
TV broadcasters in the Netherlands. It implied that the Parties paid less per 
subscriber than their rivals and that this relationship was not commensurate with the difference between the size of the customer base of the Parties and 
their competitors alone. Moreover, internal documents of Liberty Global 
confirmed that from 2011 onwards, it was already paying 40% under average 
                                                 
204 Decision of the ACM of 8 December 2006 in Case 5796, Cinven/Warburg Pincus/Essent Kabelcom , 
paragraph 84; Decision of the ACM of 6 November 2002 in Case 3052, Liberty Media/Casema , 
paragraph 266.  
205 Commission's decision of 21 September 2012 in Case No COMP/M.6458 – Universal Music 
Group/EMI Music.  
206 Form CO, Annex 33. 
207 [Reference to the Parties' internal business documents].  
208 22% in Q4 2012 and 25% in Q3 2013; Form CO, Table 36. 
 
91 market cost for the TV channels that it included in its retail Pay TV 
packages.209 
(446)  Other evidence on the Commission's file equally confirmed that there is a 
close link between the number of households that a retail TV operator serves 
and the market power it exerts on the upstream market for the acquisition of 
TV channels. 
(447)  The Notifying Party noted the following in its internal business documents: 
(i) [Reference to the Parties' internal business documents]210;  
(ii) [Reference to the Parties' internal business documents]211; 
(iii) [Reference to the Parties' internal business documents]212  
(448)  The large majority of TV Broadcasters confirmed the direct relation between 
the number of TV subscribers served by  a provider of retail TV services and 
the bargaining power that such a TV service provider exerts vis-à-vis TV 
Broadcasters.213  
(449)  One respondent during the Commission's 2014 investigation stated the 
following: " Commercial income via advertising is dependent on the amount of 
viewers a channel attracts. As TV broadcasters are looking for distribution as 
wide as possible, cable operators can leverage the amount of subscribers they serve. The amount of subscribers serv ed is therefore one of the most 
important determinants of bargaining power of the cable operators. Since the 
market shares of the merged entity become greater, it is logical that their 
market power will increase ".
214  
(450)  SBS Broadcasting B.V. ("SBS") confirmed that " The amount of TV 
households (eye-balls) a retail TV serv ice provider serves is an important 
factor determining buyer power. The me rged entity would serve more TV 
households, and thus exert more buyer power ."215 NPO confirmed that the 
merged entity would exert significant buyer power vis-à-vis it and other TV 
                                                 
209 [Reference to the Parties' internal business documents]. 
210 [Reference to the Parties' internal business documents]. 
211  [Reference to the Parties' internal business documents]. 
212 [Reference to the Parties' internal business documents]. 
213 Replies to questionnaire Q4 to Phase II Questionnaire to Broadcasters of 28 May 2014, question 19.1; 
Document ID2270, non-confidential minutes of conference call between Commission's services and 
Fox International Channels of 25 June 2014, page 3; Document ID1908, non-confidential minutes of conference call between Commission's services and SBS of 19 June 2014, page 3.  
214 Reply to questionnaire Q2 to TV channel wholesale suppliers of 17 March 2014, question 55.1.   
215 Document ID1400, non-confidential reply of SBS to Q4 Phase II Questionnaire to TV Broadcasters, 
question 19. 
 
92 Broadcasters by merely re-stating the fact that the merged entity would serve 
around 70% of the joined cable, DSL and fibre market in the Netherlands.216 
(451)  The Commission was not convinced by the Notifying Party's argument that after the merger, there would be a balance of bargaining power between it and 
the TV broadcasters. The Notifying Party had indicated that the licence or 
carriage fees it paid to TV broadcasters  had increased over the last year. Its 
own internal documents however confirmed that in its own view, this increase in licence or carriage fees resulted from those TV broadcasters' [Reference to the Parties' internal business documents], as they would be "[Reference to the 
Parties' internal business documents]" because their "[Reference to the Parties' 
internal business documents]" – especially in the Netherlands.
217 The 
Notifying Party itself predicted that the Transaction would allow the merged 
entity to prevent having to increase its payments to even the most powerful 
TV broadcasters in the Dutch market.218 
(452)  Respondents to the Commission's 2014 market investigation also confirmed that the merger would significantly enhance the merged entity's market power 
as a buyer of Pay TV channels.  
(453)  A large majority of TV broadcasters believed that in the market for the 
acquisition of Pay TV channels, retail providers of TV services already held 
the most bargaining power.
219 That majority considered that the Transaction 
would lead to an increase of the merged entity's market power to the extent that it would be able to dictate its prices and other conditions to them.
220 That 
conclusion was also shared by all provide rs of retail TV services that provided 
a response to the Commission's first phase market investigation.221 
6.4.2.3. Commission's assessment and conclusion in 2014 
(454)  In light of that evidence from the 2014 market investigation and from the 
Notifying Party the Commission considered that the Transaction was likely to strengthen the merged entity's market power in the market for the acquisition 
of Pay TV channels. 
(455)  The Commission reiterated that increases in a buyer's bargaining power may 
generally be beneficial for competition. The Commission's Horizontal Merger 
                                                 
216 Document ID1424, non-confidential reply of NPO to Q4 Phase II Questionnaire to TV Broadcasters, 
question 19. 
217 [Reference to the Parties' internal business documents]. 
218 RTL, SBS and NPO together accounted for an overall viewing share of 70% in 2013 in the 
Netherlands: Stichting KijkOnderzoek Jaarrapport 2013, available at: 
https://kijkonderzoek.nl/images/SKO Jaarrapport/SKO jaarrapport 2013.pdf . 
219 Replies to questionnaire Q2 to TV channel wholesale suppliers of 17 March 2014, question 54. 
220 Replies to questionnaire Q2 to TV channel wholesale suppliers of 17 March 2014, question 55. 
221 Replies to questionnaire Q3 to retailers of TV, telephony and Internet access services, question 64. 
 
93 Guidelines explain that lower input costs resulting from increased buyer 
power are likely to, at least partly, be passed on to consumers in case neither 
downstream competition nor total output is restricted.222  
(456)  Nevertheless, an increase in the merged entity's bargaining power could have 
detrimental effects on effective competition. Respondents to the 
Commission's market investigation indica ted that there could be several such 
detrimental effects on competition. Following those submissions, the 
Commission assessed in detail whether the increase in the merged entity's market power as a purchaser of Pay TV channels could: 
– Increase its ability and incentive to hamper the emergence of innovative 
Pay TV services; 
– Increase its ability and incentive to negatively influence the breadth and 
quality of the programming content that broadcasters offer in the 
Netherlands; 
– Increase its ability and incentive to obtain terms and conditions from 
broadcasters that ultimately have a negative impact on the access of 
competing retail TV providers to that very same content; 
– Increase its ability and incentive to block TV broadcasters' hybrid 
broadcast broadband TV signals.
223 
 
6.4.2.4.  The Notifying Parties' views in their Supplementary 
Notification 
(457)  The Notifying Parties note that in 2013, Liberty Global's expenditure on the 
acquisition of linear channels for the Netherlands amounted to EUR [...] and 
Ziggo's expenditure amounted to EUR [...]. Currently, VodafoneZiggo's 
expenditure on the acquisition of linear Pay TV channels for the Netherlands 
amounts to EUR [...]. VodafoneZiggo's ma rket share for retail TV is [50-
60]%. While the Parties were unable to provide a third party estimate for the total expenditure on the acquisition of TV channels in the Netherlands, they 
consider that overall market shares for the acquisition of linear TV channels 
are similar to those for retail TV. Therefore, the Parties estimate that 
VodafoneZiggo's expenditure of EUR [...] represents a market share of 
approximately [50-60]%, in line with its position on the retail TV market. Since this market share is comparable to and in fact even lower than the 
combined share of Liberty Global and Ziggo in 2013 (which, as set out in the 
2014 notification was approximately [50- 60]%), the Notifying Parties submit 
that the Transaction has not led and will not lead to a substantial impediment 
to effective competition in relation to the acquisition of TV channels. 
                                                 
222 Horizontal Merger Guidelines, paragraph 62. 
223 Through HbbTV signals TV broadcasters are able to allow retail TV customers that have a smart TV to 
directly connect to those broadcasters' own interactive OTT services via a linear broadcasting that 
encompasses so-called 'HbbTV triggers'. 
 
94 6.4.2.5.  Commission's assessment 
(458)  The Commission considers that, based on current market conditions, the 
Transaction is likely to strengthen the merged entity's market power in the market for the acquisition of Pay TV channels, for the following reasons: 
(459)  First, VodafoneZiggo's market share on the market for the acquisition of 
linear Pay TV channels in the Nether lands indeed appears to be around [50-
60]%. In this regard, the Commission recalls that the increment brought was 
[10-20]%.
224  
(460)  Second, VodafoneZiggo's share of th e downstream market would amount to 
[50-60]%  by value225, to [50-60]% by subscribers and to [40-50]% by TV 
homes connected.226 VodafoneZiggo's thus still controls significantly more 
TV subscribers as the second-largest market participant KPN, which had in 
2017 Q3 an estimated retail market share of 32%.227 
(461)  Third, respondents to the Commission's investigation consider that, as a result 
of the merger, the market power of the merged entity in the market for the 
acquisition of TV channels has significantly changed vis-à-vis the wholesale 
suppliers of TV channels in the Netherlands to the extent that the merged 
entity is able to dictate its prices and other conditions to Pay TV channels.228  
A respondent noted: 
"Commercial income via advertising is dependent on the amount of 
viewers a channel attracts. As TV broadcasters are looking for 
distribution as wide as possible, cable operators can leverage the amount of subscribers they serve. The amount of subscribers served is therefore 
one of the most important determinants of bargaining power of the cable 
operators. Since the market shares of the merged entity become greater 
(more than 50% of the dutch TV households), it is logical that their market 
power will increase ."
229 
6.4.3.  Effect of increased bargaining power on the emergence of OTT 
services 
(462)  In the Commission's 2014 decision, the Commission noted that in (then) 
recent years, TV broadcasters that operated in the Netherlands had been 
                                                 
224 Form CO, Annex 33. 
225 Notifying Parties’ reply to the Commission’s request for information of 24 May 2018 (RFI 13), 25 
May 2018, paragraph 1.1. 
226 Supplement to Form CO, Table 37. 
227 Supplement to Form CO, Table 38. 
228 Replies to questionnaire Q2 to TV channel wholesale suppliers of 5 April 2018, question C.B.16. 
229 Reply from Talpa TV to questionnaire Q2 to TV channel wholesale suppliers of 5 April 2018, question 
C.B.16. 
 
95 taking initiatives to allow Dutch consumers to access and view TV content in 
innovative ways. In particular, TV broad casters had taken initiatives to offer 
the content that is shown on the linear Pay TV channels that are offered via 
the Parties' Pay TV platform also over the Internet via OTT services. 
(463)  The Commission noted that the Parties were active as buyers on the Dutch 
market for the acquisition of Pay TV channels. This market was to a certain 
extent characterised by the existence of agreements that restrict TV 
broadcasters in their ability to offer their TV channels and content via the Internet. As far as the Parties were  concerned, this mainly concerned 
agreements that Liberty Global negotia ted with TV broadcasters. Liberty 
Global concluded those agreements as part of, or together with, the agreement under which it carried the broadcasters' Pay TV channels on its Pay TV 
platform. 
(464)  Where TV broadcasters provided OTT se rvices themselves, those agreements 
were between Liberty Global and providers that could compete with Liberty 
Global's Pay TV packages. Where TV broadcasters provided their content to 
third party providers of OTT services, those agreements could restrict the 
access of potential competitors of Liberty Global's Pay TV platform to the 
inputs that they needed in order to operate their services. 
(465)  Against that background, the Commission had to assess whether the merger 
between Liberty Global and Ziggo could increase the market power of Liberty 
Global to sustain such restrictive agreements, or to conclude agreements that 
are more onerous from the perspective of  TV broadcasters and ultimately of 
consumers in the Netherlands. 
6.4.3.1.  The Notifying Party's views in 2014 
(466)  The Notifying Party argued that any claim that it sought to hold back the OTT 
distribution of TV channels and content of TV broadcasters is not specific to the Transaction, as Ziggo and UPC already had an incentive to attempt to get 
TV broadcasters to hold back such OTT distribution of linear channels and 
associated content. 
(467)  In order to support its arguments, the Notifying Party referred to the 
commercial negotiations that had ta ken place with NPO, which is its 
negotiation partner for the carriage of the TV channels of the Dutch public 
broadcasters. The Notifying Party submit ted that NLkabel, a trade association 
that included both Liberty Global and Ziggo, had already asked NPO to hold 
back the OTT streaming of its linear TV channels. 
(468)  Also, the Notifying Party explained that the request to NPO was made in the 
context of contractual negotiations in which NPO requested a significantly 
higher fee for the carriage of the TV channels of the Dutch public 
broadcasters. This happened in light of a 2013 report prepared for the Dutch 
government, in which a suggestion was made that NPO could strengthen its bargaining position with the platform operators by expanding its OTT 
distribution of linear TV channels on the Internet. That hypothetical increase 
in bargaining power would be based on the threat that NPO could cease to offer its channels to cable operators and instead distribute nationally via OTT. 
In such situations – where TV broadcasters were demanding more 
 
96 compensation for their content – UPC and Ziggo would naturally respond by 
attempting to raise their revenues by preventing the same content from being 
given away for free via the Internet. TV broadcasters' commercial choice to 
provide free OTT access to their content would risk degrading the value of 
their content and this would be the case irrespective of any perceived market 
power of the merged entity.  
(469)  The Notifying Party claimed that ultimately, its new 2014 agreement 
negotiated with NPO did not include any restriction on the broadcasters with respect to OTT service provision. The Notifying Party submitted that the same 
applied to the agreement that it had recently concluded with RTL. Finally, the 
Notifying Party stated that no such restriction was being sought in the ongoing negotiations with SBS. 
(470)  The Notifying Party also explained that, from a conceptual viewpoint, it 
strongly believed that restrictions on broa dcasters with respect to OTT service 
provision in the context of TV transmission agreements should be seen as a 
normal outcome of commercial negotiations, and not as an anti-competitive 
exercise of market power. It continued by explaining that, in principle, there 
would be several ways in which a broadcaster could monetize its content, 
which would include: carriage fees paid by platform operators in return for the 
right to air a channel; subscription fees paid by consumers who subscribe to 
pay-for channels; advertising or sponsor ship fees paid to broadcasters for 
including adverts alongside their programming; as well as other less 
significant revenue streams such as advertising on channel websites or OTT portals, or premium rate ‘phone-ins’. The broadcaster’s choice of business 
models from those would also have implications for its optimal strategy with 
respect to content distribution. In that respect, the Notifying Party explained 
that, for example, a broadcaster that chooses to rely solely on advertising 
income would be incentivised to distribute content freely and as widely as possible, including all platforms as well as OTT. Conversely, a platform 
choosing to rely on carriage income alone would be incentivised to maximise 
the value of its channels to its customers, the platform operators. This might 
include exclusive deals, which would allow the platform operators to pay a 
greater price for carriage rights. In practice, most channels derive income from a combination of sources and would be required to balance those 
opposing incentives. 
(471)  The Notifying Party claimed that, in the above context, a restriction with 
respect to OTT service provision can be seen as a simple commercial reality. 
By increasing the free distribution of content via OTT, broadcasters would necessarily be decreasing the value of that content for platform operators. It 
would follow that a widely available,  free distribution model is therefore 
incompatible with a premium carriage fee model. This would not be unique to 
broadcasters: media owners of all kinds would struggle to trade-off the 
advantages versus the disadvantages of making content available for free. All of them would face the same choices and trade-offs, and, according to the 
Notifying Party, none of them can expect to charge high fees for content that 
is widely available for free on the internet. Again, in the Notifying Party's 
view, that market development was not related to any increase in market 
power that the Transaction would bring about. 
 
97 6.4.3.2.  Commission's assessment in 2014 
(472)  The Commission considered in the 2014 decision that in order to undertake its 
competitive assessment of the Transaction's likely impact on OTT services in the Netherlands, the Commission needed to take into consideration that the 
Parties and TV broadcasters deal with each other at multiple market levels.  
(473)  The Commission noted that the Parties and TV broadcasters negotiated the 
carriage of the broadcasters' Pay TV channels and associated content via the 
Parties' Pay TV platforms. This negotiation took place on the Dutch market for the acquisition of Pay TV channels. At the same time, TV broadcasters 
were increasingly offering their content via Internet-based OTT services. To 
the extent that this content was offered to third-party operators of OTT 
services, those operators competed with the Parties as buyers of that content. 
Those operators also potentially comp eted, on the downstream retail market 
for Pay TV services, with the Pay TV pl atforms of the Parties. To the extent 
that broadcasters themselv es offered their content online, they too potentially 
competed with the Parties' Pay TV platforms on the downstream retail market 
for Pay TV services. 
(474)  In the 2014 decision, the Commission assessed whether the merged entity's 
increased market power as purchaser of TV channels could increase its ability 
to condition the carriage of TV broadcasters' linear TV channels (and associated catch-up services) on its Pay TV platform in the Netherlands on 
terms that would prevent those broadc asters from operating, or providing 
content to, Internet-based OTT services . The likely effects of such strategy 
would be felt beyond the Dutch market for the acquisition of Pay TV 
channels, namely on the retail market for Pay TV services on which those OTT services could compete with the merged entity's Pay TV platform. 
(475)  The Commission noted that OTT services were emerging services that 
constituted a significant competitive threat to traditional Pay TV. The 
Commission found evidence that suggested that the Notifying Party already 
had every incentive to prevent, delay or hamper such OTT innovation. By using its increased buyer power, the merged entity could prevent innovative 
new TV services from entering the ma rkets for the acquisition of Pay TV 
channels and for the retail provision of Pay TV services, thereby degrading 
the quality and choice for Dutch consumers. 
(476)  The Commission's explanations from the 2014 decision on the role and 
importance of existing and future OTT se rvices are set out in paragraphs (477) 
to (489) below, while the type of restrictive agreements that were in place in the Netherlands in relation to such OTT services are set out in paragraphs 
(505) to (544). The Commission's assessment of the likely impact that the 
Transaction would have on the continuation or the worsening of such 
restrictive agreements is set out in paragraphs (545) to (593). 
Importance of OTT services  
(477)  In the Conditional Clearance Decision, the Commission noted that a TV 
broadcaster that acquires the broadcasting rights to TV content can deploy that content in various ways. First, it can include that content in the 
programming of its linear TV channels that it in turn offers to retail TV 
 
98 services providers such as the Parties fo r distribution to consumers. Second, it 
can seek to offer that content, in a non-linear fashion, to retail TV services 
providers such as the Parties for inclusion into their VOD services. Third, it 
can seek to offer that content over the In ternet. It can do so directly, or via the 
services of an aggregator that packages the content of different content owners in a broad Internet offer to consumers. 
(478)  The Commission understands that it is also feasible to offer TV channels in a linear fashion over the Internet, fo r instance, live streaming of TV 
programmes as shown on the TV channels over the cable, which NPO had (at 
the time) recently introduced.
230 However, as internal documents of the 
Parties also confirm231, OTT services until then had focussed on offering non-
linear content to Internet users. Such OTT services were emerging in the 
Netherlands. A number of them were already available to consumers. 
(479)  Various TV broadcasters in the Ne therlands offer so-called "catch-up 
services" over the Internet. Consumers that use those services can re-watch 
the content that was available on their linear TV channels for a limited period 
of time after it was shown on such channels. Those catch-up services can be 
combined with "preview services", where consumers can watch individual TV 
programmes before they are show n on the linear TV channels. 
(480)  An example of that type of service is the kijk.nl service of SBS. That service 
offers catch-up content that was available on the SBS channels SBS6, Net5 
and Veronica. With its "kijk eerder" service, it also allows consumers to 
watch certain films and series before they are shown on those channels.  
(481)  RTL has an OTT service called "RTLXL". That service includes content from RTL's main channels RTL 4, 5, 7 and 8, as well as its thematic channels RTL 
Crime, RTL Lounge and Telekids. In 2014, RTL also launched the Videoland 
Unlimited service. For a monthly payment of EUR 10, consumers obtain unlimited access to films and series. Through Videoland Unlimited, RTL also 
intended to produce its own series.
232 
(482)  Public broadcasters in the Netherlands offer their catch-up content and certain previews online on "Uitzending Gemist." Their (then) more recent paid OTT 
service NPO Plus allows consumers to have access to a wider, more premium library of content offered by the Dutch public broadcasters.
233 Consumers can 
view this content in high quality. 
                                                 
230 http://www.npo nl/live. 
231 [Reference to the Parties' internal business documents]. 
232 For March 2015, it plans to show the first episodes of a high-quality Dutch drama series called 
"Zwarte Tulp.": http://pressroom.rtl nl/videoland/persberichten/persbericht/sterrencast-in-eerste-eigen-
serie-videoland-zwarte-tulp  [accessed 08 August 2014] 
233 Document ID1989, non-confidential minutes of conference call between Commission's services and 
NPO of 19 June 2014. 
 
99 (483)  Other OTT offers that are available in the Netherlands include the Eurosport 
Player service of Eurosport, which allows consumers to access live streamed 
sports events across the Internet connected devices that they use. 
(484)  In June 2014, the three main TV broadcasters in the Netherlands – NPO, RTL 
and SBS - commercially launched their joint venture NLZiet. For EUR 7.95 
per month, consumers obtain Internet access to the content that is shown on 
the TV channels of each of those TV br oadcasters. NLZiet is integrated with 
the three stand-alone OTT offers of those broadcasters, allowing consumers to search and access content across those platforms in a streamlined manner. 
NLZiet offers access to catch-up and pre-view content. NLZiet markets itself 
as a complete, all-encompassing service that offers consumers access to all content that is shown on the linear TV channels of the associated 
broadcasters. The aim is to include content that goes back as far as is feasible 
under the broadcasters' content agreemen ts with content providers. NLZiet 
also offers additional service features. For instance, it allows consumers an 
easy way to search for and access content of their liking that is available from each of these broadcasters. It provides al erts if a new episode of a consumers' 
favourite TV series is on-line. The content on NLZiet can be accessed on any connected device. NLZiet guarantees that consumers can access the available 
content in high quality. 
(485)  The Commission considered in the Conditi onal Clearance Decision that those 
OTT offerings constituted important innovations, potentially changing the 
way in which consumers in the Netherlands can search for, and watch, TV content online. If such OTT offerings became successful, consumers would 
face a genuine choice between the Notifying Party's cable TV subscription, 
and the content that is available on the Internet. OTT services were hence 
(then) an emerging form of competition to the Parties' cable TV operations. 
(486)  For the same reason, the Notifying Party sees those offerings as a threat to its 
own cable TV operations. In its response to the Article 6(1)(c) decision in the 
current matter, Liberty Global explained that " the use of OTT services has 
expanded rapidly and expectations are t hat this expansion will continue, to 
the detriment of 'traditional' video and television services offered by network 
operators such as UPC, Ziggo and KPN ".
234 Also in the Form CO, the 
Notifying Party noted that ' the increased availability of channels via the 
internet is expected to negatively impact the Parties' retail TV services 
activities '.235  
(487)  Ultimately, the Notifying Party feared that consumers could choose to end 
their cable TV subscription and subscribe instead to an Internet offer of a 
player like KPN and possibly the OTT S VOD service of a content provider. In 
industry parlance, this is the threat that Pay TV consumers "cut the cable or cord". 
                                                 
234 Document ID1179, Liberty Global response to the Commission's Article 6(1)(c) decision in case 
M.7000 – Liberty Global/Ziggo, paragraph 37. 
235 Form CO, paragraph 464. 
 
100 (488)  […] this threat would be particularly cr edible if those OTT services offered a 
combination of […] and catch-up TV offers.236 […] that an explosive growth 
of OTT providers constituted […].237 The availability of TV broadcasters' 
content OTT […] for reaching the end consumer.238 
(489)  Therefore, the Commission considered that OTT services were a relatively 
new way for distributing content to end users and that they were growing in 
importance. If unhindered, OTT services were likely to exert a growing 
competitive constraint on the traditio nal distribution model of cable TV 
operators. 
The Parties' approach towards OTT services in negotiations with TV 
broadcasters pre-merger 
(490)  The acquisition of linear Pay TV channels and the provision of OTT services 
are typically negotiated jointly between  TV broadcasters and the Parties. 
(491)  This is mirrored in the contractual arra ngements for those services. Typically, 
contractual clauses that govern the ability of TV broadcasters to offer their TV 
content OTT form part of the same agreement as the carriage agreements for 
their linear Pay TV channels. Irrespective of whether such contractual 'OTT' 
clauses are in the end contained in one and the same contract, or subject to a 
separate agreement, commercial negotiations on the TV broadcasters' OTT 
offers tend to take place simultaneously with, and form part of, the overall negotiations for the distribution of their Pay TV channels.  
(492)  There is thus a strong and direct link between the merged entity's bargaining 
position in the acquisition of Pay TV channels and its market power to 
prevent, delay or hamper OTT innovation of TV broadcasters.  
(493)  This link is strengthened by the fact  that the agreements for, and the 
commercial negotiations of, the distribu tion of the TV broadcasters' Pay TV 
channels also cover the key content, namely the channels and attractive programming content, that could form part of the broadcasters' OTT offers.  
(494)  Paragraphs (496) to (504) contain fi rst the Commission’s review in the 
Conditional Clearance Decision of the evidence from the market investigation 
regarding the link between OTT services and the acquisition of linear Pay TV 
channels in negotiations with TV broadcasters.  
(495)  Subsequently the Commission has reviewed the contractual conditions which 
the Parties have sought to impose on TV broadcasters pre-merger. 
  
                                                 
236 [Reference to the Parties' internal business documents]. 
237 [Reference to the Parties' internal business documents]. 
238 [Reference to the Parties' internal business documents]. 
 
101 The link between negotiations for the acquisition of linear TV channels 
and OTT services  
(496)  Virtually all TV Broadcasters confirmed that their commercial negotiations 
for the distribution of their linear TV channels simultaneously covered the 
distribution of non-linear TV content that is associated to those TV channels 
such as catch-up, preview and start-over TV content.239 The Notifying Party's 
internal documents equally confirmed that negotiations for the distribution of 
linear TV channels simultaneously cover the rights to distribute those channels and the content contained therein over the Internet.
240 
(497)  The Parties' internal documents also confirmed that negotiations may even 
cover individual content, that is to say specific series and film titles, which 
broadcasters could include in their OTT offerings. 
(498)  For instance, Ziggo had (then) been negotiating [references to the individual 
content covered by commercial negotiations between one of the Notifying 
Parties' and various third party broadcasters].241 The Notifying Party had done 
the same for [references to the indi vidual content covered by commercial 
negotiations between one of the Notify ing Parties' and various third party 
broadcasters]. 
(499)  The Notifying Party's internal business documents confirmed that [Reference 
to the Parties' internal business documents]. 
(500)  Internal business documents of the Notifyi ng Party confirmed that it would be 
willing to use the leverage that it had over broadcasters for the distribution of 
their linear Pay TV channels to prevent, delay or hamper such innovation. 
[Reference to the Parties' internal business documents]:  
(i) [Reference to the Parties' internal business documents];  
(ii) [Reference to the Parties' internal business documents]242 
(501)  This document reveals that Liberty Global would be willing to use its 
bargaining power in the distribution of linear Pay TV channels fully to prevent, delay or hamper OTT innovation. 
(502)  Other internal business documents showed that the Notifying Party 
implemented that strategy in individual commercial negotiations with TV 
broadcasters. […].
243 […].244 […]. The Notifying Party seemed to have 
                                                 
239 Non-confidential replies of TV Broadcasters to Q4 Phase II Questionnaire to TV Broadcasters, 
question 17. 
240 [Reference to the Parties' internal business documents]. 
241 [Reference to the Parties' internal business documents]. 
242 [Reference to the Parties' internal business documents]. 
243 [Reference to the Parties' internal business documents]. 
 
102 purposefully made thematic TV channels part of the overall linear TV channel 
negotiations with TV broadcasters in  order for those to be used as 
'leverage'.245 
(503)  The same pattern emerged from the negotiations that the Notifying Party had 
been conducting with […] for the distribution of its linear […] Pay TV 
channels. In internal business documents,  the Notifying Party indicated that it 
wished to hamper the ability of […] to offer the content of those channels via 
an OTT service online. If […] did not agree with the Notifying Party's position, Liberty Global stated that its distribution of its linear Pay TV 
channels "may very well have to be postponed".
246 
(504)  Therefore, the Commission considered that there was a strong link between 
the Parties' market power in the acquisition of Pay TV channels and their 
market power to influence the manner in which broadcasters distribute their 
TV channels and their individual content over the Internet. Against this 
background, any increased market power that the merged entity would enjoy 
in the acquisition of Pay TV channels tran slates directly into increased market 
power to influence the distribution of those channels and the content 
contained therein over the Internet. 
The Parties' approach to OTT serv ices in their negotiations with 
broadcasters 
(505)  There were already at the time of the Conditional Clearance Decision, 
agreements in place between the Notifying Party and some of the TV broadcasters in the Netherlands that hamp ered the latters' ability, directly or 
indirectly, to launch and sustain OTT services for Dutch consumers. For 
instance, such agreements had been concluded with [...], which are important 
TV broadcasters in the Netherlands. The Commission has assessed in the 
Conditional Clearance Decision whether the proposed combination of Liberty 
Global and Ziggo could significantly increase the ability of the merged entity 
to sustain such restrictive agreements, or to apply them to more TV 
broadcasters, or to overall impose agreements that are more onerous from the perspective of the TV broadcasters and ultimately the Dutch consumers. 
(506)  The Commission considered that the Parties' ability to insist on such 
contractual clauses should be assessed in conjunction with the technical 
means the Parties have at their disposal to hamper or limit the distribution of 
OTT content over their respective Internet networks. This assessment is made 
in paragraphs (550) to (578). 
(507)  The Commission has assessed in the Conditional Clearance Decision the 
available evidence on the Notifying Party's negotiations and agreements with 
the broadcasters RTL, SBS, NPO, Fox, the Walt Disney Company ("Disney"), 
                                                                                                                                                 
244 [Reference to the Parties' internal business documents]. 
245 [Reference to the Parties' internal business documents]. 
246 [Reference to the Parties' internal business documents] 
 
103 HBO and VIMN.247 This approach was justified as together, those 
broadcasters accounted for over 80% of the TV content that was available in 
the Netherlands. In fact, RTL, SBS and NPO alone accounted for more than 
70% of the TV content that is available in that country. 
(508)  That evidence revealed that the Notifying Party had sought to impose various 
direct and indirect restrictions on the ability of those broadcasters to offer 
their TV channels and individual content via OTT services in the Netherlands.  
(509)  A first restriction that the Notifying Party had sought to impose is an outright 
contractual ban for broadcasters to offe r their content via OTT services in the 
Netherlands. This ban targeted OTT services that broadcasters could offer 
themselves. It also targeted OTT services of existing and potential third party 
suppliers, such as Smart TV (TV connected to the Internet) providers and 
aggregators of OTT content that is offered online. The ban finally targeted the individual content, especially premium content that broadcasters can make 
available OTT. 
(510)  An example is the clause that the Notifying Party sought to impose on [a third 
party TV broadcaster]. The proposed clause was as follows: 
(a) During the term of the contract [a th ird party TV broadcaster] will not 
offer the linear channels and VOD c ontent to so called OTT parties 
(among others: Netflix, Voddler, Zattoo, Lovefilm, Weepee and Magix)  
(b) During the term [a third party TV broadcaster] will not offer the linear 
channels to so called Smart tv parties (among others: Samsung, Sony, 
LG and Philips). [a third party TV broadcaster] is however allowed to 
offer its VOD content to these parties but only if the content will be offered in a transactional way to the consumer (regardless whether 
content includes advertising)  
(c) During the term [a third party TV broadcaster] will not offer the linear 
channels OTT by itself
248  
(511)  If accepted, that clause would have ba nned [a third party TV broadcaster] 
from offering its content altogether to OTT service providers that were then 
already active in the Netherlands, such as Netflix. It would also have banned [a third party TV broadcaster] from d ealing with OTT service providers that 
were active in other countries, but might wish to launch in the Netherlands in 
the future, such as Voddler Inc. and LoveFilm (the latter was then part of 
Amazon). It banned [a third party TV broadcaster] from dealing with players 
such as Magix that were then active in adjacent markets, but might wish to launch OTT services with film and other content geared towards consumers in 
                                                 
247 [Reference to the Parties' internal business documents]; Document ID1985, non-confidential minutes 
of conference call between Commission's services and NPO of 19 June 2014, p. 3; [Reference to the Parties' internal business documents]. 
248 [Reference to the Parties' internal business documents], and; Document ID1674, non-confidential 
submission by […]. 
 
