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, 26.07.2021  
C(2021 ) 5698 final  
PUBLIC VERSION  
 
Proximus NV/SA  
Koning Albert II -laan 27  
Boulevard du Roi Albert II  
1030  – Brussels  
Belgium  
 
Eurofiber N V  
Belgicastraat 5 bus 7                           
Building Fountainpla za 504  
1930 – Zaventem  
Belgium  
Subject : Case M. 1007 0 – EUROFIBER  / PROXIMUS  / JV 
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 1 8 June 2021, the European Commission received notification of a proposed 
concentration (“the Transaction”) pursuant to Article 4 of the Merger Regulation by 
                                                 
1  OJ L 24, 29 .1.2004, p. 1 (the “Merger Regulation”). With effect from 1 December 2009,  the Treaty on the 
Functioning of the European Union (“TFEU”) has introduced certain changes, such as the replacement of 
“Community” by “Union” and “common market” by “internal marke t”. The terminology of the TFEU will 
be used throughout this decision.  
2  OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).  

 
 
2 which Proximus, NV/SA (“Proximus”) and Eurofiber NV  (“Eurofiber ”, together 
with Proximus, the “Notifying  Parties”) acquire, within the meaning of Articles 
3(1)b and 3(4) of the Merger Regulation, joint control over a joint venture (the 
“JV”).3 Proximus, Eurofiber and the JV are collectively referred to as “the Parties”.  
1. THE  PARTIE S  
(2) Proximus  is the incumbent telecommunications operator in Belgium. It is active in a 
full range of electronic communications services providing wholesale and retail 
services, fixed and mobile telecommunications, voice and data services, mainly at 
national level within Belgium. Proxi mus is listed on the Brussels Stock Exchange. 
The Belgian State owns 53.5% of Proximus’ shares , Proximus owns 4.5% of its 
shares and 42% of Proximus’ shares are publicly traded.4  
(3) Eurofiber  is an operator of electronic communication services and networks i n 
Belgium, with a specific focus on (wholesale and retail) dedicated connectivity 
services and networks over fiber to business customers and service providers with 
customised needs. Eurofiber does not develop mass -market solutions in Belgium. 
Eurofiber is part of the Antin Infrastructure Partners Group (“AIP”), which amongst 
other things, invests in infrastructure and infrastructure -related assets.  
(4) The JV5 will roll out and operate a dense passive6 open point -to-point (“P2P”) Fiber -
To-The-X (“FTT x”) networ k7 in certain parts of Wallonia ( Belgium ) and offer 
access services to its network infrastructure to telecommunication operators, 
including Proximus  and Eurofiber . This will allow Proximus , Eurofiber  and other 
operators to provide (i) all types of retail s ervices to residential and business 
customers, as well as (ii) wholesale active network infrastructure access services. In 
the future, the JV will likely develop (passive) dark fiber solutions, although not as 
                                                 
3  Publication in the Official Journ al of the European Union No C 248 , 25.06.2021 , p. 7. 
4  Notifying Parties’ response to RFI 6; Form C O, footnote 7. The Notifying Parties indicate that to their 
knowledge the Belgian State does not control a company that is active in the same market or upstream / 
downstream of the JV. In light of this, while the Belgian State is Proximus’ largest sharehol der, the 
Commission considers that, in any event, it is not necessary for the Commission to reach a definitive 
conclusion on the independence of Proximus from the Belgian State as the Transaction does not raise 
serious doubts as to its compatibility with t he internal market regardless of whether or not Proximus has 
an independent power of decision from the Belgian state.  
5  This JV constitutes a newly -created undertaking (see paragraph 139 of the Commission Consolidated 
Jurisdictional Notice under Council R egulation (EC) No 139/2004 on the control of concentrations 
between undertakings).  
6  The JV’s future activity is about passive access allowing service providers to “physically” rent the JV’s 
first-mile infrastructure. “Passive” (also referred to as “unli t” or “dark” services) means that there is no 
active equipment on the infrastructure to which access is provided. It is the responsibility of the service 
provider to build this extra layer (OSI model) in order to offer services and connectivity to end -customers. 
The passive P2P FTTH network includes: (i) infrastructure (i.e., physical elements that are required to 
build the FTTH network such as trenches, ducts and poles (areal) on which the network is deployed); and 
(ii) passive network layer (i.e., the phy sical elements that are required to build the FTTH Network such as 
the optical fiber cables, fiber enclosures, optical distribution frames, patch panels and splicing shelves).  
7  FTTx refers to a telecommunications (optical fiber) network architecture used  within the local loop to 
deliver broadband connections to homes and businesses. The passive FTTx Network means the fiber 
access network to which the operator (wholesale customer) is granted access for purposes such as Fiber -
to-the-Home (“FTTH”) or Fiber -to-the-Premises (“FTTP”) network services.  
 
 
3 its primary purpose.8 The JV itself will not o perate at the retail level or provide any 
active  wholesale access services.  
2. THE  OPE RATION   
(5) The main objective of the Transaction is for Proximus and Eurofiber , through the 
JV, to enlarge and accelerate the rollout of FTTH in Wallonia  in a cost -efficient wa y. 
There is a rather low level of fiber penetration in Wallonia  compared to other 
Member States , owing to the exceptionally strong penetration of cable -TV networks 
and the significant investments that were made in the traditional copper network to 
enhance it with xDSL -technologies and techniques. Accordingly, end of March 
2020, Proximus announced its ambition to accelerate its deployment plans to bring 
fiber to 2.4 million homes by 2025, notably via the conclusion of partnerships with 
third parties such as Eurofiber .9 
(6) The JV will develop and deploy its own passive FTT x-infrastructure and will offer a 
new and additional choice to interested operators and service providers. According 
to the Notifying Parties, the network and services provided by the JV will be  neutral 
and non -discriminatory to ensure access for all interested operators and to enhance 
competition on the relevant electronic communications downstream markets.  
(7) On 2 8 October  2020, the Notifying Parties signed a Subscription and Shareholders’ 
Agreeme nt (“SSHA”).10  
2.1. Joint control   
(8) Proximus and Eurofiber will respectively hold 49.9% and 50.1% of the JV’s share 
capital and will exercise decisive influence over the JV.11 Therefore, they exercise 
joint control over the JV. In particular, t he JV’s  Board will consist of four Board 
members (“ directors ”) and the Notifying Parties will each be entitled to nominate 
two directors, including the Chairman nominated by Eurofiber .12 Each of the 
Notifying Parties has veto rights that are sufficient to enable them to exerc ise 
decisive influence  in relation to the strategic business behaviour of the JV . These 
veto rights relate to the appointment and dismissal of members of senior 
                                                 
8  Form CO, paragraphs 19, 21, 181 and following. When the Notifying Parties refer to “dark fiber 
solutions”, they refer to the physical infrastructure required for the delivery of high -quality access 
services. See BIPT, 13 December 2019, Analyse van de markt voor hoogwaardige toegang , paragraph 319 
(hereinafter the “BIPT decision of 13 December 2019”).  
9  See also Commission decision of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV in 
relation t o the creation of similar JV by Proximus and Nexus Infrastructure in Flanders.  
10  Annex 1 to the SSHA. The SSHA was amended in the course of the pre -notification phase. The amended 
and restated version of the SSHA is currently being prepared and has not y et been signed by the Notifying 
Parties. However, the Notifying Parties indicated “ that the amendments impacting joint control and 
included in Annexes 1.1 and 1.2 have been agreed upon by the Notifying Parties and are therefore already 
to be considered as part of the SSHA which they have entered into ”, Form CO, footnote 26.  
11  This is subject to the possibility of attracting a new shareholder (third party investor) as a minority 
shareholder of the JV (who could hold up to […]% of the shares), Article 5.1 of  the SSHA.  
12  Article 8 of the SSHA. […].  
 
 
4 management, the business plan and any modifications thereof,13 and other veto rights 
and market specific rights.14  
(9) Therefore, as a result of the Transaction, Proximus and Eurofiber will jointly control 
the JV within the meaning of Article 3(1)(b) of the Merger Regulation.  
2.2. Full-functionality   
(10) The JV will be fully functional. First, the JV will have it s own presence on the 
market independent ly from the Notifying Parties. It will have its own management, 
staff, assets and financial resources to conduct its business activities on a lasting 
basis. The JV will moreover have sole ownership of the FTTx networ k.15 Second, 
the JV will have activities  going  beyond one specific function for the parents as it 
will deploy, run, and market the FTT x network, and  it will  offer access to and 
passive services on the FTTx network to operators based on the wholesale offer. 
Accordingly, the JV will take the commercial and deployment risk.16 Third, as to 
sale/purchase relations with the parents, the network will be open and neutral 
meaning that it will be available to all interested service providers under non -
exclusive and non -discriminatory terms.17 Moreover, the relationship between the JV 
and its parents  will be truly commercial in character, as the JV will deal with its 
parents at arm’s length on the basis of normal commercial conditions.18 Fourth, the 
JV will operate and mar ket the network following its construction for a period of 
                                                 
13  Articles 2.4.1, 8.3.2(f), 12.1 and Schedule 8 of the SSHA (affirmative vote of at least [details regarding 
strategic organisation/decision of the Parties] and [details regarding  strategic organisation/decision of the 
Parties ]). 
14  The SSHA includes several mechanisms in relation to which both Parties have a veto right including, for 
example, [details regarding strategic decisions of the Parties] . Moreover, Proximus and Eurofiber have 
agreed in Schedule 2 of the SSHA to a “Strategic Plan” that contains elements that the Notifying Parties 
consider are key to determine the commercial and strategic conduct of an undertaking active as a 
wholesale market player in the roll -out of a dense FTTx -infrastructure (i.e., the network coverage, the 
deployment seed and coverage rate, the unit cost and the pricing principles). While the Strategic Plan is in 
principle not binding, according to the Notifying Parties, many provisions are binding because of their 
incorporation in the SSHA, such that Proximus and Eurofiber cannot deviate from them without both their 
consent. Form CO, paragraph 28.  
15  Form CO, paragraphs 43 -45.  
16  Form CO, paragraphs 48 -49. 
17  Form CO, paragraphs 50 -53. 
18  Form CO, paragraph 50; Articles 5.5.6 and 20.5. 1 of the SSHA. Proximus and Eurofiber expect that sales 
to third parties will reach approximately [20-30]% of the JV’s total sales in the first year and that these 
sales will gradually increase, reaching at least [20-30]% in year […]. Such an expectation i s also reflected 
in the business plan (Form CO, Annex 36). See also Q1 – Questionnaire to market participants, response 
to question 29, where a number of respondents indicated that they consider it critical or important to 
obtain access to the JV’s infrast ructure. In the present case, there are strong indications that the Parties 
will have access to the JV’s infrastructure at market terms. First, the JV’s FTTx network will be open and 
neutral, offering passive access to third parties and its parents on a no n-discriminatory basis and pricing 
model. This means that each purchaser will be offered the same price per comparable unit regardless of 
the aggregate volume or amount of units purchased by such purchaser (including Proximus). These non -
discriminatory pri cing models are contained in Annex 2 to the Master Services Agreement on Wholesale 
ODF Access (Form CO, Annex 8). Second, the Commission recalls that Eurofiber, one of the parents of 
the JV together with Proximus, is not active on the downstream retail tel ecommunication markets in 
Belgium (except for business connectivity services) and therefore will not have any incentive to limit the 
JV’s wholesale revenues by offering terms that are not at market price (see also paragraph (168) ). 
 
 
5 minimum […] years, with a tacit renewal of […] years.19 Accordingly, the JV is 
intended to operate on a lasting basis.  
(11) Therefore, the JV will be a full -function joint venture within the meaning of Article 
3(4) of the Merger Regulation.    
3. EU DIME NSION   
(12) In the last financial year, Proximus and Eurofiber achieved  a combined aggregate 
world -wide turnover of more than EUR 5 ,000 million  (Proximus: EUR 5, 442.9 
million; Eurofiber : […] million).20 Each of th e undertakings concerned  has an EU -
wide turnover in excess of EUR 250 million  (Proximus: EUR […] million; 
Eurofiber : [...] million) , but they do not achieve more than two -thirds of their 
aggregate EU -wide turnover within one and the same Member State.  
(13) The notified operation therefore has an EU dimension  within the meaning of Article 
1(2) of the Merger Regulation .  
4. RE LE VANT MARKE TS   
(14) The Transaction concerns the following markets in Belgium: (i) the wholesale 
broadband access market, where Proximus is curren tly active and the JV will 
become active (Section 4.1);21 (ii) the wholesale leased lines market, where 
Proximus and Eurofiber are currently active and the JV will likely become active 
(Section 4.2); (iii) the retail mobile markets, where Proximus is active (Section 4.3); 
(iv) the retail fixed voice market, where Proximus is active (Section 4.4); (v) the 
retail fixed internet market, where Proximus is active (Section 4.5); (vi) the retail 
business connectivity services market, where Proximus and Eurofiber are active 
(Section 4.6); and (vii) a potential retail market for multi -play services, where 
Proximus is active (Section 4.7). 
4.1. Wholesale broadband access  
4.1.1.  Relevant product market  
(15) Wholesale broadband access ( also defined as wholesale access to internet services) 
includes different types of access to fixed connections that allow internet service 
providers to provide services to end consumers. It comprises: (i) physical access at a 
fixed location (such as local loop unbundling (“LLU”)22), (ii) non -physical or virtual 
                                                 
19  Form CO, paragraph 54; Article 27.1 of the SSHA.  
20  Turnover calculated in accordance with Article 5 of the Merger Regulation.  
21  Note that the JV will only be active with wholesale broadband local  access services, while Proximus is  
active with wholesale broadband local , central , and resale  access services (Section 4.1). 
22  LLU (local loop unbundling): unbundled (shared) access to metallic loops of the local access network in a 
number of lo cal telecommunications exchanges (in particular in urban areas), as this is the most cost -
efficient way for alternative operators to provide differentiated retail broadband services.  
 
