Commission Decision of 6//2/0027 declaring a concentration to be compatible with the common market (Case No IV/M.795 - VODAFONE AIRTOUCH / MANNESMANN) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic)

To the notifying party

Dear Sir/Madam,

Subject: Case No COMP/M.1795 - Vodafone Airtouch/Mannesmann - Commission decision amending a Decision declaring a concentration compatible with the common market and the EEC Agreement

1. On 14 January 2000, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EEC) No 4064/89 ("the Merger Regulation") as last amended by Regulation (EC) No 1310/97 [1] by which the Vodafone Group (previously Vodafone Airtouch Plc) ("Vodafone"), within the meaning of Article 3(1)(b) of the Regulation, acquires sole control over Mannesmann AG ("Mannesmann").

[1] OJ L 189, 9.7.1990, p. 1, corrigendum; OJ L 40, 13.2.1998, p. 17.

2. On 12 April 2000, the Commission adopted a decision declaring the proposed concentration compatible with the common market and the EEA agreement provided that the commitments entered into by Vodafone were complied with. The commitments entered into by Vodafone related to serious doubts raised for the provision of mobile communications services in the United Kingdom and Belgium since the transaction lead to horizontal overlaps in these markets. Furthermore, the Commission's investigation raised serious doubts as regards the emerging market for the provision of seamless pan-European mobile telecommunications services to internationally mobile customers.

3. In order to remedy the concerns relating to the provision of seamless pan-European mobile telecommunications services to internationally mobile customers the Vodafone Group of companies committed to inter alia;

(a) make available to third party operators upon the launch of any pan-European retail offer any single underlying Inter-Operator-Tariff (IOT) offered by any of the members of the Vodafone Group upon non-discriminatory terms and conditions. Such tariff or tariffs should be made available on the same terms (both regarding price and quality of service) as between members in the group. Further, the members of the Vodafone Group shall use their best endeavours to make such tariff or tariffs available on the same terms (both regarding prices and quality) where any member of the Group has an economic interest falling short of sole control under the Merger Regulation, from time to time in a mobile telecommunications operator (Clause 21).

(b) to ensure that the non-discrimination principle will be applied in a way that the members of the Vodafone Group will not be able to engage in margin squeezing practices or other anti-competitive behaviour against third parties including an obligation to ensure that third parties are able to make at least a reasonable return at the IOT level (Clause 23, Annex 1).

4. In the event of a rejection by Vodafone for a request under Clause 21 to make wholesale roaming tariffs available to third party operators, Clause 24 of the Undertakings provide that if a third party operator disputes the non discriminatory nature of the terms offered by the members of the Vodafone Group or any of the mobile telecommunications operators in which any of the members of the Group has an interest falling short of sole control, a Fast Track arbitration dispute resolution procedure will apply. Clause 25 also provides that the Fast Track Procedure shall be in English and shall be conducted in accordance with the rules of the London Court of Arbitration and the rules of the London Court of Arbitration will be amended accordingly.

5. On 24 June 2002 Vodafone informed the Commission that [...] the London Court of Arbitration would not be bound by any Commission interpretation of the scope of the Decision unless this is specifically required by the Commission's decision. Vodafone therefore requested the Commission that a sentence to this effect should be included in [Clause 25] of the Undertakings as well as in a relevant amendment to the Decision itself. This should [...] require the arbitrators to follow the Commission's interpretation.

6. Given the need to ensure that the Undertakings are interpreted in the light of the competitive problem identified by the Commission in its decision, to which they constitute the solution and in particular the need to ensure legal certainty as regards the interpretation of the obligations stemming from the Undertakings in case of a dispute brought under Clause 24 of the Undertakings, the Commission finds that the relevant amendments need to be made to the Commission's decision and in the Undertakings.

VI. CONCLUSION

7. For the above reasons, the Commission has decided that paragraph 58 of the Decision and Clause 25 of the Undertakings is amended as set out in the Annex to this Decision.

8. This decision is adopted in application of Article 6(1)(b) of Council Regulation (EEC) No 4064/89.

For the Commission (signed)

Mario MONTI Member of the Commission

Annex

Amendment to Commission Decision in Case No COMP/M.1795 -

Vodafone Airtouch / Mannesmann of 12.04.2000

The Commission's decision in Case No COMP/M.1795 - Vodafone Airtouch / Mannesmann is amended as follows:

Paragraph 58 of the Decision:

"In particular, Vodafone Airtouch has proposed to set up a fast track dispute resolution procedure in order to solve disagreements between the merged entity's group and third parties on third parties' access to roaming arrangements, third parties' access to wholesale arrangements, standards and SIM-cards". The Fast Track dispute resolution will take the form of an arbitration procedure conducted in accordance with the rules of the London Court of Arbitration and the rules of the London Court of Arbitration will be amended accordingly. In so far as the rules of the London Court of Arbitration permit, the arbitrators shall, in the event of disagreement between the parties to the arbitration regarding the interpretation of the Undertakings, seek and be bound by the Commission's interpretation of the scope of the Undertakings before finding in favour of any party to the arbitration.

Clause 25 of the Undertakings:

"The arbitration shall be in English and shall be conducted in accordance with the rules of the London Court of Arbitration and the rules of the London Court of Arbitration will be amended accordingly". In the event of disagreement between the parties to the arbitration regarding the interpretation of the Undertakings, the arbitrators shall, in so far as the rules of the London Court of Arbitration permit, seek and be bound by the Commission's interpretation of the Undertakings before finding in favour of any party to the arbitration.