CELEX: 32017M8465
Language: en
Date: 2017-05-30 00:00:00
Title: Commission Decision of 30/05/2017 declaring a concentration to be compatible with the common market (Case No COMP/M.8465 - VIVENDI / TELECOM ITALIA) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                               Brussels, 30.5.2017
                                                               C(2017) 3834 final
 In the published version of this decision, some
 information has been omitted pursuant to Article
 17(2) of Council Regulation (EC) No 139/2004
 concerning non-disclosure of business secrets and
                                                               To the notifying parties
 other confidential information. The omissions are
 shown thus […]. Where possible the information
 omitted has been replaced by ranges of figures or a
                                                                    PUBLIC VERSION
 general description.
Subject:             Case M.8465 – Vivendi / Telecom Italia
                     Commission decision pursuant to Article 6(1)(b) and 6(2) of Council
                     Regulation No 139/20041 and Article 57 of the Agreement on the
                     European Economic Area2
Dear Sir or Madam,
1.          INTRODUCTION
  (1)       On 31 March 2017, the European Commission received notification of a
            proposed concentration pursuant to Article 4 of the Merger Regulation by which
            Vivendi S.A. ("Vivendi" or the "Notifying Party") acquires within the meaning
            of Article 3(1)(b) of the Merger Regulation de facto control of the whole of
            Telecom Italia S.p.A. ("TIM") (the "Transaction"). Vivendi and TIM are
            collectively referred to as the "Parties".
2.          THE PARTIES
  (2)       Vivendi is a French holding company which controls a group of undertakings
            active in the music, TV, cinema, video sharing and games businesses and
            focusses in particular on digital entertainment.
1       OJ L 24, 29.1.2004, p. 1 (the 'Merger Regulation'). With effect from 1 December 2009, the Treaty
        on the Functioning of the European Union ('TFEU') has introduced certain changes, such as the
        replacement of 'Community' by 'Union' and 'common market' by 'internal market'. The terminology
        of the TFEU will be used throughout this decision.
2       OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement').
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.
 ---pagebreak---   (3)     Vivendi currently holds a significant minority stake in Mediaset S.p.A.
          ("Mediaset"). Vivendi holds 28.80% of the share capital and 29.94% of the
          voting rights in Mediaset. Mediaset is the largest commercial broadcaster in
          Italy. Mediaset is mainly focused in the provision of free-to-air ("FTA"), Pay-
          TV and TV advertising services. Moreover, Mediaset is a digital broadcasting
          operator through Elettronica Industriale and, through EI Towers, is also active in
          the tower business, consisting in the management and operation of network
          infrastructure assets.3
  (4)     TIM is the Italian formerly state-owned telecommunications incumbent, also
          active outside the Italian territory, mainly in Brazil. In Italy, TIM provides
          mobile and fixed telecommunications services, both at retail and wholesale
          level. Moreover, TIM provides digital content under the brands "TIM Vision",
          "TIM Music", "TIM Games" and "TIM Reading" and it is also active as digital
          broadcasting operator through Persidera S.p.A. (a joint venture with Gruppo
          Editoriale L’Espresso, "Persidera"), over which TIM exercises sole control.4
          Finally, TIM controls Infrastrutture Wireless Italiane S.p.A. ("INWIT"), which
          operates transmission towers mainly for mobile services.
3.        THE CONCENTRATION
  (5)     Vivendi has progressively acquired a participation of 23.93% in TIM5 and, at
          the shareholders' meeting of 15 December 2015, it has appointed four members
          of the board of directors of TIM (including the Vice-Chairman). In addition:
          (i) TIM's shareholding is widely dispersed (no other shareholder holding more
          than 5%); and (ii) apart from Vivendi, there is no other industrial shareholder
          having a significant stake in TIM and the next largest shareholders are financial
          investors that are unlikely to have in-depth knowledge of the markets where
          TIM is active.
  (6)     At the shareholders' meeting of 4 May 2017 the board of directors of TIM6 was
          up for renewal for a period of three years (until the approval of the financial
          statements for 2019). According to TIM's by-laws, the board of directors is
          elected as follows:
        (i)      Two-thirds of the directors to be elected are chosen from the slate which
                 obtains the (relative) majority of the votes (the so-called majority slate), in
3     See decisions of the Italian Antitrust Authority ("ICA") No. 25359 of 10 March 2015 e No. 25452
      of 30 April 2015 in case C11987 – EI Towers/Rai Way.
4     TIM Media Broadcasting and Gruppo Editoriale L’Espresso hold respectively 70% and 30% of
      Persidera's share capital. According to Persidera's Shareholders Agreement, TIM Media
      Broadcasting is entitled to appoint a majority of the board members (6 out of 9), including the CEO,
      and Gruppo Editoriale L'Espresso's rights do not go beyond the veto rights normally accorded to
      minority shareholders in order to protect their financial interests.