 
6 network access at a fixed location (such as “bitstream” access), and (iii) resale of a 
fixed provider's internet access services  (“wholesale resale broadband access”) .23 
4.1.1.1.  The Commission’s  previous  pract ice 
(16) In previous decisions, including relating to the Belgian market ,24 the Commission 
defined the product market as a separate w holesale broadband access market,  and 
left the question open as to whether it should be subdivided according to the type of 
acces s (i.e., LLU, bitstream or resale ( see paragraph (15) above )), or based on t he 
level where the point of interconnection is situated .25 The latter  connects the 
infrastructure of the wholesale provider and that of t he customer and comprises  (i) 
local broadband access and (ii) central broadband access .26 
(17) The Commission  also considered but left open whether the wholesale broadband 
access market should be segmented according to the type of technology used 
between (i) sta nd-alone DSL access27, (ii) stand -alone cable access, and (iii) cable 
access for all TV and internet services.28 In the Commission’s most recent decision 
related to the Belgian market, the Commission considered but left open whether the 
wholesale broadband a ccess market should be segmented according to the type of 
technology (i.e. , DSL/copper, ca ble and fiber).29  
4.1.1.2.  The Notifying Parties’ views  
(18) The Notifying Parties do not object to the existence of a single overall wholesale 
broadband access market, but conside r that a further segmentation according to the 
point of interconnection (i.e., local and central) and underlying technology (i.e., 
fiber) may also be relevant.30 Such a segmentation would be in line with the 2014 
Recommendation ,31 which defines distinct mark ets for wholesale local access, which 
                                                 
23  Commission decisions of 9 July 2018 in case M.8808 – T-Mobile Austria /UPC Austria , paragraph 73; of 4 
February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital 164.  
24  Commission decision of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
24. 
25  Commission decisions of 9 July 2018 in ca se M.8808 – T-Mobile Austria/UPC Austria , paragraph 76; of 4 
February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital 164; of 20 September 2013 in case 
M.6990 – Vodafone/Kabel Deutschland , paragraph 161; of 29 June 2009 in case M.5532 – Carphone  
Warehouse/Tiscali UK , paragraphs 28 - 34. 
26  Commission decisions of 24 October 2014 in case M.7307 – Electricity Supply Board/Vodafone  
Ireland/JV , paragraph 22; of 29 June 2009 in case M.5532 – Carphone Warehouse/Tiscali UK , paragraph 
33. 
27  The Notifying  Parties indicated that standalone DSL access is, by definition, related to the use of a copper 
network only as the underlying access infrastructure for the provision of this service, given that the xDSL -
technologies are specific to such copper infrastruct ure.  
28  Commission decisions of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraphs 71 -74; of 
4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recitals 165 -168. 
29  Commission decision of 24 March 2021 in case M.10087 – Proximus/N exus Infrastructure/JV , paragraph 
24. 
30  Form CO, paragraphs 111 and 127.  
31  European Commission's Recommendation on relevant product market and service markets within the 
electronic communications sector susceptible to ex ante regulation in accordance wit h Directive 
2000/21/EC of the European Parliament and of the Council on a common regulatory framework for 
electronic communications networks and services, 9 October 2014 (the “2014 Recommendation”), 
updated in 2020, i.e., Recommendation on relevant product  and service markets within the electronic 
communications sector susceptible to ex ante regulation in accordance with Directive (EU) 2018/1972 of 
 
 
 
7 includes LLU as well as virtual products that exhibit functionalities equivalent or 
comparable to key features of physical unbundling, and for wholesale central  access, 
which includes bitstream products with certain ch aracteristics (respectively markets 
3(a) and 3(b)).  
(19) Nevertheless, the Notifying Parties consider that the exact product market definition 
can be left open as the Transaction does not raise serious doubts, regardless of the 
envisaged product market definit ion.32 
4.1.1.3.   The Commission’s assessment  
(20) A majority of the respondents consider that there is a single overall wholesale 
broadband access market in Belgi um.33 A minority  of respondents  consider that a 
possible segmentation according to the type of access to fixed  connections  (i.e., 
wholesale LLU, bitstream or resale broadband access)  would be appropriate .34  
(21) Some  respondents also referred to a decision taken in 2018 by the Belgian telecom 
regulator (“ BIPT ”).35 In its decision, t he BIPT identified a (i) local broadba nd access 
market  (market 3(a)) , which includes the passive physical access and the virtual 
access to copper and fiber networks at a local level, excluding possible forms of 
local access on the cable networks and access to Fiber -to-the-Office (“FTTO”), and 
which is separate from the (ii) central  broadband access market  (market 3(b)) .36 One 
respondent critici sed the BI PT’s decision, noting that the Belgian wholesale 
broadband access  markets should be technologically neutral (i.e. , including both 
copper and cab le).37 
(22) In light of the above, the Commission considers that, for the purpose of this decision, 
the question of the exact scope of the wholesale broadband access market with 
respect to its possible segmentations ((i) the level where the point of interconnect ion 
is situated (i.e., wholesale local or central broadband access), (ii) the type of access 
to fixed connections (i.e., wholesale LLU, bitstream or resale broadband access), or 
(iii) the type of technology (i.e., DSL/copper, cable or fiber)) can be left o pen as the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement under any of the plausible product 
market definitions considered .  
                                                                                                                                                      
the European Parliament and of the Council of 11 December 2018 establishing the European Electronic 
Communicat ions Code, 18 December 2020 (the “2020 Recommendation”).  
32  Form CO, paragraph 112.  
33  Q1 – Questionnaire to market participants, response to question 17.  
34  Q1 – Questionnaire to market participants, response to question 17.2.  
35  Q1 – Questionnaire to mar ket participants, response to question 17.1. BIPT decision of 29 June 2018, 
paragraphs 1003 and 1015. The BIPT concluded in the direction of technology segmentation (DSL and 
cable), i.e., excluding forms of local access on the cable networks (and access to  the FTTO) because it did 
not consider that these were substitutable forms of access, both from a demand and a supply side.  
36  Q1 – Questionnaire to market participants, response to question 17.1.  
37  Q1 – Questionnaire to market participants, response to question 17.1.  
 
 
8 4.1.2.  Relevant geographic market  
4.1.2.1.  The Commission’s pre vious practice  
(23) In its decisional practice, the Commission considered whether the geographic market 
for wholesale broadband access was national (i.e. , Belgi um) or limited to the 
coverage area of each cable operator, but ultimately left the definition open.38 In a 
recent decision concerning the Belgian market, the Commission concluded  that, for 
the purpose of that decision , the geographical scope corresponded to the coverage 
area of each cable operator (i.e. , Telenet, Brutélé and VOO/Nethys ).39 In the 
Commissio n’s most recent decision related to the Belgian market, the Commission 
considered the effects of the Transaction on both a national level and at the level of 
the cable operator’s coverage area .40  
4.1.2.2.  The Notifying Parties’ views  
(24) The Notifying Parties consider that the markets could be national, but they may also 
need to be defined along more limited borders, such as for instance at regional /cable 
zone level41 or on the basis of the network  operator’s footprint  concerned.42  
(25) In any event, t he Notifying Parties con sider that, when looking at those narrower 
geographic dimensions of the market, the respective wholesale broadband access 
offers of Proximus and the JV will not be in direct competition with each other but 
will in fact be complementary from a geographic pe rspective. Indeed, the JV will 
only deploy its own FTT x-infrastructure in areas in which there is no standalone 
deployment by Proximus of such infrastructure. Therefore , from a geographic 
perspective, the respective FTT x-network deployments by Proximus and  the JV will 
be distinct.43 
(26) Consequently , the Notifying Parties consider that the exact geographic market can be 
left open as the Transaction does not raise concerns under any possible delimitation.  
4.1.2.3.  The Commission’s assessment  
(27) The results of the market inve stigation are inconclusive regarding whether a  
wholesale broadband access  market should be defined  as national44, according to the 
                                                 
38  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
32; of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital 172; of 29 June 2009 in 
case M.5532 – Carphone Warehouse/Tisc ali UK , paragraphs 48 -53. 
39  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 79.  
40  Commission decision of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
31. 
41  Form CO, Figure 33. In the  Belgian market, the cable zone operator’s coverage areas are very similar to 
the regions in Belgium. There are currently two cable operators active in Belgium: Telenet and VOO 
(Brutélé/Nethys – see M.9757). Telenet’s cable zone coverage area mostly covers  the Flemish region of 
Belgium (including part of Brussels), while VOO’s cable zone coverage area mostly cover the Walloon 
region of Belgium (including part of Brussels).  
42  Form CO, paragraphs 112, 128 and 139.  
43  Form CO, paragraph 112.  
44  Correspondin g to the territory of Belgium.  
 
 
9 coverage area of each cable operator /region45 or according to the footprint of the 
operator’s network (hereafter “operator’s fo otprint”) .46,47  
(28) In this respect, in its decision of 29 June 2018, the BIPT defined a separate (i) 
national wholesale local access market; (ii) national wholesale central access market 
(limited to copper and fibre networks); and a (iii) wholesale central acc ess market 
(limited to cable networks) with a geographic dimension matching the coverage area 
of each cable operator.48  
(29) In light of the  above and for the purpose of this decision, the Commission considers 
that the relevant geographic market is at the natio nal level and at the level of the 
cable operator’s coverage area/region, but it will also  assess the effects of this 
Transaction on  the wholesale broadband access market  at the level of the operator’s 
footprint .  
(30) In any event, the exact delineation of the relevant geographic market can be left open 
given that the Transaction would not raise serious doubts as to its compatibility with 
the internal market or the functioning of the EEA Agreement under any of the 
plausible geographic market definitions consider ed.  
4.2. Wholesale supply of leased lines  
(31) Wholesale leased lines are part -circuits that allow telecommunications providers to 
connect their own networks to end user sites for the supply of business connectivity 
services. In addition, wholesale leased lines are  an input for the provision of fixed 
and mobile telecommunications services.49 
4.2.1.  Relevant product market  
4.2.1.1.  The Commission’s previous practice  
(32) In previous decisions, the Commission considered a general product market for 
wholesale supply of leased lines and pote ntial further segmentations between trunk 
and terminating segments, passive and activated lines, as well as according to 
bandwidth (below/above 2Mbits/s).50 The Commission has also considered a further 
segmentation of the wholesale leased lines market into passive (dark fiber) and 
active infrastructure (traditional managed leased lines, Ethernet services with 
                                                 
45  See Footnote 41 above.  
46  For instance, for the JV’s footprint, the Notifying Parties have agreed upon a short list of administrative 
areas within Belgium (as identified by a numerical code g ranted by Statbel, the Belgian bureau of 
statistics, also known as “NIS zone”), i.e., cities and neighbourhoods in the Walloon region of Belgium 
within which the FTTx network will be deployed by the JV. These NIS zones constitute the JV’s 
footprint. See Fo rm CO, paragraph 25 and Schedule 2 to Annex 1, the SSHA.  
47  Q1 – Questionnaire to market participants, response to question 18.  
48  BIPT decision of 29 June 2018, Section S9.1 -9.4 (page 32).  
49  Commission decision of 18 July 2019 in case M.8864 – Vodafone/ Certain Liberty Global Assets , recital 
196.  
50  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
41; of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 199; of 4 February 
2016 in case M.7637 – Liberty Global/BASE Belgium , recital 146; of 14 April 2014 in case M.7109 – 
Deutsche Telecom/GTS , paragraph 70.  
 
 
10 guaranteed bandwidth).51 Ultimately, the Commission left the market definition s 
open.  In the Commission’s most recent decision relating to  the Belgian m arket, the 
Commission found an overall wholesale leased lines market. The question whether 
this product market included dark fiber or not, was left open .52  
4.2.1.2.  The Notifying Parties’ views  
(33) The Notifying Parties submit that , for the purpose of the Transaction,  the relevant 
market is the broader wholesale market for high -quality access provided at a fixed 
location, including the wholesale supply of leased lines , excluding dark fiber .53 This 
is based on the evolving demand of business customers for high -quality acc ess as a 
consequence of which operators use a number of different wholesale inputs, ranging 
from leased lines using traditional or alternative interfaces to other wholesale access 
products.  These products fulfil certain high -quality characteristics such as : (i) 
connectivity providing a dedicated connection per user point to point very high 
(symmetrical) bandwidth lines; (ii) extremely low packet drop ratio (IP packet loss); 
(iii) service level agreement up to 7 days/7, 24 hours/24; (iv) symmetrical or near -
symmetrical line profiles; (v) very high bit rates up to 10 Gbps, including often also 
a guaranteed bandwidth; (vi) possibility of security thanks to the redundancy of the 
equipment and of the physical line (double path, double connection to the network, 
double CPE, etc.); and (vii) jitter and wander guarantees.54  
(34) Similarly, the 2014 and 2020 Recommendation s identif y such a wholesale high -
quality access provided at a fixed location (market 2 of the 2020 Recommendation or 
the “wholesale dedicated access” mar ket). In its most recent decision, the BIPT also 
identified  a wholesale market for high -quality access, without distinction as to the 
technology or speed and use of these services, but excluding dark fiber.55 
4.2.1.3.  The Commission’s assessment  
(35) A large majority of respondents consider that there is a single overall market for 
leased lines in Belgium , without further segmenting the market .56  
(36) In line with the BIPT’s decision of 13 December 201957, a majority of respondents 
consider that the leased lines  market include s various wholesale inputs, ranging from 
leased lines using traditional or alternative interfaces independently of the 
underlying infrastructure, to other wholesale access products, which fulfil certain 
high-quality access requirements .58 This would include (i) all high -quality access 
services (whether or not they include a trunk segment); (ii) all Ethernet services, 
WDM59 leased lines and SDH60 leased lines, (iii) all P2P, point -to-multipoint and 
                                                 
51  Commission decisions of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
201; of 14 April 2014  in case M.7109 – Deutsche Telecom/GTS , paragraph 70.  
52  Commission decision of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
41. 
53  Form CO, paragraphs 159 and 164.  
54  Form CO, paragraph 155 and footnote 157.  
55  BIPT decision  of 13 December 2019, paragraphs 399 and 423 and Form CO, paragraph 366.  
56  Q1 – Questionnaire to market participants, response to question 19.  
57  BIPT decision of 13 December 2019, paragraphs 399 -423.  
58  Q1 – Questionnaire to market participants, respons e to question 19.  
59  Wavelength -division multiplexing.  
 
 
11 multipoint -to-multipoint Ethernet services; (iv) both “access” a nd “backhaul” type 
services; and (v) all of these high -quality access services independently of their 
speed.  
(37) In its decision of 13 December 2019, the BIPT consider ed that dark fiber does not 
constitute a substitute for active leased lines (or any other sub stitutable wholesale 
high-quality access services). The BIPT determined that the wholesale leased lines 
services, and more generally all substitutable wholesale high -quality access services, 
encompass only active services since they require precisely the a ctive intervention of 
the services provider in terms of “ control of the connectivity and proactive 
management of defects and incidents that may occur ”.61 
(38) However, c ontrary to that decision, a number of respondents to the market 
investigation consider that t he leased lines market in Belgium should include dark 
fiber notably given its substitutability with a number of the services listed in 
paragraph (36) above . However, other respondents nuance that, while dark fibe r 
(passive) can be substitutable to active products, this may not be the case for all 
customers on the leased lines market given that not all customers have the ability to 
self-supply and operate active equipment.62  
(39) In light of the above,  the Commission co nsiders that, for the purpose of this decision, 
the relevant product market is the  overall leased lines market (which includes 
various wholesale inputs, ranging from leased lines to other wholesale access 
products, which fulfil certain high -quality access requirements) . The question 
whether this product market includes dark fiber  or not can be left open  as the 
Transaction would not raise serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement under any of the plausible product 
market definitions considered.  
4.2.2.  Relevant geographic market  
4.2.2.1.  The Commission’s previous practice  
(40) In previous decisional practice, the Commission considered that the geographic 
market for wholesale supply of leased lines is national in scope.63 
4.2.2.2.  The Notifying Parties’ views  
(41) The Notifying P arties submit that the relevant geographic market is national in 
scope .64 
                                                                                                                                                      
60  Synchronous digital hierarchy.  
61  BIPT decision of 13 December 2019, paragraph 392. Translation from: “ 392. […] In geval van een kleine 
maar blijvende prijsverhoging van de hoogwaardige lijn zal de  gebruiker van een hoogwaardige lijn niet 
migreren naar een dienst voor dark fibre, omdat hij dan deze onmisbare functies niet heeft om zijn eigen 
klanten een gewaarborgde dienst te kunnen verstrekken .” 
62  Q1 – Questionnaire to market participants, respons e to questions 19.2 and 19.2.1.  
63  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
45; of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 201; of 4 February 
2016 in case M.76 37 – Liberty Global/BASE Belgium , recital 148; of 14 April 2014 in case M.7109 – 
Deutsche Telecom/GTS , paragraph 74; and of 3 July 2012 in case M.6584 – Vodafone/Cable & Wireless , 
paragraph 31.  
 
