6

Recitals 3 to 10 in the preamble to the contested decisions are worded as follows: ‘(3) The Commission has information suggesting that [the applicant] may hold a dominant position in one or more relevant markets as regards the provision of internet connectivity services. (4) The Commission has information suggesting that [the applicant] could apply practices that limit and/or impair the quality of internet connectivity services in the EEA. Such practices could include: (a) “Tromboning”. [The applicant] could permit some transit providers to interconnect with sufficient capacity to [its] network only in remote locations, even if the [applicant] and the transit provider(s) in question are present and could interconnect in closer locations in the EEA, including in the Member State(s) where [the applicant] offers broadband internet access services; and/or (b) Port congestion. [The applicant] can refuse and/or delay the updating of interconnection capacity with some transit providers, resulting in the congestion of existing ports; and/or (c) Restrictions of route propagation. By imposing restrictions on route propagation in the context of its transit activities, [the applicant] could oblige transit operators and [content distribution networks] to connect directly to the network of [the applicant] in order to reach the end users of [the latter] or provide those users with an acceptable standard of quality; and/or (d) Restrictive traffic ratios. [The applicant] could apply restrictive traffic ratios between incoming traffic and outgoing traffic, which would have the effect of limiting the incoming traffic of transit operators intended for its end users, and/or could ask transit operators to pay a fee for incoming traffic over and above that ratio; and/or (e) Margin squeezing. The difference between the price charged by [the applicant] to transit operators for access to its network and the prices of [the applicant] for its own transit services could be such that transit operators which are just as efficient as [the applicant] are unable to compete for the provision of some transit services. (5) Furthermore, the practices described in recital 4 above could have placed independent providers of content and/or applications on the internet at a competitive disadvantage when serving the end users of [the applicant] with respect to the supply of similar content and/or applications by [the applicant]. (6) The Commission has information suggesting that the practices described in recital 4 above could have taken place at least as from 2005 and might still be ongoing. However, it cannot be ruled out that these practices took place over a longer period of time. (7) Should these claims prove to be well founded, the practices described in recital 4 above could constitute an infringement or infringements of Article 102 TFEU and Article 54 of the EEA Agreement. (8) In order to enable the Commission to investigate all the relevant facts concerning the practices described in recital 4 and the context in which they occurred, inspections must be made in accordance with Article 20 of Regulation No 1/2003. (9) The Commission has information suggesting that the practices described in recital 4 are driven by considerations which are subject to the utmost confidentiality and are known only to the senior staff members of [the applicant] and a limited number of trusted employees, [and that] the documents relating to those practices and the reasons underlying them are assumed to be limited to the minimum necessary and stored in places and/or in a form that would facilitate their concealment, non-production or destruction in the event of an inspection. (10) In order to ensure that the current inspections are effective, they must be conducted without the undertakings suspected of participating in the infringement(s) being informed beforehand and several inspections must be carried out simultaneously.’