5     Vivendi has increased its participation in TIM from an initial purchase of 6.6% of the share capital
      (in June 2015) through a series of successive acquisitions (the details are published on TIM's
      website:
      http://www.telecomitalia.com/tit/it/investors/shareholders/significant shareholdings/flaggings.html.
6     The board of directors had been appointed at the shareholders' meeting of 16 April 2014 for a
      duration of three years (until the approval of the financial statements for 2016).
                                                          2
 ---pagebreak---                    the order in which they are listed on the slate, rounding any fractions down
                   to the nearest whole number;7 and
        (ii)       The remaining directors are chosen from the other slates. For such
                   purpose, the votes cast by the various slates shall be divided by whole
                   numbers from one up to the number of directors to be chosen. The
                   quotients obtained shall be assigned to the candidates on each slate in the
                   order specified thereon. On the basis of the quotients assigned, the
                   candidates on the various slates shall be arranged in a single decreasing
                   ranking. Those who have obtained the highest quotients shall be elected,
                   provided that at least one-half of the candidates chosen from each slate
                   (with fractions rounded up to the nearest whole number) has the
                   independence requirements under Article 148 of Consolidated Financial
                   Act and/or the Code of Conduct.
  (7)      Vivendi has presented a list of 10 candidates on 9 April 2017, while a second
           list with only 5 candidates was presented by an association representing
           minority shareholders, Assogestioni, on 6 April 2017.8 At the shareholders'
           meeting of 4 May 2017, Vivendi's slate obtained the highest number of votes
           and, thus, the majority of the board members was selected from Vivendi's slate
           (i.e., 10 members out of a total of 15)9.
  (8)      In accordance with para. 54 of the Consolidated Jurisdictional Notice ("CJN"),
           sole control arises if one undertaking can exercise decisive influence on an
           undertaking within the meaning of Article 3(2) of the Merger Regulation.
           Pursuant to para. 59 of the CJN a minority shareholder may be deemed to have
           sole control on a de facto basis.
  (9)      In the present case, according to applicable rules, the majority of the board
           members is to be selected from the slate that has obtained the highest number of
           votes (i.e., not necessarily more than 50% of the votes present at the
           shareholders' meeting). Thus, even though it did not achieve a majority of votes
           at the shareholders' meeting of 4 May 2017, Vivendi was still in a position to
           appoint the majority of the board of directors, which is in charge of taking TIM's
           strategic decisions. Therefore, in light of the specific rules for the appointment
           of the board and taking into account all abovementioned elements, the
           Commission considers that, at the very latest at the shareholders' meeting of
7     At least one-half of the Directors chosen from the majority slate (with fractions rounded up to the
      nearest whole number) must possess the independence requirements under Article 148 of
      Consolidated Financial Act and/or the Code of Conduct.
8     http://www.telecomitalia.com/tit/it/archivio/media/comunicati-stampa/telecom-
      italia/corporate/istituzionale/2017/PR-1-LIST-CdA html.
9     The shareholders' meeting also approved a reduction of the number of the board members to 15. See
      press                                                                                       release:
      http://www.telecomitalia.com/content/dam/telecomitalia/it/archivio/documenti/media/comunicati st
      ampa/telecom italia/corporate/economico finanziario/2017/CS-%20Assemblea-TIM-04-05-17-
      ITA.PDF. In any event, the Commission understands that Vivendi would have in practice obtained
      two thirds of the board members even if the only alternative list, i.e. that of Assogestioni, would
      have obtained more votes. In fact, Assogestioni presented a list with only 5 candidates,
      corresponding to only one third of the board members, and therefore the remaining two thirds would
      have been selected from Vivendi's list in any event. This seems to indicate that the smaller
      shareholders represented by Assogestioni did not really challenge Vivendi for the control of the
      board.
                                                       3
 ---pagebreak---            4 May 2017, Vivendi acquired de facto sole control of TIM (the
           "Transaction").10
4.         EU DIMENSION
  (10)     In the year preceding the notification (2016), the undertakings concerned have a
           combined aggregate world-wide turnover of more than EUR 5 000 million11
           (Vivendi: EUR 10 819 million; TIM: EUR 19 024 million). Each of them has an
           EU-wide turnover in excess of EUR 250 million (Vivendi: EUR 6 650 million;
           TIM: EUR 14 130 million), but they do not achieve more than two-thirds of
           their aggregate EU-wide turnover within one and the same Member State. The
           concentration therefore has an EU dimension.
5.         MARKET DEFINITION
 5.1.    Production and supply of TV content
  (11)     With regard to the market for the supply of TV content, in its previous decisions
           the Commission has concluded that there are separate markets for the:
           (i) production and supply of commissioned TV content; and (ii) licensing of
                                                                    12
           broadcasting rights for pre-produced TV content.