 
12 4.2.2.3.  The Commission’s assessment  
(42) The results of the market investigation  are inconclusive  regarding the exact 
geographic scope of the leased li nes market . While a number of respondents consider 
that th is market is national in scope , others consider that it corresponds to the 
coverage area of each cable operator /region , or to an operator’s footprint .65 In its  
market analysis decision  of 13 December  2019, the BIPT defined the geographical 
market as national in scope.66 
(43) In light of the above, and for  the purpose of this decision, the Commission  considers 
that the relevant geographic market is at the national level, but it will also assess  the 
effects o f this Transaction on the leased lines market (irrespective of whether such 
market includes dark fiber or not , see paragraph (39) above ) at the level of the cable 
operator’s coverage area /region  and at the level of the operator’s footprint.   
(44) In any event, the exact delineation of the relevant geographic market can be left open 
given that the Transaction would not raise serious doubts as to its compatibility with 
the internal market or the functioning of the EEA Ag reement under any of the 
plausible geographic market definitions considered.  
4.3. Retail mobile telecommunications  services  
(45) Mobile telecommunications services to end customers consist of the sale of 
subscriptions enabling access to public mobile telecommunicati ons networks. Such 
access allows end users to make voice national and international calls, send and 
receive messages and use mobile data.67 
4.3.1.  Relevant product markets  
4.3.1.1.  The Commission’s previous practice  
(46) In previous decisions, the Commission found that there is  an overall retail market for 
mobile telecommunications services, constituting a separate market from retail fixed 
telecommunications services. The Commission  did not divide that market further 
into possible sub -segments based on the  type of customer (busi ness or private), type 
of tariff (pre -paid or post -paid), network technology (2G/3G, 3G/UMTS and 
4G/LTE), or type of service (national or international calls, internet data services, 
voice and text services).68 
                                                                                                                                                      
64  Form CO, paragraph 172 and BIPT decision of 13 December 201 9, paragraph 420.  
65  Q1 – Questionnaire to market participants, response to question 20.  
66  BIPT decision of 13 December 2019, paragraph 420.  
67  Commission decisions of 30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 199; 1 
September 2016 in c ase M.7758 – Hutchison 3G Italy/Wind/JV , recital 118.  
68  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
51; of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 65; of 27 Nove mber 
2018 in case M.8792 – T-Mobile NL/Tele2 NL , recital 202; of 30 May 2018 in case M.7000 – Liberty 
Global/Ziggo , paragraph 206; of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV , recitals 
146-149; of 3 August 2016 in case M.7978 – Vodafone /Liberty Global/Dutch JV , paragraph 74; of 11 
May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK , recitals 255, 261, 270, 279, and 287; of 4 
February 2016 in case M.7637 – Liberty Global/BASE Belgium , recitals 32 -35; of 2 July 2014 in case 
M.7018 – Telefónica Deutschland/E -Plus, recitals 31 -55; of 28 May 2014 in case M.6992 – Hutchison 3G 
 
 
 
13 (47) The Commission considered possible distinction s within the overall retail market for 
mobile telecommunication services between pre -paid or post -paid services and 
private customers or business customers, concluding that these did not constitute 
separate product markets but represent rather market segme nts within an overall 
retail market and leaving the question of these possible further segmentations open.69 
4.3.1.2.  The Notifying Parties’ views  
(48) The Notifying Part ies submit that, in line with the Commission's previous decisions, 
there is an overall market for ret ail mobile telecommunications services , including 
business and private customers, and pre -paid and post -paid services.70 
4.3.1.3.  The Commission’s assessment  
(49) A large majority of respondents to the market investigation stated that there is a 
single overall retail mar ket for retail mobile telecommunications services.71  
(50) In light of the above, for the purpose of this decision, the Commission considers that 
there is an overall retail market for mobile telecommunications services.  
4.3.2.  Relevant geographic market  
4.3.2.1.  The Commission’ s previous practice  
(51) In its decisional practice, the Commission has consistently concluded  that the market 
for the provision of retail mobile telecommunication services is national in scope.72 
4.3.2.2.  The Notifying Parties’ views  
(52) The Notifying P arties consider that the relevant geographic market is national  in 
scope .73 
4.3.2.3.  The Commission’s assessment  
(53) A majority of respondents consider that the geographic market for retail mobile 
telecommunication services is national in scope.74  
                                                                                                                                                      
UK/Telefónica Ireland , recital 141; of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange 
Austria , recital 58.  
69  Commission decisions of 8 October 2018 in  case M.8842 – Tele2/Com Hem , recital 47; of 1 September 
2016 in case M.7758 – Hutchison 3G Italy/Wind/JV , recitals 149 and 161; of 3 August 2016 in case 
M.7978 – Vodafone/Liberty Global/Dutch JV , recital 74; of 11 May 2016 in case M.7612 – Hutchison 3G 
UK/Telefónica UK , recitals 255, 261, 270, 279, and 287; of 10 October 2014 in case M.7000 – Liberty 
Global/Ziggo , recital 141; of 2 July 2014 in case M.7018 – Telefónica Deutschland/E -Plus, recitals 31 -55; 
of 28 May 2014 in case M.6992 – Hutchison 3G UK/Tele fónica Ireland , recital 141; of 12 December 2012 
in case M.6497 – Hutchison 3G Austria/Orange Austria , recital 58.  
70  Form CO, paragraph 220.  
71  Q1 – Questionnaire to market participants, response to question 7.  
72  Commission decisions of 24 March 2021 in  case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
55; of 15 July 2019 in case M.9370 – Telenor/DNA ; of 27 November 2018 in case M.8792 – T-Mobile 
NL/Tele2 NL ; of 27 July 2018 in case M.8883 – PPF/Telenor Target Companies ; of 4 February 2016 in 
case M.7637 – Liberty Global/BASE Belgium , recitals 32 -35.  
73  Form CO, paragraph 221.  
 
 
14 (54) In light of the above, and for the purpose of this decision, the relevant geographic 
market for retail mobile telecommunication services is national in scope , and 
corresponds to the territory of Belgium . 
4.4. Retail fixed voice services  
(55) Fixed telephony services to end customers comprise the provision of  subscriptions 
enabling access to public telephone networks at a fixed location for the purpose of 
making and/or receiving calls and related services.75 
4.4.1.  Relevant product markets  
4.4.1.1.  The Commission’s previous practice  
(56) In previous decisions, the European Commissi on considered an overall market for 
retail fixed voice services (“retail fixed voice market”) without further subdivisions 
between local/national and international calls, residential and non -residential 
customers,76 and including Voice over Internet Protoco l (“VoIP”) services.77 
4.4.1.2.  The Notifying Parties’ views  
(57) The Notifying Part ies agree with the Commission’s decisional practice and consider 
that there is an overall retail fixed voice market, including all subdivisions between 
local/national and international ca lls, residential and non -residential customers, and 
including VoIP services .78 
4.4.1.3.  The Commission’s assessment  
(58) A large majority of respondents indicate  that there is a single overall retail market 
for retail fixed voice  services.79  
(59) In light of the above, for th e purpose of this decision, the Commission considers that 
there is an overall retail fixed voice market without further subdivisions between 
local/national and international calls, residential and non -residential customers,80 and 
including VoIP services.   
                                                                                                                                                      
74  Q1 – Questionnaire to market participants, response to question 8.  
75  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recit al 
33. 
76   Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
60; of 29 January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation , paragraphs 16 -17; of 
29 June 2009 in case M.5532 – Carphone Wareho use/Tiscali UK , paragraphs 35 -39; of 7 September 2005 
in case M.3914 – Tele2/Versatel , paragraph 10.  
77  Commission decisions of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 40; of 3 
August 2016 in case M.7978 – Vodafone/Liberty Global/Du tch JV , paragraphs 25 -26; of 4 February 2016 
in case M.7637 – Liberty Global/BASE Belgium , recitals 67 -69; of 20 September 2013 in case M.6990 – 
Vodafone/Kabel Deutschland , paragraph 131.  
78  Form CO, paragraph 238.  
79  Q1 – Questionnaire to market partici pants, response to question 9.  
80   Commission decisions of 29 January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation , 
paragraphs 16 -17; of 29 June 2009 in case M.5532 – Carphone Warehouse/Tiscali UK , paragraphs 35 -39; 
of 7 September 2005 in ca se M.3914 – Tele2/Versatel , paragraph 10.  
 
 
15 4.4.2.  Relevant geographic market  
4.4.2.1.  The Commission’s previous practice  
(60) In its decisional  practice, the Commission left the geographic definition of the 
market open, considering the possibility that the market may be national, regional or 
limited to the coverage  area of each operator.81 In some decisions,  the Commission 
considered this market as national due to the continued importance of national 
regulation of the telecommunications sector, the provision of wholesale upstream 
services at national level and the fact th at the tariff plan of telecommunications 
service provi ders is predominantly national .82  
4.4.2.2.  The Notifying Parties’ views  
(61) The Notifying Parties consider that the relevant geographic market is national  in 
scope .83  
4.4.2.3.  The Commission’s assessment  
(62) The large majority o f respondents to the market investigation  indicate that the 
geographic market for retail fixed voice services is national in scope.84 A few 
respondents consider that the market should be defined according to the coverage 
area of each cable operator /region  or at the level of the operator’s footprint .85  
(63) In light of the above,  while there are indications that the relevant geographic market 
is national in scope, the Commission considers that, for the purpose of this decision, 
it is appropriate to assess  the effe cts of the Transaction at the national level, at the 
level of the coverage area of each cable operator /region , and at the level of the 
operator’s footprint.   
(64) In any event, the exact delineation of the relevant geographic market can be left open 
for the pur pose of this decision, as the Transaction would not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement under any of the plausible geographic market definitions considered.  
                                                 
81  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
65; and of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium , recital 73.  
82  Commission decisions of  30 May 2018 in case M.7000 – Liberty Global/Ziggo , paragraph 150; of 3 
August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraph 29; of 19 May 2015 in case 
M.7421 – Orange/Jazztel , recital 37.  
83  Form CO, paragraph 239.  
84  Q1 – Questionnair e to market participants, response to question 10. One respondent notes that the market 
is national given that “ [b]oth Proximus and Orange operate nationwide fixed infrastructure, they have 
nation -wide product offerings at uniform prices and they compete a t national level. Proximus and Orange 
commercial practice shows that the conditions of competition at national level are homogeneous. […]”, 
Q1 – Questionnaire to market participants, response to question 10.1.  
85  Q1 – Questionnaire to market participants, response to question 10.  
 
 
16 4.5. Retail fixed internet ser vices  
(65) Fixed internet access services at the retail level consist of the provision of 
subscriptions enabling customers to access the internet through a fixed 
telecommunications connection.86 
4.5.1.  Relevant product market  
4.5.1.1.  The Commission’s previous practice  
(66) In recen t cases, within an overall product market for the supply of retail fixed 
internet access services (“retail fixed internet market”) , the Commission considered 
but ultimately left open  possible segmentations according to (i) product type 
(distinguishing betw een narrowband, broadband, and dedicated access), and (ii) 
distribution technology (distinguishing between xDSL, fibre, cable, and mobile 
broadband).  
(67) Furthermore, the Commission also considered, but ultimately left open, possible 
segmentations as to custo mer type, distinguishing between residential and small 
business customers, on the one hand, and larger business and public authorities, on 
the other hand.87 Conversely, the Commission acknowledged that the retail market 
for fixed internet access services sh ould not be divided according to download 
speed.88 In relation to the Belgian market specifically, the Commission recently 
concluded that there was an overall single retail market for the provision of internet 
access, without the need to segment it accordin g to the technology used or download 
speed.89 
(68) Finally , the Commission acknowledged that fixed internet services to large business 
and government customers form part of a separate market for the retail supply of 
business connectivity.90 
(69) In the Commission’s mo st recent decision relating to the Belgian market, the 
Commission concluded that, for the purpose of that decision, there exists an overall 
retail fixed internet market (excluding retail business connectivity services) without 
the need to further segment t he market.91 
                                                 
86  Commission decisions of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 45; of 18 
July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 47.  
87  Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem , paragraph 26; of 7 October 
2016 in case M.8131 – Tele2 Sverige/TDC Sverige , recital 32; of 19 May 2015 in case M.7421 – 
Orange/Jazztel , recital 42; of 10 October 2014 in case M.7000 – Liberty Global/Ziggo , recital 132.  
88  Commission  decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding , recital 218; of 8 October 2018 in case M.8842 – Tele2/Com Hem , paragraph 26; of 3 August 
2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , recital 38; of 20 S eptember 2013 in case 
M.6990 – Vodafone/Kabel Deutschland , recital 194.  
89  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
74; and of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraphs 46 -48. 
90  Commission decision of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
51. 
91  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
74. 
 
 
17 4.5.1.2.  The Notifying Parties’ views  
(70) The Notifying Parties submit that there is  an overall retail fixed internet market in 
line with the Commission's decisional practice .92 
4.5.1.3.  The Commission’s assessment  
(71) A large majority of the respondents to the market in vestigation indicate that there is 
an overal l retail fixed internet market , excluding retail business connectivity services 
without the need to distinguish different customer and product types .93  
(72) A very limited number of respondents consider that the marke t should be segmented 
according to the type of distribution technology (xDSL, fibre, cable, and mobile 
broadband) . However , the majority of respondents disagree with the need for such a 
segmentation. For instance, one respondent notes : “[t]he single retail  market for the 
provision of fixed internet access in Belgium includes all types of technology […] as 
these are all interchangeable from the perspective of the retail customer. ”94 
(73) Similarly, the large majority of respondents disagree with the need for a 
segmentation  according to the download speed (e.g. above or below 30 Mbps) .95 
(74) In light of the above, for the purpose of this decision, the Commission considers that 
there is  an overall market for the retail supply of fixed internet access services, 
excluding r etail business connectivity services, and without the need to further 
segment the market.  
4.5.2.  Relevant geographic market  
4.5.2.1.  The Commission’s previous practice  
(75) In its previous decisions, t he Comm ission concluded that the retail market for the 
provision of fixed i nternet services was national in scope, and in some cases, the 
Commission left open whether markets should potentially be defined on a regional 
basis or by reference to the footprint of the operators’ networks .96  
(76) In recent decision s concerning Belgi um, the  market investigation s revealed elements 
tending towards a deli neation corresponding to the operators' coverage area . 
Ultimately, the exact geographic market definition was left open.97 
                                                 
92  Form CO, paragraph 230.  
93  Q1 – Ques tionnaire to market participants, response to question 11.  
94  Q1 – Questionnaire to market participants, response to question 11.1.  
95  Q1 – Questionnaire to market participants, response to question 11.  
96  Commission decisions of 12 November 2019 in case M .9064 – Telia Company/Bonnier Broadcasting 
Holding , recital 239; of 8 October 2018 in case M.8842 – Tele2/Com Hem ; of 3 August 2016 in case 
M.7978 – Vodafone/Liberty Global/Dutch JV , recital 40; of 20 September 2013 in case M.6990 – 
Vodafone/Kabel Deutschl and, recital 197.  
97  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
81; of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 52.  
 
 
18 4.5.2.2.  The Notifying Parties’ views  
(77) The Notifying Parties submit that the mark et struct ure in Belgium shows different 
competitive dynamics  between the different regions and, more specifically, between 
the different cable zones, and that therefore the market is subnational in scope  (i.e., 
region, cable zone or footprint  of the operat ors’ concerned) .98  
4.5.2.3.  The Commission’s assessment  
(78) A majority of respondents to the market investigation consider that the geographic  
retail fixed internet  market should be defined as national.99  
(79) However, a  number of respondents consider that the geographic retail fixed internet 
market should be defined at the level of the cable operator’s coverage area /region  or 
at the level of the operator’s footprint .100 For instance, one respondent noted: 
“[c]ompetition is based on the presence of the provider in a specific a rea to be able 
to provide the offering. In Flanders, there are two main providers with sufficient 
coverage (and several small competitors): Proximus and Telenet. Brussels, because 
of its centrality and density, has multiple providers. In the Walloon area, Proximus 
is the main provider with limited competition especially on the larger download 
speed solutions. ”101 
(80) In light of the above, the Commission considers that, for the purpose of this decision, 
it is appropriate to assess the effects of the Transaction o n the retail fixed internet 
market at the national  level, at the level of the cable operator’s coverage area /region , 
and at the level of  the operator’s footprint.  
(81) In any event, the exact delineation  of the relevant geographic  market can be left open  
for the purpose of this decision , as the Transaction would not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement under any of the plausible geographic market definitions considered.  
4.6. Retail business con nectivity services  
(82) The retail market for business connectivity includes fixed telecommunications 
services purchased by large businesses, enterprises and public sector customers in 
order to provide data connectivity between multiple sites.102 
4.6.1.  Relevant product  market  
4.6.1.1.  The Commission’s previous practice  
(83) In previous decisions, the Commission considered a product market for retail 
business connectivity services (“retail business connectivity market”), including (i) 
broadband access for large business customers; (ii ) leased lines; and (iii) VPN103 
                                                 
98  Form CO, paragraph 231 and BIPT decision of 29 June 201 8, paragraph 255.  
99  Q1 – Questionnaire to market participants, response to question 12.  
100  Q1 – Questionnaire to market participants, response to question 12.  
101  Q1 – Questionnaire to market participants, response to question 12.1.  
102  Commission decisions  of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 
166; of 9 July 2018 in case M.8808 – T-Mobile Austria/UPC Austria , paragraph 65.  
103  Virtual Private Network (“VPN”).  
 