104 the future. The ban would also apply to online broadcasters of linear TV 
channels.249 
(512)  In addition, that clause would have banned [a third party TV broadcaster] 
from dealing freely with Smart TV providers such as Samsung Electronics 
Co., Ltd. and Sony Corporation. If accepted, [a third party TV broadcaster] 
would not be allowed to distribute its linear channels to those providers. The 
VOD content that it would be allowed to distribute via them would be limited 
to TVOD services. That content would exclude potentially lucrative SVOD services. 
(513)  Finally, the ban would have precluded [a third party TV broadcaster] from 
offering its own linear channels over the Internet to consumers. 
(514)  A second type of restriction that the Notifying Party had sought to impose on 
the ability of broadcasters to launch OTT services was a contractual right for 
it to terminate the agreement for the carriage of the broadcasters' linear Pay 
TV channels, should those broadcasters offer their channels or the content 
contained therein via OTT services in the Netherlands. The Notifying Party 
had sought to impose such clauses in relation to both paid and free OTT 
services. This type of clause creates a strong disincentive for broadcasters to 
launch OTT services, as that launch would mean that a large part of the reach 
of their TV channels would fall away. In order to sustain that reach, they would have to re-negotiate the carriage of their linear Pay TV channels, for 
which they are heavily dependent on the Notifying Party.
250 
(515)  That type of clause had been proposed to [a third party TV broadcaster], one 
of the largest commercial broadcasters in the Netherlands, as well as to other 
providers of TV channels and OTT services.251 Internal business documents 
of the Notifying Party confirmed that the goal of such clauses would be to 
prevent the emergence of OTT providers that could deliver their TV channels in competition with its own cable TV offering.
252 
(516)  A third category of restriction that the Notifying Party had sought to impose 
limited the possibility for broadcasters to offer their content to existing Pay 
TV platforms, such as competing cable companies, that might wish to broaden 
their offering in the future. For instance, the Notifying Party sought to ensure that broadcasters would limit the scope of the IPTV distribution right for other 
cable operators to the existing cable footprint of those operators. In that way, 
the Notifying Party sought to ensure that existing Pay TV operators could not 
                                                 
249 Zattoo is an on-line distributor of linear TV channels. It had experienced legal difficulties with content 
right holders regarding its ability to  re-broadcast their si gnals over the Internet. However, YouCa B.V., 
another company then wishing to enter the OTT market with a linear TV channels offering would also 
be covered by the contractual clause that Liberty Global sought to impose, which would have meant that it could not obtain the [a third party TV broadcaster] content for inclusion in its services. 
250 [Reference to the Parties' internal business documents]. 
251 [Reference to the Parties' internal business documents] . 
252 [Reference to the Parties' internal business documents]. 
 
105 expand their commercial presence through other means than their existing 
cable networks, for instance over the Internet. 
(517)  For instance, the Notifying Party asked [a third party TV content provider] to 
limit the scope of the IPTV distribution right that [a third party TV content 
provider] was about to grant another cable operator, CAIW. CAIW had 
publicly expressed its strategy to "e xpand their footprint through other means 
than traditional cable networks". The Notifying Party explained that it could 
not " risk a potential OTT IPTV in our [their]  footprint " and accordingly 
required [a third party TV content provider] to limit CAIW's IPTV license to 
the latter's existing geographic footprint.253 
(518)  A fourth category of restrictions on the ability of broadcasters to offer their 
content via an OTT service concerned th e obligation for those broadcasters to 
only offer OTT services in the Netherlands, if those services were tied technically to the cable TV offering of the Notifying Party. That would for 
instance mean that broadcasters could only offer OTT services in an 
unencrypted fashion to subscribers that also have a Pay TV subscription with 
the Notifying Party. Some services could not be available to consumers at all 
if those consumers did not take a Pay TV subscription with the Notifying 
Party, or only at lower quality. 
(519)  The following clause imposed on Fox is an example of that type of restriction. 
Fox: 4. Content Commitments, Free-to-air provisions and holdbacks Channel Provider shall not distribute, no r shall it grant any third party the 
right to distribute the Channels or any programming contained therein, including the Key Content, in the Territory via cable systems, DSL systems 
and/or any open or public access computer integrated networks such as the 
world-wide matrix of interconnecting computers known as the “Internet” on 
an unencrypted or free basis, unless the unencrypted or free basis distribution 
of a Channel(s) or any programming contained therein, is complementary to the distribution of such Channel on a pay tv basis via any television 
distribution system to subscribers authorized to receive the Channel via such 
television distribution system. It is understood that limited volumes of content 
(no more than 5 hours of content per month, but in no event live matches) 
contained in the Channel may be distributed on a non-linear unencrypted or free basis for promotional purposes only. 
Channels Provider shall not make the FOX Sports EDL GO Interface or the 
Fox Sports International GO Interface, or any materially similar interface, 
nor any of the FOX Sports EDL GO Cont ent or FOX Sports International GO 
Content directly available to end-c onsumers in the Netherlands by whatever 
means (including but not limited to by means of OTT or connected TV 
portals). Channel Provider shall only allow third party platform providers to 
enable their subscribers to access FOX Sports EDL GO and/or FOX Sports 
                                                 
253 [Reference to the Parties' internal business documents]. 
 
106 International GO, if such subscribers does also receive Fox Sports EDL 
Channels or Fox Sports International Channels as part of a pay tv 
subscription.254 
(520)  That clause covered both the [a third party TV content provider] channels and 
the content that is shown on those channels. If both or either were included in 
an unencrypted or free Internet offer, it had to be limited to authorised 
subscribers that also took the channels as part of a Pay TV bouquet from the 
Notifying Party. [a third party TV cont ent provider ]'s existing [a third party 
TV content provider] services could not  be available to any end-consumers 
that did not also subscribe to the TV channels as part of a cable subscription 
with the Notifying Party. 
(521)  The Commission noted that in the same document concerning [a third party 
TV content provider], the Notifying Party proposed to go even further, and to force [a third party TV content provider] to cease offering premium content to 
consumers directly altogether. Ultimate ly, the outcome of the negotiations 
between the Notifying Party and [a third party TV content provider] was that 
that particular clause was not agreed upon. 
(522)  […]
255 [...]. 
(523)  In fact, a similar tying arrangement to th at with [third party broadcasters] had 
been considered for [third party broadcas ters], associated to the main public 
broadcasters in the Netherlands256, and for [third party TV content provider]. 
As concerns the latter (then) broadcaster, the Notifying Party wished to achieve the integration of the [third party TV content provider] GO service 
into its own TV services, thus preventing [third party TV content provider] 
from offering the GO servi ces directly to consumers. In this regard, the 
Notifying Party wanted to achieve the same technical restrictions that [a 
foreign cable operator] had managed to impose on [third party TV content provider] in the [...].
257 
(524)  […]258 [...].259 
(525)  Other clauses proposed to TV broadcasters in the Netherlands were a 
combination of the type of restricti ons mentioned in paragraphs (505) to 
(523). […]260 […]261 [...]. 
                                                 
254 [Reference to the Parties' internal business documents]. 
255 [Reference to the Parties' internal business documents]. 
256 [Reference to the Parties' internal business documents]. 
257 [Reference to the Parties' internal business documents]. 
258 [Reference to the Parties' internal business documents]. 
259 [Reference to the Parties' internal business documents]. 
260 [Reference to the Parties' internal business documents]. 
 
107 (526)  A final category of restrictions on the ability of TV broadcasters to launch or 
sustain OTT services in the Netherlands relates to agreements that the merged 
entity would strike in relation to the TV content that can be included in such 
OTT offerings. 
(527)  As mentioned in paragraphs (497) and (498), the Parties already sought to 
conclude agreements with TV broadcasters for the non-linear use of the TV 
content on their Pay TV platforms. For instance, Liberty Global had sought 
[...] such as [...]. 
(528)  In submissions to the Commission, the Notifying Party explained that it 
wished to obtain the exclusive right to certain films, shows, series and other 
content of TV broadcasters. Although those types of exclusive agreements 
were then not very prevalent, the Notifying Party saw them as an important 
tenet of its strategy in the near future. 
(529)  To the extent that those content agreements are entered into with operators 
that own premium film and series content, such as the Hollywood majors (main Hollywood studios, including Fox, Warner Brothers and Disney), those 
agreements are entered into in the market for the licensing of TV content, 
where the Commission had not identified competition concerns in the context 
of this case. 
(530)  However, to the extent that those content agreements were concluded with TV 
broadcasters that would be dependent on the merged entity to distribute their 
TV channels, concluding exclusivity agreements for the TV content that the TV broadcaster owned or for which it had the right to distribute it in the 
Netherlands, could seriously undermine th e viability of the OTT offers that 
those TV broadcasters could make to Dutch consumers. As shown in 
paragraphs (497) and (498), the commerci al negotiations for TV content deals 
with TV broadcasters take place in the context of, or at the very least are closely linked with, commercial negotiations for the carriage of the Pay TV 
channels of those same TV broadcasters. The market power that the merged 
entity would have vis-à-vis those TV br oadcasters in the distribution of those 
Pay TV channels would then also translate into market power to pressure 
those TV broadcasters into exclusivit y agreements for the content that is 
shown on those channels, or any other content that those TV broadcasters 
themselves own or for which they have the rights to distribute in the 
Netherlands. The Notifying Party itself underlined that the ultimate competitiveness of OTT services would depend on the attractive content, in 
particular recent films and series that those services offer to consumers. 
Allowing such exclusive deals to go ahead unfettered, would mean that the 
merged entity could use market power in a way that deprives the OTT 
services of the TV broadcasters of the attractive TV content they need in order 
to operate those services. 
(531)  Insofar as the merged entity pursued such exclusivity agreements in the 
context of, or together with, its negotiations for the distribution of linear Pay 
                                                                                                                                                 
261 [Reference to the Parties' internal business documents]. 
 
108 TV channels, those agreements were an indirect restriction of the TV 
broadcasters' ability to launch or sust ain OTT services for Dutch consumers. 
(532)  The Commission considered in the Conditional Clearance Decision that the 
Transaction was likely to significantly increase the merged entity's market 
power to continue the restrictive agre ements for OTT services of the types 
identified above, and to apply them to even more TV broadcasters. Overall, 
the merger was likely to significantly increase the Notifying Party's market 
power to make those restrictive agreements even more onerous. 
(533)  While the Notifying Party had sought to implement such clauses in its 
contracts with TV broadcasters, the Co mmission noted that [third party TV 
broadcasters] as well as [a third party TV broadcaster] had so far been able to 
resist, to a certain extent, attempts to conclude contractual bans for their OTT 
services.  
(534)  [a third party TV broadcaster], for example, was able to at least negotiate a 
change to the nature of the OTT clause that was initially proposed by the Notifying Party such that it was transformed from an outright prohibition on 
the provision of [a third party TV broadcaster]' content OTT to a unilateral 
right for the Notifying Party to terminate the carriage agreement in case [a 
third party TV broadcaster] were to pr ovide its linear TV channels to OTT 
parties.
262 Similarly, [a third party TV broadcaster] managed to change an 
outright prohibition on the free provision of additional VOD content on its 
OTT catch-up TV service into a provision that would make the payment of 
certain minimum guarantees by the Notifying Party conditional upon [a third 
party TV broadcaster] refraining from doing so.263  
(535)  [a third party TV broadcaster], in turn, did not agree to include any text on 
OTT in its agreement with the Notifying Party. The Notifying Party therefore 
moved away from the aforementioned ban on OTT, that is to say that the distribution agreement would be term inated in case [a third party TV 
broadcaster] were to go OTT. Instead, it proposed that certain minimum 
guarantees and marketing commitments undertaken by it would be dropped in case [a third party TV broadcaster] were to launch an OTT product in the 
Netherlands.
264 [a third party TV broadcaster] was seemingly able to trade off 
a contractual prohibition on the provisi on of its VOD content OTT for one on 
the provision of its linear content OTT.265  
                                                 
262 Document ID1674, […]. Document ID1908, non-confidential minutes of conference call between 
Commission's services and […] of  19 June 2014, p. 4. […]. 
263 [Reference to the Parties' internal business documents]. 
264 [Reference to the Parties' internal business documents]. 
265 [Reference to the Parties' internal business documents]. 
 
109 (536)  Finally, SBS, RTL and NPO had been able to jointly launch a standalone OTT 
catch-up TV service (NLZiet)266 and NPO provided its linear TV channels 
free of charge OTT.267  
(537)  As regards Ziggo's approach to OTT services, the Commission found that, 
similarly to Liberty Global, Ziggo had also been proposing clauses to 
broadcasters to limit their freedom to offer OTT services. Ziggo's approach 
had however been more lenient than that of the Notifying Party. [...].268 
(538)  That policy of Ziggo was reflected in the documentation of its commercial 
negotiations with TV broadcasters. For in stance, as regards [a third party TV 
broadcaster], Ziggo proposed that if [a third party TV broadcaster] were to make its content available on the Internet for free, Ziggo should also obtain 
the non-exclusive right to distribute that content for free.
269 Ziggo had not, as 
the Notifying Party had, sought to insist on a clause that would ban [a third 
party TV broadcaster] from such streaming entirely. During the market 
investigation, [a third party TV broadcaster] indicated that only one of the two 
Parties had demanded it to refrain from free OTT streaming. The evidence 
from the Parties shows that this party is the Notifying Party, and not Ziggo.270 
(539)  Likewise, the distribution agreement between [a third party TV broadcaster] 
and Ziggo did not contain any provision limiting [a third party TV broadcaster 
]'s ability to provide OTT services. Rather, it contained a clause whereby Ziggo was prohibited from transmitting [a third party TV broadcaster ]'s TV 
channels via the open Internet.
271 
(540)  The same pattern emerged in relation to [...]. Ziggo initially confronted [...] 
with the same [...] proposal that the Notifying Party made to [...]. However, 
[...] insisted on conducting separate negotiations with the Notifying Party and 
Ziggo, to which both parties seemingly agreed.272 Ziggo's subsequent 
                                                 
266 Document ID1908, non-confidential minutes of conference call between Commission's services and 
SBS of 19 June 2014, p. 4; Document ID1985, non-confidential minutes of conference call between 
Commission's services and NPO of 19 June 2014, p. 3; https://www nlziet nl/  [accessed at 31 July 
2014]. 
267 Document ID01424, NPO's non-confidential reply to questionnaire Q4 to Phase II Questionnaire to 
Broadcasters of 28 May 2014, question 16. 
268 [Reference to the Parties' internal business documents]. 
269 This restriction was contained in the Deal Memo of 7 February 2011 and the ultimate agreement with 
SBS of 23 May 2011 (Doc ID336-11521). SBS also agreed that its free OTT offers would be at a 
maximum download speed, which would however be benchmarked against that of its competitors NPO and RTL. 
270 Document ID1400, SBS' non-confidential reply to questionnaire Q4 Phase II Questionnaire to 
Broadcasters of 28 May 2014, question 18.1; Docume nt ID1769, SBS' non-confidential submission of 
30 June 2014. 
271 Document ID366-11396, signed carriage agreement between Ziggo and RTL of 15 February 2012, 
Article 7(2). 
272 [Reference to the Parties' internal business documents]. 
 
110 individual proposals were similar to the pr oposals that it made to [...]. In those 
proposals, Ziggo focussed on obtaining acce ss to the OTT services that [...] 
chose to make available online, rather than seeking a ban on such OTT 
services altogether.273 Thus, [...] was able to obtain more favourable draft 
clauses once it could avoid dealing with Liberty Global and Ziggo together. 
(541)  Ziggo's agreement with [a third party TV content provider] did not contain a 
clause banning [a third party TV content provider] from offering its TV 
channels over the Internet. As concerns  [a third party TV content provider]' 
non-linear [that third party's OTT service], the agreement contained the right 
for Ziggo to obtain some monetary compensation for its subscribers using the 
[that third party's OTT service] service directly over the Inte rnet, rather than 
as part of the VOD offering of Ziggo.274 The Notifying Party's contract 
restricted such direct consumer access to the [that third party's OTT service] 
service.275 
(542)  In the distribution agreement currently in place between Ziggo and [a third 
party TV content provider], [a third pa rty TV content provider] explicitly 
reserved to itself the right to freely exploit the rights granted therein via other 
means of distribution, including the Internet.276 
(543)  In sum, the Commission's investigation in the Conditional Clearance Decision 
had confirmed that the Dutch market was to a certain extent already characterised by the existence of ag reements that restricted the TV 
broadcasters' ability to offer their TV channels and content via OTT services 
to Dutch consumers. However, some TV broadcasters had until then been able 
to resist the conclusion of such restrictive agreements, whilst others had been 
able to water down the restrictive nature of the initially proposed agreements. A factor that had played a role in those dynamics was that Ziggo has taken a 
more lenient approach to the OTT services of TV broadcasters.  
(544)  In light of this evidence, the Commission has assessed in the Conditional 
Clearance Decision the likely impact of  the proposed combination of Liberty 
Global and Ziggo on the merged entity's market power to continue to enforce such restrictive agreements, or to apply them to more TV broadcasters or to 
make them more onerous overall, to the detriment of TV broadcasters and 
ultimately the Dutch consumers. 
Ability to prevent, delay or hamper  OTT innovation post-Transaction 
(545)  Paragraphs (546) to (578) contain the Commission's assessment in the 2014 
decision of the ability of the merged entity, post-Transaction, to prevent, delay 
or hamper OTT innovation. As set out  in paragraph (578), the Commission 
                                                 
273 [Reference to the Parties' internal business documents]. 
274 [Reference to the Parties' internal business documents]. 
275 [Reference to the Parties' internal business documents]. 
276 [Reference to the Parties' internal business documents]. 
 
111 concluded that the Transaction clearly in creased the merged entity's ability to 
prevent, delay or hamper OTT services by contractual means resulting from 
the merged entity's increased buyer power. That increased ability was 
furthermore compounded by the merged entity's ability to hamper Internet 
traffic via technical means.   
Ability to prevent, delay or hamper OTT innovation by contractual means 
(546)  As the merger of the Notifying Party and Ziggo was likely to significantly 
enhance the Notifying Party's market power vis-à-vis TV broadcasters, the merged entity was likely to have an increased ability to impose its stringent 
contractual OTT conditions on TV Broad casters compared to the situation 
absent the merger.  
(547)  Moreover, the fact that Ziggo was present on the market with a relatively 
more lenient policy on OTT services, gave TV broadcasters a degree of 
leverage vis-à-vis the Notifying Party pre-merger. TV Broadcasters had 
explained that in terms of clauses on OTT services, they tended to benchmark the conditions of their supply agreemen ts entered into with either the 
Notifying Party or Ziggo in subsequent negotiations with the other.
277 Some 
TV broadcasters confirmed that they are able to put pressure on either the Notifying Party or Ziggo by communicating the outcome of the negotiations 
for the distribution of their TV channels with the other. The Parties' internal 
documents confirmed the existence of this constraint. For instance, [...].
278 As 
explained in paragraph (540), [...] was able to obtain more favourable draft 
clauses once it could avoid dealing with Liberty Global and Ziggo together. This would however be precisely the situation in which it would be following 
the merger. 
(548)  The Commission found in the Conditiona l Clearance Decision that it was 
unlikely that TV broadcasters would be able to resist contractual clauses that 
hamper their ability to launch or sustain OTT services by adapting a 
coordinated market response to the merged entity to relinquish such clauses. 
Indeed, when faced with requests by the merged entity to agree to restrictive OTT agreements, each TV broadcaster was likely to weigh its short term gain 
derived from not losing income from the me rged entity – in the form of higher 
licence fees - if it agreed to such clauses against the longer-term gain that 
could be derived from cross-platform competition between cable TV and OTT 
TV, that is to say by facilitating entry at the downstream level. However, for OTT TV to become a viable and credible substitute to cable TV, the 
Commission considered that it would likely require OTT content from a large 
proportion of major TV broadcasters. Each  TV broadcaster therefore faces the 
                                                 
277 Document ID1985, non-confidential minutes of conference call between Commission's services and 
NPO of 19 June 2014, p 2; Document ID1908, non-confidential minutes of conference call between Commission's services and SBS of 19 June 2014, p. 3; Document ID1700, non-confidential minutes of 
conference call between Commission's services and VIMN of 20 June 2014, p. 2; Document ID2209, 
non-confidential version of the European Broadcaste rs' Union's submission of 30 June 2014, p. 4; 
Document ID2270, non-confidential minutes of conference call between Commission's services and 
Fox International Channels of 25 June 2014, p. 4. 
278 Document ID331-12405, Liberty Global email 'Status update NPO/RTL/SBS' of 23 April 2012. 
 
112 risk that a sufficiently high proportion of TV broadcasters agree to restrictive 
contract terms on OTT, jeopardising the long-term benefit of additional 
competition from OTT services overall. Under those circumstances, the 
longer term benefits of cross-platform competition to TV broadcasters may be 
sufficiently uncertain to be outweighed by the short term benefit of agreeing 
to such restrictions. The risk of such coordination failure is likely increased by the dispersed nature of TV broadcasters.
279 The fact that some broadcasters 
had so far resisted these clauses did not alter that assessment. After the 
Transaction, they would face a combined Liberty Global/Ziggo. The short-
term gain derived from the licensing income of such a large market player 
would only make it more difficult for those broadcasters to secure the long-term gain of bringing additional competition to the market in the form of OTT 
services.  
(549)  Therefore, the Commission considered that, post-merger, the Notifying Party 
would likely have a greater ability contractually to prevent, delay or hamper 
OTT innovation. This increased ability to prevent, delay or hamper OTT innovation by contractual means, needed to be assessed in conjunction with the ability that each of the Parties already had pre-merger to technically degrade the distribution of OTT content via their Internet networks, which 
was another market where they were active. 
Ability to prevent, delay or hamper O TT innovation compounded by the ability 
to technically restrict OTT services 
(550)  The Commission further considered in the Conditional Clearance Decision 
that both Liberty Global and Ziggo were also active as a provider of Internet 
access services to consumers in the Netherlands. In that role, they operated the 
Internet networks that providers of O TT services needed to access Liberty 
Global's and Ziggo's broadband customer s in the Netherlands. Post-merger, 
the Notifying Party would provide access to around 43% of Dutch broadband 
customers. Under those circumstances, the Commission had to assess whether 
the merged entity's increased ability to prevent, delay or hamper OTT 
innovation by contractual means would be compounded by its ability to technically degrade the distribution of OTT content via its Internet network. 
(551)  In terms of access to the Parties' broadband customers in the Netherlands, 
providers of OTT audio visual services could reach the Parties' broadband customers in three distinct ways:  
(i) Private direct peering: the OTT provider can directly connect to the Parties' 
Internet networks via a private physical interconnection link.
280 The Notifying 
                                                 
279 This reasoning is in line with established models of exclusive dealing. See C. Fumagalli and M. Motta, 
'Buyers' miscoordination, entry, and downstream competition' in Working Paper no. 152 Centre for 
Studies in Economics and Finance  of January 2006, page 15, and Commission decision of 18 October 
1996 in case IV/M.580, ABB/Daimler Benz.  
280 This is often a dedicated fibre connection between the two parties' routers to be used exclusively for 
the exchange of traffic flowing between their respective Internet networks. 
 
113 Party refers to this as direct phys ical network interconnect (PNI). OTT 
providers can achieve this PNI at a paid or settlement-free basis;  
(ii) Public direct peering: the OTT provid er can directly connect to the Parties' 
Internet networks via a physical interconnection link at a public Internet 
exchange. The Parties' overall interconnection capacity at an Internet 
exchange is shared between all of th e companies they connect with there 
(between 50 and 500 Gbit/s for the Notifying Party);  
(iii) Transit: the OTT provider can contra ct a third-party Internet connectivity 
transit provider, whose Internet network is connected to that of the Parties, 
through private direct peering281, to hand over its Internet traffic to the 
Parties' networks in exchange for a transit fee.282  
(552)  The Commission's investigation confirmed that there were close links 
between the Parties' technical role in delivering OTT services to their 
broadband customers and their ability to insist upon contractual clauses that 
restrict, directly or indirectly, the abil ity of TV broadcasters to offer their 
content via OTT services. The existence of such links became apparent from 
the Notifying Party's approach to, for ex ample, the OTT TV (GO) services of 
[...] and of [...]. As regards both of those OTT services, the Notifying Party 
was only willing to guarantee a free high quality (in this case meaning a 
direct, private and uncongested interconne ction) access to its Internet network 
if those services would be exclusively available to its own [...] customers. In 
that way, the Notifying Party sought to achieve a contractual restriction of 
[…]' possibility to offer OTT services to consumers in the Netherlands by 
partly relying on its position as an Internet network provider and route to 
deliver OTT traffic to its broadband customers. 
(553)  The Commission has assessed in detail in the Conditional Clearance Decision 
the technical means that the Parties have at their disposal to influence the manner in which OTT services can reach their broadband customers. The 
Commission's investigation confirmed that, ultimately, each of the routes that 
OTT providers can use to interconnect with the Parties' Internet networks, thereby obtaining access to the Parties' broadband customers, are under the 
control of the Parties. 
(554)  Private and public direct peering.  As regards direct peering, that is to say the 
first way, so-called 'private direct peering', and the second way, so-called 
'public direct peering', of interconnecti ng with the Parties' Internet networks, 
the Notifying Party shortly before the 2014 Transaction publicly enforced a 
policy by which providers of OTT audio visual services would not be allowed to engage in settlement-free direct peering with it, whether public or 
private.
283 Moreover, under its peering policy, the Notifying Party had 
                                                 
281 According to the Notifying Party, interconnections at an Internet exchange are usually not allowed to 
be used to provide transit services. See: Document ID2384, Liberty Global presentation 'M.7000: 
technical presentation', of 1 July 2014. 
282 Document ID2384, Liberty Global presentation 'M.7000: technical presentation', of 1 July 2014. 
283 Indeed, OTT audio visual services will never comply with the maximum ratio of 3:1 between traffic 
incoming to the Notifying Party's Internet network and traffic outgoing from the Notifying Party's 
 
 
114 reserved the right not to engage in private direct peering with any party at all, 
regardless of whether the requirements for settlement-free private direct 
peering were met. The Notifying Party's policy was summed up in its internal 
documents as: [...]284 Given that any OTT audio visual service would thus 
only qualify for paid direct private peering, if at all, the Notifying Party could 
refuse or severely restrict those serv ices from having access to its Internet 
network, either by charging excessive fees for paid direct private peering or 
by altogether refusing to engage in private direct peering.  
(555)  As already mentioned in paragraph (552), the Commission stated in the 
Conditional Clearance Decision that it had found evidence that suggested that 
the Notifying Party already refused to o ffer direct high quality access to its 
Internet network to OTT service providers. […]: 
(i) [Reference to the Parties' internal business documents]285; 
(ii) [Reference to the Parties' internal business documents]286; 
(iii) [Reference to the Parties' internal business documents]287; 
(iv) [Reference to the Parties' internal business documents]288 
(v) [Reference to the Parties' internal business documents]289 
(vi) [Reference to the Parties' internal business documents]290 
(556)  [...]. As regards [a third party TV content provider], the Notifying Party 
offered to conclude a [...] direct interconnection in relation to the imposition 
of a contractual clause that would proh ibit [a third party TV content provider] 
from providing its streaming service directly to end users.291 
                                                                                                                                                 
Internet network, required by the Notifying Party for settlement-free private  direct peering. Such OTT 
services generate largely one-way traffic, sometimes achieving inbound-outbound ratios in excess of 
100:1. Liberty Global's peering policy is available at: http://www.libertyglobal.com/PDF/LGI-
Settlement-Free-IP-Peering-Policy-2012-final.pdf  [Accessed at 16 July 2014]. 
284 [Reference to the Parties' internal business documents]. 
285 Document ID331-41175, Liberty Global Engineering PNI/ODIA Scope Document of 19 June 2013, 
section 1.2. 
286  Document ID331-7320, Liberty Global email 'RE: Fox sports GO | direct peering / Kosten direct 
peering' of 11 June 2013. 
287  Document ID331-10359, Liberty Global email 'RE: HBO NL – Big Questions' of 7 November 2012. 
288  [Reference to the Parties' internal business documents]. 
289  [Reference to the Parties' internal business documents]. 
290 [Reference to the Parties' internal business documents]. 
291 [Reference to the Parties' internal business documents]. 
 
115 (557)  [...]. That indicated that the Notifyin g Party was unlikely to be deterred from 
engaging in such strategy due to any perceived risk that it infringes Dutch net 
neutrality law. 
(558)  In addition to that inability to interconnect directly via a private link with the 
Notifying Party’s Internet network, those OTT audio visual services could not 
engage in public  direct peering with the Notifying Party, that is to say direct 
peering at an Internet exchange, as thos e would not be allowed, pursuant to its 
peering policy, to generate traffic in excess of 3 Gbit/s at any one Internet exchange. This effectively made it impossible for any successful OTT service 
to use that route to reach the Notifying Party's broadband customers. In that 
regard, Ziggo indicated that even a limited number of around [...] concurrent OTT video streams at peak time then already generated traffic far exceeding 
the threshold of 3 Gbit/s (namely around [...]).
292 In addition to that, the 
Notifying Party had confirmed that it would be unlikely to establish new 
direct peering relationships at the Amsterdam Internet Exchange with peers 
that did not already connect to its Internet network in some other way, that is to say it would be unlikely to establish direct peering relationships only at the 
Amsterdam Internet Exchange.
293 Furthermore, the Commission found that 
the Notifying Party maintained highly limited interconnection capacity and 
only for certain legacy interconnections that it still had at, for example, the 
NL-IX Internet exchange. This limited capacity for non-exclusive OTT competitors had, […], already caused problems as a result of port 
congestion.
294 
(559)  For all of those reasons, the Commission considered in the Conditional 
Clearance Decision that OTT audio visual service providers already had 
limited prospects of using private or public direct interconnection effectively 
in order to reach the Notifying Party's broadband customers. 
(560)  Transit.  In the Conditional Clearance Decision, the Commission noted that 
direct interconnection capacity with third-party Internet 
interconnectivity/transit providers, that is to say the third way of reaching the Parties' customers ('transit') was the only access route for Internet content 
providers that did not obtain access th rough private or public direct peering.
295 
Owners of Internet access networks such as the Parties were also capable of severely hampering access via any such transit links, for example by 
refraining from upgrading direct interc onnection capacity in line with 
increased Internet traffic flows.  
                                                 
292 Document ID1548, Liberty Global and Ziggo response to Commission's request for information of 11 
June 2014, p. 10. 
293 Document ID1790, Liberty Global response to Commission's request for information of 2 July 2014, 
p. 3. 
294 Document ID331-20108, Liberty Global email 'Eredivisie Live Go' of 25 March 2013. 
295 Draft Report on the BEREC public consultations on net neutrality, Berec Conclusion on Question 7. 
Available at: www.berec.europa.eu  [as at 8 August 2014]. 
 