  (12)     With regard to the market for licensing of broadcasting rights for TV content,
           the Commission has considered that it could be subdivided by content type, in
           particular: (i) films; (ii) sports; and (iii) other TV content (i.e., all non-sport,
           non-film content); and potential sub-segments within these content types.
                                                                                                  13
           Ultimately, the Commission left the exact scope of the product market open.
  (13)     The Commission has also considered further sub-dividing the market for the
           licensing of broadcasting rights for TV content by exhibition window:
10     The Notifying Party has informed the Commission in reply to a request of information of its
       intention to put into place measures that would de facto freeze the activities of the Board of
       Directors until the adoption of a clearance decision in the present case. In this respect, the
       Commission takes the view that an infringement of the stand-still obligation in Article 7(1) and of
       the notification requirement in Article 4(1) of the Merger Regulation cannot at this stage be
       excluded in the present case and the Commission may examine in a separate procedure whether a
       sanction under Article 14(2) the Merger Regulation is appropriate.
11     Turnover calculated in accordance with Article 5 of the Merger Regulation.
12     Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media, recital 69. See also Commission decision of 16 September 2014 in Case M.7282
       Liberty Global/Discovery/All3Media, recital 41 and Commission decision of 9 October 2014 in
       Case M.7360 21st Century Fox/Apollo/JV, recital 40.
13     Commission decision of 21 December 2011 in Case M.6369 HBO/Ziggo/HBO Nederland and the
       Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media, recital 69; Commission decision of 21 December 2011 in Case M.6369
       HBO/Ziggo/HBO Nederland, recitals 18–20; Commission decision of 15 April 2013 in Case
       M.6880 Liberty Global/Virgin Media, recital 19. Moreover, as regards sports, the Commission has
       also previously considered a distinction between football and other sports and further distinctions
       within football, for example between regular football events and football events that are played
       more intermittently (Commission decision of 18 January 2007 in Case M.4519 Lagardère/Sportfive,
       recital 10). As regards films, the Commission has considered distinguishing between US-produced
       films and other films (Commission decision of 2 April 2003 in Case M.2876 News Corp/Telepiù,
       recitals 58 and 61).
                                                        4
 ---pagebreak---            (i) subscription video on demand ("SVOD"); (ii) transactional video on demand
           ("TVOD"); (iii) pay-per-view ("PPV"); (iv) first pay-TV window; (v) second
           pay-TV window; and (vi) FTA; but it ultimately left the market definition
                  14
           open.
  (14)     In previous decisions, the Commission has defined the market for the production
           and supply of TV content, including production of TV content and the licensing
           of broadcasting rights for TV content to be either national or regional, based on
                                                    15
           linguistically homogeneous areas.
  (15)     The Notifying Party submits that it is not necessary for the Commission to make
           a determination on the specific product and geographic market definition for the
           production and supply of TV content given the competitive assessment would
           not change based on the different segmentations of the market.
  (16)     For the purpose of this decision, the exact product and geographic market
           definitions for the supply of commissioned TV content and the supply of pre-
           produced TV content can be left open, as the Transaction does not raise serious
           doubts as to its compatibility with the internal market regardless of the product
           and geographic market definitions.
 5.2.    Retail supply of TV services
  (17)     In its previous decisions, the Commission has considered that the retail supply
           of television services could be segmented in two separate markets: (i) FTA and
                     16
           pay-TV . The Commission also considered whether pay-TV can be segmented
                                                                                                 17
           further according to: (ii) linear and non-linear pay-TV services ; and
                                                             18
           (iii) premium and basic pay-TV services . In recent cases, the Commission has
           left open the market definition with regard to each of these potential sub-
           segments.
14     Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media, recital 69; Commission decision of 21 December 2011 in Case M.6369
       HBO/Ziggo/HBO Nederland, recital 18; Commission decision of 16 September 2014 in Case
       M.7282 Liberty Global/Discovery/All3Media, recitals 46–48; Commission decision of
       9 October 2014 in Case M.7360 21st Century Fox/Apollo/JV, recitals 45–47, Commission decision
       of 10 October 2014 in Case M.7000 Liberty Global/Ziggo, recitals 38–44.
15     Commission decision of 21 December 2010 in Case M.5932 News Corp/BSkyB, recitals. 73–75;
       Commission decision of 15 April 2013 in Case M.6880 Liberty Global/Virgin Media, recital 24.
       Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media, recitals 73-76.
16     See for instance the Commission decisions of 18 July 2007 in Case M.4504 SFR/Télé 2 France,
       recital 40, and of 25 June 2008 in Case M.5121 News Corp / Premiere, recital 20. In other cases this
       question has instead been left open (see for instance the Commission decisions of 24 February 2015
       in Case M.7194 Liberty Global / Corelio / W&W / De Vijver Media, recital 119-120, of
       25 June 2008 in Case M.5121 News Corp/Premiere, recitals 15 and 21, and of 10 October 2014 in
       Case M.7000 Liberty Global/Ziggo, recital 108).
