Case T-64/20: Action brought on 3 February 2020 — Deutsche Telekom v Commission
Date: 2020-02-03
Institutions: General Court
Subjects: Germany, domestic market, dominant position, economic concentration, merger control, provision of services, retail trade, telecommunications, television, wholesale trade








C_2020095EN.01004201.xml










23.3.2020   


EN


Official Journal of the European Union


C 95/42






Action brought on 3 February 2020 — Deutsche Telekom v Commission
(Case T-64/20)
(2020/C 95/51)
Language of the case: English

Parties


Applicant: Deutsche Telekom AG (Bonn, Germany) (represented by: C. von Köckritz, U. Soltész and M. Wirtz, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:






—


annul the Commission decision C (2019) 5187 final of 18 July 2019 in case M.8864 — Vodafone/Certain Liberty Global Assets;










—


order the defendant to pay the costs.





Pleas in law and main arguments

In support of the action, the applicant relies on five pleas in law.






1.


First plea in law, alleging that the Commission infringed Articles 2, paragraphs 2 and 3 of the EC Merger Regulation (1) by clearing a transaction resulting in a dominant position of the merged entity and a significant impediment of effective competition (‘SIEC’) in the German market for the retail supply of TV signal transmission to multi-dwelling units (‘MDU’) customers. The Commission’s conclusion that the Parties were neither actual (direct/indirect) nor potential competitors pre-Transaction and that the Transaction would not lead to a significant deterioration of the competitive conditions is vitiated by manifest errors of assessment. In particular, the Commission failed to take account of the negative repercussions of the merged entity’s superior market power in the markets for wholesale supply and acquisition of TV channels and for wholesale TV signal transmission (the ‘wholesale TV markets’) in the MDU market.










2.


Second plea in law, alleging that the Commission’s finding of a lack of a SIEC in the single dwelling units (‘SDU’) market is equally vitiated by manifest errors of assessment, in particular since it is also based on the alleged lack of a significant competitive relationship among the Parties pre-Transaction. The Transaction results in a dominant position entailing a SIEC in the SDU market comprising only cable and IPTV.










3.


Third plea in law, alleging that the Commission’s conclusion as to the ability and incentives of the merged entity to harm Tele Columbus and other retail TV signal suppliers dependent on intermediary TV signal delivery by the merged entity is vitiated by errors of law and manifest errors of assessment.










4.


Fourth plea in law, alleging that the Commission’s assessment of the negative effects of the Transaction on the wholesale TV markets is incomplete and manifestly erroneous. In particular, the Commission erroneously held that the merged entity would not have the incentive to foreclose access of the merged entity’s competitors to content and that such foreclosure would not have significant negative effects on the downstream markets for retail TV signal supply to MDUs and SDUs. The Commission also failed to assess the merged entity’s ability and incentive to harm downstream competitors by otherwise worsening their access conditions to TV content including digital functionalities (i.e. instant restart, pause etc.) than through total foreclosure (‘partial foreclosure’), to the detriment of consumers.










5.


Fifth plea in law, alleging that the Commission committed a manifest error of assessment by considering that the Transaction, as modified by the commitments offered by Vodafone, does not lead to a SIEC on the wholesale TV markets. Since the commitments do not meet the standards of the Commission’s Remedies Notice and were insufficient to remedy the SIEC of the Transaction on these and other markets, the Commission’s clearance decision accepting these remedies violates Art. 2 (3) of the Merger Regulation.






(1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, OJ L 24, 29.1.2004, p. 1–22.