116 (561)  Importantly in that respect, the Notifying Party was not contractually bound, 
under its direct peering agreements with transit providers, to increase 
interconnection capacity in line with capacity utilization on the relevant 
interconnection point(s).296 The Notifying Party acknowledged that it could 
even decrease the capacity of an entire transit connection, thereby increasing 
the risk of congestion.297 
(562)  The Commission considered in the Conditional Clearance Decision that 
refusal by the Notifying Party to upgrade transit capacity or to even degrade it, would have had serious consequences for the viability of OTT services in 
the Netherlands. The Commission's inve stigation namely confirmed that only 
a small proportion of Dutch Pay TV s ubscribers would have to switch to 
linear OTT TV in order to significantly increase Internet traffic flows, such 
that the Parties' existing interconnection capacity with transit providers would 
be exhausted, resulting in port congestion.  
(563)  For example, the Commission had compared Netflix' publicly available speed 
index for Ziggo (3.74 Mbit/s)
298 with Ziggo's current total paid transit 
capacity ([...]).299 Based on that comparison, only [...] concurrent video 
streams at peak time would exhaust that total transit capacity. In other words, 
interconnection congestion would occur if only [0-5]% of Ziggo's then DTV 
subscriber base of 2.253 million customers300 were to switch to watching, for 
instance, the daily news, which then attracted large viewing shares, via the 
Internet.  
(564)  In terms of the Notifying Party's then overall paid transit capacity, which 
could be used by all Internet networks but was exclusively located in the 
United States, for its entire pan-European network, this would already be congested in the event that 30 500 concurrent video streams were to occur at 
peak time ([…]
301). In fact, the Notifying Party's main Internet network 
AS6830 that covered 9 different European countries could potentially no 
longer be effectively reached via tran sit providers at all, including all 
settlement-free peers in Europe, in the event that around [... ] concurrent video 
streams were to occur at peak time.302 When taking account of the existing 
                                                 
296 Document ID2135, Liberty Global response to Commission's request for information of 15 July 2014, 
p. 5. 
297 Document ID1179, Liberty Global response to the Commission's Article 6(1)(c) decision in case 
M.7000 – Liberty Global/Ziggo, para. 167. 
298 http://ispspeedindex.netflix.com/netherlands  [accessed at 23 July 2014]. 
299 Document ID1548, Liberty Global and Ziggo response to Commission's request for information of 11 
June 2014, p. 10. 
300 Document ID1627, Liberty Global response to Commission's request for information of 20 June, 
annex XXI. 
301 Document ID1790, Liberty Global response to Commission's request for information of 2 July 2014. 
302 This is based on AS6830's current overall direct interconnection capacity with transit providers of 
3395 Gbit/s, as estimated in Document ID2135, Liberty Global response to Commission's request for information of 15 July 2014. The Commission has compared this with the average speed of 3.6 Mbit/s 
 
 
117 maximum peak-time capacity utilization on the same direct interconnections 
points, it become apparent that AS6830's direct settlement-free 
interconnection links with transit providers could in fact not – in the worst 
case scenario303 – handle more than [...] additional concurrent peak-time video 
streams.304 NPO in that regard indicated that the Dutch Internet infrastructure 
was not well equipped to handle more than 300 000 – 400 000 concurrent Internet video streams.
305 Finally, the Notifying Party itself noted in internal 
business documents that [...].306 
(565)  In any event, the Commission noted in the Conditional Clearance Decision, 
that the Notifying Party at the time maintained a total paid transit capacity of 
only [...] for its entire pan-European AS6830 Internet network, whilst those transit connections were located exclusively in the United States. That 
rendered the connections less efficient fo r Internet traffic originating from and 
destined to Europe.
307 
(566)  Finally, the availability of transit as a viable route to the merged entity's 
broadband customers could not be assessed separately from the Notifying 
Party's peering policy in general. The Notifying Party did not pay for 
maintaining interconnection capacity with providers of transit services in 
Europe. […]308 […]309, [internal business policy of one of the Notifying 
Parties].310 This business policy affected the traffic that transit providers were 
                                                                                                                                                 
that the Notifying Party currently attains for Netflix streams in the Netherlands. 
http://ispspeedindex.netflix.com/netherlands  [accessed at 23 July 2014]. 
303 The Commission notes that the Notifying Party has indicated that peak times do not necessarily 
coincide for all providers of Internet content; Document ID2135, Liberty Global response to Commission's request for information of 15 July 2014, p. 3. 
304 This is based on AS6830's current maximum peak-time capacity utilization of 2108 Gbit/s as estimated 
in Document ID2135, Liberty Global response to Commission's request for information of 15 July 2014, and an average speed of 3.6 Mbit/s that the Notifying Party currently attains for Netflix streams 
in the Netherlands ( http://ispspeedindex netflix.com/netherlands)  [Accessed at 23 July 2014]. 
305 Document ID1983, non-confidential version of NPO email of 3 July 2014. 
306 [Reference to the Parties' internal business documents]. 
307 Transit providers historically received two-sided payment; from the Internet content provider whose 
content was delivered to a terminating network, as well as from the terminating network itself, whose 
customers where thus able to access that content. When a terminating network ceases to pay transit providers for delivering traffic, the transit provider w ill in turn only hand over traffic for which it gets 
paid by its Internet content customers and not from its settlement-free peers. By limiting/eliminating paid transit capacity, the Notifying Party thereby already limits the interconnectivity of its Internet network because the entire network of Tier 1 transit providers will no longer hand over each other's 
traffic to the network of the Notifying Party, because that would mean doing it for free. 
308 A Tier 1 network is an Internet Protocol (IP) network that participates in the Internet solely via 
settlement-free interconnection (also known as settlement-free peering) , rather than paid 
interconnection – See http://en.wikipedia.org/wiki/Tier 1 network [accessed on 11 August 2014]. 
309 [Reference to the Parties' internal business documents]. 
310 [Reference to the Parties' internal business documents]. 
 
118 likely, or capable, to hand over to the Notifying Party for final delivery to the 
broadband customers. During the Commission's investigation, a number of 
transit providers explained that if they interconnected with the Notifying Party 
on a settlement-free basis, they were only likely to hand over traffic of their 
own paying customers to the Notifying Party's Internet network. The providers of transit services that it interconnected with on a settlement-free basis would accordingly only hand over traffic of their own paying customers 
to the Notifying Party's Internet network.  If the latter were to hand over traffic 
of their own settlement-free peers, for example other Tier 1 transit providers, 
to the Notifying Party, itself being a settlement-free peer as well, those transit providers would not receive any payment for providing their services.
311 They 
would have no economic incentive to hand over that traffic.312 
(567)  Furthermore, the contractual arrangemen ts covering the settlement-free direct 
interconnections between the Notifying Part y and providers of transit services 
did not even allow transit providers to hand over traffic of their peers, that is to say other transit providers.
313 The Notifying Party was thereby able to 
congest specific interconnection links wi th providers of transit services in a 
targeted manner, knowing that congestion on that particular link would only affect the direct, paying customers of that particular provider of transit 
services, rather than the Internet at large. The Notifying Party acknowledged this in its internal business documents: [Reference to the Parties’ internal business documents].
314 In that regard, it was also important to note that the 
Notifying Party had indicated that seve ral public tools existed, such as 
http://bgp.he.net/  and https:stat.ripe.net/widget/bgplay , that gave insight about 
who has a relation with what AS315 and may or may not be a transit provider 
for it, although it claimed this would never be exact.316 The Commission 
noted in the Conditional Clearance Decision that those tools indeed listed the 
                                                 
311 See for an explanation on this issue, for example:  Draft report for public consultation (BoR 12-33) An 
assessment of IP-Interconnection in the context of Net Neutrality Comments from Cogent 
Communications, p. 7. Available at: www.berec.europa.eu  [as at 8 August 2014]; non-confidential 
minutes of conference call between the Commission's services and Level 3 of 31 July 2014, p. 2.  
312 Draft report for public consultation (BoR 12-33) An assessment of IP-Interconnection in the context of 
Net Neutrality Comments from Cogent Communications, p. 7. Available at: www.berec.europa.eu [as 
at 8 August 2014]; Michael Kende, The Digital Handshake: Connecting Internet backbones  Office of 
Plans and Policy Federal Communications Commission Working Paper No. 32 of September 2000. Available at: http://www fcc.gov/working-papers/digital-handshake-connecting-internet-backbones  [as 
at 8 August 2014]; Comments of AT&T on the BEREC Consultation Paper, An assessment of IP 
Interconnection in the context of net neutrality  of 31 July 2012. Available at: www.berec.europa.eu  [as 
at 8 August 2014]. 
313 [Reference to the Parties' internal business documents]. 
314 [Reference to the Parties' internal business documents]. 
315 Within the Internet, an autonomous system (AS) is a collection of connected Internet Protocol (IP) 
routing prefixes under the control of one or more network operators that presents a common, clearly 
defined routing policy to the Internet – see http://en.wikipedia.org/wiki/Autonomous System (Internet)  [accessed on 11 August 2014]. 
316 Document ID1790, Liberty Global response to Commission's request for information of 2 July 2014, 
p. 5. 
 
119 AS number of specific Internet content providers such as Netflix, RTL 
Nederland, NPO, SBS and others. They also seemed to list the peers of such 
Internet content providers, as well as the extent to which those peers were 
exchanging traffic with them. The public tool www.robtex.com furthermore 
provided a detailed up-to-date insight into  which transit providers were used 
for handing over Internet traffic by any given Internet content provider, the extent to which those were used, and the type of routing announcements 
employed (allowing one to determine whether a connection with a given 
provider of transit services is a paid transit connection), all in an efficient 
graphic representation. Using that tool would, for example, allowed one to first find out which Internet network hosts NPO's catch-up service Uitzending Gemist  – being NPO's AS25182 – and to subsequently determine which of the 
transit providers that were paid by NPO, for example, KPN International 
Eurorings that advertised all routes into NPO's AS, would be capable of 
handing over Internet traffic to the Notifying Party's Internet network 
AS6830. 
(568)  Regarding Ziggo, its internal documents showed that despite the fact that it 
had a more ad-hoc policy in terms of establishing peering and interconnection relationships shortly before the 2014 Transaction, it had been moving towards 
a policy that was in line with that of the Notifying Party. [...]
317 The merger 
would cement that strategic shift of Ziggo as the Notifying Party's existing 
policy would apply to the merged entity. 
(569)  The Commission considered in the Conditional Clearance Decision that the Notifying Party's arguments as to why it would not be able to shut down or 
hamper the access of OTT service providers to its Internet network in such a 
manner, were not convincing.
318 Rather, explicit evidence to the contrary was 
found during the Commission's investigation: 
(i) [Reference to the Parties' internal business documents]319 
                                                 
317 Document ID366-8846, Ziggo presentation of February 2014, 'Internet interconnectie / peering' by 
Arie van der Giessen, slide 1. The Parties explained, in their reply to the Commission's decision 
initiating proceedings, that the document in question merely concerned an internal exploration on the 
different peering policies that would be available. The Commission however notes that Ziggo's CEO 
has similarly been reported to want data-intensive Internet services to pay for direct in terconnection: 
http://www.nrc nl/nieuws/2014/03/08/nieuwe-topman-ziggo-netflix-mogelijk-vragen-om-extra-
betaling [accessed at 25 July 2014]. 
318 In that regard, the Commission understands that by creating so-called Border Gateway Protocol 
communities, it even seems to be technically possible to exclude certain specific, individual Internet 
networks from having access to the Notifying Party's own Internet network (or only via less effective, 
congested interconnections or more costly ones), without having to physically congest any interconnections. BGP is also employed by the Notifying Party's Internet network to communicate 
with other Internet networks: Document ID2384, Liberty Global presentation 'M.7000: technical 
presentation', of 1 July 2014.  See for an explanation on this issue: Alexander Reicher, Redefining Net 
Neutrality after Comcast v. FCC, Berkeley Technology Law Journal, Vol. 26:733, pp. 757 and 758; 
Christopher S. Yoo, Innovations in the Internet's Architecture that Challenge the Status Quo, J. on 
Telecomm. & High Tech. L. 79 (2010); Draft report for public consultation (BoR 12-33) An assessment of IP-Interconnection in the context of Net Neutrality Comments from Cogent Communications, p. 7. Available at: www.berec.europa.eu [as at 8 August 2014]. 
319 [Reference to the Parties' internal business documents]. 
 
120 (ii) [Reference to the Parties' internal business documents]320 
(iii) [Reference to the Parties' internal business documents]321 
(570)  All of this evidence confirmed that the Parties had the technical  ability to 
preclude or significantly hamper OTT competitors from having effective 
access to their respective Internet networks. 
(571)  Indeed, if the Notifying Party were to refrain from upgrading direct 
interconnection capacity with providers of transit services in line with 
increased Internet traffic levels, congestion could have occurred. Due to such 
congestion, providers of OTT audio visual services could then have been 
altogether foreclosed from effective access to the merged entity's broadband customers in the Netherlands, as it would eventually result in lost IP packets, 
that is to say parts of the request ed Internet content would be lost.
322 
Importantly, any such congestion would have likely be limited to peak time 
usage of OTT audio visual services and would not, in any case, affect the 
quality of the merged entity's broadband offer across the board. Indeed, the Commission considered in the Conditional Clearance Decision that first, 
given that the Notifying Party peered directly with Internet content providers 
such as [...]
323, a foreclosure of providers of OTT audio visual services would 
leave these major Internet services [...] wholly unaffected. Second, the 
Commission considered that it seemed that the congestion on the merged entity's settlement-free direct interco nnections with transit providers would 
only affect the direct paying customers of the transit providers in question, 
whose identity could be established through the public tools referred to in 
paragraph (567). Furthermore, the Notifying Party had confirmed that its own 
OTT service Horizon Online would be unaffected by such congestion.
324 
(572)  The Commission considered in the Conditional Clearance Decision that the 
implications of a general strategy to re strict overall interconnection capacity 
that is available for OTT services and to  force providers of such OTT services 
to rely on paid peering models under Dutch net neutrality rules had never 
been investigated in full by the competent Dutch authorities. In any event, evidence referred to in paragraphs (554) to (556) showed that [...].  
(573)  A number of respondents to the Commission's market investigation confirmed 
that finding. They indicated that insufficient interconnection capacity can 
affect, and in some cases had already affected the viability of OTT TV as a 
                                                 
320 [Reference to the Parties' internal business documents]. 
321 [Reference to the Parties' internal business documents]. 
322 See for an explanation on this issue, for example:  Draft report for public consultation (BoR 12-33) An 
assessment of IP-Interconnection in the context of Net Neutrality Comments from Cogent Communications, p. 6 and 7. Available at: www.berec.europa.eu  [as at 8 August 2014]. 
323 Document ID1623, Liberty Global submission 'Annex XVIII – List of direct peers', of 24 June 2014. 
324 Document ID1790, Liberty Global response to Commission's request for information of 2 July 2014, 
p. 9. 
 
121 result of congestion, both in the Netherlands and abroad.325 The majority of 
Pay TV retailers and a number of TV broadcasters confirmed that post-
merger, the merged entity would be able to restrict OTT SVOD services in 
having effective access to its Internet network by technically degrading their 
quality.326 The Commission considered that this technical ability compounded 
the merged entity's increased ability to hamper, delay or prevent OTT innovation by contractual means.  
(574)  Moreover, in internal business documents, the Notifying Party itself noted that 
[…].
327  
(575)  The Notifying Party has highlighted the fact that OTT providers can always 
reach consumers in the Netherlands via KPN's Internet access network. 
However, the Commission explained in the Conditional Clearance Decision 
that it had found indications that suggested that KPN's Internet network was then less suited to handle data-intensive OTT services than that of the merged 
entity. NPO had indicated that congesti on occured on the last-mile of the DSL 
network, hampering the viability of la rge-scale OTT audio visual services.
328 
CanalDigitaal pointed out that given the ongoing market trends towards 
bundled triple play services the DSL network had a competitive disadvantage 
since for it to carry a TV signal with an acceptable quality, comparable to the 
quality on cable, less bandwidth would be available on DSL for Internet 
access.329  
(576)  Under those circumstances, the Commission found that the risk of losing 
distribution on the merged entity's enlarged cable network combined with the 
possibility that an OTT TV service coul d not even effectively reach the single 
largest group of Dutch broadband cust omers was likely to severely limit 
content providers' prospects of successf ully launching or contributing to OTT 
services. 
(577)  Therefore, the Commission found that the increased ability of the merged 
entity to restrict by contractual means the availability of OTT services in the 
Netherlands would be compounded by its technical ability to preclude or 
                                                 
325 Document ID1982, NPO's non-confidential email of 3 July 2014; Document ID2269, non-confidential 
minutes of conference call between Commission services and Fox International Channels, p. 3; Document ID1987, Netflix' non-confidential submission of 11 July 2014; Draft report for public 
consultation (BoR 12-33) An assessment of IP-Interconnection in the context of Net Neutrality 
Comments from Cogent Communications, p. 7. Available at: www.berec.europa.eu  [as at 8 August 
2014]. 
326 Replies to Phase I Questionnaire Q2 to TV channels wholesale suppliers of 17 March 2014, questions 
69 and 70; replies to Phase I Questionnaire Q3 to retailers of TV, telephony and Internet access 
services of 17 March 2014, questions 107 and 108. 
327 [Reference to the Parties' internal business documents]. 
328 Document ID1982, NPO's non-confidential email of 3 July 2014. 
329 Document ID845, M7 Group's reply to questionnaire Q3 to retailers of TV, telephony and Internet 
access services' of 17 March 2014, questions 30.1 and 37.1. 
 
122 hamper OTT service providers from reaching their broadband customers over 
its Internet network. 
Conclusion  
(578)  Therefore, the Commission concluded th at the Transaction would confer upon 
the merged entity an increased degree of buyer power vis-à-vis TV broadcasters in the Netherlands. This would increase its ability to impose 
contractual terms on TV broadcasters that prevent, hamper or delay, by direct 
and indirect means, the OTT services that include those broadcasters' content. The increased ability to do so would be compounded by the fact that the 
Parties already have the technical means at their disposal to shut down or to 
degrade the access to their Internet networks, which these OTT services 
would need to reach the merged entity's broadband customers. 
The incentive to prevent, hamp er or delay OTT innovation  
(579)  The Commission considered in the Conditional Clearance Decision that 
preventing, hampering or delaying OTT innovation would reduce or eliminate the risk that such innovation would lead to cross-platform competition which 
might ultimately threaten cable companies' business model – a competitive 
threat which was well recognised in in ternal documents of the Parties, as 
outlined in paragraph (488).  
(580)  Based on the Parties' approach to OTT se rvices described in section 6.4.3.2 of 
this decision, the Commission considered in the Conditional Clearance 
Decision that the Notifying Party then already had the incentive to try and prevent TV broadcasters from providing their linear and non-linear content 
OTT, either on a standalone basis or in  cooperation with others, but that, pre-
merger, it might be limited in its ability to do so. The different contractual clauses that Liberty Global had sought to negotiate in its contracts with TV broadcasters in order to restrict their ability to develop their OTT offers showed that the Notifying Party had a clear incentive to engage in such 
practices. 
(581)  Furthermore, the Commission considered in the Conditional Clearance 
Decision that the existing incentive would increase as a result of the 
Transaction. Since the successful foreclosure of competition from OTT 
services at the retail level would benefit all existing Pay TV services 
providers, Pay TV services providers ha ve an incentive to free-ride on the 
foreclosure efforts of their competitors at the retail level (i.e. Ziggo did not 
need to engage in the same foreclosur e efforts in order to benefit from any 
such effort that could be made by its competitors). As shown in the previous paragraph (568), Ziggo had been less assertive than Liberty Global in 
preventing or hampering OTT innovation which is consistent with such an 
effect. Indeed, prior to the Transaction, Ziggo would have benefited as an 
external third party competitor from any success that Liberty Global would 
have had in restricting OTT services overall. However, the proposed combination of Liberty Global and Ziggo would allow the merged entity to 
internalise the benefit to both partie s of successful foreclosure of OTT 
services. That increases the incentive for the merged entity to engage in such 
foreclosure.  
 
123 (582)  The Commission therefore concluded in the Conditional Clearance Decision 
that the existing incentive for the Notifying Party to prevent or hamper OTT 
services was likely to increase as a resu lt of the Transaction. In combination 
with the increased ability to prevent, hamper, or delay OTT innovation, and in 
light of the pre-merger approach by the Notifying Party towards OTT 
services, the Commission considered that the merged entity was likely to engage in strategies to prevent, hamper, or delay OTT innovation post-
merger.  
Likely negative effects on competition 
(583)  As set out in the Horizontal Merger Guid elines, the exercise of buyer power in 
an upstream market can adversely affect competition in a downstream market. 
That is particularly the case if the merged entity were likely to use its buyer 
power vis-à-vis its suppliers to foreclose its rivals. 
(584)  The Commission considered in the Conditional Clearance Decision that the 
merged entity would indeed be likely to use its increased buyer power in the upstream market for the acquisition of Pay TV channels to foreclose its 
potential and existing competitors in the downstream market for the retail 
provision of Pay TV services, in part icular, potential innovative OTT audio 
visual service providers.  
(585)  In this regard, the Commission considered first, that the increased ability of 
the merged entity to restrict TV broadcasters' possibilities to offer their 
content over the Internet was likely to result in a foreclosure of rival third 
party OTT audio visual service providers that could distribute that content to 
retail consumers. Those third parties included Smart TV providers such as 
Sony and Samsung, but also potential new aggregators of Internet content 
such as Netflix, Weepee NV
330 and others. These third parties would be 
precluded from having access to consumers on the retail market for Pay TV, 
restricting consumer choice on that market. Second, the Commission 
considered that TV broadcasters themselves could offer their content directly 
to consumers via the Internet. That concerned the OTT offerings that were available in the Netherlands, such as NLZiet and the individual OTT offers of 
TV broadcasters. 
(586)  Restrictions to that alternative distribution method for their TV content would 
ultimately cement the significant market power that the merged entity would 
hold vis-à-vis the TV broadcasters as the main distributor of their TV content 
in the Netherlands. That was likely to have negative effects on the upstream 
market for the acquisition of Pay TV channels.  
(587)  Importantly, OTT offers would introduce further competition and innovation 
into the retail market for Pay TV services. The merger was likely to prevent 
that from happening. That would have led to higher prices to Dutch 
consumers and deprive Dutch consumers of  the benefits of innovation in the 
way they watch TV.  
                                                 
330 http://www.broadbandtvnews.com/2013/05/13/weepee-tv-looking-at-dutch-ott-market/  [accessed at 8 
September 2014]. 
 
124 (588)  The Commission considered in the Conditional Clearance Decision that the 
likely raising of barriers to entry to OTT competitors on the downstream 
market for the retail provision of Pay TV services was particularly relevant to 
the Netherlands, where significant developments in the provision of OTT TV 
services had already taken place. Indeed, the Commission noted that NPO had 
started streaming its linear TV channels, although in lower quality, that RTL had recently introduced a standalone OTT SVOD service and that Netflix had 
recently also entered the Netherlands, while RTL, SBS and NPO had jointly launched an OTT catch-up TV service.
331 That development was 
acknowledged by the Notifying Party, which noted the following: " The use of 
OTT services has expanded rapidly and expectations are that this expansion will continue, to the detriment of 'traditional' video and television services offered by network operators such as UPC, Ziggo and KPN ".
332 
(589)  If the merged entity were to succeed in preventing, hampering or delaying the 
OTT TV services of the seven TV broadcasters that the Commission analysed 
in the Conditional Clearance Decision (see paragraph (507) above), that would have already eliminated the potential OTT distribution of around 80% of all TV watched in the Netherlands.
333 If the merged entity were to succeed 
only in relation to RTL, SBS and NPO, that would have eliminated the 
potential OTT distribution of around 70% of all TV watched in the 
Netherlands.334 As the Notifying Party itself noted in its internal business 
documents, OTT TV cannot constitute a viable alternative to traditional cable 
TV without those TV broadcasters' content and the Transaction was 
accordingly likely to prevent, hamper or delay OTT competition. 
(590)  The negative effects on competition would be felt beyond the merged entity's Internet subscribers alone. The Commission recalled in the Conditional 
Clearance Decision that the successful inclusion of an OTT ban in a carriage 
agreement between the merged entity and any TV broadcaster in the 
Netherlands would prevent that particular TV broadcaster from offering its 
content via the Internet network of  every broadband retailer in the 
Netherlands and not just that of the merged entity, thereby affecting all 
broadband customers in the Netherlands, and would prevent TV broadcasters 
from offering their content directly to end consumers, thereby eliminating likely efficiencies that derived from such vertical integration. Such an OTT 
ban would accordingly eliminate any potential cross-platform competition on 
retail TV services between traditional 'cable' TV and OTT TV. 
                                                 
331 https://www nlziet.nl/  [accessed at 31 July 2014]; http://www npo.nl/live  [accessed at 31 July 2014]; 
https://www.videoland.com/  [accessed at 31 July 2014]; 
https://pr.netflix.com/WebClient/loginPageSalesNetWorksAction.do?contentGroupId=10477&content
Group=Company+Timeline  [accessed at 31 July 2014]. 
332 Document ID1179, Liberty Global response to the Commission's Article 6(1)(c) decision in case 
M.7000 – Liberty Global/Ziggo, paragraph 37. 
333 Stichting KijkOnderzoek Jaarrapport 2013, available at: 
https://kijkonderzoek.nl/images/SKO Jaarrapport/SKO jaarrapport 2013.pdf . 
334 Stichting KijkOnderzoek Jaarrapport 2013, available at: 
https://kijkonderzoek.nl/images/SKO Jaarrapport/SKO jaarrapport 2013.pdf .  
 
125 (591)  In the Conditional Clearance Decision the Commission considered that the 
effects of a successful imposition of a contractual ban on TV broadcasters' 
OTT activities could not, therefore, inhe rently, be off-set by the presence of 
the merged entity's competitors on the downstream market for the retail 
provision of fixed Internet access, such as KPN and the alternative operators 
on its network benefiting from wholesale access. The consequences of a contractual ban imposed by the largest provider of retail fixed Internet access 
services post-merger automatically extended to all competing providers of 
retail Pay TV services and retail fixed Intern et access that would, post-merger, 
remain active in the market. Those remaining competitors would not, 
therefore, constitute a constraint on the negative effects on competition that would result from a foreclosure of existing and potential OTT TV 
competitors.  
(592)  Without the threat of potential increased cross-platform competition from 
OTT TV, the existing providers of retail Pay TV services would be less 
constrained in their price-setting. Gi ven the degree of concentration that 
would exist on this relevant downstream market for the retail supply of TV services, or the hypothetical retail mark et for the retail supply of multiple play 
services, the elimination of potential or emerging competition from OTT 
services was all the more likely to lead to consumer harm.  
6.4.3.3.  Commission's assessment and conclusion in 2014 
(593)  Therefore, the Commission found that the Transaction was unlikely to be 
compatible with the internal market in that it was likely to significantly 
impede effective competition on the market for the acquisition of Pay TV 
channels, on the market for the retail provision of Pay TV services or on the 
hypothetical market for the retail provision of multiple play services. 
6.4.3.4.  The OTT Commitment in 2014 
(594)  In order to remove the significant impediment to effective competition in 
relation to OTT services, the Notifying Party had committed not to enter into 
or renew agreements with TV broadcasters that contained terms which would 
directly or indirectly restrict the TV  broadcasters' abil ity to offer their 
channels and associated content via OTT services. This applied to any agreements with TV broadcasters for the distribution of those broadcasters' 
linear channels and catch-up TV services on the Liberty Global and Ziggo Pay 
TV Platform in the Netherlands. The Commitments made clear that the 
Notifying Party was not allowed to, directly or indirectly, restrict the ability of 
the broadcasters to offer, on a standalone basis or in partnership with a third party, OTT services in the Netherlands, or  the ability of those broadcasters to 
offer their linear channels and any content owned or controlled by the TV 
broadcaster via such OTT services in the Netherlands. In addition, the 
Notifying Party offered commitments to ensure the effectiveness of the 
distribution of OTT content via NewZiggo's internet network. To that end, the Notifying Party sought to make it impossible to engage in a foreclosure 
capacity by committing to maintaining sufficient interconnection capacity 
towards NewZiggo's customers in the Netherlands by ensuring there are 
always at least three uncongested internet routes into the merged entity's IP 
network in the Netherlands. The commitment not to prohibit OTT distribution 
 
126 of content would, in its entirety, be in force for a period of eight years 
following the date of adoption of the 2014 decision. 
(595)  In the 2014 decision, the Commission assessed whether the OTT 
Commitments were suitable and sufficient to eliminate the competition 
concerns; and capable of being implemented effectively within a short period 
of time. 
(596)  The Commission noted that the significant impediment to effective 
competition that would arise in relation to OTT services was a specific one. The Commission had found that the Dutch market for the acquisition of Pay 
TV channels was characterised by the ex istence of agreements that restricted 
or aimed to restrict TV broadcasters in their ability to offer their TV channels 
and associated content via the internet. The Commission had found that the 
Transaction would increase Liberty Global's ability and incentive to continue such restrictive agreements, or to have made them even more onerous. That 
would have deprived consumers in the Netherlands from innovations 
regarding the ways in which they can watch TV content over the internet. 
With the OTT Commitments, the Notifying Party effectively committed to 
terminate any agreement between it and TV broadcasters that related to the 
carriage of the TV broadcasters' linear and catch-up services on NewZiggo's 
Pay TV platform and which restricted th eir ability to offer their channels and 
content via an OTT service in the Netherlands. It also committed that 
NewZiggo would not enter into such agreements in the future. Against that 
background and in the context of th e 2014 notification, the Commission 
considered that the effective termination of those agreements was a suitable 
and sufficient remedy to remove the significant impediment to effective 
competition. Taking into account the additional safeguards that ensure the 
viability and effectiveness of the OTT commitment, including maintaining 
sufficient interconnectivity capacity towards its Dutch internet customers, the Commission considered that the OTT Commitment was capable of being 
implemented effectively and immediately.  
(597)  Therefore, the Commission considered that the OTT Commitment was 
suitable and sufficient to eliminate the competition concerns expressed, 
according to which the Transaction would have resulted in a significant impediment to effective competition in relation to OTT Services. 
6.4.3.5.  The Notifying Parties' views in their Supplementary 
Notification 
(598)  The Notifying Parties submit that none of the current contracts with 
broadcasters contain restrictions on broadcasters' OTT offerings (or even 
clauses relating to broadcasters' OTT offerings), in line with the OTT 
commitments. Old contracts which previously contained such OTT 
restrictions have been amended via an addendum to ensure compliance with 
the OTT commitments. 
(599)  The Notifying Parties note in their Supplementary Notification that they have 
implemented the OTT commitment with all third parties based on their evolving understanding of it and are not aware that any conflicts have arisen 
in relation to the OTT commitment. 
 