17     Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media, reictal 124. Commission decision of 25 June 2008 in Case M.5121 News
       Corp/Premiere, recital 21. Commission decision of 10 October 2014 in Case M.7000 Liberty
       Global/Ziggo, recitals 109–110.
18     Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media, recital 119.
                                                          5
 ---pagebreak---   (18)     Finally, the Commission has not further distinguished between the different
           infrastructures used for the delivery of TV services to viewers (cable, satellite,
                            19                20
           terrestrial TV and IPTV). In Liberty Global/Ziggo, the Commission found
           that at least cable, IPTV and possibly satellite belong to the same product
                     21
           market. In Liberty Global / Corelio / W&W / De Vijver Media left open the
           question whether the market for the retail provision of TV services should be
                                                                                                 22
           further distinguished on the basis of the relevant distribution technology.
  (19)     The Commission has previously considered that the market for the retail
           provision of TV services is either national, or limited to the geographic coverage
           of a supplier's cable network.23
  (20)     The Notifying Party does not question the view taken by the Commission in its
           previous decisions.
  (21)     For the purpose of this decision, the exact product and geographic market
           definitions for the retail supply of TV services can be left open, as the
           Transaction does not raise serious doubts as to its compatibility with the internal
           market regardless of the product and geographic market definitions.
 5.3.    Media buying services ("MBS")
  (22)     MBS include purchasing of advertising time and/or space in various types of
           media, such as broadcast and cable TV, newspapers and magazines, radio,
           billboards and the Internet, for clients running advertising campaigns. Media
           buying agencies will also usually provide media planning and strategic advice,
           including research into target audiences, which media to use, and the
           monitoring/tracking of the success of a campaign.
                                                                        24                        25
  (23)     In its past decisions such as WPP/Grey and Publicis/Omnicom , the
           Commission considered a further segmentation of the market for MBS between:
           (i) the sales market, in which media buying agencies act as suppliers of MBS to
           final customers (advertisers); and (ii) the procurement market, in which media
           buying agencies buy (usually on behalf of their clients) advertising time or space
           in the media from media owners (for example TV broadcasters, publishing
19     Terrestrial TV broadcasts land-based (terrestrial) signals from radio masts and towers, and is often
       referred to as DTT (Digital Terrestrial Television) or DVB-T (Digital Video Broadcasting –
       Terrestrial, which is the technical standard used for terrestrial TV in Europe).
20     Commission decision of 18 July 2007 in Case M.4504 SFR/Télé 2 France, recital 44; Commission
       decision of 26 August 2008 in Case M.5121 News Corp/Premiere, recital 22.
21     Commission decision of 10 October 2014 in Case M.7000 Liberty Global/Ziggo, recital 91.
22     Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media, recital 127.
23     Commission decision of 24 February 2015 in Case M.7194 Liberty Global / Corelio / W&W / De
       Vijver Media. Commission decision of 25 June 2008 in Case M.5121 News Corp/Premiere,
       recital 24; Commission decision of 25 January 2010 in Case M.5734 Liberty Global
       Europe/Unitymedia, recitals 40 and 43; Commission decision of 21 December 2010 in Case M.5932
       NewsCorp/BskyB, recital 109; Commission decision of 21 December 2011 in Case M.6369
       HBO/Ziggo/HBO Nederland, recital 42; Commission decision of 15 April 2013 in Case M.6880
       Liberty Global/Virgin Media, recital 54; Commission decision of 10 October 2014 in Case M.7000
       Liberty Global/Ziggo, recital 118.
24     Commission decision of 25 January 2005 in Case M.3579 - WPP/GREY.
25     Commission decision of 9 January 2014 in Case M.7023 – Publicis/Omnicom.
                                                          6
 ---pagebreak---            houses, radio stations, etc.). With regard to the sale of MBS, the Commission
           has previously considered segmentations: (i) by size of account; and
                                                                         26
           (ii) depending on the inclusion/exclusion of direct sale. With regard to the
           procurement of MBS, the Commission previously considered segmentations:
           (i) by type of media; (ii) by size of account; and (iii) depending on the
                                                27
           inclusion/exclusion of direct sale.
  (24)     The Commission has previously considered that the market for the sale and
           procurement of MBS was national in scope.28
  (25)     The Notifying Party submits that it is not necessary to question the
           Commission's past decisional practice in the present case.
  (26)     For the purpose of this decision, the exact product and geographic market
           definition for the sale and procurement of MBS can be left open, as the
           Transaction does not raise serious doubts as to its compatibility with the internal
           market regardless of the product and geographic market definition.
 5.4.    Marketing and communications services ("MCS")
  (27)     In WPP/Grey and Publicis/Omnicom, the Commission considered that the
           relevant product market for the provision of MCS encompasses an array of
           disciplines including advertising, insight and consultancy, public relations,
           consumer relationship management/direct marketing/event management, brand
           identity and design and other areas of specialist communications
  (28)     With regard to the market for MCS, in its previous decisions the Commission
           has considered the following segmentations: (i) by type of media; (ii) by size of
                                                                         29
           account; (iii) by type of service; and (iv) by type of sector. The Notifying Party
           submits that all MCS belong to the same relevant market irrespective of the
           above segmentations.