 
19 services,104 but excluding connectivity services offered to residential, SMEs and 
small -office -home -offices customers, which are part of the retail fixed internet 
market. This is because of the particular requirements and purch ase processes of 
larger business customers. The precise product market definition was ultimately left 
open.105 
(84) In the Commission’s most recent decision related to the Belgian market, the 
Commission found an overall retail business connectivity market and lef t the 
question whether this market could be further segmented according to (i) technology 
or (ii) download speed open.106 
4.6.1.2.  The Notifying Parties’ views  
(85) The Notifying Parties submit that there is  an overall retail business connectivity 
market  in line w ith the Commission's decisional practice .107  
4.6.1.3.  The Commission’s assessment  
(86) A large majority of respondents to the market investigation  consider that there is an 
overall retail business connectivity market , including (i) broadband access for large 
business customers; (ii) leased lines; and (iii) VPN services, excluding connectivity 
services offered to residential, SMEs and small -office -home -offices customers, 
which are part of the retail fixed internet market .108 The market investigation 
indicated that there is no need t o segment  the retail business connectivity services 
market according to technology or download speed and that this market also 
excludes fixed wireless access (“FWA”) and fixed internet services to large business 
and government customers.109 
(87) In light of the a bove, the Commission considers that, for the purpose of the decision, 
the relevant product market is the overall reta il business connectivity market. The 
question whether this product market can be further segmented according to (i) 
technology or (ii) down load speed can be left open as the Transaction does not raise 
serious doubts as to its compatibility with the internal market or the functioning of 
the EEA Agreement under any of the plausible product market definitions 
considered.  
                                                 
104  Commission decisions of 14 April 2014 in case M.7109 – Deutsche Telecom/GTS, paragraph 26; of 29 
January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation , paragraphs 6 and subsequent.  
105  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
86; of 18 J uly 2019 in case M.8864 – Vodafone/Certain Liberty Global Assets , recital 171; of 3 August 
2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraphs 126 -127. 
106  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/ JV, paragraph 
86. 
107  Form CO, paragraph 248. The Notifying Parties refer to the BIPT’s position in its decision of 13 
December 2019, paragraph 190. The BIPT considers that all high -quality services allowing to satisfy those 
higher/tailored needs of busines ses are considered as sufficiently interchangeable and therefore part of the 
same market, i.e., (i) classical leased lines, (ii) leased lines with high speed on WDM, (iii) connectivity 
based on Tline of circuit emulation, (iv) connectivity based on E -line, and (v) connectivity based on E -
LAN. Moreover, the BIPT finds that high -quality connectivity services include both P2P connections (i.e., 
classical leased lines with traditional interfaces or Ethernet interfaces, new generation leased lines or 
Ethernet se rvices) and P2MP service.  
108  Q1 – Questionnaire to market participants, response to question 13.  
109  Q1 – Questionnaire to market participants, response to question 13.  
 
 
20 4.6.2.  Relevant geographic mark et 
4.6.2.1.  The Commission’s previous practice  
(88) In previous decisions, the Commission found that the retail market for business 
connectivity was national in scope.110 In the Commission’s most recent decision 
relating to the Belgian market, the exact delineation of the  relevant geographic 
market was left open.111 
4.6.2.2.  The Notifying Parties’ views  
(89) According to the  Notifying  Parties, the geographic retail business connectivity  
market is national in scope. 112 
4.6.2.3.  The Commission’s assessment  
(90) The same number of respondents consider that the geographic market for retail 
business connectivity  services should be defined at the national level or at the level 
of the operator’s footprint. A minority of respondents consider that the scope of the 
market is the cable operator’s coverage area /region.113  
(91) In light of the above, for the purpose of this decision, the Commission considers that  
the relevant geographic market is at the national level, but it will also assess the 
effects of the Transaction at the level of the cable operator’s coverage area /region  
and at the level of the operator’s footprint for any of the plausible product market 
definitions considered in paragraph (87) above.  
(92) In any event, the exact delineation of the  relevant geographic  market  can be left open  
for the purpose of this decision, as the Transaction would not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement under any of the plausible geographic market definitions considered .  
4.7. Potential market for the retail supply of multi-play services   
(93) Multi -play services include several telecommunications products (mobile services 
and one or more of the fixed services such as fixed internet, fixed voice and TV), 
which are provided to cons umers through a common offer.114 
                                                 
110  Commission decisions of 18 July 2019 in case M.8864 – Vodafone/Certain Liberty Global  Assets , recital 
176; of 14 April 2014 in case M.7109 – Deutsche Telecom/GTS, paragraph 30; of 3 July 2012 in case 
M.6584 – Vodafone/Cable & Wireless , paragraph 10; of 29 January 2010 in case M.5730 – 
Telefónica/Hansenet Telekommunikation , paragraph 28.  
111  Commission decision of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
91. 
112  Form CO, paragraph 249.  
113  Q1 – Questionnaire to market participants, response to question 14.  
114  Commission decision of 30 June 2020 in case M.9757  – Providence/VOO/Brutélé , paragraph 54.  
 
 
21 4.7.1.  Relevant product market  
4.7.1.1.  The Commission’s previous practice  
(94) In its decisional practice, the Commission has left the question open as to whether 
this market was separate from the retail markets for television, voice and Interne t 
access.115 In Liberty Global/BASE  Belgium and Providence/VOO/Brutélé , the 
Commission noted an upward trend in sales of bundled offers in Belgium, but 
concluded that it was not necessary to define a separate retail multi-play market .116 
4.7.1.2.  The Notifying Parties’  views  
(95) The Notifying Parties submit that, in line with the position of the BIPT , a multi -play 
market does not exist.117  
(96) First, customers can easily switch between the purchase of bundled services and 
separate services, and the same applies on the supply -side. Second, the BIPT noted 
that the asymmetry observed in the development of individual retail mobile shares in 
the Belgian market, appears to contradict the existence, at this stage, of a separate 
multi-play market. If such a separate market existed in Bel gium, in response to a 
price increase of a bundle, consumers would switch to a bundle with another 
operator and not unpick the bundle and revert to purchasing mobile services on a 
standalone basis, implying a symmetrical development at the level of the mar ket 
shares of the different products among the different operators.118 
4.7.1.3.  The Commission’s assessment  
(97) Some respondents to the market investigation consider that a separate market for 
multi-play services exists in Belgium , notably because such bundles are increa singly 
offered by operators.119  
(98) However, other respondents consider that there is no such separate market. As noted 
above (paragraph (96)), from the demand side, customers can and do switch easily 
between purchasi ng their services as part of a multi -play offering or separately (e.g. 
“unpicking” the bundle),  subject to their needs. From the supply side,  operators who 
already offer separate services  can easily offer these services as a bundle, and vice 
versa . Finally , while the popularity of multi -play offers in Belgium is certainly 
growing, its commercial development is still evolving.120 
(99) Similarly, the BIPT considered  that the sale of bundles is growing ; however , it left 
open the question of whether a  separate market for multi -play services exists in 
Belgium.121 Furthermore, in its 2014 Recommendation,122 the Commission 
                                                 
115  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
99; of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 60;  of 4 February 2016 in case 
M.7637 – Liberty Global/BASE Belgium , recital 98.  
116  Commission decision of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraph 54.  
117  Form CO, paragraphs 255 and 260.  
118  BIPT decision of 29 June 2018, paragraphs 3303 -3306.  
119  Q1 – Questionnaire to mar ket participants, response to questions 15 and 15.1.  
120  Q1 – Questionnaire to market participants, response to questions 15 and 15.1.  
121  BIPT decision of 29 June 2018, Section 10.2.  
122  Explanatory Notes to the 2014 and 2020 Recommendations.  
 
 
22 acknowledges the increased demand for packages of services offered by the same 
operator at a flat rate (also known as “bundles”). However, the Recommendati on did 
not propose to define a separate retail market for bundles because individual 
wholesale markets will, in all likelihood, constitute (previously regulated) inputs to 
replicate the retail market for bundles. Therefore, in case of competition concerns at 
the retail level, such concerns would be addressed at the level of the relevant 
wholesale market.123  
(100)  In light of the above, and for the purpose of this decision, the question as to whether 
there exist one or more multi -play markets that are distinct from  each of the 
underlying individual telecommunications services can be left open  given that the 
Transaction would not raise serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement , independently of the existen ce of a 
separate market, or a lack thereof.   
4.7.2.  Relevant geographic market  
4.7.2.1.  The Commission’s previous practice  
(101)  In previous decisions , the Commission considered that the geographic scope of any 
possible retail market for multi -play services would be national si nce the 
components of the multi -play offers are offered individually at a national level, and 
the bundling of the services would not change the geographic scope of the 
components .124 In two recent decisions relating to the Belgian market , the 
Commission howe ver left the question o f the geographic market definition open.125 
4.7.2.2.  The Notifying Parties’ views  
(102)  The Notifying Parties submit that a multi -play market does not exist, and have 
therefore not commented on its potential geographic scope (see paragraph s (95)-(96) 
above).   
4.7.2.3.  The Commission’s assessment  
(103)  A majority of the respondents to the market investigation considered that a possible 
market for multi -play offers (irrespective o f what type of bundles are included in 
such a possible market) would be national in scope.126 This view, however, does not 
necessarily align with the results of the market investigation obtained in relation to 
retail fixed internet access services, which wou ld be one of the components of such a 
hypothetical market. A number of  other respondents considered that the coverage 
area of each cable operator was  also relevant, notably because  multi-play offers  in 
Belgium are generally  limited to the coverage area of the cable operator.  
                                                 
123  Explanatory Note to the 2014 Recommendation, page 18. See also  Commission decision of 30 June 2020 
in case M.9757 – Providence/VOO/Brutélé , paragraph 59.  
124  Commission decisions of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV , paragraph 
112; of 19 May 2015 in case M.7421 – Orange/Jazztel , recitals 89 -90; of 10 October 2014 in case M.7000 
– Liberty Global/Ziggo , recitals 152 -153; of 20 September 2013 in case M.6990 – Vodafone/Kabel 
Deutschland , paragraphs 263 -265; of 16 June 2011 in case M.5900 – LGI/KBW , paragraphs 183 -186. 
125  Commission decisions of 24 March 2021 in case M.10087 – Proximus/Nexus Infrastructure/JV , paragraph 
104; of 30 June 2020 in case M.9757 – Providence/VOO/Brutélé , paragraphs 63 -64.  
126  Q1 – Questionnaire to market participants, response to question 16.  
 
 
23 (104)  On this basis, the Commission considers that, for the purpose of this decision, it is 
appropriate to assess the effects of the Transaction at the  national level, at the level 
of the cable operator’s coverage area, and at the level of the operator’s footprint , to 
the extent one or more separate retail multi -play markets exist as  considered in 
paragraph (100)  above.  
(105)  In any event, the exact delineation of the relevant geographic market can be le ft open 
for the purpose of this decision, as the Transaction would not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement under any of the plausible geographic market definitions considered.  
5. COMPE T ITIVE ASSE SSME NT  
5.1. Analytical framework  
(106)  Article 2 of the Merger Regulation requires the Commission to examine whether 
notified concentrations are compatible with the internal market, by assessing whether 
they would significantly impede effective competition in the internal market or in a 
substantial part of it, in particular through the creation or strengthening of a 
dominant position.127 
(107)  In this respect, a merger may entail horizontal and/or non -horizontal (i.e. , vertical or 
conglomerate) effects. Horizontal e ffects are those deriving from a concentration 
where the undertakings concerned are actual or potential competitors of each other in 
one or more of the relevant markets concerned. Non-horizontal effects are those 
deriving from a concentration where the und ertakings concerned are active in 
different relevant markets. In a case where a merger entails both horizontal and non -
horizontal effects, the Commission will appraise these effects in accordance with the 
guidance set out in the relevant notices.128 
(108)  Horizont al mergers involve companies which are actual or potential competitors  of 
each other in one or more of the relevant markets concerned. The Horizontal Merger 
Guidelines list a number of factors which may influence whether or not significant 
horizontal non -coordinated effects are likely to result from a merger, such as the 
large market shares of the merging firms, the fact that the merging firms are close 
competitors, the limited possibilities for customers to switch suppliers, or the fact 
that the merger wou ld eliminate an important competitive force.129 
(109)  Vertical mergers  involve companies operating at different levels of the supply chain. 
There are two main ways in which vertical mergers may significantly impede 
effective competition: input foreclosure and cust omer foreclosure.  
                                                 
127  With regard to the application of the Merger Regulation in the EEA, see Annex XIV to the EEA 
Agreement.  
128  Guidelines on the assessment of non -horizontal mergers under the Council Regulation on the control of 
concentrations bet ween undertakings ("Non -Horizontal Merger Guidelines"), OJ C  265, 18.10.2008, 
paragraph 7.  
129  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Horizontal Merger Guidelin es"), OJ C  31, 5.2.2004, paragraphs 27 
and following.  
 
 
24 (110)  Input foreclosure may raise competition problems only if it concerns an important 
input for the downstream market, and if the combined entity has a significant degree 
of market power upstream.130 In assessing the likelihood of an anticompet itive input 
foreclosure strategy, the Commission examines: (i) whether the combined entity 
would have the ability to substantially foreclose access to inputs; (ii) whether it 
would have the incentive to do so; and (iii) whether a foreclosure strategy would  
have a significant detrimental effect on competition downstream.131 These three 
conditions are cumulative, therefore the absence of any of them is sufficient to rule 
out the likelihood of anti -competitive input foreclosure.132 
(111)  For a transaction to raise custo mer foreclosure competition concerns, the combined 
entity must be an important customer with a significant degree of market power in 
the downstream market.133 In assessing the likelihood of an anticompetitive customer 
foreclosure strategy, the Commission exa mines: (i) whether the combined entity 
would have the ability to foreclose access to downstream markets by reducing its 
purchases from upstream rivals; (ii) whether it would have the incentive to do so; 
and (iii) whether a foreclosure strategy would have a  significant detrimental effect 
on consumers in the downstream market.134  
(112)  In addition, under Article 2(4) of the Merger Regulation, to the extent that the 
creation of a joint venture constituting a concentration pursuant to Article 3 has as its 
object or ef fect the coordination of the competitive behaviour of undertakings that 
remain independent, such coordination shall be appraised in accordance with the 
criteria of Article 101(1) and (3) of the TFEU, with a view to establishing whether or 
not the operation  is compatible with the common market.  
(113)  Under Article 2(5) of the Merger Regulation, in making this appraisal, the 
Commission shall take into account in particular: (i) whether two or more parent 
companies retain, to a significant extent, activities in the same market as the joint 
venture or in a market which is downstream or upstream from that of the joint 
venture or in a neighbouring market closely related to this market; and (ii) whether 
the coordination which is the direct consequence of the creation of the joint venture 
affords the undertakings concerned the possibility of eliminating competition in 
respect of a substantial part of the products or services in question.  
(114)  A restriction of competition under Article 101(1) TFEU is established when the 
coordi nation of the parent companies’ competitive behaviour is likely and 
appreciable and results from the creation of the joint venture, be it as its object or its 
effect.  
5.2. Identification of affected markets  
(115)  Following the start -up of the JV’s activities in 2022,  the Transaction gives rise to the 
following  horizontally and vertically affected markets.  
                                                 
130  Non-Horizontal Merger Guidelines, paragraphs 34 -35.  
131  Non-Horizontal Merger Guidelines, paragraph 32.  
132  Judgment of the General Court on 23 May 2019 in case T‑370/17, KPN BV v European Commission, 
paragraph 119.  
133  Non-Horizontal Merger Guidelines, paragraph 58.  
134  Non-Horizontal Merger Guidelines, paragraph 59.  
 