127 (600)  The Notifying Parties state that during th e course of 2015, the Parties worked 
internally and with the Monitoring Trustee to develop a practical 
understanding of the OTT Commitments and a process for securing necessary 
transparency. They largely reached agreement on key elements in June 2015. 
The Notifying Parties consider that since then, the Parties have continued to 
engage constructively with the Monitoring Trustee.  
(601)  The Notifying Parties further submit that the Parties cannot assess the impact 
of the OTT Commitment as there is no counterfactual to compare it with.  
(602)  Regarding the requirements on IP interconnect which flank the main 
commitment, the Notifying Party notes that the peering edge of the IP 
network serving Dutch customers is and always has been uncongested and 
that the aim of the IP interconnect requirement was to remove any ability for 
the Parties to congest this peering edge and so remove the incentive to try to do so.  
(603)  The Notifying Parties further submit that the Parties do not and would in any 
event never have any incentive to allow such congestion to happen as this 
would negatively impact its retail customers. This position would further have 
been strengthened by the entry into force of Regulation (EU) 2015/2120 
concerning open internet access which considerably restricts any ability to 
manage internet traffic and ensures an open internet. According to the Notifying Party, the IP interconnect requirement has no impact on the Parties' 
actions or incentives. 
6.4.3.6.  Commission's assessment 
(604)  The Commission notes that, based on current market conditions, the Parties 
would appear to have a market share of approximately [50-60]% on the 
market for the acquisition of Pay TV channels in the Netherlands. The 
Transaction results in a very significant market share increment as absent the Transaction each of UPC and Ziggo would distribute Pay TV channels only 
within their respective footprint and, as a consequence, would also have 
individually much smaller market shares in the market for the acquisition of 
Pay TV channels. 
(605)  Given that the OTT commitments have been in force since the adoption of the 
2014 decision, the Commission has assessed whether the OTT commitment 
was still necessary and, if so, for which period.
335  
                                                 
335 The Commission notes that in Section 7.5 of the Conditional Clearance Decision ( The market for the 
provision of retail fixed Internet access services- network access foreclosure ), the Commission 
assessed the concerns expressed during the market investigation that the proposed Transaction raised 
two distinct competition concerns that would stem exclusively from the increased size and importance 
of the merged entity's Internet network in the Netherlands: the first concern was that the merged entity would have the ability and the incentive to engage in Internet network access foreclosure vis-à-vis 
competing (OTT) providers of retail TV content, an d the second was that the merged entity could 
leverage its position in the market for the retail provision of fixed Internet access vis-à-vis certain providers of data-intensive Internet content such as OTT audio visual services in order to force them to 
start paying for having access to its broadband customers. Having assessed these concerns, the 
Commission concluded that it did not need to conclude whether the proposed Transaction raised competition concerns as a result of the merged entity's increased share of the market for the retail 
 
 
128 (606)  A majority of respondents to the market investigation, wholesale suppliers of 
TV channels as well as retail provider s of TV services, consider that, as a 
result of the merger, in the absence of the OTT remedy, the merged entity 
would have the ability to degrade the quality of OTT SVOD services in order 
to benefit the merged entity's own retail offerings.336 In addition, a majority of 
them also considers that the merged entity would have the commercial incentive to degrade the quality of OTT SVOD services of Dutch 
broadcasters, in the absence of the OTT remedy
337.  
(607)  A majority of wholesale suppliers of TV channels also report that the OTT 
remedy has been helpful in their negotiations with the merged entity.338  
(a) Fox Networks Group stated: " UPC also required FNG to agree to 
discontinue its OTT-product, FOX Sports GO, in order to favour UPC's 
own Horizon service. After the OTT-se rvice remedies were made binding, 
New Ziggo ceased this behaviour ." 
(b) RTL: " This subject not to offer OTT was a topic in previous talks before 
the remedy was in place. As a result of the remedy this subject wasn't 
discussed again ." 
(c) Talpa TV: " During the negotiation of the previous contract (January 
2015- December 2017), VodafoneZiggo had sought to impose a clause 
that would have prohibited Talpa TV from distributing her linear TV 
channels on other OTT platforms. Because of the commitments on 
VodafoneZiggo in case M.7000, the clause was removed from the draft 
contract. " 
(608)  In light of the above, the Commission concludes that the Transaction raises 
serious doubts as to its compatibility with the internal market as regards the 
market for the acquisition of Pay TV channels, the market for the retail 
provision of Pay TV services or the hypothetical market for the retail provision of multiple play services. 
                                                                                                                                                 
provision of fixed Internet access, given that the commitments entered into by the Notifying Party 
would eliminate any potential adverse effects on competition that could stem therefrom. Given that, in 
the present case, the Notifying Parties have submitted an OTT remedy again, the Commission 
considers that also in the present case it is not necessary to conclude whether the proposed Transaction raises competition concerns as a result of the merged entity's increased share of the market for the 
retail provision of fixed Internet access. 
336 Replies to Q2 to TV channel wholesale suppliers of 5 April 2018, question C.D.1; replies to Q3 to 
retailers of TV, telephony and Internet access services of 5 April 2018, question C.H.1.. 
337 Replies from Q2 to TV channel wholesale suppliers of 5 April 2018, question C.D.2; replies to from Q3 
to retailers of TV, telephony and Internet access services of 5 April 2018, question C.H.2. 
338 Replies from Q2 to TV channel wholesale suppliers of 5 April 2018, question C.D.4. 
 
129 6.4.4.  Ability and incentive of the Notifying Party to use its increased buyer 
power to foreclose TV broadcasters ' competing content from having 
access to its Pay TV distribution platform  
6.4.4.1.  The Notifying Party's views in 2014 
(609)  In relation to the access of competing TV channel broadcasters to the merged 
entity's Pay TV platform, the Notifying Party claimed that it would be in the 
interest of the merged entity to distribute as much attractive content as 
possible and to be able to offer to consumers a wide ranging of channels. Hence there was no reason to assume that post-Transaction the incentive of 
the merged entity to foreclose TV channels from access to its TV platform 
would change.
339 The Notifying Party also noted that there was no correlation 
between the size and number of subscrib ers of a retail TV services provider 
and the number of channels offered by that provider.340 The Notifying Party 
did not express a view on its ability or incentive to foreclose thematic TV 
channels in particular. 
6.4.4.2.  Commission's assessment in 2014 
(610)  In the Article 6(1)(c) decision, the Commission considered that the proposed 
Transaction raised serious doubts as to its compatibility with the internal 
market also to the extent that it may confer upon the merged entity an ability 
to engage in customer foreclosure in respect of TV broadcasters' new 
initiatives.341 
(611)  As established in recitals (258) to  (275) of the Conditional Clearance 
Decision, the Commission considered it likely that the Notifying Party would, 
as a result of the proposed Transaction, enjoy significantly increased bargaining power vis-à-vis TV broadcasters. That conclusion was based on 
several of the Notifying Party's internal business documents and had been 
overwhelmingly confirmed by the respondents to the Commission's market investigation. 
(612)  According to the Notifying Party's own internal business documents, this 
increased buyer power [...].
342 
(613)  During the Commission's in-depth market investigation, several respondents 
expressed their concern that the merged entity would be able to engage in 
customer foreclosure specifically in re lation to TV broadcasters' (then) new 
                                                 
339 Form CO, paragraph 560. 
340 Liberty Global response to the Commission's Article 6(1)(c) decision in case M.7000 – Liberty 
Global/Ziggo, paragraph 75. 
341 Commission decision pursuant to Article 6(1)(c) of 8 May 2014 in case M.7000 – Liberty 
Global/Ziggo, paragraph 165. 
342 [Reference to the Parties' internal business documents]. 
 
130 and existing thematic TV channels.343 Thematic TV channels are linear TV 
channels that feature content revolving around one central theme such as, for 
example, nature, history, documentaries and cooking, or those that target a 
specific consumer group, such as women, men or children. Examples of 
thematic TV channels that then existed in the Netherlands were 24Kitchen, 
NPO Cultura, NPO Doc, RTL Crime, RTL Telekids and Comedy Central Family. Given that those thematic TV channels would depend largely on 
income derived from retail TV distributors, the largest portion of which would 
be accounted for by the merged entity, the latter would have the ability to 
determine their very existence. NPO for example indicated that it was obliged, 
under the Dutch Media Act, to spend all income received from 3
rd parties on 
programming and that, accordingly, any decrease in the licence fee secured by 
NPO from TV distributors would directly influence the content it offered on 
its thematic TV channels, given that its costs would remain the same.344 Fox 
similarly indicated that its thematic TV channels would not be able to survive 
in the long term without receiving income both from advertising as well as 
from licence fees.345 RTL, in turn, explained that 93% of the income 
generated by its thematic TV chan nels RTL Lounge, RTL Crime and RTL 
Telekids was derived from licensing fees paid by TV distributors.346 Given 
that the merged entity would account for at least [50-60]% of the overall 
expenditure on TV channels and [60-70 ]% of all TV subscribers in the 
Netherlands, TV broadcasters' thematic TV channels were unlikely to be able 
to survive in the long term without being carried by, and receiving a licence 
fee from, the former.  
(614)  Moreover, some of the respondents to th e Commission's market investigation 
that had raised this particular concer n also indicated that providing their new 
thematic TV channels OTT was not, at that time, a fully adequate alternative 
to being carried by Pay TV distributors. This would be due to the fact that the 
OTT market ( i.e. the percentage of the overall TV audience that received its 
TV services OTT) was not yet sufficiently large to allow the advertising-
based business model, while the price of OTT subscriptions would remain 
low.347 The Commission however reiterated that the OTT market in the 
Netherlands had (then) recently (even as recent as June 2014, when NLZiet 
was launched) seen a number of major developments that suggested that this 
                                                 
343 Document ID1908, non-confidential minutes of conference call between Commission's services and 
SBS of 19 June 2014; Document ID1400, non-confidential response of SBS to the Commission's 
questionnaire Q4 'Phase II Questionnaire to Broadcasters' of 28 May 2014, questions 20.3.1 and 20.6; 
Document ID1989, non-confidential minutes of conference call between the Commission's services 
and NPO of 19 June 2014, paragraph 6; Non-confidential response of RTL to the Commission's questionnaire Q4 'Phase II Questionnaire to Broadcasters' of 28 May 2014, question 20.3;  
344 Document ID1989, non-confidential minutes of conference call between the Commission's services 
and NPO of 19 June 2014, paragraph 6.  
345 Non-confidential minutes of conference call between the Commission's services and Fox of 25 June 
2014. 
346 Document ID1741, non-confidential submission of RTL of 26 June 2014. 
347 See, for example, Non-confidential submission of RTL of 23 June 2014.  
 
131 market could become ever more inte resting for advertisers and customers 
alike.  
(615)  The Commission further noted, as already stated in the section on the 
Notifying Party's increased ability to hamper OTT innovation of the 
Conditional Clearance Decision, that th ere was evidence suggesting that the 
Notifying Party already considered its ability to cease carrying TV 
broadcasters' thematic TV channels to constitute a serious threat.348 [...].  
(616)  Those internal documents suggested that the Notifying Party already 
constituted an important partner to TV broadcasters' thematic TV channels but 
that those same channels, if popular with TV viewers, could constitute a 
competitive threat at the retail Pay TV level if one were not to carry them. 
(617)  Therefore, the Commission considered that the Notifying Party could well 
have the ability post-merger to determine which of the TV broadcasters' 
thematic TV channels would survive in the long run.  
(618)  Whether the merged entity was likely to have an incentive not to carry 
thematic TV channels depended on the attractiveness of the content offered 
and whether the content was in competition with the merged entity's own 
content. A successful thematic TV channel that did not compete with the 
Notifying Party's own content would constitute an enrichment of its Pay TV 
offering, possibly allowing it to attract additional subscribers or to move more 
of its subscribers to its premium subs criptions. Indeed, the Notifying Party 
noted in an internal business document [...].349 However, the merged entity 
might have an incentive not to carry new thematic channels – thereby 
undermining TV broadcasters' business case for their launch or continuation – 
if such new channels competed with the merged entity's own content. 
Moreover, any post-merger ability to hamper thematic TV channels' viability 
could also help attain the Notifying Party's goal to prevent retail Pay TV competitors from obtaining exclusive carriage rights to such TV channels, as 
it mentioned in relation to [...].
350 
(619)  Although the Parties' combined share of content ownership in the Netherlands 
then remained limited, the Notifying Party seemed to have a strategy whereby 
it aimed to integrate the wholesale suppl y of content and of TV channels with 
the retail distribution thereof.351 As part of the proposed Transaction, the 
                                                 
348 [Reference to the Parties' internal business documents]. 
349 [Reference to the Parties' internal business documents]. 
350 [Reference to the Parties' internal business documents]. 
351 The Commission notes in this respect that the Notifying Party has recently acquired a 6.4% stake in 
ITV (Liberty Global press release of 17 July 2014, 'Liberty Global acquires a 6.4% stake in ITV, the leading commercial broadcaster in the United Kingdom), and is in the process of acquiring control 
over several important content production houses, including in the Netherlands (Cases No M.7282 - 
Liberty Global/Discovery/All3Media; No M.7194 - Liberty Global/Corelio/W&W/De Vijver Media). 
 
132 Notifying Party would add Ziggo's thematic TV channel Xite352 and Premium 
Pay TV channel HBO to its content portfolio and its incentive to foreclose 
competing TV channels from having access to its network was thus expected 
to increase in the future. While the Commission considered that further 
integration by the Notifying Party in the wholesale supply of content might 
provide it with an incentive to for eclose TV broadcaste rs' thematic TV 
channels from having access to its cable network in the future, the then 
limited content ownership implied that the merged entity's incentive to 
foreclose thematic TV channels was also likely to be limited immediately 
following the proposed Transaction.  
(620)  Moreover, significant developments had then recently taken place in the 
Netherlands that could contribute to  the establishing of a successful 
alternative OTT route to customers for (thematic) TV channels. Amongst 
those were the launch of NLZiet, a major catch-up TV platform combining 
the content of the three largest TV broadcasters in the Netherlands, the launch 
of Netflix' OTT SVOD service and the launch of NPO's paid OTT service 
NPO Plus.  
(621)  Although those OTT developments then mainly revolved around VOD TV 
services, if such new services were successful they would provide different 
routes to customers and different models for distributing content. Over time, 
this was likely to undermine the merged entity's ability to prevent the 
emergence of new thematic TV channels. 
(622)  The Notifying Party had – as part of the proposed Transaction – entered into 
commitments vis-à-vis the Commission which aimed at removing any ability 
on the part of the Notifying Party to use its buyer power in the market for the acquisition of Pay TV channels in order to hamper OTT innovation. Those 
commitments would therefore leave TV broadcasters at liberty to further 
develop the OTT TV market. Importantly, the Commission understood that 
new thematic TV channels generally required time to develop and were not, 
therefore, expected to be profitable from the start. Fox for example indicated 
that when it launched its thematic TV channel 24Kitchen, it had to offer it for 
free to the large TV distributors in the Netherlands in order for it to get onto 
their networks.
353 Regardless of whether a fully-fledged linear OTT TV 
market eventually develops, the commitments entered into by the Notifying 
Party allowed TV broadcasters in the Netherlands to try and do so, without 
having to risk losing their existing business with the Notifying Party. The 
Commission considered that the mere possibility that TV broadcasters might 
for example start offering their existing and new thematic or non-thematic TV channels OTT directly after having concluded a carriage agreement for those 
TV channels with the Notifying Party, should confer a degree of leverage on 
those TV broadcasters. The Commission considered that the risk that certain 
(potentially) successful thematic TV channels became exclusively available 
                                                 
352 Form CO, paragraph 187; Document ID1989, non-confidential minutes of conference call between the 
Commission's services and NPO of 19 June 2014. 
353 Non-confidential minutes of conference call between the Commission's services and Fox of 25 June 
2014. 
 
133 on TV broadcasters' OTT platforms should remove the Notifying Party's post-
merger ability, and thereby its incentive, to foreclose them from having access 
to TV customers in the Netherlands. 
6.4.4.3.  Commission's assessment and conclusion in 2014 
(623)  The Commission considered that it did not need to conclude on whether the 
proposed Transaction gave rise to competition concerns as a result of any 
increased ability and (future) incentive on the part of the merged entity to 
engage in customer foreclosure vis-à-vi s TV broadcasters competing thematic 
TV channels, given that the commitments entered into by the Notifying Party 
were likely to eliminate potential adverse effects on competition that could 
stem therefrom.354   
6.4.4.4.  The Notifying Parties' views in their Supplementary 
Notification 
(624)  In their Supplementary Notification,  the Notifying Parties' set out the 
Commission's assessment and conclusion of the Conditional Clearance 
Decision.  
6.4.4.5.  Commission's assessment 
(625)  The Commission considers that it does not need to conclude on whether the 
Transaction gives rise to competition co ncerns as a result of any increased 
ability and (future) incentive on the part of the merged entity to engage in 
customer foreclosure355 vis-à-vis TV broadcasters competing thematic TV 
channels, given that the commitments entered into by the Notifying Parties are 
likely to eliminate potential adverse effects on competition that could stem 
therefrom.   
6.4.5.  Ability and incentive of th e Notifying Party post-merger to use its 
increased buyer power to foreclose its rivals in the retail market for the provision of Pay TV services  
(626)  in their responses to the first phase market investigation, responding providers 
of retail TV services considered that the merged entity would enjoy increased 
bargaining power vis-à-vis TV broadcasters that could, in turn, negatively 
affect the availability or cost of TV channels for them.
356 Based on those 
                                                 
354 Conditional Clearance Decision, recital 424. 
355 In particular, this also applies to Fox Sports which is the only directly competing Premium Pay TV 
sports channel. First, the Commission notes that the merged entity has always been offering Fox Sports 
to its customers since the Transaction. Second, as ex plained in section 6.3, Fox Sports is carrying one 
of the most popular sports content in the Netherlands, the Dutch football league Eredivisie, at least until 2025, and possibly beyond given that Fox Sports entered into a joint venture with the Dutch 
football clubs in 2012. Therefore, it would not be in the interest of the merged entity to withhold Fox 
Sports' very attractive package of channels from its  customers. Third, the commitments entered into by 
the Notifying Parties are likely to eliminate potential adverse effects on competition. 
356 Replies to questionnaire Q3 to retailers of TV, telephony and Internet access services of 5 April 2018, 
question 65. 
 
134 results, and in line with its Horizontal Merger Guidelines, the Commission 
considered in the Article 6(1)(c) decisi on that the proposed Transaction raised 
serious doubts as to its compatibility with the internal market as a result of the 
impact that an increase in the merged entity's bargaining power might have on 
the availability or cost of TV channels to rival providers of retail TV services 
in the Netherlands and whether this could significantly impact competition in the market for the retail provision of Pay TV services.
357  
6.4.5.1.  The Notifying Party's views in 2014 
(627)  The Notifying Party argued that even if the proposed Transaction resulted in 
increased buyer power of the merged entity, there was no reason to believe 
that this would have an impact on the costs of competing providers of Pay TV 
services, which is often called a waterbed effect. That would require TV 
channel suppliers to seek to recoup any potential loss in revenue resulting from lower fees that the merged entity would be able to negotiate given its 
increased bargaining power vis-à-vis TV channel suppliers, by charging 
higher fees to competing TV services providers.  
(628)  First, the Notifying Party considered that there was no reason to believe that a 
reduction in the price that one TV services provider could negotiate would 
lead to an increase in the price to another TV services provider operating in 
the same territory. TV channel suppliers would in any event seek to maximise to the extent possible the income derived from each individual agreement with 
a given TV services provider and the incentive for TV channel providers to do 
so would not be affected by the proposed Transaction.
358 The bargaining 
power that TV channel suppliers enjoyed vis-à-vis other retailers of TV 
services would not increase as a resu lt of the proposed Transaction thus 
preventing TV channel suppliers from charging increased fees in order to 
compensate any possible reduction in their revenue derived from the merged 
entity.359 On the contrary, the Notifying Party argued that it cannot be 
excluded that a reduction in price might serve as a benchmark leading to a 
reduced price being offered to other TV service providers as well.360 Second, 
the Notifying party considered that the conditions required for the waterbed 
effects to appear in economic theory mo dels were very limited and unlikely to 
be satisfied in this case.  
(629)  As regards the possibility that the merged entity would foreclose downstream 
rivals from access to channels through exclusivity agreements with broadcasters, the Notifying Party subm itted that neither Liberty Global nor 
Ziggo in general aimed at concluding exclusive distribution contracts with TV 
channel suppliers thus preventing competing TV services retailers from 
                                                 
357 The Article 6(1)(c) decision, paragraphs 168-173. 
358 Form CO, paragraph 489. 
359 Liberty Global response to the Article 6(1)(c) decision, paragraphs 16 and 79. 
360 Form CO, paragraph 488; [Liberty Global economic submission prepared by Oxera, 21 May 2014, 
Section 6.2.3]. 
 
135 distributing certain channels. The Notifying Party claimed that the proposed 
Transaction would not increase the incentive of the merged entity to seek 
exclusivity over channels and that in any event pursuing such exclusivity 
would be feasible only if the merged entity could compensate the TV channel 
supplier for the revenues foregone from competing TV services retailers and 
at the same time gain sufficient advantage at retail level in the form of attracting extra customers in order to offset the extra cost related to obtaining 
exclusivity over the channels at hand.
361  
(630)  The Notifying Party also claimed that seeking exclusivity over a channel that 
is relatively less important would make no sense as customers were unlikely 
to switch to the merged entity only to be able to follow a relatively less important channel that was available exclusively on the Liberty Global/Ziggo 
TV platform. Even if the merged entity could obtain exclusivity over one of 
the most popular or attractive channels it was not likely that a sufficient 
number of consumers would switch to Liberty Global/Ziggo to offset the extra 
costs of obtaining the channel exclusively. In addition the Notifying Party submitted that advertising revenues represented a very important part of the revenues generated by TV channel suppliers and they would expect a distributor seeking exclusivity over certain channels to pay substantially 
higher fees for exclusivity in order to compensate for the foregone advertising 
revenues thus making the cost for exclusivity unrealistically high.
362 
6.4.5.2.  Commission's assessment in 2014 
(631)  During its in-depth investigation, the Commission first of all investigated 
whether the proposed Transaction was likely to increase the degree of buyer 
power that the Notifying Party would enjoy in the market for the acquisition of Pay TV channels in the Netherlands. As indicated in section 7.3.2 of the 
Conditional Clearance Decision, such an increase in bargaining power was 
likely to indeed ensue from the proposed Transaction, as evidenced by, 
amongst others, the Parties' internal business documents and the responses to 
the Commission's market investigation.  
(632)  The Commission therefore continued to investigate whether an increased 
buyer power on the part of the merged entity could (i) allow it to limit the 
availability of TV channels in the Netherlands by forcing TV broadcasters to 
conclude exclusivity agreements in retu rn for increased license fees; or (ii) 
lead to TV broadcasters in the Nether lands charging higher fees to the merged 
entity's downstream competitors to an extent that a significant impediment to 
effective competition would arise in the downstream market via a waterbed 
effect. 
(633)  As regards point (i) of paragraph (632), the Commission noted that the TV 
broadcasters that responded to its in-depth market investigation unanimously 
indicated that they would not be able to operate profitably if their TV 
                                                 
361 Form CO, paragraphs 482, 483 and 484. 
362 Liberty Global submission "Financial data on broadcasters", 24 June 2014. 
 
136 channels were exclusively broadcast on the merged entity's cable network.363 
Any lost income ensuing from exclusivity would not be able to be off-set by 
an increased fee paid by the merged entity. Relying mainly on advertising 
income, SBS required its TV channels to have a national reach.364 RTL also 
stated in that regard that, in order to remain economically viable, it would 
have to be able to reach 100% of Dutch households.365 SBS further explained: 
"In order to make a channel financially viable (based on an advertising 
model) a minimum coverage is required of at least 90% of the Dutch households. Thus advertisers would not choose a channel for their advertisements, if they were only to have access to only the merged entity's 
cable network (or generally anything lower than 90%). Thus, losing access to 
for example 20% of the viewer market would not amount to a linear decrease 
of advertising revenue, but probably with more than 40% ".
366 Commercial 
broadcasters such as SBS and RTL were  accordingly unlikely to be able to 
concede to providing their content exclusively to the merged entity. Also, 
NPO's TV channels were subject to a 'must-carry' obligation for TV 
distributors in the Netherlands pursuant to the Dutch Media Act and could not, therefore, be the subject of an exclusivity arrangement.
367 Given that 
NPO, RTL and SBS together already accounted for around 70% of all TV 
viewed in the Netherlands368, and given that the TV broadcasters that 
responded to the Commission's market investigation unanimously ruled out 
the possibility of licensing their TV channels exclusively to the merged entity, 
the Commission concluded that the merged entity was unlikely to have the 
ability to foreclose its downstream rivals by demanding exclusivity over TV broadcasters' channels. 
(634)  As regards point (ii) of paragrap h (632), the Commission noted that a 
competitive concern based on a waterbed effect requires that the exercise of 
increased buyer power by the merged entity would lead to higher licence fees 
paid by downstream rivals, and that the negative effects on competition of 
higher costs for downstream rivals would outweigh the positive effect of lower licence fees paid by the merged entity.
369  
                                                 
363 Responses to the Commission's questionnaire Q4 'Phase II Questionnaire to Broadcasters' of 28 May 
2014, question 14. 
364 Document ID1908, non-confidential minutes of conference call between Commission's services and 
SBS of 19 June 2014;  
365 Non-confidential response of RTL to the Commission's questionnaire Q4 'Phase II Questionnaire to 
Broadcasters' of 28 May 2014, question 11.  
366 Document ID1400, non-confidential response of SBS to the Commission's questionnaire Q4 'Phase II 
Questionnaire to Broadcasters' of 28 May 2014, question 14.1. 
367 Document ID1424, non-confidential response of NPO to the Commission's questionnaire Q4 'Phase II 
Questionnaire to Broadcasters' of 28 May 2014, question 14.1. 
368 Stichting KijkOnderzoek Jaarrapport 2013, available at: 
https://kijkonderzoek.nl/images/SKO Jaarrapport/SKO jaarrapport 2013.pdf . 
369 A waterbed effect further requires that upstream cost reductions will affect downstream prices, that is 
it requires a degree of pass-through. 
 
137 (635)  The Commission noted, first, that the retailers which voiced concerns that 
they would be harmed as a result of increased bargaining power by the 
merged entity had not identified a clear mechanism of how this would arise. 
An argument that better terms for the merg ed entity would put retail rivals at a 
relative competitive disadvantage did not imply that rivals have to pay higher 
licence fees to broadcasters. Rather it could simply be the result of a pro-competitive effect of lower licence fees by the merged entity that does not 
affect the level of fees paid by rivals.  
(636)  Moreover, the Commission acknowledged that the argument that because 
broadcasters may receive lower licence fees from the merged entity, they 
would recoup those losses by extracting higher licence fees from the merged entity's downstream competitors was not convincing unless there was 
evidence for the mechanism through which this would arise. In particular, as 
pointed out by the Notifying Party, this argument did not answer the question 
why broadcasters, if they were in a pos ition to negotiate higher licence fees 
from the merged entity's rivals post-merger, they could not use that ability to increase their revenues from those firms already pre-merger.  
(637)  The Commission noted that it was in theory conceivable that a merged entity 
that benefits from increased bargaining power would pay less for its inputs 
which allowed it to be more competitive on the downstream market and gain 
market share from rivals. That in turn could worsen the bargaining position of 
rivals and lead to an increase in their input prices if the lower market share 
implied that not concluding an agreement with suppliers becomes relatively more costly for rivals. Such an effect  on rivals' cost could negatively affect 
competition in the downstream market.
370  
(638)  However, in this case, the evidence collected during the market investigation 
did not allow the Commission to identify a specific mechanism by which the 
merged entity's increased buyer power would lead to higher licence fees for 
downstream rivals.371 The market investigation did not produce convincing 
evidence that the merged entity's downstream competitors' bargaining position vis-à-vis TV broadcasters would materi ally deteriorate as a result of the 
Transaction so that TV broadcasters would be able to recoup some of their 
lost licence revenues from the merged entity's rivals. In fact, some evidence from the market investigation indicated that TV broadcasters that exclusively 
relied on licence fees would become more rather than less dependent on the 
merged entity's downstream rivals were the merged entity to lower its licence 
fee payments and that broadcasters would not be able to recoup reduced 
                                                 
370 Such an effect has been discussed in an economic paper (Inderst, R and TM Valetti (2011), Buyer 
Power and the 'Waterbed Effect', Journal of Industr ial Economics, Volume LIX(1), pp1-20). In that 
paper, it is shown that the worsening of the bargaining position of rivals occurs, because not agreeing 
triggers a fixed cost to self-supply the input. As the rival's market share is reduced, the cost per unit of self-supply (including the fixed cost element) increases.  
371 For example, there is also no evidence that the merger would affect the credibility of rivals' 
contingency plans in the absence of an agreement with broadcasters.  
 
138 licence revenues from the merged entity by increasing licence fees to 
downstream rivals.372  
(639)  The Commission further noted that Fox' premium sport channel, which 
carried the live football rights to the Dutch premier league, the Eredivisie, was 
subject to a non-discrimination obligation imposed by the Dutch regulator, 
which required Fox to apply the same terms and conditions to all retail TV 
distributors in the Netherlands.373 Any lost income derived from the merged 
entity could not, therefore, be recouped by Fox by charging higher, discriminatory prices to other TV retailers. 
6.4.5.3.  Commission's conclusion in 2014 
(640)  Following its in-depth investigation, the Commission considered that the 
Transaction would not significantly impede effective competition in so far as 
it is unlikely to confer upon the Notifying Party the ability and the incentive to 
engage in input foreclosure vis-à-vis its downstream rivals. 
6.4.5.4.  The Notifying Parties' views in their Supplementary 
Notification 
(641)  In their Supplementary Notification, the Notifying Parties' set out the 
Commission's assessment and conclusion of the Conditional Clearance Decision.  
6.4.5.5.  Commission's assessment 
(642)  The Commission notes that based on the results of the market investigation, 
the Transaction is likely to have increa sed the degree of buyer power that the 
Parties have enjoyed in the market for the acquisition of Pay TV channels in 
the Netherlands.
374  
(643)  The Commission therefore assessed whether an increased buyer power on the 
part of the merged entity could (i) allow it to limit the availability of TV 
channels in the Netherlands by forc ing TV broadcasters to conclude 
exclusivity agreements in return for incr eased license fees; or (ii) lead to TV 
broadcasters in the Netherlands charging higher fees to the merged entity's 
downstream competitors to an extent that the Transaction would raise serious 
doubts as to its compatibility with the internal market as a result of the impact 
in the downstream market  via a waterbed effect. 
                                                 
372 See, for example, Document ID1380, non-confidential response of BBC to the Commission's 
questionnaire Q4 'Phase II Questionnaire to Broadcasters' of 28 May 2014, question 14.1, question 11; 
Non-confidential minutes of conference call between the Commission's services and the BBC of 25 June 2014.  
373 Non-confidential minutes of conference call between the Commission's services and Fox of 25 June 
2014. 
374 See Section 6.4.2 above. 
 