  (29)     The Commission has previously considered that the market for the sale of MCS
                                    30
           was national in scope. The Notifying party submits that the market for the
           MCS is national and that there is no reason to question the Commission’s past
           decisional practice in the present case.
  (30)     For the purpose of this decision, the exact product and geographic market
           definitions for the sale and procurement of MCS can be left open, as the
           Transaction does not raise serious doubts as to its compatibility with the internal
           market regardless of the product and geographic market definitions.
26     Commission decision of 25 January 2005 in Case M.3579 - WPP/GREY; Commission decision of
       9 January 2014 in Case M.7023 – Publicis/Omnicom.
27     Commission decision of 25 January 2005 in Case M.3579 - WPP/GREY; Commission decision of
       9 January 2014 in Case M.7023 – Publicis/Omnicom.
28     Commission decision of 25 January 2005 in Case M.3579 - WPP/GREY; Commission decision of
       9 January 2014 in Case M.7023 – Publicis/Omnicom.
29     Commission decision of 25 January 2005 in Case M.3579 - WPP/GREY; Commission decision of
       9 January 2014 in Case M.7023 – Publicis/Omnicom.
30     Commission decision of 25 January 2005 in Case M.3579 - WPP/GREY; Commission decision of
       9 January 2014 in Case M.7023 – Publicis/Omnicom.
                                                     7
 ---pagebreak---  5.5.    Retail supply of mobile telecommunications services
  (31)     In its previous decisions, with regard to the product market definition, the
           Commission has considered that there is an overall retail market for mobile
           telecommunications services constituting a separate market from retail fixed
           telecommunication services. The Commission did not further segment the
           overall retail mobile market based on the type of service (voice calls, SMS,
           MMS, mobile Internet data services), or the type of network technology. The
           Commission considered possible segments of 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 segments within an overall
                           31
           retail market. In its previous decisions, the Commission had left open the
           question as to whether a separate market for multiple-play offers, i.e., fixed
           internet access, fixed telephony and TV (triple play) or fixed internet access,
                                                                                                 32
           fixed telephony, TV and mobile services (quadruple play), should be defined.
           However, with specific reference to the Italian market, in the recent decision
           Hutchison 3G Italy / Wind / JV, the Commission considered the demand for
                                                        33
           multiple play bundles as rather limited. With regard to the geographic market
           definition, the Commission concluded that the retail market for the provision of
                                                             34
           fixed internet services was national in scope.
  (32)     The Notifying Party submits that it is not necessary for the Commission to make
           a determination on the product and geographic market definition given the
           competitive assessment would not change based on the different segmentations
           of the market.
  (33)     For the purpose of this decision, the exact product and geographic market
           definitions for the retail supply of mobile telecommunications services can be
           left open, as the Transaction does not raise serious doubts as to its compatibility
           with the internal market regardless of the product and geographic market
           definitions.
31     Commission decision of 1 September 2016 in Case M.7758 - Hutchison 3G Italy / Wind / JV;
       Commission decision of 3 August 2016 in Case M. 7978 - Vodafone / Liberty Global / Dutch JV;
       Commission decision of 11 May 2016 in Case M.7612 – Hutchison 3G UK/Telefónica UK;
       Commission decision of 2 July 2014 in Case M.7018 – Telefónica Deutschland/E-Plus;
       Commission decision of 10 October 2014 in Case M.7000 – Liberty Global/Ziggo; Commission
       decision of 28 May 2014 in Case M.6992 – Hutchison 3G UK/Telefónica Ireland; Commission
       decision of 12 December 2012 in Case M.6497 – Hutchison 3G Austria/Orange Austria.
32     Commission decision of 1 September 2016 in Case M.7758 - Hutchison 3G Italy / Wind / JV;
       Commission decision of 3 August 2016 in Case M. 7978 - Vodafone / Liberty Global / Dutch JV;
       Commission decision of 4 February 2016, Case M.7637 in Liberty Global/BASE Belgium,;
       Commission decision of 19 May 2015 in Case M.7421, Orange/Jazztel; Commission decision of
       2 July 2014 in Case M.7018, Telefónica Deutschland/E-Plus.
33     Commission decision of 1 September 2016 in Case M.7758 - Hutchison 3G Italy / Wind / JV,
       recital 129.