 
25 (116)  Horizontal overlaps: First, on the wholesale overall broadband access market , 
Proximus and the JV ’s combined market share  exceed s 20%135 in Wallonia136 
(expected 2024) . On a potential  local broadband access market , Proximus and the 
JV’s combined market also exceeds 20% in Belgi um and in VOO’s coverage  
area/Wallonia137 (expected 2022) . Therefore, the wholesale (local) broadband access 
market is horizontally affected  (see pa ragraph (120)  below) . Second, o n the leased 
lines market (including dark fiber) , Proximus, Eurofiber and the JV’s combined 
market share exceeds 20% (expected 2022) in Belgium, VOO’s coverage  
area/Wallonia  and in the JV’s footprint. On a potential segment for the supply of 
dark fiber ,138 the Parties’ combined market share exceeds 20% (expected 2022) in 
Belgium  (see paragraph (135)  below) . 
(117)  Vertical relationships: First, the wholesale local broadband access market , where 
both Proximus and the JV are active, is upstream from (A) Proximus’ wholesale and 
retail activities downstream on the (i) wholesale resale broadband access ,139 and (ii) 
retail telecommunications markets (retail mobile, fixed internet, fixed voice, 
business connectivity and a potential supply of multi -play services)  and ( B) 
Proximus’ and Eurofiber’s wholesale activities downstream on the leased lines 
markets . These markets are vertically affected (see paragraph (150)  below).  Second , 
the leased lines market  (including dark fiber) , where Proximus, Eurofiber and the JV 
are active, is upstream from Proximus’ and Eurofiber’s retail activities downstream 
on the retail business connectivity market. Finally, a potential segment  for the supply 
of dark fiber , where Eurofiber and the JV are active, is upstream from Proximus’ and 
Eurofiber’s wholesale activities downstream on the leased lines market (excluding 
dark fiber). These marke ts are vertically affected (see paragraph (150)  below).  
(118)  Proximus and Eurofiber will both remain independently active in Belgium on two 
markets that can be considered as situated downstream from the activities of the JV, 
namely (i) the wholesale supply of leased lines and (ii) the retail supply of business 
connectivity services.140 
(119)  Each of these potential effects  of the Transaction  is separately discussed in the 
following sections: horizontal non -coordinated effects (Section 5.3); non -horizontal 
effects (Section 5.4); and finally, potential cooperative effects (Section 5.5). 
                                                 
135  All market shares of the Notifying Parti es are volume -based, unless specified otherwise.  
136  See footnote 41. However, in this case, the overall broadband access market is affected in Wallonia (JV: 
[0-5]%, expected 2024) but not at the level of VOO’s coverage area (JV: [0-5]%, expected 2024). At both 
geographic levels, Proximus has [10-20]% (2020).  
137  See footnote 41. 
138  See paragraph (32) above in relation to the  existence of a potential dark fiber segment within an overall 
wholesale leased lines market. The JV will likely provide dark fiber services.  
139  Note that the wholesale resale  broadband access market is included in a potential overall  wholesale 
broadband access market. Therefore, this market is only considered downstream from the potential 
narrower wholesale local  access broadband market (see paragraph (22) above).   
140  The Notifying Parties will retain their resp ective independent activities in the Netherlands and on certain 
EEA/global markets, which cannot be considered as being in the same or a neighbouring market, or 
upstream of downstream, from the JV. See Form CO, Annexes 6 and 7.   
 
 
26 5.3. Horizontal re lationships   
5.3.1.  Horizontal relationship on the wholesale (local) broadband access market  
(120)  Following the start -up of the JV’s activities, in 2022, the Transaction is expected to 
give rise to a very limited horizontal overlap between the JV’s and Proximus’ 
activities in the wholesale (i) overall broadband access market in Wallonia141; (ii) 
local broadband access market in Belgium , and VOO’s coverage area/Wallonia ; and 
(iii) l ocal broadband access market limited to fiber and copper  distribution 
technology  in Belgium  and in VOO’s coverage area /Wallonia . Eurofiber is not 
active on the wholesale (local) broadband access market in Belgium.  
(121)  First, i n an overall  wholesale broadband access market,142 Proximus’ market share is 
[10-20]% (2020) and the JV is expected to hold [0 -5]% market share (2024) in 
Wallonia.143 Second, Proximus’ market share in a potential wholesale local 
broadband access market144 would be close to 100%145 (2020) with the JV expecting 
to hold less than [0-5]% (2022) in Belgium and in VOO’s coverage area/Walloni a. 
Finally, t he same figures apply  in a segment of the wholesale local broadband access 
market, which  is limited to fiber and copper distribution technology.146 There are no 
other horizontally affected wholesale broadband access markets under any other 
possi ble product market definition.  
5.3.1.1.  The Notifying Parties’ views   
(122)  The Notifying Parties state that the Transaction does not  raise any horizontal non -
coordinated concerns on the wholesale broadband access market (and all its possible 
sub-segments) for the follo wing reasons.  
(123)  First, the Transaction entails the entry of a new competitor on the overall wholesale 
broadband access market in Belgium by which it creates a new future -proof and 
technologically more advanced infrastructure that offers higher speeds to the  benefit 
of customers.147  
(124)  Second, the Notifying Parties emphasi se that the broadband access’ activities of 
Proximus have a modest scale on the market as compared with the activities of the 
cable operators on the market.148 For instance, the largest wholesale customer for 
broadband access  services is Orange Belgium. Orange Belgium has chosen to 
procure the wholesale broadband access services mainly from Telenet and V OO, 
based on Telenet’s  regulated offer instead of the copper -based wholesale broadband 
access se rvices provided by Proximus.149  
                                                 
141  See Footnote 136 above.  
142  Including cable in line with the BIPT’s analysis of the overall wholesale broadband access market.  
143  The JV’s expected market share in 2022 will be less than [0-5]% and in 2023 less than [0 -5]%. See Form 
CO, Annex 37.  
144  Excluding cable in line with the BIPT’s analysis of the local wholesale broadband access market.  
145  BIPT decision of 29 June 2018, paragraph 1020.  
146  Form CO, Annex 37.  
147  Form CO, paragraph 354.  
148  Form CO, paragraph 355 and BIPT decision of 29 June 2018, paragraph 296.  
149  BIPT decision of 29 June 2018, paragraph 296.  
 
 
27 (125)  When looking at the local broadband access market  in Wallonia and VOO’s 
coverage area/Wallonia , as defined by the BIPT150, Proximus holds close to 100% 
market share (see paragraph (121)  above) given that the BIPT has excluded 
wholesale broadband access offers on the cable network from this market. However, 
the Notifying Parties recall that these offers on the cable network are the most 
successful on the market, while the volumes of sal es achieved by Proximus are 
extremely limited. Concretely, the total volume of unbundled local loop services that 
are currently purchased from Proximus cover s less than […] access lines (end of 
December 2020) and shows even a downward trend. Proximus’ VULA  offers for 
virtual local unbundling is currently not being purchased given that no market player  
has expressed an interest .151 
(126)  Third , Proximus’ wholesale broadband access services  (i.e., LLU, VULA on copper 
and VULA on fiber)  are subject to ex ante  regulato ry obligations.152 The BIPT has 
imposed physical and virtual access obligations on Proximus. Additionally, the BIPT 
imposed non -discrimination, transparency and price control obligations.153 Such 
regulatory obligations will also apply to the JV’s activities.154 Similar regulatory 
obligations apply on the competing wholesale broadband access offers provided by 
the cable network operators in Belgium. Moreover, in line with the harmonised EU 
regulatory framework for electronic communications, the sector regulator ca n 
intervene at all times to conduct a market analysis and to impose amended or 
adapted ex ante  regulatory obligations based on its findings regarding the market 
evolution.155  
(127)  Finally , the JV will deploy its FTT x-infrastructure in areas in which there is no 
standalone deployment  or plans to deploy  by Proximus of such infrastructure.156 
Consequently, from a geographic perspective, the respective FTT x network 
deployments by Proximus and the JV will be clearly distinct but complementary.157 
5.3.1.2.  Commission’s assessment   
(128)  The Commission considers that t he Transaction does not  raise horizontal con cerns in 
the market for wholesale broadband access  in Wallonia , in the market for wholesale 
local broadband access in Belgium and in VOO’s coverage area/Wallonia or the 
local broadb and access market limited to fiber and copper distribution technology in 
Belgium and in VOO’s coverage area/Wallonia , for the following reasons.  
(129)  First, as stated above in paragraph (121) , the Transaction does no t involve an 
appreciable market share increment.  
                                                 
150  BIPT decision of 29 June 2018, paragraph 1020.  
151  Form CO, paragraph 356.  
152  Form CO, paragraphs 357 and 359.  
153  BIPT decision of 29 June 2018, paragraph 1020.  
154  Form CO, paragraph 359 and  see paragraph (161)  below.  
155  Form CO, paragraph 357.  
156  Form CO, paragraphs 76 -77, 358 and 361: Proximus indicated that its FTTx -infrastructure standalone 
deployment plans will be outside the defined deployment  area of the JV in accordance with Proximus’ 
non-overbuild obligations as set out in Clause 20.1 of the SSHA.  
157  Form CO, paragraph 361.  
 
 
28 a. In the  overall  wholesale broadband access market  in Wallonia , the JV’s 
increment is extremely low (less than [0-5]% expected in 202 2). This figure 
is expected to increase to [0-5]% by 2024 . The Parties’ com bined market 
shares are modest ( [20-30]%).158 
b. Similarly,  when considering the wholesale local broadband access  market or 
a wholesale local broadband  access  market limited to copper and fiber 
distribution technology, the JV’s increment is extremely low . In both of these 
local access markets , the JV is expected to hold [0-5]% by 2022 and [0-5]% 
by 2024 at national level ; [0-5]% by 2022  and [0-5]% by 2024 in VOO’s 
coverage area; and [0-5]% by 2022 and [0-5]% by 2024 in Wallonia .159 
(130)  Second, the JV and the Notifying  Parties are currently not competing on the Belgian 
market. Therefore, this Transaction will not eliminate any important competitive 
constraint on market players. On the contrary, the JV is a new entrant in the 
wholesale broadband access market (and possib le narrower markets) and thus  a new 
additional choice on this market for customers.  
(131)  Third, as the Notifying Parties point out (see paragraph (127)  above), from a 
geographic perspective, the respective FTT x netwo rk deployments by Proximus and 
the JV will be clearly distinct.160 
(132)  Fourth , a large majority of respondents to the market investigation considered  that 
this new entrant would not have a negative impact on the wholesale broadband 
access market. A competitor of  Proximus noted that “ Today, the Belgian market for 
wholesale broadband access services is characterised by competition between the 
incumbent copper network and the cable HFC networks. We expect the JV to 
compete with them which may further drive competiti on and thus foster innovation  
and development of new services and business models ”.161 Furthermore , a customer 
of Proximus noted “ Infrastructure sharing seems to be extremely important for new 
entrants, more providers will be able to use the FTTx network wit h a positive impact  
for the customers .”162 Finally, an important customer on this market specified that 
they consider an “ increased provision of wholesale local broadband access services 
to the market as a welcome development  with the potential for significa nt positive 
impact on both the business environment and on the diversity and quality of choices 
available to Belgian retailers and end -consumers. ”163  
(133)  Finally, a number  of respondents to the market investigation also considered that the 
existence of sector -specific regulation makes it possible to exclude or limit any 
potential anti -competitive effect resulting from the Transaction on the wholesale 
broadband access market.  At the same time, a n equal  number of respondents 
disagreed, but did not fully substantia te why sector -specific regulation would not be 
                                                 
158  Form CO, Annex 37. This market share is based on Proximus’ market share in the last financial year 
(2020) and the JV ’s expected market share in 2024.  
159  Form CO, Annex 37.  
160  See footnote 156. 
161  Q1 – Questionnaire to market participants, response to question 21. Emphasis added.  
162  Q1 – Questionnaire to market participants, response to question 21. Emphasis added.  
163  Q1 – Questionnaire to market participants, response to question 21. Emphasis added.  
 
 
29 effective.164 In any event , the Commission notes that the BIPT 2018 decision has 
imposed a regulatory obligation on Proximus to grant wholesale access to third 
parties to its copper pair network as well as its f iber network, insofar as this fiber 
network is destined to eventually replace Proximus’ copper network.165 The Parties 
and the BIPT have indicated that the same regulatory obligations will apply to the 
JV’s wholesale broadband access activities. Namely, the JV will be obliged to 
provide a non -discriminatory  non-exclusive open  access for all interested third 
parties to its passive n etwork  (see paragraph (161)  below) .  
(134)  Therefore, for the reasons set out  above, the Com mission concludes  that the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for wholesale broadband 
access , or any possible narrower affected markets, either at the n ational level, in 
Wallonia  or at the level of  VOO’s  coverage area. 
5.3.2.  Horizontal relationship on the wholesale leased lines market   
(135)  Following the start -up of the JV’s activities, in 2022, the Transaction is expected to 
give rise to a very limited horizontal o verlap between the JV’s, Proximus’ and 
Eurofiber’s activities in the wholesale (i) leased lines market (including dark fiber)  
in Belgium, VOO’s coverage area/Wallonia and in the JV’s footprint , and (ii) on a 
potential segment for the supply of dark fiber  in Belgium .166  
(136)  First, in a leased lines  market  (including dark fiber),  Proximus’ market share is 
approx imately  [50-80]%, Euro fiber’s market share is approx imately  [0-10]% (both 
2020) and the JV ’s market share below [0-5]% (2022-2024 ) in Belgium, VOO’s 
covera ge area/ Wallonia  and in the JV’s footprint .167 Second, in a potential segment 
for the supply of dark fiber in Belgium, Proximus’ market share would be below [0-
5]% (2020), with Eurofiber holding approx imately  [20-30]% (2020) and the JV 
below [0-5]% (2022).168 There are no other horizontally affected  leased lines  
markets under any other possible product market definition.  
5.3.2.1.  The Notifying Parties’ arguments   
(137)  The Notifying Parties state that the Transaction is unlikely to raise any horizontal 
non-coordinated concer ns on the wholesale leased lines market (and all its possible 
sub-segments) for the following reasons.169 
(138)  First, the Transaction entails the entry of a new competitor, creating an additional 
dark fiber offering in the Walloon region of Belgium .170  
                                                 
164  Q1 – Questionnaire to market participants, response to question 23. One respondent appeared concerned 
by the threat of the JV’s network triggering a potential de -regulation of the zones covered by the JV’s 
network. This concern is assessed in paragraph (164)  below.  
165  BIPT decision of 29 June 2018, Section S.2.  
166  See Form CO, Annex  37. Market shares are only available in this potential segment on a national basis.  
167  Form CO, Annex 37.  
168  Form CO, Annex 37.  
169  Note that the Notifying Parties refer to the “ wholesale high -quality access market ”, which is in line with 
the terminology that the BIPT also uses. See Form CO, paragraphs 363 and following.  
170  Form CO, paragraph 365.  
 