139 (644)  As regards point (i), the Commission considers that the merged entity is 
unlikely to have the ability to foreclose its downstream rivals by demanding 
exclusivity over TV broadcasters' channels, for the following reasons. First, 
broadcasters which responded to the market  investigation indicated that it is 
important to have maximum reach to operate profitably. 375 For example Talpa 
TV noted: " In general a wholesale supplier like Talpa TV needs to be featured 
on every possible network. Thus, the question whether or not a wholesale supplier must have access to a specific pl atform is somewhat arbitrary. Talpa 
TV wants a 100 percent coverage if possible, but would not be able to exploit its business model with less than approximately 90 to 95 percent coverage ." 
RTL also emphasized that it was important " to have a maximum reach ". 
Discovery noted: " as basic pay channels we need to have a maximum reach 
and possibility to monetise our IP ." It remains therefore unlikely that 
commercial broadcasters would be able to concede to providing their content exclusively to the merged entity. Second, NPO's TV channels are still subject 
to a 'must-carry' obligation for TV distributors in the Netherlands pursuant to 
the Dutch Media Act and could not, therefore, be the subject of an exclusivity arrangement.
376 Together NPO, RTL and Talpa TV still today, as in 2014, 
together account for more than 70% of all TV channels viewed in the 
Netherlands.377 
(645)  As to the competitive concern based on a waterbed effect mentioned in point 
(ii), the market investigation has not brought to light any new fact that would 
lead the Commission to adopt a different conclusion in the present 
assessment. With regard to Fox Sports, the market investigation confirmed 
that Fox Sports Eredivisie channels are distributed on a non-discriminatory 
basis and therefore any lost income derived from the merged entity could not, therefore, be recouped by Fox by charging higher, discriminatory prices to 
other TV retailers.
378 
6.4.5.6.  Overall conclusion 
(646)  Therefore, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market as a result of 
any possible ability and incentive on the part of the merged entity to, post-
Transaction, engage in input foreclosure vis-à-vis its downstream rivals. 
                                                 
375 Replies to questionnaire Q2 to TV channel wholesale suppliers of 5 April 2018, questions C.B.13 and 
C.B.14. 
376 Replies to questionnaire Q2 to TV channel wholesale suppliers of 5 April 2018, questions B.B.3.1 and 
C.B.14. 
377 Reply to RFI 5, question 3, providing the market shares for the top 20 most viewed TV channels in the 
Netherlands based on information from Stichting Kijk Onderzoek. 
 
 
140 6.4.6.  Ability and incentive of the Notifying Party post-merger to block TV 
broadcasters' Hybrid Broadcast Broadband TV signals 
6.4.6.1.  The Notifying Party's views in 2014 
(647)  The Notifying Party pointed out that the transmission of Hybrid Broadcast 
Broadband TV (“HbbTV”) signals ('triggers ') had been the subject of political 
discussions in the Netherlands and the Dutch government refrained from 
imposing a compulsory transmission of that technology.379 The Notifying 
Party was also of the view that as a result of imposing an HbbTV standard, other more recent standards would be obstructed or jeopardised, leading to 
disproportionate costs. 
(648)  The Notifying Party also claimed that Ziggo did not apply a more liberal 
policy towards allowing HbbTV signals in its footprint than the Notifying 
Party. Accordingly, the Transaction would not affect the ability or the 
incentive of the merged entity to engage in the blocking of TV broadcasters' 
HbbTV signals on its network.
380 
6.4.6.2.  Commission's assessment in 2014 
(649)  The Commission explained that certain specific internal business documents 
of the Parties had warranted an investigation into the possible effects of the Transaction on the merged entity's ability and incentive to block HbbTV signals on its network.  
(650)  The Commission's concern was mainly premised on the possible existence of 
a significant difference in the respective policies of the Notifying Party and of 
Ziggo on the carriage of HbbTV triggers.  
(651)  During the Commission's 2014 in-depth market investigation, however, 
evidence had been found that, neither the Notifying Party nor Ziggo, allowed 
HbbTV triggers in their respective cable network footprints in the Netherlands, while the Notifying Party seemed to have very recently altered 
its strict policy on allowing HbbTV triggers on its cable network, as it had in 
fact reached an agreement with NPO fo r the carriage of its HbbTV triggers 
relating to the TV channels Nederland 1, Nederland 2 and Nederland 3.
381 
6.4.6.3.  Commission's conclusion in 2014 
(652)  The Commission concluded that, insofar as the merged entity may have the 
ability and the incentive to engage in the filtering out and blocking of TV 
                                                 
379 Letter of the Dutch Ministry of Education, Culture and Science to parliament, entitled 'Rode Knop 
(Amendement/motie Van Dam-Huizing)' of 7 April 2014. 
380 Document ID1179, Liberty Global response to the Commission's Article 6(1)(c) decision in case 
M.7000 – Liberty Global/Ziggo, paragraphs 149-151. 
381 http://www.upc.nl/klantenservice/uitleg/hbbtv/ ; http://www.broadbandtvnews.com/2014/08/08/upc-
starts-hbbtv-distribut ion-for-npo-channels/ ; http://tweakers.net/nieuws/97714/upc-voorlopig-enige-
grote-tv-aanbieder-met-hbbtv-ondersteuning.html .  
 
141 broadcasters' HbbTV triggers, any such ability and incentive is not specific to 
the Transaction. This was particularly true given that the Notifying Party and 
Ziggo had both already engaged in such filtering out and blocking of HbbTV 
triggers in the past, while the former was the only of the large TV distributors 
in the Netherlands (encompassing KPN, Ziggo and UPC) to partly support 
this technology.  
(653)  Therefore, the Commission concluded that the Transaction would not 
significantly impede effective competition as a result of any possible ability and incentive on the part of the merged entity to, post-merger, refuse to carry 
HbbTV triggers on its network. 
6.4.6.4.  The Notifying Parties' views in their Supplementary 
Notification 
(654)  In their Supplementary Notification, the Notifying Parties' set out the 
Commission's assessment and conclusion without providing any particular 
view.  
6.4.6.5.  Commission's assessment 
(655)  The Commission considers that the Commission's assessment and conclusions 
still hold and that there have been no market developments capable of changing the Commission's assessment in 2014. The market investigation did not raise any elements that would cast doubt on this conclusion. 
6.4.6.6.  Overall conclusion 
(656)  Therefore, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market as a result of 
any possible ability and incentive on the part of the merged entity to, post-
Transaction, refuse to carry HbbTV triggers on its network. 
 
6.5. The markets for the retail provision of pay TV services, fixed Internet access 
services, fixed telephony services and multiple play services 
6.5.1.  Horizontal concerns – non-coordinated effects 
6.5.1.1.  The Notifying Party's views in 2014 
(657)  The Notifying Party submitted that no direct competition was taking place 
between the Notifying Party and Ziggo at retail level in the Netherlands, as 
the geographic footprint of their respective cable networks did not overlap. In 
light of this, no standard unilateral up ward price effect c ould result from the 
Transaction as it did not allow the merged entity to capture customers that 
would, pre-merger, have switched between the two independent parties in the 
event of a unilateral price rise. 
(658)  The Notifying Party also submitted that there was no evidence for a theory of 
harm based on sequential pricing. Indeed, the merger could have led to a 
hypothetical price increase only if KPN was not the price leader who was 
systematically setting prices first and there was no evidence of such patterns. 
 
142 In conclusion, according to the Notifying Party, there was no evidence of 
indirect competition between the Notifying Party and Ziggo. 
(659)  Finally, the Notifying Party noted that if any direct benchmarking between the 
Notifying Party and Ziggo that did not exceed simple commercial 
benchmarking aimed at monitoring, and possibly imitating, industry's best 
practices were to discontinue after the Transaction, this would have been 
unlikely to constitute a significant lessening of competition. 
6.5.1.2.  Commission's assessment in 2014 
(660)  The Commission first took into account the market shares of the merged 
entity and of its main competitors.  
(661)  The Commission noted that in Q3 2013 UPC and Ziggo had a combined 
market share of 56% by number of subscribers or [60-70]% by value in the retail supply of Pay TV services in the Netherlands. In the same market, KPN 
was the second largest retail TV operator with a market share of 25%, 
followed by CanalDigitaal with 10% and others with 10% including Tele2. 
(662)  In the market for the retail provision of fixed telephony services, UPC and 
Ziggo had a combined market share of 34% in Q4 2012 and 41% in Q3 2013. In the same market, KPN had a market share of 60% in Q4 2012 and 43% in Q3 2013. Tele2 had a market share of 5% and other smaller competitors a combined market share of 12% in Q3 2013. 
(663)  In referring to the market for the reta il provision of fixed Internet access 
services, the Parties' combined market share was 42% in Q4 2012 and 43% in 
Q3 2013. In the same market, KPN had a market share of 43% in Q4 2012 
and 41% in Q3 2013. Tele2 had a market share of 5% and other smaller competitors a combined market share of 11% in Q3 2013. 
(664)  In the hypothetical retail market for multiple play services, the combined 
market share of UPC and Ziggo amounted to between 65%-75% in Q2 of 
2013 and to between 55%-65% in Q4 of 2013. On the same market, the 
second most important participant would be KPN with a market share of 30% 
and Tele2 with a market share of 3%. 
(665)  The Commission analysed the results of its investigation on retail markets 
jointly, given that Ziggo and the Notifying Party were active on all of the 
investigated retail markets and they ofte n provided those retail services as part 
of multiple play packages. The Commission noted at the outset that the retail 
services were exclusively provided with in the respective geographic footprints 
of UPC and Ziggo in the Netherlands, which did not overlap and that, accordingly, no direct customer switching could have taken place between 
them. UPC and Ziggo were, therefore, not exerting a direct competitive 
constraint on each other's prices.  
(666)  However, the Commission also assessed whether UPC and Ziggo, despite 
their different geographic footprints, st ill took account of each other's actions 
when making their commercial decisions. According to the Commission, this 
could have been done either directly, by benchmarking their pricing against 
each other, or via a mechanism that  involves KPN as the nation-wide 
 
143 competitor of both UPC and Ziggo. The Commission noted that UPC and 
Ziggo could have exercised on each other an indirect competitive constraint 
but that, in order to give rise to a significant impediment to effective 
competition, any existing indirect competitive pressure that would be removed 
as a result of the Transaction would have to be particularly strong. 
(667)  With reference to indirect competition between UPC and Ziggo, while the 
evidence indicated that the competitors on the Dutch retail market tended to 
closely monitor each other and responded to each other's promotional offers, 
the Commission concluded that insufficient evidence existed to suggest that 
this limited direct benchmarking between the Parties exceeded simple 
commercial benchmarking aimed at monitoring and possibly imitating best practices in the industry. Moreover, an an alysis of retail prices did not indicate 
that price element changes in the Dutch retail telecommunications markets 
were consistently initiated by UPC or Ziggo, sufficiently close in time to each 
other and in the same sequence, as would have been required for the two 
undertakings to indirectly constrain each other via a sequential pricing 
mechanism that transmits price changes of one undertaking to the territory of the other via national price responses of KPN.  
6.5.1.3.  Commission's conclusion in 2014 
(668)  The Commission considered that the Transaction would not have significantly 
impeded effective competition as a result of any possible non-coordinated 
effects occurring in the retail market s for the provision of Pay TV, fixed 
Internet access, fixed telephony and multiple play services in the Netherlands. 
6.5.1.4.  The Notifying Parties' views in their Supplementary Notification 
(669)  The Notifying Parties submit that the current market circumstances 
demonstrate that the Transaction has not led and will not lead to a substantial 
impediment to effective competition in the retail markets for the provision of Pay TV, fixed Internet access, fixed te lephony and multiple play services in 
the Netherlands. 
(670)  In relation to linear Basic Pay TV services (national and regional), according 
to the data provided by the Notifying Parties, in 2017 VodafoneZiggo had a 
footprint, based on homes connected, equal to [50-60]% and has lost market 
shares to KPN from the time of the Transaction (VodafoneZiggo went from 
55% market share based on subscribers in 2014 to 53% in 2017 Q3 and KPN went from 27% in 2014 to 32% in 2017 Q3). Moreover, the Notifying Parties 
submitted that competition has increased since the Transaction. 
(671)  As for non-linear services (national), the Notifying Parties submit that the 
market has grown from 2013 to 2017 and that the market share of 
VodafoneZiggo based on revenues decreased from [40-50]% in 2013
382 to 
[20-30]% in 2017. 
                                                 
382 This figure is based on PWC's retrospective update, on the basis of market input, of the estimates for 
previous years contained in the PWC's Media and Entertainment Outlook, on which Liberty Global relied in the 2014 Notification. At the time of the 2014 Notification, PWC estimated the total market to 
 
 
144 (672)  With reference to the market for fi xed telephony services, the Notifying 
Parties submit that, under the current market circumstances, there remains a 
clear threat of entry and/or expansion by a number of smaller competitors. 
The Parties provide the example of the recent expansion of M7, KPN and 
EQT Infrastructure and they refer to the entry into the Dutch market for retail 
fixed telephony services of NLE in October 2016. Moreover, the absence of non-coordinated effects of the Transaction is underlined by the evolution of 
the market shares of the merged entity in the market for retail fixed telephony 
services. Indeed, the market shares have fundamentally remained stable. 
(673)  In referring to the market for retail Internet access, the Notifying Parties 
submit that the market share of the merged entity has essentially remained stable. Moreover, according to them, today significant competitive pressure is 
exerted by a clear threat of entry of a nd/or expansion by a number of smaller 
competitors (M7, KPN and EQT Infrastructure). The Notifying Parties also 
submit that the Transaction has not raised competition concerns as a result of 
NewZiggo’s increased share of the market for the retail provision of fixed internet access. In any event, the commitments entered into following the 2014 Decision have eliminated any poten tial adverse effects on competition 
that could hypothetically have stemmed therefrom. 
(674)  With regard to the hypothetical market for the retail provision of multiple play 
services, the Notifying Parties submit that the current market circumstances 
demonstrate that the Transaction has not led and will not lead to a substantial 
impediment to effective competition in any hypothetical retail market for multiple play to end customers. According to them, the Transaction has not 
removed any competitive constraint from  the potential market for multiple 
play and triple play services and, therefore, it has not led to any non-
coordinated effects. The Notifying Parties also claim that the merged entity 
has not increased its market share as a result of the Transaction. Indeed, KPN continues to grow (from 23.6% in 2012 to 35.6% in 2017), while 
VodafoneZiggo's subscriptions for triple  play have continued to decrease 
(from 65.3% in 2012 to 52.4%). Last, according to the Notifying Parties, the 
fact that VodafoneZiggo's market share has decreased notwithstanding the 
significant increase in multi-play bundles in the Netherlands demonstrates that there is competition on the market and that the Transaction has not led to any 
non-coordinated effects. 
(675)  The Notifying Parties concluded that they could not exercise a direct 
constraint on each other given that their respective geographic footprints in 
the Netherlands did not overlap and that the finding on indirect competition that the Commission made in the 2014 Decision should be re-stated.  
(676)  According to the Notifying Parties, the Commission's assessment on the 
absence of unilateral effects is demonstrated by the fact that VodafoneZiggo’s 
market shares have generally remained the same or even decreased compared 
to 2014. If anything, according to the Notifying Parties, the market has 
become even more dynamic as a result of T-Mobile aggressively selling 
                                                                                                                                                 
be considerably larger (i.e. 97 million). With this figure, the market share of VodafoneZiggo in 2013 
would be [20-30]%. 



 
148 (685)  The Commission also notes that the merged entity has been losing market 
shares to KPN in the period from 2014 to 2017 in the market for Pay TV 
services. Moreover, their market share re mained stable in the market for fixed 
telephony services and for retail intern et access and, in the hypothetical 
market for the retail provision of multiple play services, VodafoneZiggo lost 
market shares notwithstanding the signi ficant increase in multi-play bundles 
in the Netherlands. 
(686)  The market investigation has highlighted that one market participant 
considered that the Notifying Parties were not competitors pre-Transaction 
due to their different footprints.383 One market participant underlined that 
VodafoneZiggo is currently the larges t provider of retail services and 
submitted that the position of the cable operator improved significantly due to 
its increased scale.384 The market investigation confirmed that KPN and 
VodafoneZiggo are the two biggest players in all the retail markets. 
(687)  The market investigation has also indicated that one market player is 
concerned that the Transaction paved the way for the merger between Liberty 
Global and Vodafone and so strengthened the dominance of the market for 
multi-play offerings by just tw o players – KPN and VodafoneZiggo. 
Moreover, the same market player is also concerned that the Transaction will 
reinforce the market structure in wh ich two large players dominate the 
provision of fixed line services, with im plications for related markets such as 
the supply of retail mobile services in the Netherlands. According to the 
respondents to the market investigation, neither VodafoneZiggo nor KPN will have an incentive to challenge each other post-Transaction; they will both 
benefit from increasing prices and will have no incentive to invest materially 
in infrastructure. Without robust measures being taken, third parties will not 
be able to exert any meaningful co mpetitive pressure on these providers.
385  
(688)  According to the Horizontal Merger Guidelines386, a merger can have a 
negative impact due to a reduction in key competitive pressure on one or more 
providers who would acquire, or benefit from increased market power. If, for instance, one of the companies to be merged increased its prices prior to the 
merger, it would have lost turnover to a certain extent to the other undertaking 
to be merged. The merger removes that competitive pressure, which could serve as an incentive for the new undertaking to increase prices. Non-merging 
firms in the same market can also benefit from the reduction of competitive 
pressure that thus 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 own prices.
387 If that is the case, the merger 
                                                 
383  Reply to Q3 to retailers.of 5 April 2018, question C.D.9.  
384 Reply to Q3 to retail providers of TV services, question C.F.4. 
385 Reply to Q3 to retail providers of TV services of 5 April 2018, question C.E.5. and D.1. 
386 Horizontal Merger Guidelines, paragraph 24. 
387 Ibid. 
 
149 results in so-called non-coordinated effects. Although a merger giving rise to 
non-coordinated effects typically creates or strengthens a dominant position in 
the relevant markets, that is not the only situation in which such effects can 
arise. Mergers in oligopolistic markets involving the elimination of important 
constraints that the Parties previously exerted on each other, together with a 
reduction of competitive pressure on the remaining competitors, may also result in a significant impediment to effective competition.
388 
(689)  The Commission notes that the retail services are exclusively provided within 
the Parties' respective geographic footpr ints in the Netherlands, which do not 
overlap. Accordingly, no direct customer switching can take place between 
the Parties. As a consequence, the Parties are not in direct competition with one another and the Transaction does not lead to the elimination of a direct 
competitive constraint between the Parties.  
(690)  The Commission has also assessed whether the Parties, despite their different 
geographic footprints, still take account of each other's actions when making 
their commercial decisions. This could either be done directly, by 
benchmarking their pricing against each other, or via a mechanism that 
involves KPN as the nation-wide competitor of both Parties. If such indirect 
constraints are significant, constituting 'key' competitive pressure, the 
Transaction, which would remove such an  indirect pricing constraint between 
the Parties and on the remaining competitors, could result in negative 
competitive effects even if direct customer switching between Liberty Global 
and Ziggo is not possible. However, the Commission recognizes that in order to give rise to a significant impediment to effective competition, any existing 
indirect competitive pressure that would be removed as a result of the 
Transaction would have to be particularly strong. 
(691)  For the Transaction to potentially lead to non-coordinated price increases due 
to the elimination of an indirect competitive constraint between the Parties, a 
systematic mechanism through for this constraint should be identified. In 
particular, firms need to act sequentially, and one of the cable operators must act as a price leader. The leader's price is subsequently transmitted via KPN to 
the other cable operator thereby exerting an indirect constraint on the other 
cable operator. That indirect constraint would be eliminated by the merger.  
(692)  It should hence be established that firms in the retail TV, Internet and 
telephony markets revisit the same price elements in a recurring, consistent sequence. Price changes should also occur sufficiently close in time, as it 
would otherwise be impossible to disc ern whether any firm consistently 
moves first thereby initiating a recurring sequence of price changes and they 
should take place consistently betw een the Notifying Parties and KPN. 
(693)  In the absence of clear evidence of su ch sequential pricing, firms' static 
pricing incentives are typically analysed on the assumption that they set their 
prices simultaneously, that is to say ba sed on what they expect others to do 
rather than on their rivals' actual choices. In a simultaneous price-setting 
model the lack of direct competition occurring between two regional players 
                                                 
388 Horizontal Merger Guidelines, paragraph 25. 
 
150 whose respective footprints do not overlap necessarily implies that a merger 
between such regional players does not generate non-coordinated effects. In 
other words, non-coordinated effects in case of lack of direct competition 
could occur only in cases where the markets are characterized by sequential 
pricing. In all other circumstances, firms are expected to set prices 
independently and unilateral effects cannot arise. 
(694)  As noted in paragraph (667) the Commission found in 2014 that, while the 
evidence indicated that the competitors on the Dutch retail market tended to closely monitor each other and responded to each other's promotional offers, 
insufficient evidence existed to suggest that this limited direct benchmarking 
between the Parties exceeded simple commercial benchmarking aimed at monitoring and possibly imitating best pr actices in the industry. Moreover, an 
analysis of retail prices did not indicate that price element changes in the 
Dutch retail telecommunications markets were consistently initiated by UPC 
or Ziggo, sufficiently close in time to each other and in the same sequence, as 
would have been required for the two fi rms to indirectly constrain each other 
via a sequential pricing mechanism that transmits price changes of one firm to the territory of the other via national price responses of KPN.  
(695)  The Commission considers that the reason ing above still holds and that there 
have been no market developments capable of changing the Commission's 
assessment in 2014. 
389 
6.5.1.6.  Overall conclusion 
(696)  In light of the above, the Commission concludes that the Transaction does not 
raise serious doubts as to its compatibility with the internal market as regards 
non-coordinated effects in the market for the retail provision of pay TV 
services, retail provision of fixed te lephony services, retail provision of fixed 
internet access and multi-play and triple play services in the Netherlands. 
6.5.2.  Horizontal concerns – coordinated effects  
6.5.2.1.  The Notifying Party's views in 2014 
(697)  The Notifying Party submitted that the Transaction could not give rise to 
coordinated effects on the markets for the retail provision of TV, fixed and 
mobile telephony and Internet access, and on the possible market for multiple 
play products. 
(698)  First, the Notifying Party argued that the Transaction would not increase the 
ability to coordinate as the number of competitors on the market would not be 
reduced as a result of the merger. 
(699)  Second, the Notifying Party submitted that the Airtours criteria were not met 
in any of the markets being considered.  
                                                 
389 Moreover, as UPC and Ziggo were operating as one entity since 2014, the Commission's 2014 analysis 
of the sequence of retail prices cannot be updated. 
 
151 (700)  According to the Notifying Party, there was a high degree of differentiation 
between the offers provided by KPN and by the Notifying Party; the market 
for the retail provision of TV services had not been stable; and the respective 
infrastructure and associated cost-base employed by the two main competitors 
were different in a number of respects. 
(701)  The Notifying Party also pointed to current and future smaller, innovative 
competitors, which would maintain an external competitive pressure on the 
main competitors. 
(702)  The Notifying Party contested the credibility of there being a deterrent 
mechanism. 
6.5.2.2.  Commission's assessment in 2014 
(703)  The Commission underlined at the outset that the Transaction involved a 
combination of two firms whose physi cal cable networks did not overlap 
geographically. Indeed, even if the market was defined as national, in practice 
the ability of KPN and NewZiggo to coordinate was limited within their 
networks. 
(704)  In relation to the ability to reach terms of coordination, the Commission first 
noted that the Dutch retail markets seem to be moving towards multiple play, 
and considered that given that KPN, Ziggo and UPC all already offered roughly the same types of bundled services, the Transaction was not likely to 
alter the degree to which those bundles' price points
 could constitute effective 
focal points for coordination. 
(705)  The Commission also noted that, in terms of market shares, the increased 
symmetry in the broadband and fixed telephony markets did not significantly increase the firms' ability to reach terms of coordination across retail markets, 
also in light of the lack of evidence of non-coordinated effects arising in all 
those markets as a result of the Transaction. 
(706)  The Commission concluded that the Transaction was not likely to 
significantly alter or improve any existing ability of firms to reach terms of 
coordination in the retail markets in the Netherlands by virtue of the: (i) non 
overlapping network footprints; (ii) lack  of evidence of either party operating 
very aggressively on any of the Dutch retail markets; (iii) lack of evidence of 
significant differences in their cost structures; (iv) existing cooperation 
through several industry bodies and; (v) cross-shareholding of 28.5% (Liberty 
Global being the largest minority shareholder in Ziggo at the time). 
(707)  In relation to deterrent mechanisms, the Commission considered that the 
Transaction could not be considered to be likely to enhance the availability 
and/or efficiency of deterrent mechanisms. The Commission also noted that 
UPC and Ziggo did not seem to be asymmetrical in such a way that the 
Transaction could provide the merged entity with additional or enhanced 
retaliatory measures. The Commission's key arguments were that; (i) UPC and Ziggo’s activities were already exactly the same and, therefore, the 
Transaction did not increase the number of markets in which Liberty Global 
could, post-merger, retaliate against diverging behaviour; and (ii) UPC and 
Ziggo used the same technology and were both in the process of upgrading 
 
152 their network technology, meaning that the Notifying Party was not likely to 
have an enhanced ability to retaliate by implementation of technology 
upgrades of its network. 
(708)  In relation to the transparency of the markets and ability to monitor 
deviations, the Commission noted that some characteristics of the retail 
market for TV services, fixed telep hony, Internet access and multi play 
services seemed to make it conducive to coordination. The Commission 
concluded that the Dutch retail Pay TV, broadband, fixed telephony and multiple play markets were characterised by a degree of transparency that 
could have allowed firms to monitor deviations from coordinated behaviour. 
However, since there was no evidence to suggest that the Transaction would have materially changed the existing degree of transparency of those markets, 
the Commission considered that any possible impact of the Transaction on 
transparency would have not significantly altered firms' existing ability to 
monitor deviations. 
(709)  In relation to the reaction of outside rs, the Commission noted that several 
alternative operators to KPN, UPC and Ziggo were active on a more or less 
national basis in the Dutch markets fo r the provision of retail services. Given 
that those alternative operators did not rely on either the Notifying Party or 
Ziggo for having access to those markets, the Commission considered that 
neither their technical ability nor their incentive to distort coordinated 
behaviour would have changed as a result of the Transaction. 
(710)  In 2014 the Commission concluded that, although there were many elements 
suggesting that the Dutch retail Pay TV, broadband, fixed telephony and 
multiple play could be conducive to c oordination, it was not necessary for the 
Commission to conclude on the precise degree to which that was the case 
since there was not sufficient evidence to conclude that the Transaction could 
create the conditions for coordination or make coordination easier, more 
stable or more effective.  
6.5.2.3.  The assessment of coordinat ed effects in case M.7978  
(711)  In 2016, the Commission assessed the possibility that the joint venture 
between Vodafone and Ziggo could make coordination with KPN more likely, more effective and more sustainable in the retail markets affected by the 
transaction. 
(712)  In relation to the ability to reach terms of coordination and focal point of 
coordination, the Commission noted that there were a number of factors that 
made the possible markets for fixed triple play and fixed-mobile quadruple 
play more conducive for coordination. 
(713)  The Commission first highlighted the fact that the market shares of KPN and 
Ziggo in all retail markets for standal one fixed services were already broadly 
similar pre-transaction (TV services bei ng less symmetric) and that, therefore, 
the transaction had not led to any significant increase of the symmetry on 
these markets. The Commission, however, also noted that the positions of 
KPN and Ziggo were far less symmetrical on the fixed triple play market and that, through the transaction, the symmetry would increase. Moreover, the 
 
153 symmetry between KPN and Ziggo would have increased, post-merger, also 
in relation to fixed-mobile quadruple play market. 
(714)  With reference to the focal point for coordinated behaviour, the Commission 
noted that, notwithstanding the existence of a certain level of product (and 
pricing) differentiation, market shares  and related customer churn figures 
could constitute an effective focal point for possible coordination. The 
Commission also noted that the mark et for fixed-mobile bundles was still 
growing and unstable and, therefore, it was doubtful whether the merged entity would have had an incentive to establish coordination with KPN. 
Moreover, there was no evidence of past coordination or proof of plans of 
such coordination. 
(715)  In relation to transparency and ability to monitor deviations, the Commission 
considered that the market was characterized by a certain degree of 
transparency but that there was no evidence suggesting that the transaction 
would have significantly altered the degree of transparency of the market 
existing at the time. 
(716)  As to the existence of a deterrent mechanism, the Commission held that no 
evidence was gathered to support the conclusion that the transaction could 
enhance the availability and/or efficiency of deterrent mechanisms and the 
scope of retaliation. 
(717)  In referring to the reactions of outsi ders, the Commission noted that there 
were outsiders (Tele2 and M7) active in the markets for the retail provision of 
internet access, fixed telephony, TV serv ices and multiple play services and 
that those operators did not rely on either Vodafone or Ziggo for having 
access to the markets. Indeed, those operators were able to compete on the 
markets for the retail provision of fixe d telephony, fixed Internet access and 
TV services through access to KPN's network, which is guaranteed through ex ante regulation. In light of the above, the joint venture between Vodafone and 
Ziggo would neither have changed the ability nor the incentive of outsiders to 
disrupt coordinated behaviour. 
6.5.2.4.  The Notifying Parties' views in their Supplementary Notification 
(718)  The Notifying Parties submit that curre nt market circumstances confirm the 
conclusions of the Commission that the Transaction has not led to any 
coordinated effects on any of the retail markets and that no such effects currently occur, regardless of the question whether these markets are 
conducive to coordination. 
(719)  In relation to the ability to reach terms of coordination, the Notifying Parties 
first note that, in the VodafoneZiggo 2016 decision, the Commission 
confirmed that the combination of Vodafone’s Dutch business and NewZiggo 
would not result in coordinated effects. According to the Notifying Parties, 
since then, the market dynamics have not altered significantly so as to increase any risk of coordinated effects.  
(720)  In terms of the likelihood of elimination of destabilising factors, the Notifying 
Parties submit that the fact that the Transaction has not enabled KPN and 
VodafoneZiggo to eliminate destabilising factors in the market is proven by 
 
154 the fact that competition on the retail markets has only become more dynamic. 
According to the Notifying Parties, (i) the number of market players that enter 
the market on the basis of a commercial agreement for wholesale broadband 
access (WBA) with KPN continues to grow; (ii) increased competition is also 
exerted by mobile players, which can offer a (near) substitute; (iii) T-Mobile 
and Tele2 are also positioning themselves on the market with competitive multi-play offerings; (iv) Delta and CAIW have joined forces as of January 
2018. 
(721)  In terms of the degree of symmetry between market shares, the Notifying 
Parties submit that current market conditions confirm the Commission’s 
conclusion in the 2014 Decision that the increased asymmetry in terms of market shares in the Pay TV and hypothetical multi-play markets rendered it 
unlikely that any potential increased symmetry in the broadband and fixed 
telephony markets would significantly increase the firms’ ability to reach 
terms of coordination across those retail markets. According to the Parties, 
relevant in this respect is the lack of evidence of non-coordinated effects arising in all those markets as a result of the concentration. The Notifying Parties, moreover, refer to the Commission's assessment in the 2014 Decision according to which the Transaction would not lead to higher stability on the 
market due to the elimination of aggressive competitive force.  
(722)  In relation to transparency of the markets and ability to monitor deviations, 
the Notifying Parties submit that they are not aware of any evidence to 
suggest that the Transaction would have increased the degree of transparency on the retail markets since 2014 and therefore the Transaction has not 
significantly improved the ability pre-Tran saction to monitor deviations of 
coordination in the market. 
(723)  According to the Notifying Parties, th e degree of transparency on the retail 
markets has actually decreased and this has also been confirmed by the ACM. 
Moreover, the Notifying Parties are of the view that under the current market 
conditions it would be impossible to reach an agreement with KPN or monitor a tacit agreement due to the increased complexity of the product offerings (in 
terms of products that are being offered and prices). 
(724)  In relation to deterrent mechanisms, the Notifying Parties argue that the 
conclusion reached by the Commission in the 2014 Decision, according to 
which Liberty Global and Ziggo were no t sufficiently asymmetrical for the 
Transaction to enhance the availability and/or efficiency of deterrent 
mechanisms, still holds. 
(725)  In relation to reactions from outsiders, the Notifying Parties submit that the 
alternative operators identified by the Commission in the 2014 Decision do 
not rely on the combined business brought about by the Transaction for 
having access to any of the retail markets. Therefore, neither the technical 
ability nor the incentive to resort to coordinated behaviour has changed as a result of Transaction. 
(726)  The Notifying Parties also submit that to the extent that some players are 
dependent on access to KPN’s network, the unbundled local loop access 
obligation continues to be imposed on KPN and access to KPN’s fibre (FttH) 
network is also guaranteed. Moreover, KPN continues to provide commercial 
 
155 wholesale arrangements on a significant scale. Finally, the Notifying Parties 
submit that the competitive pressure exerted by OTT players on retail TV 
services have since 2014 only increased further. 
6.5.2.5.  Results of the market investigation 
(727)  During the market investigation, the Commission received some negative 
replies about the possible anti-competitive coordinated effects arising from 
the Transaction and a more articulated complaint from one market player. 
(728)  According to this market player, which presented more articulated 
submissions, first, the Transaction transformed the Dutch telecommunications 
market from an asymmetric competitive landscape into a highly symmetrical duopoly. Pre-Transaction, there was one player with nation-wide coverage 
and two non-overlapping regional networks. Post-Transaction, there would be 
only two fixed network operators, both with nation-wide networks.
390 
(729)  According to the complainant, the situation described above would have given 
rise, post-2014, to significant price increases and, by contributing to the 
creation of a symmetric duopoly of fixed and mobile network operators at the 
national level and by reducing the number of players required for coordination 
from three to two, the Transaction triggered coordinated effects on the Dutch 
market.391 In contrast, looking at product level data before 2014 would not 
indicate any price parallelism.  
(730)  Finally, according to this complainant, the Transaction would have caused a 
decrease in the investment in network development on the part of the merged 
entity.392 
6.5.2.6.  Commission's assessment 
(731)  As set out in the case law393 and the Horizontal Merger Guidelines,394 to find 
coordinated effects evidence is needed that the horizontal merger changes the nature of competition in such a way that firms that previously were not 
coordinating their behaviour are now significantly more likely to coordinate 
and raise prices or otherwise harm effective competition. A merger may also 
                                                 
390 Submission of T-Mobile Netherlands dated 16 April 2018.  
391 Ibid. 
392 Submission of T-Mobile Netherlands dated 27 April 2018. 
393 Case C-413/06 P, Bertelsmann AG and Sony Corporation of America v Independent Music Publishers 
and Labels Association (Impala) [2008] ECRI-4951, and in particular paragraphs 122-123 regarding 
the conditions for tacit coordination;; Case T-342/99, Airtours v Commission [2002] ECR II-2585, and 
in particular paragraphs 58 and 82 regarding the fact that “[i] f there is no significant change in the 
level of competition obtaining previously, the merger should be approved because it does not restrict 
competition ”.   
394 Guidelines  on  the  assessment  of  horizontal  mergers  under  the  Council  Regulation  on  the  
control  of concentrations between undertakings (OJ C 31, 05.02.2004, p.5), (the "Horizontal Merger 
Guidelines"), paragraphs 22, 39 et seq.  
 