34     Commission decision of 1 September 2016 in Case M.7758 - Hutchison 3G Italy / Wind / JV;
       Commission decision of 3 August 2016 in Case M. 7978 - Vodafone / Liberty Global / Dutch JV;
       Commission decision of 11 May 2016 in Case M.7612 – Hutchison 3G UK/Telefónica UK;
       Commission decision of 2 July 2014 in Case M.7018 – Telefónica Deutschland/E-Plus;
       Commission decision of 10 October 2014 in Case M.7000 – Liberty Global/Ziggo; Commission
       decision of 28 May 2014 in Case M.6992 – Hutchison 3G UK/Telefónica Ireland; Commission
       decision of 12 December 2012 in Case M.6497 – Hutchison 3G Austria/Orange Austria.
                                                      8
 ---pagebreak---  5.6.    Retail supply of fixed internet access services
  (34)    In its previous decisions, with regard to the product market definition, the
          Commission considered but ultimately left open possible segmentations of the
          market for retail supply of fixed internet access services according to (i) product
          type (distinguishing between narrowband, broadband, and dedicated access),
          and (ii) distribution mode (distinguishing between xDSL, fibre, cable, and
          mobile broadband), and has acknowledged that the retail market for fixed
          internet access services should not be divided according to download speed or
          technology. With regard to the geographic market definition, the Commission
          concluded that the retail market for the provision of fixed internet services was
                               35
          national in scope. The Notifying Party submits that it is not necessary for the
          Commission to make a determination on the product and geographic market
          definition given the competitive assessment would not change based on the
          different segmentations of the market.
  (35)    For the purpose of this decision, the exact product and geographic market
          definitions for the retail supply of fixed internet access services can be left open,
          as the Transaction does not raise serious doubts as to its compatibility with the
          internal market regardless of the product and geographic market definitions.
 5.7.    Wholesale access to digital terrestrial networks for the broadcast of TV
         channels ("DTT Wholesale Access")
  (36)    Television broadcasting services via digital terrestrial network (so-called digital
          broadcasting) concern the provision of capacity (installations/equipment and
          frequencies) for the transmission of the television terrestrial signal. In particular,
          digital terrestrial television ("DTT") is the digital broadcast of TV channels
          based on (i) infrastructures that are earthbound (including towers for the
          transmission of the signal, which can held by so-called tower companies); and
          (ii) frequencies which are allocated to network operators and are used more
          efficiently than in a traditional analogue broadcast, since DTT allows to bundle
          together a number of audio, video and data signals into the same frequency (so-
          called multiplex or MUX). Once they have been allocated one or more
          MUXes,36 network operators (i) negotiate with tower companies for access to
          transmission towers; and (ii) offer transmission services for the DTT
          broadcasting of TV channels to broadcasters/editors of TV channels.
  (37)    The Notifying Party submits that, in light of the switch off of analogue
          broadcasting in Italy in 2012,37 the product market is limited to digital television
          networks and that the geographic scope of the market is national, in light of the
          specific regulatory regime at national level and of the geographic reach of the
          signal.
35     Commission decision of 3 August 2016 in Case M. 7978, Vodafone / Liberty Global / Dutch JV;
       Commission decision of 29 June 2010 in Case M.5532, Carphone Warehouse/Tiscali UK; Case
       M.6990, Vodafone/Kabel Deutschland.
36     The frequencies available for the terrestrial television transmission derive from regulatory choices
       concerning the use of the radio spectrum as established by the National Frequencies Allocation
       Plan.
37     The deadline for the switch-off was initially set for 2006 (Law No. 66/2001) and has been
       subsequently postponed to 2012 (Law No. 222/2007).
                                                          9
 ---pagebreak---   (38)    The Commission agrees with the Notifying Party's view, which is consistent
          with the well-established case law of the ICA,38 that the relevant market is the
          provision of television broadcasting services via digital terrestrial networks to
          TV channels in Italy.
 5.8.   Wholesale supply of digital recorded music
  (39)    In its previous decisions, the Commission identified separate product markets
          for the wholesale supply of physical music and of digital music. The
          Commission did not consider it appropriate to further segment the wholesale
          market for digital recorded music (on the basis of genre, compilations versus
          albums, singles versus albums and audio music versus video music) and that the
          market for the wholesale of digital recorded music should not be segmented
          between download and streaming services. With regard to the geographic scope
          of the market, the Commission concluded that the relevant geographic market
                                                                                39
          for the wholesale of digital recorded music is national in scope.
  (40)    The Notifying Party submits that it is not necessary for the Commission to make
          a determination on the product and geographic market definition for the
          wholesale of digital recorded music given the competitive assessment would not
          change based on the different segmentations of the market.
  (41)    The evidence in the Commission's file has not revealed any reason for departing
          from the previous Commission's case practice.
  (42)    However, for the purpose of this decision, the exact product and geographic
          market definitions for the wholesale of digital recorded music can be left open,
          as the Transaction does not raise serious doubts as to its compatibility with the
          internal market regardless of the product and geographic market definitions.