 
30 (139)  Second, the Notifying Parties consider that , in line with the BIPT’s analysis,171 there  
is only a limited degree of substitution between the active and passive services 
offered by the Parties.172 The Notifying Parties refer to the BIPT ’s substitutability 
analysis173 (set o ut in paragraph (37) above) , which sets out that  dark fiber is not 
considered to be substitutable with the high -quality services (both from a demand - 
and supply -side) on a Belgian leased lines market .174 While thes e substitutability 
arguments have not been accepted to define a distinct leased lines market excluding 
dark fiber  (see Section 4.2.1.3  above) , the Notifying Parties still consider these 
arguments relevant for the  purpose of their competitive analysis. According to the 
Notifying Parties, given the lack of substitution between dark fiber and the “other” 
high-quality services, a ny competition that would hypothetically be affected, would 
in any event in itself be very  limited as compared to the overall market.  
(140)  Third, on a leased lines market (including dark fiber), a number of competitors are 
active (with active and/or passive offerings) such as Telenet and other (national and 
international) players in Belgium.175  
(141)  Fourth, only Eurofiber is currently active o n a potential segment  for the supply of 
dark fiber.176 Proximus does not provide any dark fiber solutions, and the JV’s 
primary activity is to provide wholesale local broadband access. Any dark fiber 
services that the JV will likely develop in the future would be a secondary activity.  
(142)  Fifth, in any event, all Proximus’ leased line s activities are subject to  ex ante  
regulatory obligations.177 Therefore, Proximus is not in a position to modify at will 
the qualitative and q uantitative conditions under which it provides leased lines offers 
on the market. The Parties note that, based on the BIPT’s most recent market 
analysis  (which does not include dark fiber178) such regulatory obligations will not 
extend to the JV’s activities . Nonetheless, the BIPT can intervene at all times to 
conduct a market analysis and to impose amended or adapted ex ante  regulatory 
obligations based on its findings regarding the market evolution.  
5.3.2.2.  Commission’s assessment   
(143)  The Commission considers that th e Transaction does not  raise horizontal concerns in 
the leased lines market in Belgium, VOO’s coverage area/Wallonia and in the JV’s 
footprint , and in a potential segment for the supply of dark fiber  in Belgium or any 
possible narrower affected markets, fo r the following reasons.  
                                                 
171  BIPT decision of 13 December 2019, paragraph 399.  
172  Form CO, paragraph 366.  
173  BIPT decision of 13 December 2019, paragraph 190.  
174  See footnote 169 in relation to terminology.  
175  Form CO, paragraph 367. According to the Parties, the LCL Report is the only publicly available 
information regarding individual dark fiber offers available in Belgium (Connectivity in Bel gium, LCL’s 
guide to connecting you to the world, 3 November 2020, available at https://www.lcl.be/media 
/xixpftvk/connectivity -guide -03-11-2020.pdf ). The Parties are un able to provide reliable market share 
estimates for these operators or provide an exhaustive list of the relevant competitors.  
176  Form CO, paragraph 368.  
177  Form CO, paragraph 369 and BIPT decision of 13 December 2019, paragraphs 495 and following.  
178  BIPT decision of 13 December 2019.  
 
 
31 (144)  First, as stated above in paragraph (136) , the Transaction does not involve an 
appreciable market share increment.  
a. In the leased lines  market in Belgium, VOO’s coverage area/Wallonia an d in the 
JV’s footprint , the JV’s increment is extremely low (less than [0-5]% expected in 
2022). This figure is not expected to increase by 2024.  
b. Similarly, when considering the supply of dark fiber , the JV’s increment is 
extremely low. The JV is expecte d to hold below [0-5]% by 2024 in Belgium .179 
(145)  Second, the JV is currently not competing on the Belgian market. Therefore, this 
Transaction will not eliminate any important competitive constraint on market 
players. On the contrary, the JV is a new entrant in the leased lines  market and thus a 
new additional choice on this market for customers.  
(146)  Third , the overlaps between the JV and the Notifying Parties are minimal. Proximus 
offers active leased lines on copper and fiber , Eurof iber offers active and passive 
high-quality services (incl uding  dark fiber) ,180 whereas the JV would develop dark 
fiber solutions on the Belgian market.181  
(147)  Fourth, a large majority of respondents to the market investigation considered that 
this new entrant would not have a negative impact o n the leased lines  market. A 
competitor of Proximus noted , “The market is characterised by competition between 
various providers. We expect the proposed JV to compete with the existing providers 
which may further drive competition  and thus foster innovatio n and development of 
new services and business models ”.182 Furthermore, a customer of Proximus noted , 
“This new joint venture can do the required investments in Wallonia to enable 
improved service offerings in Wallonia .”183 The majority of respondents also 
indicated that they expect the level of competition on the leased lines market to 
increase post -Transaction.184 
(148)  Finally, the majority  of respondents to the market investigation also considered that 
the existence of sector -specific regulation makes it possible t o exclude or limit any 
potential anti -competitive effect resulting from the Transaction on the leased lines  
market.185 The Commission notes that the BIPT’s 201 9 decision has imposed a 
regulatory obligation on Proximus to grant (i) active wholesale access to third parties 
to its copper pair networ k as well as its fiber network; and (ii) passive wholesale 
access to third parties to its fiber network.  In addition, Proximus is obliged to 
provide a non -discriminatory non -exclusive open access for all interested th ird 
parties.186 Consequently, while similar obligations will not apply to the JV’s dark 
fiber services, customers can still rely on this regulated alternative  on the leased lines 
market.  
                                                 
179  Form CO, Annex 37.  
180  Form CO, paragraph 167. Eurofiber offers Ethernet over the First Mile (EFM) solutions and passive dark 
fiber (FTTO) solutions.  
181  Form CO, paragraph 370.  
182  Q1 – Questionnaire to market participants , response to question 24. Emphasis added.  
183  Q1 – Questionnaire to market participants, response to question 24. Emphasis added.  
184  Q1 – Questionnaire to market participants, response to question 25.  
185  Q1 – Questionnaire to market participants, respon se to question 28.  
186  BIPT decision of 13 December 2019, Section 2.  
 
 
32 (149)  Therefore, for the reasons set out above, the Commission concludes tha t the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for wholesale leased lines , or 
any possible narrower affected markets, either at the national level, at the lev el of 
VOO’s coverage area /Wallonia  or in the JV’s footprint . 
5.4. Vertical relationships   
5.4.1.  Vertical relationship between the wholesale broadband access market upstream, and 
the wholesale access and retail telecommunications markets downstream   
(150)  The JV’s upstream  activities in the (i) overall broadband access market in Wallonia  
([0-5]% expected by 2022 , and [0-5]% by 2024) and in the JV’s footprint ( [20-30]% 
expected by 2022 , and [40-50]% by 2024 )187 and (ii) local broadband access 
market188 at national level ( [0-5]% expected by 2022 , and [0-5]% by 2024 ),189 in 
Wallonia ( [0-5]% expected by 2022 , and [0-5]% by 2024 ), VOO’s coverage area 
([0-5]% expected by 2022 , and [0-5]% by 2024 )190 and in the JV’s footprint ( [20-
30]% expected by 2022 , and [40-50]% by 2024 ) are vertically linked to Proximus’  
and Eurofiber’s191 activities in the following downstream  markets in Belgium. This 
gives rise to the following vertically affected markets:  
a. Wholesale markets : broadband resale market (Proximus , [90-100]%),192 
leased lines market (Proximus , [50-60]%; Eurofiber, [5-10]%);193 and 
b. Retail markets : retail mobile (Proximus, [30-40]%), fixed internet (Proximus, 
[40-50]%), fixed voice (Proximus, [50-60]%), business connectivity 
(Proximus, [40-50]%; Eurofiber, [0-5]%) and a potential market for multipl e-
play services (Proximus, [40-50]%).194 
(151)  The Commission notes that the Notifying Parties’ arguments and the Commission’s 
analysis is the same in relation to all downstream markets (including all possible 
segments).  There are no vertically affected markets un der any possible market 
definition other than those listed in paragraph (150)  above  and paragraphs (183) -
(184)  below . 
                                                 
187  Form CO, Annex 37.  
188  The same figures apply irrespective of whether the market is limited to copper and fiber distribution 
technology or not.  
189  Form CO, Annex 37.  
190  Form CO, Ann ex 37.  
191  Eurofiber is only active on the leased lines market and the retail business connectivity market.  
192  Form CO, Annex 37. The Notifying Parties indicate that if the wholesale broadband resale market is 
limited to the resale offers provided by Proxi mus, Proximus would – by definition – hold a market share 
of [90-100]% on said market, which represents however a limited number of lines that are sold to third 
parties (approximately […] in total). However, based on publicly available information, the Not ifying 
Parties cannot exclude that a resale -like offer currently exists on other network infrastructure, in particular 
on the cable infrastructure of Telenet (see https://www2.telenet.be/nl/business/sector/carriers/). Form CO, 
paragraphs 118, 208, 304, and  429. 
193  Form CO, Annex 37. Proximus has an approximately [50-60]% market share at the national level and at 
the level of its footprint. Figures are not available at the regional level or at the level of the cable 
operator’s coverage area.  
194  Form CO, Ann ex 37. According to the BIPT’s Communication of 30 June 2020, market shares on a 
hypothetical market for multiple -play services would be between 40% and 50%. All market share figures 
quoted are at the national level.  
 
 
33 5.4.1.1.  Input foreclosure  
(A) The Notifying Parties’ views  
(152)  The Notifying Parties argue that there will be no input foreclosure by restricting 
access to the JV’s network for competing providers of wholesale and/or retail 
telecommunications services for the following reasons.195  
(153)  First, through the Transaction a new provider of local broadband access services 
(fiber -based)  will enter at the wholesale level. The JV will offer an alternative to any 
interested operator for realising high bandwidth access to customers. Therefore, th e 
Transaction does not involve a possible foreclosure upstream of an existing 
(important) input that is currently used downstream.  
(154)  Second, for input foreclosure to be a concern, the firm resulting from the merger (in 
this case the JV) must have a signific ant degree of market power in the upstream 
market. In the present case, the JV is a new entrant and it is unlikely to have any 
significant degree of market power in the near future.  
(155)  Third, as Eurofiber is not active on the retail telecommunications market s in 
Belgium (except for busines s connectivity services)  it will have no incentive to limit 
sales to third parties (which would limit the JV’s revenues).  
(156)  Fourth, downstream providers of fixed electronic communications services are 
vertically integrated cab le operators which benefit from access to their own cable 
infrastructure network, covering the entire territory of Belgium. Moreover, 
alternative operators are currently able to access the network infrastructure of both 
Proximus and the cable operators, wh ich have an obligation to provide access to 
their networks under regulated terms throughout Belgium. Such regulation will 
apply to any wholesale broadband access product that will be provided in the future 
by Proximus and that will use as an input the pass ive wholesale fiber access services 
that will be provided by the JV.  
(157)  Finally, in relation to mobile network operators, the Notifying Parties submit there is 
only an indirect vertical link between the market on which the JV will be active 
upstream and the r etail mobile market. While mobile network operators could use 
the JV’s network to connect their mobile (antenna) sites with their backhaul network, 
these connections are only one of the elements making up their mobile networks.  
(B) Commission’s assessment  
(158)  For the reasons set out below, the Commission considers that the Transaction does 
not lead to input foreclosure concerns  in the downstream markets for (i) wholesale 
resale broadband access and leased lines services , and (ii) retail mobile  services , 
fixed inter net services , fixed voice  services , business connectivity services and 
potential multi -play services (see paragraph (150)  above).   
                                                 
195  Form CO, paragraphs 378 -381 (fixed operators) and paragraphs 382 -384 (mobile operators).  
 
 
34 (B.i) Ability to engage in input foreclosure   
(159)  The Commission considers that the Parties  will not have the ability to engage in 
input foreclosure by restricting access to the JV’s wholesale offer to downstream 
operators .  
(160)  First, the Commission recalls that the JV will have a very limited market position in 
the wholesale (local) broadband acce ss market. The JV is expected to hold [0-5]% 
by 2022 and [0-5]% by 2024 at national level  and in  VOO’s coverage area , and [0-
5]% by 2022 and [0-5]% by 2024 in Wallonia  (see paragraph s (129)  and (150)  
above).196 Therefore, the  JV cannot be considered as having significant market 
power in the upstream wholesale (local) broadband access market  at national level, 
in VOO’s coverage area and in Wallonia . Similarly, while the JV is expected to hold 
approx imately  [20-30]% by 2022 and [40-50]% of the market within its own 
footprint  by 2024, this relates to a limited geographic area in Belgium. As set out in 
Footnote 46, the JV’s footprint  consists of a limited list of NIS zones in in the 
Walloon region of Belgium within which the FTTx network will be deployed by the 
JV. Further, a s set out in paragraph (25) above, the JV will only deploy its own 
FTTx -infrastructure in areas in which there is no standalone deployment by 
Proximus of such infrastructure.  
(161)  Second , the Commission notes that the JV’s activit ies are subject to  sector -specific 
regulation , which prevents the Parties from refusing access to  JV’s network and 
from charging excessive fees.197 In its decision of 29 June 2018, the BIPT has 
designated Proximus as an SMP operator (i.e. , operators with significant market 
power in the relevant markets) with regard to its wholesale local broadband acces s 
activities.198 The designation of Proximus as an SMP operator also include s the JV 
(as an affiliated company, which is jointly controlled by the Notifying Parties).199 
This has also been acknowledged by the Notifying Parties.200 Under the BIPT’s 
decision, the JV (and Proximus) (i) must meet all requests for physical (and virtual) 
access to their (copper and) fibre networks201, and (ii) are bound by non -
discrimination obligations which state that access to the wholesale inputs must be 
similar in terms of functiona lities and price.202 Other key obligations include 
transparency obligations by which SMP operators must make public specific 
information such as reference offer specifying the technical and tariff conditions of 
the access to their networks  and price control obligations which includes an 
obligation to apply fair tariffs (as defined in the BIPT’s decision).203 As a result of 
                                                 
196  Form CO, Annex 37.  
197  Market 1: wholesale local access provided at a fixed location of the European Commission, the 2020 
Recommendation (former Market 3a: wholesale local access provided at a fixed l ocation of the 2014 
Recommendation).  
198  BIPT decision of 29 June 2018.  
199  See also European Commission comments pursuant to Article 7(3) of Directive 2002/21/EC in 
Commission decision in Case DE/2019/2200: Wholesale local access provided at a fixed locat ion in 
Germany, page 9 regarding a JV between DT and EWE. The Commission determined that a different 
interpretation (i.e., where the SMPT designation would not extend to the JV) would result in regulatory 
gaming allowing the SMP operator to circumvent the SMP status by simply setting up a new legal entity.  
200  Form CO, paragraph 359.  
201  The JV’s activities are limited to the provision of physical unbundled (i.e., passive) access to the fiber 
local loop.  
202  BIPT decision of 29 June 2018, S2.3 (page 35).  
203  BIPT decision of 29 June 2018, S21 (page 36).  
 