156 make coordinationeasier, more stable or  more effective for firms which were 
coordinating prior to the merger.395 The Commission will therefore asses the 
changes brought about by the merger. The analysis will include an assessment 
of: (i) the ability to reach terms of coordination; (ii) the ability to monitor 
deviations from the terms of coordination; (iii) the existence of a credible 
deterrent mechanism if deviation is det ected; and (iv) the reaction of outsiders 
such as current and future competitors not participating in the coordination, as 
well as customers, should not be able to jeopardise the results expected from 
the coordination. 
(732)  However, before turning to these st andard elements relevant for the 
assessment of coordinated effects under current market conditions, it is first 
useful to discuss the situation that would exist absent the Transaction in light 
of developments since 2014, in partic ular the creation of the VodafoneZiggo 
joint venture in 2016.  
(733)  As a second preliminary step, the Commission will then examine the 
consequences for the assessment of coordinated effects of the specific feature 
that the present Transaction combines two firms that are not in direct 
competition for retail customers with each other as they are active in distinct 
non-overlapping areas within the national market corresponding to the 
footprint of their respective fixed network areas.   
The situation absent the Transaction  
(734)  The reassessment of the Transaction u nder current market conditions has to 
take account of the fact that, in 2016, the Notifying Parties set up a joint 
venture, which combined the respective businesses of UPC/Ziggo and the 
(primarily mobile) operator Vodafone in the Netherlands, which was cleared 
by the Commission subject to the divestment of Vodafone's fixed business. 
That transaction therefore led to the creation of an operator (VodafoneZiggo) 
which, similarly to KPN, owns both fixed and mobile networks. This might 
have potentially led to an increased coordination between the two operators 
owing nation-wide fixed and mobile networks.  
(735)  As mentioned at paragraphs (711) to  (717) above, the Commission thoroughly 
assessed the potential coordinated effects stemming from the creation of the joint venture and dismissed such concerns because the transaction did not 
significantly alter any of the factor s generally considered conducive to 
coordination.
396  
(736)  These conclusions concerning the additi on of Vodafone's mobile network to 
the Parties' fixed network apply a fortiori  to the present case, which concerns 
the combination of two regional non-overlapping fixed networks into a single 
near nation-wide one. Indeed, the existence of an already unified fixed network was taken into account in the Commission's assessment of the 
                                                 
395 Ibid., paragraph 22(b).  
396 See Commission decision of 03.08.2016, in case M.7978, Vodafone/Liberty Global/Dutch JV, 
paragraph 629 et seq.  
 
157 VodafoneZiggo joint venture in 2016, which – as mentioned – excluded the 
presence of any significant evidence of past coordination (including following 
the combination of UPC and Ziggo) or increased risk of future coordination.    
(737)  When assessing the Transaction under current market conditions, the 
Commission will account for the formation of the VodafoneZiggo joint 
venture by considering that, in the ab sence of the Transaction, each of UPC 
and Ziggo is present in the market as a mobile operator owning its own 
mobile network but is offering fixed se rvices (or fixed-mobile bundles) only 
within the respective (non-overlapping) footprint of its fixed infrastructure.  
Combination of non-overlapping network areas through the Transaction  
(738)  The non-overlapping nature of the UPC and Ziggo's respective fixed 
infrastructures remains a key relevant fa ct for the assessment. It implies that 
the UPC and Ziggo are not directly competing in the provision of fixed 
products or fixed-mobile products to retail customers and distinguishes the 
assessment of the Transaction from that of standard horizontal mergers which eliminate direct competition between the merging firms.  
(739)  Due to this central feature, the Transaction does not reduce the number of 
firms that would need to take part in  a hypothetical coordination scheme in 
each of the Parties' network area, nor does it affect the number or identity of 
outsiders that could disrupt such coordination. Absent the Transaction, each of 
the merging parties would need to coordinate with its main competitor, KPN, 
in its respective fixed network area, subject to the competitive constraint exerted by outsiders (which, in each case, do not include the other merging 
party). In other words, a hypothetical coordination scheme would, in each of 
UPC's and Ziggo's respective fixed network area, involve two firms. Post-
Transaction, a hypothetical coordination would also involve two firms, i.e. the 
merged entity and KPN, subject to the competitive constraint exerted by the same outsiders. The main difference is that post-Transaction, there is the 
potential of having a single two-firm coordination scheme that covers the 
combined network areas of UPC and Ziggo, as opposed to two separate two-firm coordination schemes, on in each of the two network areas, in the 
absence the Transaction. In each of the areas, the Transaction does therefore 
not affect the number of firms that would need to coordinate. 
(740)  Accordingly, the Commission has invest igated (taking into account possible 
competitive pressure exercised by third parties using regulated wholesale 
access) whether the Transaction affects the likelihood for coordination 
between KPN and the merged entity in the combined (fixed) network area of the Parties relative to the likelihood for coordination between KPN and UPC, 
respectively KPN and Ziggo, in the Parties respective network areas.  
(741)  A merger that brings together firms th at are active in separate geographic 
areas could potentially facilitate coordination through the establishment of 
"multi-market" contact. Meeting the same competitor in several different 
markets may lead to a greater alignment of firms' ability and incentive to 
coordinate than when each market is analysed in isolation, if it results in 
 
158 greater symmetry in the "combined market" relative to "individual 
markets".397  
(742)  In the present case, the question is, th erefore, whether the Transaction may 
lead to an alignment in the incentives to coordinate (and to adhere to 
coordination) or increased deterrence potential between the merged entity and 
KPN relative to the incentives for coordination of each of the Parties and KPN 
in the Parties' respective network areas.  
(743)  The Commission considers this unlikely to be the case because the situation 
between KPN and the cable operator in each of the respective footprints of 
UPC and Ziggo is comparable to that between KPN and the merged entity at a 
national level post-Transaction. The Tr ansaction does therefore not lead to 
increased symmetry relative to the situation in each Party's network area and 
is hence unlikely to lead to a greater alignment of the ability and incentives to coordinate with KPN. 
(744)  First, as can be seen in Table 10 below, in 2014 KPN's market shares in UPC's 
footprint were broadlysimilar to KPN's corresponding market shares in 
Ziggo's footprint; and UPC's market shares in its footprint were broadly 
similar to the corresponding market shares of Ziggo in the latter's footprint. 
The position of KPN and that of the cable operator, UPC and Ziggo, is 
therefore largely similar in both of the latter's network footprints and will not change significantly in the combined footprint post-merger. Second, in each 
of their respective network footprints, Ziggo and UPC were active in the same 
retail TV, Internet, telephony and multiple play markets, using the exact same 
network technology (DOCSIS) and with broadly comparable product 
offerings. Third, KPN and the merged entity would, post-merger, continue to face the same (number of) competitors that could potentially be able to distort 
coordination.  
                                                 
397  For example, consider two markets of equal size. Assume firm A has a 20% market share in market 1 
and an 80% market share in market 2. Firm A faces firm B (with 80% market share) in market 1 and 
firm C (with 20% market share) in market 2. Each of the markets is hence characterised by a rather asymmetric structure with one very large player (with 80% market share) and a smaller player (with 
20%) market share. A hypothetical merger between firm B and C in this example might lead to 
coordinated effects in such a setting, because the multi-market contact between the merged entity (B+C) and firm A would make these firms more symmetric with each having an "average" market 
share across the two individual markets of 50% which might significantly align their incentives to 
coordinate. 
 
159 Table 10: Retail supply of Pay TV, broadband and fixed telephony services – 
market shares (2013)   
 
(745)  The assessment in Table 10 necessarily relates to the situation in 2014. An 
assessment of the Transaction under current market conditions (which notably 
would reflect that the merged entity has formed a joint venture with Vodafone in 2016) is unlikely to affect the conclusion that the combination of the Parties 
non-overlapping networks will facilitate coordination. In particular, in the 
counterfactual situation relevant for the current Transaction, each of UPC and 
Ziggo would have become a fixed-mobile player (by entering into a joint venture with Vodafone in their respective footprint). To the extent that the emergence of fixed-mobile players facilitates coordination (quod non as 
assessed in the 2016 case), it would also  facilitate coordination absent the 
Transaction in each of UPC's and Ziggo's respective network areas. 
Specifically, absent the Transaction, KPN would need to coordinate with each 
Party (and only that Party) in that Party's respective network area (including, potentially, on fixed-mobile services). Post-Transaction KPN would need to 
coordinate with the merged entity in the combined network area, without the 
Transaction (for the reasons explained above) leading to a greater symmetry 
or alignment between the merged entity and KPN at a national level relative 
to the situation between each Party and KPN in their respective footprint. The fact, that the UPC and Ziggo, as a result of the 2016 transaction, have become 
fixed-mobile players does therefore not affect the conclusion that the 
combination of UPC's and Ziggo's non-overlapping (fixed) networks is 
unlikely to affect the likelihood of coordination.  
(746)  Moreover, as explained in paragraphs (748) to (771) below, the Commission 
concludes that, on the basis of the current market conditions, the Transaction 
does not significantly alter any of the factors generally considered conducive 
to coordinated behaviour. The absence of non-coordinated effects combined 
with the inherent non-overlapping nature of the Parties' cable networks limits 
any impact the Transaction may have on the post-merger ability of firms to reach terms of coordination, their ability and incentives to enforce 
coordination through a deterrent mechanism or the constraint from outsiders.  
(747)  The Commission's investigation has, furthermore, not yielded any substantial 
evidence of past coordination that co uld support a coordinated-effects theory 
of harm in fixed and fixed-mobile bundles markets. This finding exists 
irrespective of the degree to which the latter markets may currently be 
conducive to coordinated behaviour.  In that respect, the Commission's 

 
160 investigation showed that those markets may, to an extent, already be 
conducive to coordination. 
Ability to reach terms of coordination and focal point of coordination 
(748)  The Commission notes that, given that it has found that the Transaction does 
not eliminate direct competition (see paragraph (689)), any pre-existing stability of the retail markets is not material to establishing possible 
coordinated effects arising as a result of the Transaction.  
(749)  Similarly, since the Dutch market is moving towards multiple play bundles (in 
particular fixed-mobile ones), the Commission does not consider that the 
Transaction is likely to alter the de gree to which those bundles' price points 
can constitute effective focal points for coordination. In particular, the 
provision of fixed-mobile bundles as a result of the VodafoneZiggo 
transaction has likely added more complexity to the offering, with a number 
of additional price and non-price features , which does not seem to increase the 
likelihood of coordination with KPN around a focal point. Moreover, as already noted by the Commission when assessing the VodafoneZiggo joint 
venture, the fixed-mobile bundles market segment is expanding (growing to 
almost 2 million subscribers in 2017
398), with VodafoneZiggo rapidly eroding 
KPN's established leading position. It is therefore doubtful that the merged 
entity would have the incentive to establish coordination with KPN in respect to fixed-mobile bundles.   
(750)  In 2016, the Commission noted that KPN's market shares were broadly 
similar to Ziggo's on all retail markets fo r standalone fixed services (with the 
exception of retail TV) and that the pr oposed joint venture would not lead to 
any significant increase in symmetry on any of those markets. It also noted 
that Ziggo's position on the fixed triple play market was considerably stronger 
than KPN's and that the elimination of Vodafone as a fixed player would have strengthened Ziggo's position in the fixed markets (including triple play 
bundles) and, in turn, the positions of both KPN and Ziggo post-merger. In 
this context, the Commission found that post-transaction the joint venture would have been better positioned to compete more aggressively in the 
expanding market for fixed-mobile bundles. It was therefore doubtful that the 
merged entity would have had an incentive to coordinate with KPN in respect 
of fixed-mobile bundles. The 2016 Decision was also conditional on remedies 
which the Commission considered sufficient to offset the elimination of the competitive constraint from VF's fixed activities on the Parties.  
(751)  As noted in paragraphs (734) to (737), the fact that the Parties both have fixed 
and mobile networks, while relevant fo r the assessment of the Transaction 
under current market conditions, cannot be considered to be a result of the 
current Transaction.  
(752)  Over the course of the following years (2016 and 2017), while 
VodafoneZiggo's shares have slightly  increased for fixed telephony and 
internet access, they still show symmetry with KPN's, as it existed already in 
                                                 
398 Form CO, table 50. See also ACM's Telecom Monitor for Q1-2 2017 (Form CO, paragraph 503).  
 
161 2014. On the other hand, VodafoneZiggo and KPN still have asymmetric 
market shares in retail TV and triple -play bundles (although VodafoneZiggo's 
share has slightly decreased in retail TV and remained stable for fixed 
telephony triple-play bundles). At the same time, VodafoneZiggo has 
significantly increased its presence in the expanding fixed-mobile bundles 
market segment. 
 
(753)  The abovementioned evolution of the markets, on the one hand, does not 
provide evidence that the retail markets have been or are more likely to be 
prone to coordination as a result of the Transaction and, on the other, confirm 
the finding of the Commission in its 2016 decision of the increasing importance of fixed-mobile bundles. In this respect, the Commission notes 
that, by bringing together two operators with non-overlapping fixed networks 
(which should be considered as each having its own mobile network, in light 
of the setting up of the joint venture w ith Vodafone in 2016), the Transaction 
does not affect coordination for fixed-mobile bundles is it does not lead to a reduction in the number of players nor to an increased symmetry relative to 
the situation where each of UPC and Ziggo are active in the non-overlapping 
regional footprint areas (paragraphs (738) to (745)).  
(754)  With regard to evidence on the evolu tion of prices, T-Mobile Netherlands 
("TMNL") submits that 2011-2014 pricing data from Telecompaper supports 
its claims that prior to the 2014 Transaction there was no coordinated tacit 
price coordination between Liberty/Ziggo and KPN. TMNL
399 further 
submits, referring to an ACM presentation,400 that post-merger coordination 
arose between these market players, and that Vodafone/Ziggo and KPN 
enacted very significant price increases in a parallel manner, which were far 
beyond those of the other Dutch market players. 
(755)  The Commission notes that Telecompaper data on monthly fees of triple-play 
("3P") packages for the period 2013-2017 does not seem to reveal a 
substantially different pricing behaviour or increased price parallelism after 
the 2014 merger. While in mid-2014 KPN introduced several higher priced 
packages it also kept its products with middle or low price positioning. As for 
the overall evolution of 3P monthly fees, there does not seem to be a trend to exclusively increase over the period. While there were several price increases 
by several operators, there were also price decreases. In particular, though 
                                                 
399   TMNL's submission of 16 April 2018. 
400   Presentatie industry group voor marktanalyse ontbundelde toegang, dated 4 July 2017, p. 22. 

 
162 KPN raised all of its monthly fees e ffective of July 2016 and some of them 
effective from July 2017, it also decreased all the fees equally or even more at 
the end of 2016. Vodafone/Ziggo also increased some of its monthly fees 
effective of July 2017 (mostly in the high and middle price range), but in 
many cases this followed a prior decrease. Moreover, unlike KPN, 
Vodafone/Ziggo tended not to decrease its fees at the end of 2016, and, in the case of the high range fees, it even increased prices. Some, but not all 
Vodafone/Ziggo fees were increased effective from July 2017.  
(756)  Overall, these patterns do not provide ev idence of changes in behaviour or in 
the degree of pricing parallelism between Vodafone/Ziggo and KPN in the 
post-2014 period relative to the period before 2014. 
(757)  Moreover, the monthly fees referred to by TMNL do not include promotional 
discounts, which could significantly alter the effective price available for consumers.
401 The absence of an analysis of promotions raises doubts as to the 
existence of effective price parallelism in the prices ultimately applied to final 
customers. 
(758)  Furthermore, the Notifying Parties explained that VodafoneZiggo generally 
introduces a price change across the whol e of its customer base once a year, 
through a lengthy process taking several mo nths since it involves thousands of 
different products and does not translate into the same increase for all those 
products. This decision-making process, together with the statutory waiting 
period after communication to the customers, means that July is the earliest 
moment in the financial year to implement a price change. Since 
VodafoneZiggo's financial year corresponds to the solar year, the earlier 
VodafoneZiggo introduces the change, the greater are the effects on its annual 
accounts. Therefore, VodafoneZiggo has an interest to implement the change 
as early as possible in the year. Moreover, VodafoneZiggo only announces the 
price change for all its products once the decision-making process has been 
finalized, thereby voluntarily extending to fixed products regulatory 
commitments applicable only to mobile products402.  
(759)  Finally, in 2014 UPC and Ziggo were both working towards the same network 
technology upgrades. Therefore, in terms of their (non-overlapping) fixed 
networks, the Transaction did not lead to  the elimination of a more aggressive 
innovator that could have distorted the firm's pre-merger ability to coordinate. 
Deterrent mechanisms 
(760)  In relation to the possible existence of effective deterrent mechanisms, the 
Commission considers that the Transacti on cannot be considered to be likely 
                                                 
401  See, for example, paragraph 764 below.  
402 In 2014, Vodafone Libertel B.V., together with KPN and TMNL, committed – in the field of mobile 
services – that the senior management would not make any oral or written announcements about future 
prices and other commercial conditions, before the internal decision-making process had been finalized and laid down in writing (see ACM Case 13.0612.53 Toezeggingsbesluit mobiele operators). 
Although those commitments lapsed as of 7 January 2017, VodafoneZiggo has continued to abide by 
them.   
 
163 to enhance the availability and/or efficiency of deterrent mechanisms relative 
to the possible deterrent mechanisms in each of the two (fixed) network areas 
of UPC and Ziggo absent the Transaction.  
(761)  First, the Transaction does not lead to significantly increased symmetry 
between KPN and the merged entity relative to the degree of symmetry 
between KPN and UPC, respectively KPN and Ziggo, in their respective 
(fixed) network areas. It hence does not lead to a greater alignment of 
incentives or enhanced possibilities via increased symmetry resulting from the combination of the non-overlapping network areas or via contact in multiple 
markets (see paragraphs ((741) to (745))  
(762)  Moreover, while UPC and Ziggo, as cable operators, both use the same fixed 
network technology, that technology remains different from KPN's DSL 
infrastructure. And while the roll-out of fibre networks may have resulted in a somewhat greater similarity in terms of network technologies between KPN 
and the Parties in certain areas, this development could not be a consequence 
of the Transaction. Therefore, the Partie s are not likely to have an enhanced 
ability to retaliate by implementation of technology upgrades of their network 
relative to the retaliation possibilities of each Party absent the Transaction. 
(763)  Furthermore, the Commission notes that UPC and Ziggo were active in the 
exact same markets in 2014 and, also under current market conditions, in a scenario where each is considered as ha ving entered into a joint venture with 
Vodafone and therefore each is also considered as owning and operating a 
mobile network. Therefore, the Transaction does not increase the number of 
markets in which the Parties could, post-merger, retaliate against diverging 
behaviour.  
(764)  The Commission also does not consider that the Transaction would facilitate 
retaliation by creating a national competitor to KPN. While KPN may be bound to some extent by national pricing policies, KPN was, already before 
the Transaction, likely to take retaliat ory actions against deviations by one (or 
both) of UPC and Ziggo through targeted offers or discounting (e.g. by offering below the line discounts to customers in a specific region). Indeed, 
KPN does not appear to have been (and does not appear to be) prevented from 
running promotions only in specific parts of the Netherlands and in 2013 has, 
for example, launched a promotion for a fixed telephony, internet and 
television subscription limited to residents in the area with a specific postal code.
403 It is hence unlikely that national pricing would be a constraint on 
KPN's possibilities to retaliate or devi ate that would be softened through the 
creation of a national competitor through the Transaction.   
  
                                                 
403  See Notifying Parties' reply to request for information dated 25 May 2018. The offer of 13 May 2013 
was presented as a " Postcode Waardencheque " with a value of more than EUR 130 and consisted of a 
subscription to fixed telephony, internet and television for the reduced price of EUR 35 per month 
during the first six months (instead of EUR 58 per month). The offer was only valid for residents of postal code 8061 DC (one of the postal codes in Zwolle), as evidenced by the following extracts: 
"Speciaal voor bewoners met postcode 8016 DC "; "Tijdelijk meer dan €130;- v oordeel voor bewoners 
met postcode 8016 DC ". 
 
164 Transparency of the market and ability to monitor deviations 
(765)  The Commission considers that some characteristics of the post-merger retail 
markets for TV services, fixed telephony, Internet access and multi play services in the Netherlands seem to have made those markets conducive to 
coordination already before the Transaction. Coordination on retail prices for 
instance might be possible because prices seem to be transparent and 
publically available.  
(766)  Notwithstanding the fact that the products offered in those retail markets are 
mostly bundled products that can be offe red in different configurations and 
that have an array of features that c ould allow operators to differentiate, the 
Commission takes the position that it would not have been impossible to reach 
an agreement with KPN or monitor a tacit agreement due to the complexity of 
the product offerings, neither before no r after the Transaction. Indeed, the 
degree of transparency might allo w easy detection of deviations from 
coordination and may, therefore, have been and also in the future be 
conducive to coordination. 
(767)  The Commission concludes that the Dutch retail Pay TV, broadband, fixed 
telephony and multiple play markets were and are characterised by a degree of 
transparency that could allow firms to monitor deviations from coordinated 
behaviour. However, since there is no evidence to suggest that the Transaction would materially change the existing degr ee of transparency of those markets, 
the Commission considers that any possible impact of the Transaction on 
transparency will not significantly alter firms' existing ability to monitor 
deviations. 
Reaction of outsiders 
(768)  The Commission notes that several alternative operators to KPN and 
VodafoneZiggo are currently active on a more or less national basis in the Dutch markets for the retail provision of internet access, fixed telephony, TV 
services and multiple play services, either exclusively or partly by means of 
regulated and commercial wholesale access to KPN's copper (vDSL) and fibre 
(FttH) networks. Those alternative, " outsider" operators are Tele2, Canal 
Digitaal and T-Mobile. Given that those alternative operators do not rely on either of the Parties for having access to those markets, the Commission 
considers that neither their technical ability nor their incentive to distort 
coordinated behaviour will change as a result of the Transaction
. 
(769)  Any competitive pressure that those alternative players are able to impose on 
KPN and VodafoneZiggo, stems from access obligations on both KPN's 
copper and fibre networks. Based on unbundl ed local loop access as well as 
wholesale broadband access, those operators are able to compete on the Dutch markets for the retail provision of fixe d telephony, fixed Internet access and 
TV services. 
(770)  Access to KPN's fibre network is guaranteed through ex ante regulation 
which, as it will be explained below (see Section 6.6), is expected to continue 
in the foreseeable future. Moreover, KPN continues to provide commercial wholesale arrangements on a significant scale. An example of a market player 
that offers retail services as a result of a commercial WBA deal with KPN is 
 
165 NLE. In October 2016, NLE launched a multi-play offer, specifically targeted 
at VodafoneZiggo's customers. 
(771)  As regards the threat that potential competition from OTT would pose to the 
successful outcome of coordination in the retail Pay TV market, the 
Commission considers that the Final Commitments offered by the Notifying 
Parties in the context of the Transaction ensure that it will remain unchanged. 
Moreover, the Commission notes that the competitive pressure exerted by 
OTT players on retail TV services has since 2014 only increased further. 
6.5.2.7.  Conclusion 
(772)  In light of the above, the Commission concludes that the Transaction does not 
raise serious doubts as to its compatibility with the internal market as regards 
coordinated effects in the market for the retail provision of pay TV services, 
the retail market for fixed telephony, th e retail market for the provision of 
fixed Internet access services and for multi-play and triple play services in the 
Netherlands. 
6.6. The possible market for fixed internet access at wholesale level 
(773)  As mentioned above in Section 5.2.4, the ACM found in its draft decision of 
27 February 2018 that there is a single wholesale market for access to copper, fiber-optic and cable networks in which KPN and VodafoneZiggo are active market players. In light of the abovementioned concerns raised by a market 
player with regard to coordinated ef fects stemming from the Transaction (see 
Section 6.5.2 above), the Commission will in the following assess also 
whether the Transaction gives rise to coordinated effects on the possible 
market for fixed internet access at wholesale level. 
(774)  As indicated in the Commission's Guidelines on market analysis and the 
assessment of significant market power , the national regulatory authorities 
shall carry out their assessment by taking into account " existing market 
conditions as well as expected or fore seeable market developments over the 
course of the next review period in the absence of regulation "
404, which is 
known as "Modified Greenfield Approach".  
(775)  The Commission, on the other hand, evaluates mergers in the market context 
within which they arise, which includes the regulatory environment. 
Anticipated changes to the regulatory environment within the timeframe of the prospective merger analysis can be taken into account if future changes 
can be reasonably predicted.
405 
                                                 
404  Guidelines on market analysis and the assessment of significant market power under the EU regulatory 
framework for electronic communications and services, C(2018)2374; OJ C 159, 7.5.2018, p. 1–15, 
paragraphs 17 and following.  
405 According to paragraph 9 of the Commission's Guidelines on the assessment of horizontal mergers 
under the Council Regulation on the control of concentrations between undertakings, (2004/ C 31/03), 
generally, the conditions existing at the time of the merger constitute the relevant comparison for 
evaluation the effects of a merger. Only in some circumstances, the Commission may take into account future changes to the market that can reasonably be predicted. 
 
166 (776)  As to the present market context, KPN owns and operates a fiber to the home 
("FttH") network and a hybrid fibre-copper network. Both KPN's fixed 
telecommunications networks are subject to ex ante  regulation in the form of 
local unbundling and virtual unbundled local access (VULA) under the terms 
of the ACM's decision of 17 December 2015 resulting from the market review 
carried out in the period October 2013 to October 2015. VodafoneZiggo operates a hybrid-coax network, which is  not currently subject to ex ante 
regulation, and does not grant access to it to third parties on a voluntary basis.  
(777)  In light of the existing regulation, the Commission considers that the 
Transaction in itself does not make coordination between KPN and 
VodafoneZiggo on the hypothetical single wholesale market for access to copper, fiber-optic and cable networks more likely, considering that KPN is 
currently obliged to grant access to its network at specific terms included in a 
reference offer. If one of the two poten tial parties to the coordination is 
subject to these obligations, the other party (VodafoneZiggo) would not have 
increased incentives to coordinate post-Transaction, also in light of the fact that so far it has not granted access to any third party.  
(778)  As to the future changes to the regulation that can be reasonably predicted, the 
ACM's draft decision found that KPN and VodafoneZiggo have joint 
significant market power (“SMP”) and proposed to impose access obligations 
on both KPN and VodafoneZiggo. While changes to the draft decision cannot 
be excluded at this stage (also in light of the fact that this decision does not 
prejudge the Commission's own review  under Article 7 of the Framework 
Directive
406 of any proposed regulation), there are no indications at this stage 
that ACM has identified market developments justifying any such change 
concerning the finding of joint SMP. Assuming therefore the most likely 
scenario that ACM will maintain its proposed approach concerning the 
finding of joint SMP and will impose access obligations on both KPN and VodafoneZiggo as foreseen in its draft decision, there would be no ability for 
them to coordinate on refusing access (or granting it only at unfavourable 
terms) as both would be under an obligation to provide access at terms which 
would be put forward in a reference offer.
407  
(779)  In light of the above, and without prejudice to any future finding of the ACM 
in the context of the ongoing market review, the Commission therefore 
considers that the Transaction does not give rise to serious doubts as to its 
compatibility with the internal market regarding a merger-specific increased 
likelihood of coordinated effects on the possible market for fixed internet 
access at wholesale level to copper, fiber-optic and cable networks. 
(780)  In any event, the Commission notes that, similarly to the assessment on 
possible coordinated effects on the retail markets in Section 6.5.2 , the non-
                                                 
406 Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common 
regulatory framework for electronic communications networks and services. 
407  On the other hand, if ACM confirmed its finding of joint SMP but imposed access remedies only on 
KPN, the situation would be similar to that under the existing regulation described above in paragraph 
777. 
 