 5.9.   Retail sale of recorded music
  (43)    In Universal Music Group/EMI Music, the Commission did not consider
          necessary to take a view on the exact definition of the relevant product market
          for the retail sale of recorded music. With regard to the geographic scope of the
          market, the Commission considered that the market for the retail of recorded
                                                                                              40
          music was national in scope, although it has ultimately left open the question.
  (44)    The Notifying Party submits that there are two main business models for the
          distribution of digital recorded music: on the one hand, à-la-carte download
          services and, on the other hand, music streaming services, which can be divided
          into ad funded and subscription funded services.
  (45)    For the purpose of this decision, the exact product and geographic market
          definitions for the retail sale of recorded music can be left open, as the
          Transaction does not raise serious doubts as to its compatibility with the internal
          market regardless of the product and geographic market definitions.
38     See ICA decision of 10 March 2015 in Case C11987, EI Tower/Rai Way.
39     Commission decision of 21 September 2012 in Case M.6458, Universal Music Group/EMI Music;
       Commission decision of 3 October 2007 in Case M.3333, Sony/BMG.
40     Commission decision of 21 September 2012 in Case M.6458, Universal Music Group/EMI Music.
                                                     10
 ---pagebreak---  5.10. Publishing and distribution of mobile games
  (46)   In Activision Blizzard/King, the Commission distinguished, within the overall
         market for publishing of game software, a separate market for mobile games on
         the one hand, and for PC and console games on the other hand. The Commission
         further considered a potential segmentation by genre, by operating system and a
         distinction between social network and mobile games, but it ultimately left open
         the question on whether the product market should be further segmented. With
         regard to the geographic scope of the market, the Commission concluded that
         the market for publishing of mobile game software is likely to be at least EEA,
                                                                                       41
         if not worldwide in scope, but ultimately left open the precise scope.
  (47)   For the purpose of this decision, the exact product and geographic market
         definitions for the publishing and the distribution of mobile games can be left
         open, as the Transaction does not raise serious doubts as to its compatibility
         with the internal market regardless of the product and geographic market
         definitions.
6.       COMPETITIVE ASSESSMENT
  (48)   In order to assess the competitive impact of the notified operation, it would be
         important to preliminarily consider whether Vivendi, who holds 28.80% of the
         share capital and 29.94% of the voting rights in Mediaset, has some form of
         control over that company, which in some markets is competing with TIM.
  (49)   The Commission considers that, at the moment, this is not the case. Vivendi
         does not jointly or solely control Mediaset in light of the following factors:
         (i) another industrial shareholder (Fininvest) historically holds the largest share
         of Mediaset's share capital (currently amounting to 39.53% of the ordinary share
         capital and of 41.09% of the voting share capital), has obtained the majority of
         the voting rights at least in the last 6 shareholders' meetings and has appointed
         the majority of the board at least in the last two terms (in 2012 and 2015);
         (ii) Vivendi has not appointed any members of the board of directors, which will
         remain in office until the approval of the financial statements for year 2017; and
         (iii) Vivendi does not enjoy any specific information or other rights, which
         materially differ from those of any other minority shareholder; and (v) at the
         present, Vivendi and Mediaset are engaged in an on-going litigation, following
         the breaking down of the negotiations for the acquisition of Mediaset Premium
         in 2016 which seems, thus, to exclude commonality of interests between
         Vivendi and Mediaset.
  (50)   Based on the above, the Commission has carried out its competitive assessment
         based on the express assumption that Vivendi does not have any form of control
         over Mediaset and that there is no (nor is likely to materialise with any degree of
         certainty or likelihood in the near future) other material link (whether structural
         or contractual) that may affect the competitive behaviour of Mediaset on the
         markets where it operates. Any new development giving Vivendi the possibility
         to exercise a (de jure or de facto, positive or negative, sole or joint) decisive
         influence over Mediaset, if it were to materialise, would have to form the
41     Commission decision of 12 February 2016 in Case M7866 Activision Blizzard/King.
                                                     11
 ---pagebreak---            subject-matter of a separate and distinct assessment, where appropriate, under
           the relevant EU or national competition rules.
  (51)     On the other hand, the Commission will assess whether Vivendi's minority
           participation in Mediaset might affect TIM's incentives in the markets where it
           competes or has vertical relations with Mediaset.
  (52)     In particular, the Transaction gives rise to horizontal effects as a result of TIM's
           activities in the market for DTT wholesale access and of Vivendi's minority
           stake in Mediaset, which is active in the same market (Section 6.1).42
  (53)     Moreover, the Transaction results in a number of vertical relationships that give
           rise to affected markets:
         (i)      The vertical link between Vivendi's upstream activity in the market for
                  production and licensing of broadcasting rights for TV content in Italy
                  with TIM's downstream activity in market for the retail supply of TV
                  channels in Italy, as TIM has over 30% market share in the hypothetical
                  market segment for the provision of retail pay-TV services through fixed
                  broadband (Section 6.2.2); 43 and
         (ii)     The vertical link between Vivendi's upstream activity in the market for
                  provision of wholesale digital recorded music in Italy, as Vivendi has over
                  30% market share in that market, with TIM's downstream as customer in
                  the market (Section 6.2.3);
  (54)     In addition, the Transaction gives rise to a conglomerate relationship between
           Vivendi's distribution of mobile games in Italy and TIM's provision of retail
           mobile telecommunication services in Italy, where TIM has over 30% market
           share (Section 6.2.4).