 
35 this sector -specific regulation, the JV would not have the ability to foreclose 
wholesale network access.  
(162)  Third , following the  Transaction, customers will have a new and additional supplier 
of wholesale local broadband access services, in addition to the existing offers by 
market players such as Proximus  and the cable operators.204 Concretely, the JV 
represents a new and additional wholesale inp ut on the (local) broadband access 
market in Belgium  (as opposed to a (particularly important) existing input access to 
which is being limited or prohibited) .  
(163)  Fourth , in terms of alternatives to the JV’s services, in the wholesale broadband 
access market,  the offers by Proximus and the cable operators are similarly subject to 
sector -specific regulation. For instance, the BIPT’s decision of 29 June 2018 
regulates Proximus’ copper pair network (at national level) and the coaxial cable 
network of Brutélé, Net hys and Telenet (including SFR) (respective coverage 
areas).205 Therefore, customers will have the choice with Proximus and the cable 
operators as alternatives to the JV’s offer. Any strategy by the JV to foreclose 
downstream operators would therefore not be  successful . 
(164)  Finally, a respondent to the market investigation appear s concerned by the threat of 
the JV’s network triggering a potential de -regulation of the zones covered by the 
JV’s network.206 The BIPT’s market regulation provides that, in the geographic  
zones where at least three  independent Next Generation Access (“NGA”) -operators 
compete, in line with the definitions of the BIPT decision, the regulatory obligations 
that were imposed would no longer apply.207 However, the JV cannot constitute such 
an inde pendent NGA -operator. First, the BIPT assesses the presence of an NGA -
operator at the level of the retail markets. The JV is not present on these retail 
markets, therefore, it cannot be considered as an independent NGA -operator. This 
has also been indicate d by the Notifying Parties.208 Second, the BIPT has also 
submitted that it does not consider the JV to be independent from Proximus.209 
Therefore, the Commission considers that this threat is not credible.  
(165)  Therefore, for the reasons set out above, the Commiss ion concludes that the JV 
would not have the ability to foreclose rival operators by engaging in an input 
foreclosure strategy.  
(B.ii) Incentive to engage in input foreclosure  
(166)  While  the conditions to find an input foreclosure strategy are cumulative (see 
paragra ph (110)  above), and the Commission  has concluded that the JV would not 
have the ability to engage in a successful foreclosure strategy (see paragraph (165)  
                                                 
204  The Notifying Parties do not have reliable market data available on the number of wholesale broadband 
local access lines currently offered by the various operators. According to the BIPT’s market analysis 
decision of 29 June 2018, which identified a market for wholesale broadband local access including both 
copper - and fiber -technologies, Proximus was the only player on this market. A broader market would 
include the cable operators (Telenet, Brutélé and VOO /Nethys).  
205  BIPT decision of 29 June 2018, S9.4 (page 32).  
206  Q1 – Questionnaire to market participants, response to question 30.1.  
207  BIPT decision of 29 June 2018, paragraph 1496.  
208  Form CO, footnote 93 and BIPT decision of 29 June 2018, paragraph 1 500.  
209  Call with BIPT, 4 March 2021.  
 
 
36 above), the  Commission has nevertheless also assessed the other conditions for 
completeness. The Commission considers that the Parties will not have the incentive 
to engage in input foreclosure by restricting access to the JV’s wholesale offer to 
downstream operators . 
(167)  Only a  few respondents believe it is credible that the JV would have the incentive  to 
restrict or limit access to its network in view of the presence of alternative networks 
and the existence of sector -specific regulation.210 However, as indicated in parag raph 
(161)  above, the JV’s activities are subject to sector -specific regulation, which  will 
prevent  the JV from refusing access to their network or from imposing unfavourable 
terms or charging excessive fees.  This was notably indicated  by a market participant 
who explained that “ sector -specific regulation may help [t]o prevent the new entity 
from restricting access to its wholesale broadband services .”211 
(168)  Further, the Commission recalls that Eurofiber , one of the pa rents of the JV together 
with Proximus, is not active on the downstream telecommunication markets in 
Belgium (except for business connectivity services) and therefore, will not have any 
incentive to limit the JV’s wholesale offers to third parties  (i.e., limiting the JV’s 
wholesale revenues). On the contrary, Eurofiber is incentivi sed to maximise the JV’s 
wholesale revenues in light of the significant investments that the JV is expected to 
make, including on the basis of equity investments from the Notifyin g Parties.212 
(169)  For the reasons set out above, the Commission concludes that the JV would not have 
the incentive to foreclosure rival operators by engaging in an input foreclosure 
strategy.  
(B.iii)  Impact on effective competition  
(170)  The Commission considers that due to the lack of ability and incentive, it is not 
needed to conclude on the question  whether any foreclosure strategy would have a 
negative impact on effective competition.  
(171)  Most r espondents to the market investigation consider that th e Transaction will not 
have a negative impact on their business or on the relevant downstream markets  (as 
identified in paragraph (150)  above) .213 A majority of respondents agree that a 
potential positive impact from the JV’s entry on the ma rket would depend on (i) the 
conditions that will apply to gain wholesale access to the JV’s infrastructure, and (ii) 
whether or not there is a risk that the deployment of the JV’s network would lead to 
a de -regulation in the market. As set out above in pa ragraphs (161)  and (167) , it is 
clear that the JV will be subject to sector -specific regulation, and that the JV’s entry 
on the market will not lead to de -regulation.  
(B.iv)  Conclusion  
(172)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market with respect to 
possible input foreclosure practices under any of  the alternative product markets  for 
                                                 
210  Q1 – Questionnaire to market participants, response to questions 30 -32. 
211  Q1 – Questionnaire to market participants, response to question 32.1.  
212  Form CO, paragraph 379.  
213  Q1 – Questionnaire to market participan ts, response to questions 41 -43. 
 
 
37 the (i) wholesale resale broadband access and leased lines markets, and the (ii) retail 
telecommunications markets (retail mobile, fixed internet, fixed voice, business 
connectivity and a potential supply of multi -play services), irrespective of the 
geographic scope .  
5.4.1.2.  Customer foreclosure  
(A) The Notifying Parties’ views  
(173)  The Notifying Parties submit that there will be no customer foreclosure by restricting 
or limiting competing wholesale broadband access providers from their access to 
Proximus and Eurofibe r as customer s. The Notifying Parties indicate that neither 
Proximus nor Eurofiber currently purchase s wholesale broadband access services 
from other operators, and therefore a risk of customer foreclosure does not exist .214  
(B) Commission’s assessment  
(174)  For the reasons set out below, the Commission considers that the Transaction does 
not lead to customer foreclosure concerns in the upstream wholesale (local) 
broadband access market. The Parties will not have the ability nor the incentive to 
foreclose rival wholes ale broadband access suppliers by restricting access to 
Proximus , Eurofiber or the JV as a (potential) customer.  
(B.i) Ability to engage in customer foreclosure  
(175)  The JV , Proximus and Eurofiber currently do not purchase any wholesale broadband 
access services from  other operators in Belgium. As set out above (see paragraph 
(162) ), post-Transaction, the JV will constitute a new operator on the market, 
offering wholesale local broadband access services . The JV is currently not yet 
active on the market, as it will be created as a greenfield operation.215  
(176)  At the same time, neither Proximus nor Eurofiber purchase s any wholesale 
broadband access services in Belgium. Proximus noted that it has [details regarding 
wholesale broadban d access services] .216  
(177)  For the reasons set out above, the Commission concludes that the JV would not have 
the ability to foreclose downstream operators by engaging in a customer foreclosure 
strategy.   
(B.ii) Incentive to engage in customer foreclosure  
(178)  The Commissi on considers that due to the JV’s lack of ability, it is not needed to 
assess whether the JV would have an incentive to engage in a foreclosure strategy.  
(179)  In any event, there were no elements in the market investigation that pointed towards 
the JV having an  incentive to engage in customer foreclosure. In particular, a  
majority of respondents to the market investigation  submitted that there is no 
                                                 
214  Form CO, paragraphs 387 and 390.  
215  The Notifying Parties will not contribute assets or existing activities to the JV.  
216  Form CO, paragraph 387.  
 
 
38 scenario in which Proximus  would have started purchasing access from them, but 
would no longer have an incentive t o do so post -Transaction.217  
(B.iii)  Impact on effective competition  
(180)  The Commission considers that due to the lack of ability, it is not needed to assess 
whether any foreclosure strategy would have a negative impact on effective 
competition.  
(181)  In any event, most respondents to the market investigation consider that this 
Transaction will not have a negative impact on their business or on the relevant 
broadband access market . For instance, one respondent noted that: “ Provided that 
the JV will offer equal, transparent ac cess terms and conditions, the JV will allow 
smaller alternative telecom operators to get access to a physical fiber network, 
therefore further enhancing competition ”.218  
(B.iv)  Conclusion  
(182)  In light of  the above, the Commission concludes that the Transaction does n ot raise 
serious doubts as to its compatibility with the internal market under any of the 
considered alternative product markets for wholesale broadband access, whether at 
national level , at the level of VOO’s coverage area , in Wallonia or at the level of the 
JV’s footprint .  
5.4.2.  Vertical relationship between the wholesale supply of leased lines (active and 
passive) upstream, and the wholesale supply of leased lines (active) and retail 
supply of business connectivity services downstream   
(183)  The JV’s upstream  activities in the leased lines market (including dark fiber) in 
Belgium (JV, below [0-5]%, expected 2024) are vertically linked to Proximus’ and 
Eurofiber’s activities in the downstream  retail supply of business connectivity 
services in Belgium (Proximus, [40-50]%; Eurofiber, [0-5]%),219 which gives rise to 
an affected market.  
(184)  The JV’s upstream  activities on a potential wholesale market for the supply of dark 
fiber in Belgium (JV, below [0-5]% expected by 2024) are vertically linked to 
activities in the downstream  leased lines (excluding dark fiber) market in Belgium 
(Proximus, [50-60]%; Eurofiber, [5-10]%),220 which gives rise to an affected market.  
(185)  The Commission notes that the Notifying Parties’ arguments and the Commission’s 
analysis is the same in relation to a ll downstream markets (including all possible 
segments). There are no vertically affected markets under any possible market 
definition other than those listed in paragraphs (150)  and (183) -(184)  above.  
                                                 
217  Q1 – Questionnaire to market participants, response to question 32.2.  
218  Q1 – Questionnaire to market participants, response to question 42.6 in relation to the wholesale 
broadband access market.  
219  Form CO, Annex 37.  
220  Form CO, Annex 37.  
 
 
39 5.4.2.1.  Input foreclosure  
(A) The Notifying Parties’ views   
(186)  The Notifying Parties argue that there will be no input foreclosure by restricting 
access to the JV’s dark fiber offering for comp eting providers of wholesale leased 
lines (active) and/or business connectivity services for the following reasons.221 
(187)  First, through the Transaction, a new provider of dark fiber solutions will enter at the 
wholesale level. The JV will offer an alternative to any interested operator. 
Therefore, the Transaction does not involve a possible foreclosure upstream of an 
existing (important) input that is currently used downstream.  
(188)  Second, as explained in paragraph (154)  above, the JV is a new entrant and it is 
unlikely to have any significant degree of market power in the near future , which is 
necessary for input foreclosure to be a concern . 
(189)  Third, for the reasons  explained in paragraph (155)  above, Eurofiber will have no 
incentive to limit sales of dark fiber to third parties (which would limit the JV’s 
revenues).   
(190)  Finally, as explained in paragraph (140)  above, vertically integrated c able operators 
as well as other (national and international) market players will offer active and/or 
passive solutions at the wholesale level competing with the JV.  
(B) Commission’s assessment  
(191)  For the reasons set out below, the Commission considers that the Tr ansaction does 
not lead to credible input foreclosure concerns in the downstream markets for the (i) 
wholesale supply of leased lines (active) and (ii) retail supply of business 
connectivity services.  
(B.i) Ability to engage into input foreclosure  
(192)  The Commission  considers that the Parties will not have the ability to engage in 
input foreclosure by restricting access to the JV’s dark fiber offering to downstream 
operators.  
(193)  First, the Commission recalls that the JV will have a very limited market position in 
the le ased lines market (including dark fiber). The Parties expect the JV’s market 
share to remain below [0-5]% by 2024 in Belgium in both a market for leased lines 
including dark fiber and in a narrower potential segment for the supply of dark 
fiber.222 The JV ca n therefore not be considered to have significant market power in 
the upstream leased lines market.  
(194)  Second, following the Transaction, customers will have a new and additional 
supplier of leased lines services, in addition to the existing offers from a lar ge 
number of market players in Belgium. As indicated in paragraph (147)  above, the 
leased lines market is characterised by competition between various providers with 
                                                 
221  Form CO, paragraphs 378 -381. 
222  Form CO, Annex 37.  
 
 
40 active and/or dark fiber offerings. These incl ude for example Eurofiber223, 
Proximus224, Telenet, Fluvius, VOO, Colt and others.225 Concretely, the JV 
represents a new and additional wholesale input on to the leased lines (active only) 
market and the retail business connectivity access market in Belgium, as  opposed to 
a (particularly important) existing input access to which is being limited or 
prohibited.   
(195)  Third, in terms of alternatives to the JV’s services, in the leased lines market 
(including dark fiber), the offers by Proximus are subject to sector -specific 
regulation. As explained in paragraph (148)  above, the BIPT’s 2019 decision has 
imposed a regulatory obligation on Proximus to grant (i) active wholesale access to 
third parties to its copper pair network a s well as its fiber network ; and (ii) passive 
wholesale access to third parties to its fiber network .226 In addition, Proximus  is 
obliged to provide a non -discriminatory non -exclusive open access for all interested 
third parties.227 A majority of the responden ts to the market investigation indicated 
that the existence of sector -specific regulation relating to the conditions of access to 
leased lines operators' networks (active infrastructure only) would prevent the JV 
from restricting access to its  dark fiber o fferings.228 Consequently, while similar 
obligations will not apply to the JV’s dark fiber services, customers can always rely 
on this regulated alternative on the leased lines market.  
(196)  Therefore, for the reasons set out above, the Commission concludes that t he JV 
would not have the ability to foreclose rival operators by engaging in an input 
foreclosure strategy.  
(B.ii) Incentive to engage into input foreclosure   
(197)  While the conditions to find an input foreclosure strategy are cumulative (see 
paragraph (110)  above), and the Commission has concluded that the JV would not 
have the ability to engage in a successful foreclosure strategy (see paragraph (196)  
above), the Commission has ne vertheless also assessed the other conditions for 
completeness. The Commission considers that the Parties will not have the incentive 
to engage in input foreclosure by restricting access to the JV’s dark fiber offerings to 
downstream operators.  
(198)  Only a  few respondents to the market investigation believe it is credible that the JV 
would have the incentive to restrict or limit access to its dark fiber offerings.229 
However, these respondents did not substantiate their claims.  In contrast, several 
respondents explained why the JV would likely not have an incentive to restrict or 
limit access to its dark fiber offerings. For instance, one respondent  considered : “We 
                                                 
223  Form CO, paragraph 180. Euro fiber provides active services (P2P fiber connectivity solutions such as 
EFM lines) and passive services (dedicated/bespoke dark fiber FTTO solutions).  
224  Form CO, paragraph 175. Proximus offers active services (wholesale leased lines including traditional  and 
Ethernet leased lines as well as regulated Next Generation Leased Lines (P2P connections, both fiber and 
copper (“EFM”)) and the commercially offered (i) Explore services (P2P connections, both fiber and 
copper (“EFM”)) and (ii) E -line services (P2P c onnections, both fiber and copper (“EFM”)).).  
225  Q1 – Questionnaire to market participants, response to questions 6.1 and 27.1.  
226  BIPT decision of 13 December 2019, Section 2.  
227  BIPT decision of 13 December 2019, Section 2.  
228  Q1 – Questionnaire to ma rket participants, response to question 37.  
229  Q1 – Questionnaire to market participants, response to questions 35 and 36.  
 