167 overlapping nature of the UPC and Ziggo's respective fixed infrastructures 
implies that they are not directly competing in the provision of fixed products 
or fixed-mobile products to final customers. As a consequence, in each of 
their respective areas, the Transaction does not reduce the number of firms 
that would need to take part in a hypothetical coordination scheme at 
wholesale level, nor does it affect the number or identity of outsiders that could disrupt such coordination. Therefor e, the Transaction does not appear to 
lead to (or at least not to increase the risk of) coordination at wholesale level. 
(781)  Moreover, the potential coordination scheme at wholesale level would have a 
clearer focal point than at the retail one (i.e., the refusal to grant access to their 
network). In light of the relative easiness to reach terms of coordination, the Transaction does not appear to be materially increase the chances of reaching 
coordination among two operators with nation-wide networks, compared to a 
pre-merger situation where three competitors could already as easily 
coordinate on a refusal to grant access at wholesale level in their respective 
areas. 
(782)  Finally, with regard to T-Mobile's argument that, according to the ACM, 
VodafoneZiggo and KPN might have delayed investments in their respective 
fixed networks in a coordinated way, the Commission notes that ACM only 
refers to the fact that VodafoneZiggo and KPN are aware of a situation of 
strategic interdependence. However, considering that the Transaction 
combines non-overlapping fixed networks, it does not seem to increase the 
chances of a similar situation to occur, compared to a scenario where KPN faces two operators each in a separate geographic area. 
(783)  Also for those (independent) reasons, the Commission considers that the 
Transaction does not give rise to serious doubts as to its compatibility with the 
internal market regarding a merger-specific increased likelihood of 
coordinated effects on the possible ma rket for fixed internet access at 
wholesale level to copper, fiber-optic and cable networks. 
7. P
ROPOSED REMEDIES  
(784)  In order to render the concentration compatible with the internal market, the 
Notifying Parties submitted commitments under Article 6(2) of the Merger 
Regulation on 3 May 2018 (the "Proposed Commitments" or "Initial 
Commitments"). These commitments were market tested by the Commission. Following certain modifications, a final set of commitments was submitted on 
29 May 2018 (the "Final Commitments"). These Final Commitments are 
annexed to this decision and form an integral part thereof.  
 
168 7.1. Analytical framework 
(785)  Where the Commission considers that a concentration will raise competition 
concerns the parties may seek to modify the concentration in order to resolve 
such competition concerns and thereby gain clearance of their merger.408 
(786)  In Phase I, commitments offered by the parties can only be accepted where the 
competition problem is readily identifi able and can easily be remedied. The 
competition problem therefore needs to be so straightforward and the remedies 
so clear-cut that it is not necessary to enter into an  in-depth investigation and that 
the commitments are 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 merger in Phase I.
409 
(787)  In assessing whether the proposed commitments will likely eliminate the 
competition concerns identified, 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 in which the competition concerns arise, including the position of the parties and 
other participants on the market.
410 
(788)  In order for the commitments to comply  with these principles, commitments 
must be capable of being implemented effectively within a short period of 
time.411 Where, however, the parties submit remedies proposals that are so 
extensive and complex that it is not possible for the Commission to determine 
with the requisite degree of certainty, at the time of its decision, that they will be 
fully implemented and that they are likely to maintain effective competition in 
the market, an authorisation decision cannot be granted.412 
(789)  As concerns the form of acceptable comm itments, the Merger Regulation leaves 
discretion to the Commission as long as the commitments meet the requisite 
standard.413  
(790)  Commitments which are structural in nature, such as the commitment to sell a 
business unit, are generally preferable. Such commitments prevent durably the competition concerns which would be raised by the merger as notified and do 
not require medium or long-term monitoring. Nonetheless, it cannot be ruled 
                                                 
408  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. 
409  Remedies Notice, paragraph 81. 
410  Remedies Notice, paragraph 12. 
411  Remedies Notice, paragraph 9. 
412  Remedies Notice, paragraphs 13, 14 and 61 et seq . 
413  Case T-177/04 easyJet v Commission  [2006] ECR II-1913, paragraph 197. 
 
169 out that other types of commitments may also be capable of preventing the 
significant impediment to effective competition.  
(791)  It is against this background that the Commission analysed the proposed 
commitments in this case. 
7.2. The First Commitments  
7.2.1.  Description of the First Commitments 
(792)  The First Commitments submitted on 3 May 2018 comprised a commitment 
not to enter into or renew agreements with TV broadcasters that contain terms 
which would directly or indirectly restri ct the TV broadcasters' ability to offer 
their channels and associated content via OTT services. That Commitment 
applied to any agreements with TV broadcasters for the distribution of those 
broadcasters' linear channels and catch- up TV services on the Parties’ Pay TV 
Platform in the Netherlands. The Commitments made clear that the Parties 
shall not, directly or indirectly, restrict the ability of the broadcasters to offer, 
on a standalone basis or in partnership with a third party, OTT services in the 
Netherlands, or the ability of those broadcasters to offer their linear channels 
and any content owned or controlled by the TV broadcaster via such OTT 
services in the Netherlands. 
(793)  If any such restrictive terms were included in existing agreements that the 
Parties and TV broadcasters had concluded for the distribution of those 
broadcasters' linear TV channels and ca tch-up TV services on the Parties' Pay 
TV platform in the Netherlands, the Parties would not enforce those restrictive 
terms.  
(794)  In addition, the Notifying Parties offered commitments to ensure the 
effectiveness of the distribution of OT T content via VodafoneZiggo's Internet 
network. To that end, the Notifying Parties committed to maintain sufficient 
interconnection capacity for parties seeking to distribute data to 
VodafoneZiggo's broadband customers by ensuring such parties have at least 
three uncongested routes into VodafoneZiggo's IP network in the Netherlands.  
(795)  In more detail, the Notifying Parties o ffered to ensure that the daily peak 
utilization, defined as the daily 95th percentile over 5-minute average bits 
transferred sample intervals, across their interconnection points with each of a 
group of at least three reputable interconnectivity providers (ICPs) who are 
willing to sell transit services via on e or more physical interconnection points 
in the Netherlands over which traffic may flow to its broadband customers, 
will not exceed 80%, that is to say that there will be at least 20% capacity available above the daily peak as calculated in arriving at daily peak 
utilization. The Notifying Parties further offered to ensure that the capacity 
available above the daily peak across that  group of three ICPs shall be at least 
20 Gbit/s. That figure would be reviewed annually by the Monitoring Trustee.  
(796)  The three ICPs that were subject to those additional commitments would be 
selected by the Notifying Parties from a predetermined list of ICPs which 
would also contain the ten largest ICPs that were willing to sell transit 
services via one or more physical interconnection points in the Netherlands 
over which traffic may flow to VodafoneZiggo's broadband customers. The 
 
170 list, holding the identity of the ten largest ICPs, could be changed from time to 
time with the approval of the Monitoring Trustee. One of the three selected 
ICPs had to be one from those ten largest ICPs. The group of at least three 
reputable ICPs could vary from time to time. However, it could not vary more 
than once per year for the ICP that was one of the ten largest ICPs and no 
more than once per quarter for the other two selected ICPs. Any alteration in a 
situation where there was an urgent need for the Notifying Party to upgrade 
capacity and it being impossible to achieve that upgrade in a timely manner 
with the three ICPs – had to be approved by the Monitoring Trustee, and 
ultimately by the Commission. In that case the Notifying Party would use 
reasonable commercial endeavours to agree and implement an upgrade with the ICP at hand and, if it could do so, to immediately return that ICP to the 
group of three, in place of the ICP whic h replaced it, at least until it would 
otherwise have been possible to change that ICP pursuant to those additional 
commitments. 
(797)  The Notifying Parties committed to reque st each ICP with whom the Parties 
directly interconnected in the Netherla nds for permission to publish in arrears 
on a monthly basis the highest Daily Peak Utilization in the preceding month, as a percentage of available aggregated direct capacity between that ICP and 
the Parties. As long as at least half of  such ICPs agreed to such publication, 
the Notifying Parties would publish, on a publicly available website, on a monthly basis, that information with respect to any such ICP who was and 
remained willing for it to be published. Where fewer than half such ICPs 
agreed to such publication the Notifying Parties would publish, on a publicly 
available website, on a monthly basis, only an aggregated figure based on the 
highest Daily Peak Utilization in the preceding month of aggregated direct 
interconnect capacity in the Netherlands. 
(798)  A fast track dispute resolution procedure would be applicable in the event that 
a third party would claim that the Notifying Parties were failing to comply 
with the Commitments. Any third party that wished to avail itself of the fast 
track dispute resolution procedure ("Requesting Party") had to send a written 
request to the Notifying Parties and the Monitoring Trustee setting out in 
detail the reasons leading the Requesting Party to believe that the Notifying Parties were failing to comply with the Commitments. The Notifying Parties 
and the Requesting Party then had a maximum of fifteen working days after 
receipt of the request to resolve the issue through cooperation and consultation. Within eight working days after receipt of the request, the 
Monitoring Trustee had to present its proposal to resolve the dispute and to 
specify in writing any action that the Notifying Parties had to take to ensure 
compliance with the Commitments. If the Requesting Party and the Notifying 
Parties could not resolve their differences of opinion, the dispute had to be resolved by arbitration under the Rules of the Arbitration Court of the 
International Chamber of Commerce. The arbitration had to be conducted in 
Amsterdam and in the English language. It was also fast-track, in that the 
Arbitral Tribunal would shorten all appl icable procedural limits as far as 
admissible and appropriate. The Arbitral Tribunal could give a preliminary ruling within one month, and would as a rule not give its final decision any 
later than six months after its confirmation. 
 
171 (799)  The Commission would be closely associ ated to any arbitration proceedings. 
In case of disagreement between the arbitrating parties on the interpretation of 
the Commitments, the Arbitral Tribunal could seek the Commission's 
interpretation and that interpretation would be binding. The fast-track dispute 
resolution procedure did not affect the power of the Commission to take 
decisions in relation to the Commitments and in accordance with the Merger Regulation. 
(800)  The commitment not to prohibit OTT distribution of content would, in its 
entirety, be in force for a period of eight years following the date of adoption 
of this Decision. 
7.2.2.  Results of the market test  
(801)  Some respondents considered that the First Commitments would not be 
sufficient to remedy the competition concerns raised by the Transaction, in 
particular insofar as they failed to address coordinated effects
414 and input 
foreclosure concerns415 resulting from the Transaction.  
(802)  As regards the commitment not to contractually restrict broadcasters in 
distributing their content via an OTT se rvice, a majority of those respondents 
who expressed an opinion to the mark et test considered that the First 
Commitments were not sufficient to ensure that broadcasters can effectively 
distribute their content via an OTT service, in addition to distributing it via the 
merged entity's platform, should they wish to do so.416 Some respondents to 
the market test also emphasised, in particular,417 the need to modify certain 
provisions of the Commitments in order to ensure their effectiveness, namely 
(i) to add the obligation for the Parties to inform the relevant broadcasters that 
the Parties waive their rights to enforce any clauses in existing agreements 
that restrict the Broadcasters' OTT Services and to remove such terms; (ii) to 
reflect that OTT Services include such services delivered over all delivery models including WiFi, hotspots and mobile internet; (iii) to ensure that the 
legal entities subject to the propos ed commitment include affiliated 
undertakings of the Parties; (iv) to clarif y that the Parties' TV platform include 
mobile propositions; (v) to make sure that the agreements covered include 
also any contractual terms agreed through e.g. e-mails, side letters or other; 
and (vi) to prolong the duration of the Commitment. 
(803)  As regards the commitment to maintain sufficient direct interconnection 
capacity between VodafoneZiggo's Internet network covering the Netherlands 
and third-party providers of transit services, respondents to the market test 
                                                 
414  Observations by TMNL, on the Remedy Proposal of 7 May 2018 in addition to the response to the 
Remedy RFI, 15 May 2018. 
415  Replies to Q4 - Market test of the proposed remedies of 7 May 2018, question C.2.1, Observations by 
TMNL, on the Remedy Proposal of 7 May 2018 in addition to the response to the Remedy RFI, 15 
May 2018. 
416 Replies to Q4 - Market test of the proposed remedies of 7 May 2018, question A.1. 
417 Replies to Q4 - Market test of the proposed remedies of 7 May 2018, questions A.1, A.2, A.4, A.5. 
 
172 highlighted a number of technical improvements required for such a 
commitment to be effective418, relating mainly to the lowering of the 80% 
congestion threshold, the suitability of the ICPs listed in the Schedule, the 
need to guarantee that the chosen ICP's have good capacity / connectivity 
within the Netherlands, the need to be given prior notice in case of switching 
between different ICP's and the duration of the commitment. Finally, some respondents to the market investigation claimed that the remedies should not 
only include direct interconnect capacity vi a ICPs but also alternative capacity 
via direct peering.
419 
7.2.3.  Assessment of the First Commitments  
(804)  In line with concerns expressed by the respondents to the market test, the 
Commission considered that the First Commitments were insufficient to 
eliminate the competition concerns raised by the Transaction. 
(805)  As regards the commitment not to contractually restrict broadcasters in their 
OTT activities, the Commission considered that this could only be effective if it applied also to the Parties’ affiliated undertakings (as defined in the 
Commitments) and if it covered also agreements for the distribution of 
broadcasters' channels via the Parties’ mobile network. In addition, in order to 
improve the ability to enforce that commitment, the Parties would have to 
inform the relevant broadcasters that they waive their rights to enforce any clauses in existing agreements and rem ove such terms. The Commission also 
considered that it would have to be clarified that OTT Services included such 
services delivered over all delivery models (including WiFi, hotspots and 
mobile internet). Furthermore, it would have to be specified that the 
agreements covered with broadcasters would not be limited to formal written agreements but also included any contractual terms agreed through, for 
example, e-mails and side letters. 
(806)  However, the Commission considered that the duration of eight years 
following the date of adoption of this Decision is in line with the investment 
cycle that OTT service providers take into account when deciding to launch and sustain OTT services. The Commission therefore considers that this 
duration is suitable and sufficient. 
(807)  In relation to the commitment to maintain sufficient direct interconnection 
capacity, the Commission was of the opinion that the commitment did not 
require modifications. The commitment has applied in its current form since 
its acceptance in the 2014 Decision and has been monitored by the Monitoring 
Trustee. In particular, the reporting of the Monitoring Trustee has confirmed that Liberty Global’s implementation of it has “had [no] impact on Dutch 
broadcasters' ability to distribute content OTT or on the user experience of 
viewers of Dutch broadcaster OTT content in the Netherlands ”.
420 The 
                                                 
418 Replies to Q4 - Market test of the proposed remedies  of 7 May 2018, questions B.3, B.4, B.6, B.7, B.8, 
B.9. 
419 Replies to Q4 - Market test of the proposed reme dies of 7 May 2018, questio ns B.3.1, B.4.1, B.9.1. 
420 Para. 11 of the 11th Trustee report on Case M.7000 – Liberty Global / Ziggo of 21 November 2017. 
 
173 commitments foresee that the available capacity will follow demand421 and 
that capacity above the daily peak shall be at least 20 Gbit/s, a figure that can 
be reviewed annually to ensure a reasonable level of spare capacity. The 
commitment also provides that the M onitoring Trustee shall review Schedule 
1 every three months to ensure that it contains a sufficient number of 
reputable ICPs. Furthermore, the 3 ICPs c hosen must be willing to sell transit 
in the Netherlands. Further, the Commission considers that based on the 
implementation of the commitment since the 2014 Conditional Clearance 
Decision, the commitment in its current drafting ensures that the aim to ensure 
that VodafoneZiggo's broadband custom ers can be accessed across relevant 
interconnection points without congestions, is achieved even if the commitment does not include direct peering and no prior notice in case of 
switching between different ICP's.  
(808)  As to the duration of the commitment, the Commission considers that eight 
years is sufficient, given the considerations in paragraph (806) and the fact 
that the commitment to maintain sufficient direct interconnection capacity also ensures the effectiveness of the commitment not to contractually restrict broadcasters in their OTT activities.  
7.3. The Final Commitments 
(809)  Following the communication to the Notifying Parties of the results of the 
market test and the Commission's own assessment of the First Commitments, 
the Notifying Party submitted an improved and final set of commitments 
(“Final Commitments”) on 29 May 2018.  
7.3.1.  Description of the Final Commitments 
(810)  The Final Commitments contain a commitment not to enter into or renew 
agreements with TV broadcasters that contain terms which would directly or 
indirectly restrict the TV broadcasters' ability to offer their channels and associated content via OTT services and containing modifications by the 
Notifying Parties to address the shortcomings described in paragraph (805).  
(811)  In addition, in the Final Commitments the Notifying Parties commit to ensure 
sufficient direct interconnection capa city between VodafoneZiggo’s network 
and third-party providers of transit services. 
(812)  Finally, the Final Commitments contain a commitment not to acquire, whether 
directly or indirectly, the possibility of exercising influence over the whole or 
part of Film1's activities in the Netherlands, being the provision of movies, 
series and documentaries to customers through a package of Premium Pay TV channels and related VOD services. 
                                                 
421 See in this regard also the Notif ying Parties’ reply to the Commission’s request for information of 18 
May 2018 (RFI 8), 21 May 2018, paragraph 8.2. 
 
174 7.3.2.  Assessment of the Final Commitments  
(813)  In accordance with the principles of the Merger Regulation on the 
acceptability of commitments, the Commission has assessed whether the Final Commitments: 
(d) are suitable and sufficient to eliminate the competition concerns; and 
(e) capable of being implemented effectively within a short period of time. 
(814)  As explained in paragraph (790), divest iture commitments are the best way to 
eliminate competition concerns resulting from horizontal overlaps and may 
also be the best means of resolving problems resulting from vertical or 
conglomerate concerns.
422 Other commitments may be suitable and sufficient 
only if those remedies are equivalent to a divestiture in their effects.423 The 
question whether a remedy, or more specifically, which type of remedy is suitable to eliminate the competition concerns identified, has to be examined 
on a case-by-case basis.
424  
(815)  In this case, the serious doubts as to the compatibility of the Transaction with 
the internal market that would arise in relation to OTT services are a specific 
concern. The Commission had found in 2014 that the Dutch market for the acquisition of Pay TV channels was characterised by the existence of agreements that restrict or aim to restrict TV broadcasters in their ability to offer their TV channels and associated content via the Internet. The 
Commission had found in 2014 that the merger would increase the Notifying 
Party's ability and incentive to continue such restrictive agreements, or to 
make them even more onerous. That would deprive consumers in the 
Netherlands from innovations in the way they can watch TV content over the Internet.  
(816)  The market investigation has confirmed that these concerns are still relevant 
post-Transaction.  
(817)  As set out in the Remedies Notice
425, remedies that fall short of complete 
divestitures, but are equivalent to them in terms of effects, may be considered 
in situations where markets are characterised by agreements between the 
Parties and their competitors that restrict competition. In certain circumstances, the Commission may accept commitments to terminate such 
agreements.
426 
                                                 
422 Remedies Notice, paragraph 17. 
423 Remedies Notice, paragraph 61. 
424 Remedies Notice, paragraph 16. 
425 Remedies Notice, paragraph 17. 
426 Remedies Notice, paragraph 60. 
 
175 (818)  As also set out in the Remedies Notice427, the change in market structure 
resulting from a proposed transaction may cause existing contractual 
arrangements to be inimical to effective competition.428 T h a t  i s  t r u e  f o r  
exclusive long-term supply agreements if  such agreements foreclose upstream 
the input for competitors that are active downstream. In such circumstances, 
the termination or change of existing exclusive agreements may be considered appropriate to eliminate the competition concerns.
429 The available evidence 
must allow the Commission to determine that no de facto exclusivity will be 
maintained. Such change of long-term agreements will normally only be 
considered sufficient as part of a remedies package to remove the competition 
concerns identified.  
(819)  The serious doubts as to the compatibility of the Transaction with the internal 
market in relation to OTT services in the present case is similar to the two 
categories of agreements mentioned above in paragraphs (817) and  (818). 
(820)  As far as TV broadcasters are provid ers of OTT services themselves, the 
restrictive agreements that Liberty Global had in place are agreements 
between providers that at the very least potentially compete with each other. 
The effect of the OTT clauses is that this potential competition is limited, or 
in the extreme situation, eliminated altogether. 
(821)  As far as TV broadcasters provide thei r linear channels or the content that 
they own or control to third party providers of OTT services, the restrictive 
agreements that Liberty Global had in place are agreements that restrict 
Liberty Global's potential competitors access to those inputs that they need to 
offer their OTT services. 
(822)  Against that background and in the context of this case, the Commission 
considers that the effective termination of those agreements has been – and is 
still – a suitable and sufficient remedy to remove serious doubts as to the compatibility of the Transaction with the internal market. 
(823)  With the OTT Commitments, the Notifying Parties effectively commit to 
terminate any agreement between the Parties and TV broadcasters that relates 
to the carriage of the TV broadcasters linear and catch-up services on the 
merged entity's Pay TV platform and whic h restricts their ability to offer their 
channels and content via an OTT service in the Netherlands. The fact that the 
Parties shall promptly inform the relevant broadcaster that they waive their 
rights to enforce such terms and commit to remove such terms from their 
existing agreements, addresses a concer n expressed by third parties to the 
market test that the commitment would not be effective without such provision. The Notifying Parties also co mmit that the Parties will not enter 
into such agreements in the future. The OTT Commitments cover all the 
                                                 
427 Remedies Notice, paragraphs 67 and 68. 
428 Remedies Notice, paragraph 67. 
429 Remedies Notice, paragraph 68. 
 
176 restrictive agreements that the Commission has identified in this case. In 
particular, the Commitments cover the following: 
(a) clauses that restrict TV broadcasters in offering their linear TV channels 
and content in their own OTT services that can compete with 
VodafoneZiggo's Pay TV packages; 
(b) clauses that restrict TV broadcasters in offering linear TV channels and 
associated content to third party OTT services that can compete with 
VodafoneZiggo's Pay TV packages; 
(c) clauses according to which the distribution agreements for Pay TV 
channels and associated content would be terminated, in whole or in part, in the event that TV broadcasters were to offer their channels and 
associated content via such OTT services; 
(d) clauses that limit TV broadcasters in their ability to offer their channels 
and associated content to competing retail providers of Pay TV services 
that are willing to offer those channels and content via their Internet 
networks. Banning such restrictions preserves the freedom of KPN, other 
cable operators and remaining providers of Pay TV services to allow for 
such OTT innovation; 
(e) clauses that limit the ability of TV broadcasters to offer their channels and 
associated content via OTT services in the Netherlands to content that can 
be viewed by subscribers of the Parties only. This covers requirements to 
make unencrypted or free OTT services available only to authorised 
subscribers of the Parties. It also covers other clauses that tie the OTT 
services technically and exclusively into the Pay TV offering of the Parties; 
(f) exclusivity deals for the use of TV c ontent that a TV broadcaster owns or 
for which it has the right to distribute it in the Netherlands, insofar as 
exclusivity is agreed as part of, or in parallel to, agreements between the 
merged entity and TV broadcasters for the distribution of linear Pay TV channels over the merged entity's Pay TV platform. 
(824)  With those clarifications, the commitment not to include such direct or 
indirect restrictions in the agreements with the TV broadcasters is capable of 
being monitored effectively by market participants, the Trustee and ultimately 
the Commission. 
(825)  The Commitments apply in relation to contracts that TV Broadcasters 
conclude with the Parties for the distribution of TV channels and associated catch-up content via the Parties' Pay TV platform. That is appropriate, given 
that VodafoneZiggo would enjoy market power at the level of the market 
where those agreements are concluded. 
(826)  The commitment not to contractually restrict broadcasters in their OTT 
activities, applies also to the Parties’  affiliated undertakings. The commitment 
covers also agreements for the distribu tion of broadcasters channels via the 
Parties’ mobile network and OTT serv ices delivered over the internet, 
including such services delivered over all delivery models (including WiFi, 
 
177 hotspots and mobile internet). These provisions address concerns of 
respondents during the market test. 
(827)  The Commitments cover new and existing agreements between the Parties 
and TV broadcasters. The fact that they also cover terms agreed orally and in 
writing, whether formal or informal (including in side letters, via e-mails or 
other) addresses a concern expressed duri ng the market test by third parties 
that the commitment could only be effective if it also covered these other 
types of agreements. 
(828)  The Commitments also cover exclusivity agreements for TV content that TV 
broadcasters own or for which they have the right to distribute it in the 
Netherlands. Those agreements are covered insofar they are concluded as part 
of, or in parallel with, the agreement for the carriage of those TV broadcasters' 
linear Pay TV channels over the merged entity's Pay TV platform.  
(829)  The OTT Commitments contain additional safeguards that ensure their 
viability and effectiveness. 
(830)  In order to prevent de facto  restrictions on the TV broadcasters' ability to offer 
their channels and content via OTT services to remain, the Notifying Parties 
commit in particular not to make th e conclusion or renewal of a separate 
agreement to distribute TV channels and associated content via the Parties' 
Pay TV platforms conditional on the acceptance of such restrictive 
agreements. That safeguard is important to ensure that the OTT Commitments 
are not circumvented during commercial negotiations between the merged entity and TV broadcasters. It preserves a balance in the bargaining power 
between the merged entity and the TV broadcasters, allowing the TV 
broadcasters genuinely to resist the ty pe of restrictive agreements that the 
Commission has identified as giving rise to a serious doubts. 
(831)  Moreover, as set out in recitals (550) to (578), since the merged entity's role as 
an Internet network provider would compound its ability to restrict the TV 
broadcasters' ability to distribute their channels and content via OTT services, 
it is necessary to restrain its technical ability to hamper OTT services in order 
to preserve the viability and effe ctiveness of the OTT Commitments. 
Otherwise, the merged entity’s ability to hamper the technical access that OTT service providers have to its Internet network could be used to 
circumvent the commitment not to restrict the TV broadcasters' ability to use 
OTT services by contractual means. 
(832)  In order to ensure the effectiveness of the distribution of OTT content, Liberty 
Global therefore commits to maintain sufficient interconnection capacity for 
parties seeking to distribute data to it s broadband customers. In particular, it 
will ensure that it has at least three uncongested routes into the merged entity's IP network in the Netherlands.  
(833)  The Commitments are capable of being implemented effectively and 
immediately. They apply from the date of the adoption of this decision. They 
apply to contracts that are concluded after that date, as well as contracts that 
are in place before it. Therefore, from the date of adoption of this Decision, TV broadcasters can insist upon, an d monitor, the Notifying Parties' 
compliance with the OTT Commitments.  
 
178 (834)  Any third party can use fast-track dispute resolution to resolve any issues that 
may arise in relation to the compliance with the OTT Commitments. Given 
that the arbitration tribunal may make a preliminary ruling within one month 
and the final ruling shall be rendered within six months, the procedure should 
allow OTT providers to enforce any breach of the OTT Commitments 
quickly. 
(835)  Moreover, the Final Commitments provide for the appointment of a 
Monitoring Trustee to be approved by the Commission and to carry out obligations consistent with the Commission’s precedents
430 in this area. The 
function, mandate and related provisions provided for in the Final 
Commitments are in line with the Commission standard requirements for commitments, according to which the Monitoring Trustee must be in a 
position to ensure full compliance of the Notifying Parties with the 
commitments.  
(836)  Once appointed, the Monitoring Trustee has an extensive role in ensuring that 
the Commitments are complied with in full. In particular, the Monitoring 
Trustee will act as a contact point for any complaints that the Final 
Commitments are not complied with. The Monitoring Trustee can give, in 
agreement with the Commission, any instructions to the Notifying Parties to 
ensure full compliance. The Monitoring Trustee will also be closely involved 
in any fast-track dispute resolution that beneficiaries of the Commitments may 
launch.  
(837)  The Commission retains the ultimate authority to verify the compliance with 
the OTT Commitments. 
(838)  Therefore, the Commission considers that the Commitments are suitable and 
sufficient to eliminate the serious doubts as to the compatibility of the 
Transaction with the internal market in relation to OTT Services. The Commission also considers that the Commitments can be implemented 
effectively and immediately.  
(839)  Finally, with regard to the Notifying Parties' commitment in the Final 
Commitments not to acquire, whether directly or indirectly, the possibility of 
exercising influence over the whole or part of Film1's activities in the Netherlands, the Commission recalls that, as noted in paragraph (279), 
pursuant to the Conditional Clearance Decision, the Notifying Parties 
committed to divest Film1 in order to maintain effective competition in 
relation to Premium Pay TV film channels in the Netherlands. In order to 
maintain the structural effect of that commitment, the Notifying Parties had committed, for a period of 10 years after the date of adoption of the decision, 
not to acquire, whether directly or i ndirectly, the possibility of exercising 
influence, as defined in paragraph 43 of the Remedies Notice, over the whole 
or part of the Film1 Divestment Business, unless, following the submission of 
a reasoned request from the Notifying Parties showing good cause and accompanied by a report from the Monitoring Trustee, the Commission finds 
                                                 
430 See for example Commission's decision of 26 January 2011 in Case No COMP/M.5984 - 
Intel/McAfee. 
 
179 that the structure of the market has changed to such an extent that the absence 
of influence over the Film1 Divestment Business is no longer necessary to 
render the proposed concentration compatible with the internal market (see 
paragraph (282)). Film1 was divested to Sony in March 2015. The 
Commission has concluded in this Decision that following the divestment of 
Film1 and the winding up of the HBO NL joint venture, any overlap in relation to Premium Pay TV film channels has been removed and therefore, 
no horizontal non-coordinated effects ca n arise. However, if the Notifying 
Parties were to be able to re-acquire Film1, the structural effect of the 
divestiture that took place in 2015 could be undone. The Commission's 
analysis, which is premised on the Notifying Parties having no control over Film1, would then be erroneous. The Notifying Parties' Film1 non-acquisition 
commitment in the Final Commitments ensures that, the divestiture of Film1 
remains in effect at least until 11 October 2024. 
7.4. Conclusion 
(840)  For the reasons outlined above, the commitments entered into by the 
undertakings concerned are sufficient to eliminate the serious doubts as to the 
compatibility of the Transaction with the internal market. 
8. CONDITIONS AND OBLIGATIONS  
(841)  Pursuant to the second subparagraph of Article 6(2) of the Merger Regulation, 
the Commission may attach to its decision conditions and obligations intended 
to ensure that the undertakings concerned comply with the commitments they 
have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the internal market.  
(842)  The fulfilment of the measures that give rise to the structural change of the 
market is a condition, whereas the implementing steps which are necessary to 
achieve this result are generally obligations on the Parties. Where a condition 
is not fulfilled, the Commission’s d ecision declaring the concentration 
compatible with the internal market is no longer applicable. Where the 
undertakings concerned commit a breach of an obligation, the Commission may revoke the clearance decision in accordance with Article 6(3) of the 
Merger Regulation. The undertakings concerned may also be subject to fines 
and periodic penalty payments under Artic les 14(2) and 15(1) of the Merger 
Regulation.  
(843)  In accordance with the described distinction as regards conditions and 
obligations, this Decision should be made conditional on the full compliance 
by the Notifying Party with Section D of the commitments set out in the 
Annex, while all other Sections of th ose commitments constitute obligations. 
(844)  The full text of the commitments is an integral part of and is attached as 
Annex 1 to this Decision.  
 