 
41 understand the JV intends to build an open network, so we are expecting no 
intention to restrict acce ss on their part ” and “ the presence of alternative networks 
and the potential for regulation under sector -specific regulation may reduce the 
risk.”230 Another respondent explained that “ As a pure wholesale player, the JV, as 
an independent company, should we lcome every wholesale customer on its network, 
and would therefore need to propose an attractive offer to its wholesale customers. ” 
231  
(199)  The Notifying Parties indicate  that “ the offer will be available, provided any such 
party is interested in buying the ser vices concerned, to the JV’s Parents as well as to 
any interested third parties given that the services concerned will be available on an 
open, neutral and non -discriminatory basis ”.232 The Parties’ internal documents  also 
show these statements : “For B2B cus tomers (individual or clustered on Industrial 
Zones) one of both founding parties or 3rd parties can signal their interest to JV. 
The offering shall be open and neutral ”233 and “ the Joint -Venture will be open, non -
discriminating , for other wholesale provider s in both residential and B2B ”.234 
(200)  For the reasons set out above, the Commission concludes that the JV would not have 
the incentive to foreclose rival operators by engaging in an input foreclosure 
strategy.  
(B.iii)  Impact on effective competition  
(201)  The Commission cons iders that due to the lack of ability and incentive, it is not 
needed to conclude on the question whether any foreclosure strategy would have a 
negative impact on effective competition.  
(202)  In any event, m ost respondents to the market investigation consider th at the 
Transaction will not have a negative impact on their bus iness or the relevant markets 
(as set out in paragraph (183) -(184)  above).235 On the contrary, a number of 
respondents consider that the Transaction will have a positive impact on the retail 
business connectivity market. For instance, one customer states: “ Given increasingly 
growing internet bandwidth demands for businesses, the roll -out of a fiber network 
could indeed have positive effects ”.236 In relation to the leased lines market, one 
customer states: “ More fiber for the customers ”.237 
(B.iv)  Conclusion   
(203)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compati bility with the internal market with respect to 
possible input foreclosure practices under any of the alternative products markets for 
the (i) wholesale supply of leased lines (active and passive) and the (ii) wholesale 
                                                 
230  Q1 – Questionnaire to market participants, response to question 36.1.  
231  Q1 – Questionnaire to market participants, response to qu estion 36.1.  
232  Form CO, paragraphs 182 -183 and 185.  
233  Form CO, Annex 41, Follow -up discussion on B2B customers and bespoke connections , 20 May 2021, 
slide 3 (emphasis added).  
234  Form CO, Annex 12, Ambiorix – Status update final deck , 21 October 2020, sli de 2 (emphasis added).  
235  Q1 – Questionnaire to market participants, response to questions 41 -43. 
236  Q1 – Questionnaire to market participants, response to question 42.4.  
237  Q1 – Questionnaire to market participants, response to question 42.7.  
 
 
42 supply of leased lines (active) and retail supply of business connectivity services, 
irrespective of the geographic scope.  
5.4.2.2.  Customer foreclosure   
(A) The Notifying Parties’ views  
(204)  The Notifying Parties submit that there will be no customer foreclosure by restricting 
or limiting competing leased li nes providers from their access to Proximus and 
Eurofiber as customers. The Notifying Parties claim  that (i) Proximus does not 
currently purchase any active leased lines products from third parties or any dark 
fiber services for its national electronic com munications activities in Belgium238 and 
(ii) Eurofiber’s presence on the market as a purchaser is limited.239 Therefore, the 
Notifying Parties argue that a risk of customer foreclosure does not exist.  
(B) Commission’s assessment  
(205)  For the reasons set out below, the  Commission considers that the Transaction does 
not lead to c customer foreclosure concerns in the upstream leased lines (active and 
passive) market. The Parties will not have the ability of the incentive to foreclose 
rivals lease lines suppliers by restri cting access to Proximus, Eurofiber or the JV as a 
(potential) customer.  
(B.i) Ability to engage into customer foreclosure  
(206)  Post-Transaction, the JV will constitute a new operator on the market, offering dark 
fiber solutions. The JV is currently not yet active on  the market, as it will be created 
as a greenfield operation.240 
(207)  First, the JV and Proximus currently do not purchase any active leased lines or dark 
fiber solutions from other operators in Belgium. Proximus noted that in the past it 
has [details on the busi ness strategy applied by Proximus in the past regarding dark 
fiber] . In addition, Proximus noted that [details regarding Proximus’ business 
strategy in respect of active leased lines and dark fiber services] .241 
(208)  Second, as noted  by the Notifying Parties, Eur ofiber’s presence on the market as a 
purchaser is limited. Eurofiber currently purchases […] dark fiber connections (from 
[…] different providers) and […] (active) Ethernet lines (from […] different 
providers).242 These purchases are limited compared to (i) the total market for high -
quality wholesale services, as defined by the BIPT (approximately 14,500 lines in 
2018)243 and (ii) the total aggregate number of wholesale dark fiber connections in 
Belgium ( […] lines) .244 In addition, the majority of respondents to the market 
                                                 
238  Form CO, paragraph 388. Proximus indicates that in the past it has [details on the business strategy 
applied by Proximus in the past regarding dark fiber] .  
239  Form CO, paragraphs 391 -393.  
240  The Notiyfing Parties will not contribute assets or existing activities to the JV.  
241  Form CO, paragraph 388.  
242  Form CO, paragraph 391.  
243  BIPT decision of 13 December 2019, paragraph 431.  
244  IDC Report, “Belgian Data Connectivity Market Model 2020 for Eurofiber”, 29 January 2020, Form CO, 
Annex 39. In addition, Eurofiber ha s [details regarding Eurofiber’s strategy in respect of wholesale dark 
 
 
 
43 investigation, who are active as a supplier of leased lines at the wholesale level, do 
not consider having access to Eurofiber as a client is critical or important.245 
(209)  For the reasons set out above, the Commission concludes that the JV would not h ave 
the ability to foreclose downstream operators by engaging in a customer foreclosure 
strategy.  
(B.ii) Incentive to engage into customer foreclosure  
(210)  The Commission considers that due to the JV’s lack of ability, it is not needed to 
assess whether the JV would h ave an incentive to engage in a foreclosure strategy.  
(211)  In any event, there were no elements in the market investigation that pointed towards 
the JV having an incentive to engage in customer foreclosure. A majority of 
respondents to the market investigation indicated that there is no scenario in which 
Proximus would have started purchasing access from them, but would no longer 
have an incentive to do so post -Transaction.246 
(B.iii)  Impact on effective competition  
(212)  The Commission considers that due to the lack of ability  and incentive, it is not 
needed to assess whether any foreclosure strategy would have a negative impact on 
effective competition.  
(213)  In any event, most respondents to the market investigation consider that this 
Transaction will not have a negative impact on their business or on the relevant 
leased lines market  (as set out in paragraph (202)  above) .247  
(B.iv)  Conclusion  
(214)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market under any of the 
considered alternative products markets for leased lines, whether at national level, at 
the level of VOO’s coverage area, in Wallonia or at the level of the JV’s footprint.  
5.5. Cooperative effects   
(215)  Proximus and Eurofiber will both remain independently active in Belgium  on two 
markets that can be considered as situated downstream from the activities of the JV, 
namely (i) the wholesale supply of leased lines  (excluding dark fiber)  and (ii) the 
retail supp ly of business connectivity services.248 Further, the Notifying Parties will 
remain independently active in Belgium in the same market as the JV , namely  (i) the 
wholesale  leased lines market (including dark fiber).  
                                                                                                                                                      
fiber connections in Belgium] , Form CO, paragraph 392. Eurofiber has only limited purchases of dark 
fiber services in Wallonia. Indeed, according to Eurofiber, its purchases of dark fib er from third party 
providers in Wallonia represents approximately […] of its total purchases in Belgium, Form CO, 
paragraph 393.  
245  Q1 – Questionnaire to market participants, response to question 39.  
246  Q1 – Questionnaire to market participants, response to question 38.  
247  Q1 – Questionnaire to market participants, response to questions 41 -43. 
248  See footnote 140.   
 
 
44 5.5.1.  The Notifying Parties’ views  
(216)  The Notifying  Parties argue that the creation of the JV does not have the object o r 
effect of – and will not lead to – coordination between the Notifying Parties in the 
markets for the wholesale supply of leased lines and the retail supply of business 
connectivity serv ices in Belgium, because the market conditions are not conducive to 
tacit coordination, the information barriers set out in the SSHA will prevent the 
disclosure of confidential information between the Notifying Parties, and the JV will 
deal at arm’s length  with the Notifying Parties and other operators.249 
5.5.2.  The Commission’s assessment  
(217)  The Commission considers that the Transaction does not give rise to serious doubts 
as to its compatibility with the internal market as a result of cooperative effects in the 
mark ets for (i) the w holesale supply of leased lines  and (ii) the retail supply of 
business connectivity services for the reasons set out below . 
(218)  First, the Commission observes that the relevant markets are not conducive to 
coordination between the Parties. The  market shares of the Parties are asymmetric  
(see paragraphs (219) -(221)  below) , the Transaction does not eliminate a market 
player,  and several competitors would remai n post -Transaction, which would be 
likely to disrupt any attempts of the Notifying Parties to coordinate their activities on 
the relevant markets.  Moreover, the JV will not become a vertically integrated player 
with its own active wholesale and  retail serv ices on the market.  
(219)  As regards the market for the wholesale supply of leased lines  (including  dark fiber) , 
or any segments, Proximus and Eurofiber will retain activities with market shares of 
respectively approximately [50-60]% and [5-10]% in 2020  in Belgi um and the JV’s 
footprint, and approximately [70-80]% and less than [0-5]% in VOO’s coverage 
area/Wallonia .250 As explained above  in paragraph (4), the JV will likely become 
active on the leased lines market  (including dark fiber)  as a supplier. In any event,  
even by 2024,  the JV would only have a limited market share below [0-5]% in 
Belgium, VOO’s coverage area/Wallonia and in its footprint . Post -Transaction, the 
Notifying Parties will continue to face competitive constraints from a number of 
market participants identified by the BIPT in its decision of 13 December 2019. 
These include Telenet, with a market share of 20 -30% in Belgium, as well as a 
number of several operators that are part of international groups (su ch as BT, Colt, 
Verizon, etc.). The number of competitors would even be larger if dark fiber is 
included in the market for the wholesale supply of leased lines.251 
(220)  As regards the market for the retail supply of business connectivity services , or any 
segments , Proximus and Eurofiber will retain activities with market shares of 
respectively [40-50]% and [0-5]% in 2020 in Belgium , and approximately [70-80]% 
and less than [0-5]% in VOO’s coverage area/Wallonia and in the JV’s footprint .252 
The JV itself will not be  active on this market as either a supplier or a purchaser. 
Post-Transaction, the Notifying Parties will continue to face competitive constraints 
from vertically integrated cable operator Telenet, with market shares between 10 -
                                                 
249  Form CO, paragraphs 534 -542. 
250  Form CO, Annex 37.  
251  Form CO, paragraph 367.  
252  Form CO, Annex 37.  
 
 
45 20% in Belgium, and smaller p layers that, take n together, account for approximately 
10% of the market (with an upward trend).  
(221)  Second , the small size of the JV relative to Proximus’ and Eurofiber’s  activities 
makes it unlikely that the latter  Parties would have any incentive to coordi nate their 
competitive behaviour. According to its business plan, the JV is expected to generate 
revenues in the range of approximately  EUR […] million  by 2024, which represents 
approximately [0-5]% of Proximus’ and [0-5]% of Eurofiber’s EU -wide turnover.253 
Even in 2027, which according to the JV’s business plan is the year where it is 
expected to achieve most revenues, its projected EUR […] million will only 
represent  approximately [0-5]% of Proximus’ and [0-5]% of Eurofiber’s EU -wide 
turnover. In line with  the Commission’s conclusions in precedent cases, this suggests 
that the conduct of the Notifying Parties on the markets is unlikely to be influenced 
by their cooperation in the JV.254 
(222)  Third , information barriers set out in the SSHA will make it difficult fo r the 
Notifying Parties to coordinate their behaviour  post-Transaction . Information 
barriers will be in place between the Notifying Parties  on the one hand and the JV on 
the other hand, and between the Notifying Parties .255 They will prevent information 
flows that could otherwise help to coordinate the retained activities of the Notifying 
Parties.  More specifically, the information barriers will ensure that the Notifying 
Parties cannot access commercially sensitive information and/or strategic 
information tha t belongs to the other Notifying Party and/or the JV. In particular, the 
JV is required to create codes of conduct and/or internal policies to ensure 
compliance with all applicable laws and regulations. These include rules and 
principles required at Board level and at the level of reporting towards the JV’s  
parents, “ so as to avoid that any Commercially Sensitive Information [of the JV] 
would become available in a manner that (i) is incompatible with the applicable 
laws and regulations or (ii) would result in any [of its parents] gaining a competitive 
advantage .”256 In addition, the Notifying Parties will set up “Chinese walls”, team 
separation mechanisms, and other types of information barriers as needed in order 
“to ensure adequate compliance with any and al l applicable laws and regulations 
(including competition law) or to avoid that any Shareholder would gain a 
competitive advantage ”. These mechanisms will ensure that “no Commercially 
Sensitive Information  [of the JV ] becomes accessible to persons within [Proximus 
and Eurofiber ] who do not have an objective need to have access to such information 
and/or who exercise a function in respect of which such information could represent 
a competitive advantage and/or could influence the commercial conduct .”257 
(223)  Fourth , the JV will deal at arm’s length with the Notifying Parties and other 
operators.  The JV will therefore not lead to any cooperative effects amongst the 
Notifying Parties, and between each of the Notifying Parties and third party 
                                                 
253  Busin ess Plan, Form CO, Annex 35.  
254  See Commission Decisions of 12 August 2020 in M.9802 – Liberty Global/DPG Media/JV, paragraph 
341; of 5 July 2010 in case M.5838 – Bertelsmann/Planeta/Circulo , paragraphs 69 -73; of 17 June 2010 in 
case M.5841 – Cathay Pacifi c Airways/Air China/ACC , paragraph 30; of 10 November 2004 in case 
M.3542 – Sony Pictures,/Disney/ODG/JV , paragraphs 17 -19. 
255  Form CO, paragraph 540.  
256  Article 29.1 of the SSHA.  
257  Article 29.2 of the SSHA.  
 
 
46 operators in relation to th e access terms to the JV’s passive infrastructure.258 
Moreover, as the JV’s passive infrastructure is only one component of network 
infrastructure, it does not affect the key facets of competition between Proximus and 
Eurofiber in the downstream markets for wholesale supply of leased lines and retail 
supply of business connectivity services.  
(224)  Finally, only two respondents to the market investigation considered that the 
Transaction could give rise to cooperative effects . However , these respondents did 
not substantiat e their claim s.259 
5.5.3.  Conclusion  
(225)  In light of the above, the Commission concludes that the Transaction does not give 
rise to serious doubts as to its compatibility with the internal market in relation to 
cooperative effects in Belgium in (i) the markets f or the wholesale supply of leased 
lines and (ii) the retail supply of business connectivity services in Belgium.  
6. CONCLUSION  
(226)  For the above reasons, the European Commission has decided not to oppose the 
notified operation and to declare it compatible with th e internal market and with the 
EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the 
Merger Regulation and Article 57 of the EEA Agreement.   
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice-President  
                                                 
258  Form CO, paragraphs 541 -42. 
259  In relation t o the wholesale supply of leased lines, one respondent indicated that the Transaction “ will give 
rise to coordination between Eurofiber and Proximus, what will reduce Proximus incentive to grant good 
conditions on the wholesale market ”, without further ela borating on how this Transaction could lead to 
coordination on the markets or the reasons for an increase in Proximus’ incentive to grant good conditions 
on this market, Q1 – Questionnaire to market participants, response to questions 40.1 and 40.1.1. In 
relation to the retail supply of business connectivity services, the same respondent merely indicated that 
the Transaction “ will reduce competitive constraints on Proximus ”, without explaining how this reduction 
in competitive constraint would result from c oordination between the Notifying Parties, Q1 – 
Questionnaire to market participants, response to questions 40.2 and 40.2.1. In both instances, the other 
respondent referred to “ previous responses ” without indicating which responses would be relevant.