180 9. CONCLUSION  
(845)  For the above reasons, the Commission ha s decided not to oppose the notified 
operation 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 section D of the commitments annexed 
to the present decision and with the oblig ations contained in the other sections 
of the said 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 
Member of the Commission 
 
 
 Case COMP/M.7000 — Liberty Global / Ziggo 
 COMMITMENTS TO THE EUROPEAN COMMISSION 
Pursuant to Article 10(5) of the Eur opean Union Merger Regulation 139/2004 ( EUMR ), 
the 2014 Notification was supplemented on 4 April 2018 to reflect changes in market 
conditions and information provided since the annulled approval by the Commission on 
10 October 2014 subject to certain conditions ( Initial Clearance Decision ).  
Pursuant to Article 6(2) in conjunction with  Article 6(1)(b) of the EUMR, Liberty Global 
plc (Liberty Global ) and Vodafone Group plc ( Vodafone  and jointly with Liberty Global  
Notifying Parties ) hereby enter into the following commitment (the Commitments ) vis-
à-vis the European Commission (the Commission ) with a view to rendering the 
acquisition of control by Liberty Global of Ziggo N.V. ( Ziggo ) (the Concentration ) 
compatible with the internal market and the functioning of the EEA Agreement. 
This text shall be interpreted in light of the Commission's decision pursuant to Article 6(2) 
in conjunction with Article 6(1)(b) of the EUMR 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 light of the EUMR, and by reference to the Commission Notice on reme dies acceptable under Council Regulation 
(EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (the Remedies 
Notice ). 
Section A.  Definitions 
For the purpose of the Commitments, the following terms shall have the following 
meaning: 
2014 Notification: The initial notification to the Commission of the Concentration (Case 
COMP/M.7000).  
Affiliated Undertakings:  undertakings controlled by the Parties and/or by the ultimate 
parents of the Parties, whereby the notion of control shall be interpreted pursuant to Article 3 Merger Regulation and in 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 ). 
Broadband Customers:  consumers located in the Netherlands, that have a subscription 
to VodafoneZiggo' broadband internet services e ither on a stand-alone basis or as part of 
a bundle. 
Broadcaster:  a provider of one or more linear TV channels. 
Confidential Information:  any business secret, 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 Trustee's objectivity and 
independence in discharging its duties under the Commitments. 
Daily Peak Utilization:  the daily 95
th percentile over 5-minute average bits transferred 
sample intervals (technically Liberty Globa l takes 288 measurements of interface bit 
input counters per day, the highest 14 values are discarded and 15th highest is used for 
this purpose) of the sum of measured inbound capacity. 
Effective Date:  the date of adoption of the Decision. 
 
2 Film1 business: Film1’s activities in the Netherlands, being the provision of movies, 
series and documentaries to customers through a package of Premium Pay TV channels 
and related VOD services. 
Internet: the world-wide matrix of interconnecting computers known as the internet 
which transfers data using Internet Protocol , covering all delivery models including, but 
not limited to Wi-Fi, hotspots and mobile internet.  
Liberty Global:  Liberty Global Plc.  
Monitoring Trustee:  one or more natural or legal person(s), independent from the 
Parties, who is approved by the Commission and appointed by the Notifying Parties, and 
who has the duty to monitor the Notifying Parties' compliance with the conditions and 
obligations attached to the Decision. 
OTT Service:  any service that allows consumers access to audio-visual content, whether 
linear or non-linear, over the internet (how soever delivered) via one or more devices. 
Parties:  Liberty Global, Vodafone Group, and VodafoneZiggo and their respective 
affiliated undertakings. 
Parties' TV Platform:  television content distributed pursuant to a contract for such 
distribution on the Parties' hybrid fibre co-ax network via the analogue PAL standard, the 
digital DVB-C standard, the PTV standard or any future standard used for the 
distribution of such television content on the Parties' hybrid fibre co-ax network as well 
as on their mobile network in the Netherlands. 
Trustee:  the Monitoring Trustee. 
Vodafone:  Vodafone Group Plc. 
VodafoneZiggo:  VodafoneZiggo Group Holding B.V. a nd its subsidiaries, including its 
cable network and related business.  
Ziggo:  Ziggo N.V. and its subsidiaries, including its cable network and related business. 
Section B.  Commitment not to restrict OTT distribution of content 
1. By the below commitment, the Notifying Partie s seek to remove any link that could exist 
between, on the one hand, commercial negoti ations of the Parties and Broadcasters and 
conditions agreed with Broadcasters in such negotiations regarding the distribution of 
Broadcasters' linear channels and catch-up TV services relating  to content on such linear 
channels via the Parties' TV Platform in th e Netherlands and, on the other hand, such 
Broadcasters' OTT activities, including the content that such Broadcasters could offer for 
inclusion in such OTT activities ( OTT Commitment ). 
2. As of the Effective Date, the Parties shall no t enter into or renew any agreement (whether 
in writing or oral and whether formal or informal, including but not limited to e-mails, 
side letters or other) with a Broadcaste r that includes the distribution of such 
Broadcaster's linear channels and catch-up TV se rvices relating to content in such linear 
channels via the Parties' TV Platform in the Netherlands and that contains terms that 
would directly or indirectly restrict such Broadcaster's ability to offer to third parties 
and/or end-users, on a stand-al one basis or in partnership with another entity or third 
party: 
(i) an OTT Service in the Netherlands; 
(ii) its linear channels via an OTT Se rvice in the Netherlands; or 
 
3 (iii) any content owned and controlled by such Broadcaster (that is to say any content 
in respect of which that Broadcaster hol ds the relevant intellectual property 
rights for OTT distribution in the Netherlands, for so long as it is so owned and controlled), including content from such linear channels, for inclusion in an OTT 
Service in the Netherlands. 
3. To the extent any such terms are included in agreements with Broadcasters regarding the 
distribution of linear channels and catch-up TV services relating to content on such linear 
channels of such Broadcasters on the Par ties' TV Platform in the Netherlands made 
before the Effective Date, the Parties shall not enforce such terms and shall promptly 
after the Effective Date inform the relevant Broadcaster that they waive their rights to 
enforce such terms and commit to remove such terms from their existing agreements. 
Furthermore, the Parties shall not make the entry into or renewal of agreements with 
Broadcasters regarding the distribution of linear channels and catch-up TV services 
relating to content on such linear channels of such Broadcasters on the Parties' TV 
Platform in the Netherlands in any way conditional upon the conclusion of a separate 
agreement with such Broadcasters relating to OTT Services and/or the linear and non-
linear content contained therein. 
Section C.  Interconnection capacity commitment 
Purpose 
4. By the interconnection capacity commitment, the Notifying Parties seek to ensure that 
they maintain at least three uncongested rout es into VodafoneZiggo’s IP network in the 
Netherlands. By doing this the No tifying Parties seek to ensure  they have an incentive to 
provide sufficient interconnection capacity so as to allow VodafoneZiggo’s Broadband 
Customers to access OTT Services in the Netherlands either via the interconnection 
points described in paragraph 5 or otherwise. 
Practicality 
5. To this end, the Notifying Parties will ensure  that the Daily Peak Utilization across their 
interconnection points with each of a group of at least three (3) reputable 
interconnectivity providers ( ICPs ) who are willing to sell transit services via one or more 
physical interconnection points in the Netherlands over which traffic may flow to 
Broadband Customers, will not exceed eighty (8 0) percent. That is to say that there will 
be at least [20-30]  per cent capacity available above the daily peak as calculated in 
arriving at Daily Peak Utilization. 
6. The Notifying Parties will further ensure that the capacity available above the daily peak, 
as calculated in arriving at Daily Peak Utiliz ation across that group of at least three (3) 
reputable ICPs, shall be at least twenty [20-30]  Gbit/s. This figure shall be reviewed 
annually in accordance with the procedure described in paragraph 22. 
7. Subject to paragraph 8 below, this group of at least three (3) reputable ICPs may vary 
from time to time but no more than once per quarter generally and once per year in respect of the one (1) ICP declared as be ing one of the ten (10) largest ICPs in 
accordance with paragraph 9. 
8. By way of exception to paragraph 7, where th ere is an urgent need to upgrade capacity 
with a particular ICP and it does not prove possible to agree or implement such upgrade 
in a timely manner the Notifying Parties will seek the approval of the Commission via 
 
4 the Monitoring Trustee in accordance with para graph 22 to replace that ICP with another 
ICP irrespective of when it was last changed.  In that case the Notifying Parties will use 
their reasonable commercial endeavours to agree and implement an upgrade with that ICP and, if it can do so, to immediately return  that ICP to the group of three (3), in place 
of the ICP which replaced it, at least until it would otherwise have been possible to 
change that ICP in accordance with paragraph 7. 
9. Schedule 1 contains a long list of ICPs which will include the three (3) reputable ICPs 
referred to above in paragraph 5. This lis t may be changed from time to time in 
coordination with the Commission and the Monitoring Trustee, in particular by the 
addition of other reputable ICPs. This long list shall include the ten (10) largest ICPs who 
are willing to sell transit services via one or more physical interconnection points in the 
Netherlands over which traffic may flow to Br oadband Customers. The group of three (3) 
reputable ICPs referred to above in paragraph 5 shall include at least one of these ten (10) 
largest ICPs. 
10. The Notifying Parties shall request each ICP wi th whom the Parties directly interconnect 
in the Netherlands and over which interc onnection points traffic may flow to 
VodafoneZiggo’s Broadband Customers for permission to publish in arrears on a 
monthly basis the highest Daily Peak Utilizati on in the preceding month, as a percentage 
of available aggregated direct capacity between  that ICP and the Parties. As long as at 
least half of such ICPs agrees to such publi cation the Notifying Parties shall publish, on a 
publicly available website, on a monthly basis, this information with respect to any such 
ICP who is and remains willing for this to be published. Where fewer than half such ICPs 
agrees to such publication the Notifying Pa rties shall publish, on a publicly available 
website, on a monthly basis, only an aggregat ed figure based on the highest Daily Peak 
Utilization in the preceding month of aggregat ed direct interconnect capacity in the 
Netherlands. 
Section D.  Film1 non-acquisition commitment 
11. The Notifying Parties commit not to acquire, whether directly or indirectly, the possibility 
of exercising influence (as defined in para graph 43 of the Remedies Notice) over the 
whole or part of the Filml Business ( Film1 Commitment ). 
Section E.  Trustee 
I. Appointment Procedure 
12. The Notifying Parties shall appoint a Monito ring Trustee to carry out the functions 
specified in the Commitments for a Monitoring Trustee.  
13. The Trustee shall: 
(i) at the time of appointment, be independe nt of the Parties and their Affiliated 
Undertakings; 
(ii) possess the necessary qualifications to carry out its mandate, for example have 
sufficient experience as an investment bank or consultant or auditor; and 
(iii) neither have nor become exposed to a Conflict of Interest. 
 
5 14. The Trustee shall be remunerated by the Notif ying Parties in a way that does not impede 
the independent and effective fulfilment of its mandate.  
Proposal by the Notifying Parties 
15. No later than two (2) weeks after the Effec tive Date, the Notifying Parties shall submit a 
name or names of one or more natural or  legal persons whom the Notifying Parties 
propose to appoint as the Monitoring Trustee to the Commission for approval.  
16. The proposal shall contain sufficient informa tion for the Commission to verify that the 
person or persons proposed as Trustee fulfil the requirements set out in paragraph 13 and 
shall include: 
(a) the full terms of the proposed mandate, which shall include all 
provisions necessary to enable the Trustee to fulfil its duties under these Commitments; and 
(b) the outline of a work plan which describes how the Trustee intends to 
carry out its assigned tasks. 
Approval or rejection by the Commission 
17. The Commission shall have the discretion to approve or reject the proposed Trustee and 
to approve the proposed mandate subject to any modifications it deems necessary for the Trustee to fulfil its obligations. If only one name is approved, the Notifying Parties shall 
appoint or cause to be appointed, the individu al or institution concerned as Trustee, in 
accordance with the mandate approved by the Commission. If more than one name is 
approved, the Notifying Parties shall be free to choose the Trustee to be appointed from 
among the names approved. The Trustee sha ll be appointed within one week of the 
Commission's approval, in accordance with the mandate approved by the Commission. 
New proposal by the Notifying Parties 
18. If all the proposed Trustees are rejected, th e Notifying 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 paragraph 15. 
Trustee nominated by the Commission 
19. If all further proposed Trustees are rejected by the Commission, the Commission shall 
nominate a Trustee, whom the Notifying Parties shall appoint, or cause to be appointed, 
in accordance with a trustee manda te approved by the Commission. 
II. Functions of the Trustee 
20. The Trustee shall assume its specified duties in order to ensure compliance with the 
Commitments. The Commission may, on its own initiative or at the request of the 
Trustee or the Notifying Parties, give any orders or instructions to the Trustee in order to 
ensure compliance with the conditions an d obligations attached to the Decision. 
Duties and obligations of the Monitoring Trustee with regard to agreements with 
Broadcasters 
 
6 21. The Monitoring Trustee shall make use of the methodology in Schedule 2 for reviewing 
existing and new agreements with Broadcasters  in order to monitor compliance with the 
OTT Commitment. 
Duties and obligations of the Monitoring Trustee with regard to the 
interconnection capacity commitment 
22. The Monitoring Trustee shall monitor compli ance with the interconnection capacity 
commitment set out in Section C. To that end the Monitoring Trustee shall: 
(a) verify, on the basis of information provided to it by the Notifying Parties 
that, in accordance with paragraph 5, the Daily Peak Utilization across the relevant interconnection points does not exceed 80%; 
(b) review Schedule 1 every three (3) months with the aim of ensuring that 
Schedule 1 will always contain a suff icient number of reputable ICPs; 
(c) identify which of the ICPs referred to in Schedule 1 are amongst the ten 
(10) largest ICPs for the purposes of paragraph 9. It shall determine the 
appropriate metric for defining the 10 largest ICPs in consultation with the Notifying Parties, having regard to paragraph 4; 
(d) review every year the minimum capacity level described in paragraph 6 
to determine whether such commitment is still required to prevent that 
the Concentration gives rise to a significant impediment to competition and if so, to agree with the Notifying Parties a number which allows for a 
reasonable level of spare capacity; 
(e) in the event that the Notifying Parties contend that they need to vary the 
group of three (3) ICPs in the situation referred to in paragraph 8, where there is an urgent need to upgrade capacity and it does not prove possible 
to agree or implement such upgrade in a timely manner, to review this matter with the Notifying Parties and if deemed appropriate, to allow the 
Notifying Parties to make this change; 
(f) provide to the Commission, sending the Notifying Parties a copy at the 
same time, a written report within fifteen (15) days after the end of each quarter that shall cover, for that peri od: (i) the three (3) ICPs referred to 
in paragraph 5 and (ii) the Daily Peak Utilisation; and 
(g) promptly report in writing to the Commission, sending the Notifying 
Parties a copy at the same time, if it concludes on reasonable grounds that the Notifying Parties are failing to co mply with any of the Commitments. 
III. Duties and obligations of the Notifying Parties 
23. The Notifying Parties shall provide and shall cause its advisors to provide the Trustee 
with all such co-operation, assistance and information as the Trustee may reasonably 
require to perform its tasks. The Trustee sha ll have full and complete access to any of the 
Parties' books, records, documents, management or other personnel, facilities, sites and 
technical information necessary for fulfilling its duties under the Commitments and the 
Parties shall provide the Trustee upon request with copies of any document (see in relation to the OTT Commitment further Sche dules 2 and 3). The Notifying Parties shall 
make available to the Trustee one or more offices on their premises and shall be available 
 
7 for meetings in order to provide the Trustee with all information necessary for the 
performance of its tasks.  
24. The Notifying Parties shall indemnify the Trus tee and its employees and agents (each an 
Indemnified Party ) and hold each Indemnified Party harmless against, and hereby agrees 
that an Indemnified Party shall have no liab ility to the Notifying Parties for any liabilities 
arising out of the performance of the Trustee's duties under the Commitments, except to 
the extent that such liabilities result from  the wilful default, recklessness, gross 
negligence or bad faith of the Trustee, its employees, agents or advisors. 
25. At the expense of the Notifying Parties, the Trustee may appoint advisors (in particular 
for corporate finance or legal advice), subject to the Notifying Parties' approval (this 
approval not to be unreasonably withheld or delayed) if the Trustee considers the 
appointment of such advisors necessary or appropriate for the performance of its duties 
and obligations under the Mandate, provided that any fees and other expenses incurred 
by the Trustee are reasonable. Should the Notif ying Parties refuse to approve the advisors 
proposed by the Trustee the Commission may approve the appointment of such advisors 
instead, after having heard the Notifying Pa rties. Only the Trustee shall be entitled to 
issue instructions to the advisors. Paragraph 27 shall apply mutatis mutandis .  
26. The Notifying Parties agree that the Comm ission may share Confidential Information 
proprietary to the Notifying Parties with the Tr ustee. The Trustee shall not disclose such 
information and the principles contained in Article 17(1) and (2) of the EUMR apply 
mutatis mutandis . 
27. The Notifying Parties agree that the contact  details of the Monitoring Trustee are 
published on the website of the Commission's  Directorate-General for Competition and 
the shall inform interested th ird parties of the identity and the tasks of the Monitoring 
Trustee. 
28. For a period of ten (10) years from the Ef fective Date the Commission may request all 
information from the Parties that is reas onably necessary to monitor the effective 
implementation of the Commitments. 
IV. Replacement, discharge and reappointment of the Trustee 
29. If the Trustee ceases to perform its functi ons under the Commitments or for any other 
good cause, including the exposure of the Trustee to a Conflict of Interest: 
(a) the Commission may, after hearing the Trustee, require the Notifying 
Parties to replace the Trustee; or 
(b) the Notifying Parties, with the prior approval of the Commission, may 
replace the Trustee. 
30. If the Trustee is removed according to paragraph 29, the Trustee may be required to 
continue in its function until a new Trustee is in place to whom the Trustee has effected a 
full hand over of all relevant information. The new Trustee shall be appointed in 
accordance with the procedure referred to in paragraphs 12 to 19. 
 
8 31. Besides the removal according to paragraph 29, the Trustee shall cease to act as Trustee 
only after the Commission has discharged it from its duties after the Commitments with 
which the Trustee has been entrusted have been implemented and/or have expired in 
accordance with Section F  above. However, the Commission may at any time require 
the reappointment of the Monitoring Trustee if it subsequently appears that the relevant remedies might not have been fully and properly implemented. 
Section F.  Arbitration 
Fast Track Dispute Resolution 
32. In the event that a third party claims that the Notifying Parties or an Affiliated 
Undertaking is failing to comply with the requirements of the Commitments vis-à-vis 
that third party, the fast track dispute re solution procedure as described herein shall 
apply. 
33. Any third party who wishes to avail itself of the fast track dispute resolution procedure (a 
Requesting Party ) shall send a written request to the Notifying Parties (with a copy to 
the Trustee) setting out in detail the reason s leading that party to believe that the 
Notifying Parties are failing to comply with  the requirements of the Commitments. The 
Requesting Party and the Notifying Parties will  use their commercially reasonable efforts 
to resolve all differences of opinion and to settle all disputes that may arise through co-
operation and consultation within a reasonable period of time not exceeding fifteen (15) 
working days after receipt of the request. 
34. The Trustee shall present its own proposal (the Trustee Proposal ) for resolving the 
dispute within eight (8) working days, specifying in writing the action, if any, to be taken 
by the Notifying Parties or an Affiliated Unde rtaking in order to ensure compliance with 
the Commitments vis-à-vis the Requesting Party, and be prepared, if requested, to 
facilitate the settlement of the dispute. 
35. Should the Requesting Party and the Notifying Parties (together the Parties to the 
Arbitration ) fail to resolve their differences of opinion in the consultation phase, the 
Requesting Party shall serve a notice (the Notice ), in the sense of a request for 
arbitration, to the International Chamber of Commerce (hereinafter the Arbitral 
Institution ), with a copy of such Notice and request for arbitration to the Notifying 
Parties. 
36. The Notice shall set out in detail the dispute, difference or claim (the Dispute ) and shall 
contain, inter alia, all issues of both fact and law, including any suggestions as to the 
procedure, and all documents relied upon sha ll be attached, e.g. documents, agreements, 
expert reports, and witness statements. The Notice shall also contain a detailed 
description of the action to be undertaken  by the Notifying Parties (including, if 
appropriate, a draft contract comprising a ll relevant terms and conditions) and the 
Trustee Proposal, including a comment as to its appropriateness. 
37. The Notifying Parties shall, within ten (10)  working days from receipt of the Notice, 
submit its answer (the Answer ), which shall provide detailed reasons for its 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, e.g.  documents, agreements, expert reports, 
and witness statements. The Answ er shall, if appropriate, contain a detailed description 
of the action which the Notifying Parties propose to undertake vis-a-vis the Requesting 
 
9 Party (including, if appropriate, a draft co ntract comprising all relevant terms and 
conditions) and the Trustee Proposal (if not already submitted), including a comment as 
to its appropriateness. 
Appointment of the Arbitrators 
38. The Arbitral Tribunal shall consist of three (3) persons. The Requesting Party shall 
nominate its arbitrator in the Notice; The Notif ying Parties shall nomina te its arbitrator in 
the Answer. The arbitrator nominated by the Requesting Party and by the Notifying 
Parties shall, within five (5 ) working days of the nomination of the latter, nominate the 
chairman, making such nomination known to the parties and the Arbitral Institution 
which shall forthwith confirm the appoint ment of all three (3) arbitrators. 
39. Should the Requesting Party wish to have the Dispute decided by a sole arbitrator it shall 
indicate this in the Notice. In this case, the Requesting Party and the Notifying Parties 
shall agree on the nomination of  a sole arbitrator within five (5) working days from the 
communication of the Answer, communicating th is to the Arbitral Institution which shall 
forthwith confirm the appoin tment of the arbitrator. 
40. Should the Notifying Parties fail to nominate an  arbitrator, or if the two (2) arbitrators 
fail to agree on the chairman, or should the Pa rties to the Arbitration fail to agree on a 
sole arbitrator, the default appointment(s) sh all be made by the Arbitral Institution. 
41. The three-person arbitral tribunal or, as the case may be, the sole arbitrator, are herein 
referred to as the Arbitral Tribunal . 
Arbitration Procedure 
42. The Dispute shall be finally resolved by arbitration under the Rules of the Arbitration 
Court of the International Chamber of Commer ce, with such modifications or adaptations 
as foreseen herein or necessary under the circumstances (the Rules ). The arbitration shall 
be conducted in Amsterdam in the English language. 
43. The procedure shall be a fast-track procedur e. For this purpose, the Arbitral Tribunal 
shall shorten all applicable procedural time-limits under the Rules as far as admissible 
and appropriate in the circumstances. The Part ies 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 Refe rence shall be drawn up and signed by the 
Parties to the Arbitration a nd the Arbitration Tribunal at th e organisational meeting or 
thereafter and a procedural time-table shall be established by the Arbitral Tribunal. An 
oral hearing shall, as a rule, be established within two months of the confirmation of the Arbitral Tribunal. 
45. In order to enable the Arbitral Tribunal to reach a decision, it shall be entitled to request 
any relevant information 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 as sistance by the Trustee in all stages of the 
procedure if the Parties to the Arbitration agree. 
 
10 46. The Arbitral Tribunal shall not disclose conf idential information and apply the standards 
attributable to confidential information unde r the EUMR. The Arbitral Tribunal may take 
the measures necessary for protecting confidential information in particular by restricting access to confidential information to the Ar bitral Tribunal, the Trustee, and outside 
counsel and experts of the opposing party. 
47. The burden of proof in any dispute under these Rules shall be borne as follows: (i) the 
Requesting Party must produce evidence of a prima facie case and (ii) if the Requesting 
Party produces evidence of a prima facie case, the Arbitral Tribunal must find in favour 
of the Requesting Party unless the Notifying Parties can produce evidence to the 
contrary. 
Involvement of the Commission 
48. The Commission shall be allowed and enable d to participate in all stages of the 
procedure by: 
(i) receiving all written submissions (includi ng documents and reports, etc.) made 
by the Parties to the Arbitration; 
(ii) receiving all orders, interim and final awards and other documents exchanged by 
the Arbitral Tribunal with the Parties to the Arbitration (including Terms of 
Reference and procedural timetable); 
(iii) having the opportunity to file amicus curiae briefs; and 
(iv) being present at the hearing(s) and being allowed to ask questions to parties, 
witnesses and experts. 
49. The Arbitral Tribunal shall forward, or shal l order the Parties to  the Arbitration to 
forward, the documents mentioned to the Commission without delay. 
50. In the event of disagreement between the Parties to the Arbitration regarding the 
interpretation of the Commitments, the Arbitral Tribunal may seek the Commission's interpretation of the Commitments before  finding in favour of any Party to the 
Arbitration and shall be bound by the interpretation. 
Decisions of the Arbitral Tribunal 
51. The Arbitral Tribunal 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 EUMR, EU law and general principles of law 
common to the legal orders of the Member  States without a requirement to apply a 
particular national system. The Arbitral Tribuna l shall take all decisions by majority vote. 
52. Upon request of the Requesting Party, the Ar bitral Tribunal may make a preliminary 
ruling on the Dispute. The preliminary ruling shall be rendered within one month after 
the confirmation of the Arbitral Tribunal, sha ll be applicable immediately and, as a rule, 
remain in force until a final decision is rendered. 
53. The Arbitral Tribunal shall, in the prelim inary ruling as well as in the final award, 
specify the action, if any, to be taken by the Notifying Parties or an Affiliated 
Undertaking in order to comply with the Commitments vis-à-vis the Requesting Party 
(e.g. specify a contract including all relevant  terms and conditions). The final award shall 
 
11 be final and binding on the Parties to the Arbitration and shall resolve the Dispute and 
determine any and all claims, motions or reque sts submitted to the Arbitral Tribunal. The 
arbitral award shall also dete rmine 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 retroactively. 
54. The final award shall, as a rule, be rendered within six (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 interpretati on of the Commitments if asked 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. 
56. Nothing in the arbitration procedure shall af fect the power to the Commission to take 
decisions in relation to the Commitments in accordance with its powers under the Merger 
Regulation. 
Section G.  Duration 
57. The OTT Commitment will expire eight (8) y ears from the Effective Date, unless in 
response to a request by the Notifying Parties in accordance with the Review Clause, the 
Commission decides to waive, modify or substitute this commitment on grounds that the 
conditions of competition would no longer ju stify the undiminished continuation of this 
commitment. 
58. The Film1 Commitment will expire on 11 October 2024, unless in response to a request 
by the Notifying Parties in accordance with  the Review Clause, the Commission finds 
that the structure of the market has changed to such an extent that the absence of 
influence over the Film1 Business is no long er necessary to render the Concentration 
compatible with the internal market. 
Section H.  The Review Clause 
59. The Commission may extend the time periods foreseen in the Commitments in response 
to a request from the Notifying Parties or, in appropriate cases, on its own initiative. For 
the avoidance of doubt, the Commission cannot extend the duration of the OTT 
Commitment in Section B and Section C beyond the eight (8) years specified in 
paragraph 57 and the Film1 Commitment in Section D beyond the date specified in 
paragraph 58. Where the Notifying Parties request a change to 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 re quest 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 Notifying Parties. Only in ex ceptional circumstances shall the Notifying 
Parties be entitled to reques t an extension within the last month of any period. 
60. The Commission may further, in response to a reasoned request from the Notifying 
Parties, showing good cause waive, modify or  substitute one or more of the undertakings 
 
12 in these Commitments. This request sha ll 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 Notifying Parties. The request shall not have th e effect of suspending the 
application of the undertaking and, in partic ular, of suspending the expiry of any time 
period in which the undertaking has to be complied with. Such a request may be submitted by the Notifying Parties pursuant to paragraph 57 or 58, or in exceptional 
circumstances, in any other instance. 
Section I.  Entry into Force 
61. The Commitments shall take effect upon the date of adoption of the Decision. 
 
  
 
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14 SCHEDULE 2 — REVIEW OF AGREEMENTS 
 Pursuant to Section E, the following methodology shall be applied for reviewing 
agreements with Broadcasters by the Trustee in order to monitor compliance with the 
OTT Commitment, set out in Section B: 
(a) Any (part of an) agreement with a Broadc aster, existing on, amended or signed 
after the Effective Date, in so far as it directly or indirectly relates to OTT 
services, and regardless its form ( Relevant Agreement ), shall be provided to the 
Trustee for review in a database to which the Trustee and Commission have 
access.  
(b) The Parties will maintain a rolling list of potential Relevant Agreements to be 
reviewed by the Trustee with an indication of the expected commencement, 
duration and finalisation of negotiations. This rolling list is to be updated every 
three months.  
(c) The Parties have the discretion whether to submit an agreement for review either 
before or after its signature. If afte r signature, the Parties will not delay 
submission of the agreement for review. 
(d) In the event that the Parties and the Broadcaster are enforcing terms, without 
signing a formal agreement, the Parties will provide the Trustee with the then 
current draft of such agreement (or any summary of such terms including by e-
mail) to the extent it directly or indirectly relates to OTT services. 
(e) The Trustee will have 48 hours to review  agreements which have not yet been 
signed and one week to review if the agreement has been signed. 
(f) Communication with the Commission: 
(i) The Trustee will keep the Commission informed of any potential 
concern identified by the Trustee relating to terms addressing OTT 
services, identified by the Trustee, re gardless of whether it is ultimately 
(quickly) resolved in cooperation with the Parties. 
(ii) The Parties will have the opportunity to discuss queries with the Trustee 
before the Trustee escalating any issue identified to the Commission. 
  
 
 
15 SCHEDULE 3 —INFORMATION PROVISION  
Pursuant to Section E, the Notifying Parties shall secure that the Trustee shall be provided with 
all information reasonably required in order to undertake its functions. To  this end, the Parties 
shall provide the Trustee, on a regular basis, but and at least automatically every quarter, and in 
addition in timely manner on request, with the fo llowing (which may vary from time to time by 
agreement with the Trustee):  
(g) A chart showing for the last month for each of the three ICPs, daily peak 
capacity (as a percentage of total), daily capacity (as a percentage of total) and 
daily available bandwidth in Te ra bits per second (Tbps).  
(h) Three documents in a format mutually ag reed with the Trustee, containing the 
following: 
(i) Capacity planning notes; 
(ii) Hourly data (one line every hour fo r each interface of the three ICPs) 
with data on Device, Interface, Timestamp, Average usage, Minimum Usage and Maximum Usage; 
(iii) Interface speeds (total physical capacity for each interface of the three 
ICPs) snapshot of one day per month with data on Devi ce, Interface and 
Speed; and 
(iv) Daily interface 95th percen tile capacity (one line for each interface of the 
three ICPs, one column per day, done monthly).