  (55)     Finally, the Transaction results in a number of horizontal and vertical
           relationships which do not give rise to affected markets.
  (56)     With regard to these horizontal relationships, both Vivendi and TIM are active
           in the market for the provision of online advertising services in Italy and in the
           market for the distribution of mobile games in Italy; however such overlaps do
           not give rise to affected markets as the Parties' combined market share is below
           [0-5]% in all the potential markets considered above.
42  In light of Vivendi's minority shareholding in Mediaset, the Transaction might potentially give rise to
    horizontal effects also in the market for retail supply of pay-TV services where both TIM (with TIM
    Vision) and Mediaset (with Mediaset Premium) are active. Vivendi might in principle raise prices of
    (or worsen the conditions for access to) TIM's retail TV services and recoup its losses through its
    minority shareholding in Mediaset, since customers would switch to Mediaset's services. In this
    respect, the Commission notes that TIM's share in the retail supply of pay-TV services is minimal (less
    than [0-5]%) and that, in case TIM were to raise prices, it is likely that most of its customers would
    switch to SKY's (which has a market share of approximately [70-80]% in 2015 in retail supply of pay-
    TV services) rather than Mediaset's services, making such strategy unprofitable.
43  In this framework, the Commission will also assess whether Vivendi's minority participation in
    Mediaset might affect its ability and incentive to foreclose Mediaset's competitors.
                                                          12
 ---pagebreak---  ---pagebreak---   (62)     As highlighted by the Italian Antitrust Authority ("ICA") in its sector enquiry
           IC4146, there is a high level of vertical integration between the operators active
           in the upstream market for DTT wholesale access and the downstream markets
           of pay-TV, FTA TV and TV advertising.
  (63)     Indeed, only seven of the 20 MUXes are held by non-vertically integrated
           operators. In particular, Persidera is not a vertically integrated operator and is
           the only non-vertically integrated operator offering transmission capacity
           exclusively to third party DTT channels.
  (64)     The other MUXes are either held or technically managed by vertically integrated
           operators. In this respect, through Elettronica Industriale, Mediaset holds five
           national MUXes and is vertically integrated, since it also broadcasts both FTA
           and pay-TV channels for DTT.47 In addition, through Elettronica Industriale and
           EI Towers, Mediaset technically manages 3 MUXes (belonging to 3lettronica,
           Cairo Network48 and Prima TV) through so-called "full service agreements".
              6.1.2.     Notifying Party's views
  (65)     According to the Notifying Party,49 the Transaction will not have any
           anticompetitive effects in the market for DTT wholesale access for a number of
           reasons.
  (66)     First, Mediaset closed its 2016 financial year with net losses for about
           EUR 294 million, while Persidera had profits in 2015 for EUR […]. Therefore,
           Vivendi would not have an incentive to give up a profitable business via
           Persidera for the benefit of a business which is losing money.
  (67)     Second, Vivendi’s incentive is also diminished by AGCOM decision of
           18 April 201750 ("AGCOM Decision"), which found that Vivendi had violated
           Italian media plurality provisions by holding shareholdings exceeding 10% in
           both TIM and Mediaset and ordered Vivendi to remove the violation within
           12 months. According to Vivendi, in order to comply with the AGCOM
           Decision, its shareholding in Mediaset shall have to be entirely or prevalently
           divested within 12 months, which would remove the incentive to increase
           Persidera's prices.
  (68)     Third, channels might benefit from available capacity or increased capacity in
           the future thanks to the evolution towards the DVB-T251 standard, which would
           make more capacity transmission available between 2020 and 2022.
46     ICA decision No. 26258 of 30 November 2016, IC41, Indagine Conoscitiva sul settore audiovisivo.
47     ICA decision No. 25957 of 13 April 2016, C12017, Reti Televisive Italiane/Gruppo Finelco,
       para. 103.
48     Cairo Network's MUX is managed by EI Towers S.p.A., which is controlled by Mediaset through
       Elettronica Industriale.
49     See "Additional Note" dated 28 April 2017.
50     See AGCOM decision No. 178/17/CONS, Accertamento della violazione dell’art. 43, comma 11,
       del decreto legislativo 31 luglio 2005, n. 177.
51     DVB-T2 is an abbreviation for "Digital Video Broadcasting – Second Generation Terrestrial"; it is
       the extension of the television standard DVB-T, issued by the consortium DVB, devised for the
       broadcast transmission of digital terrestrial television. DVB has been standardized by ETSI.
                                                           14
 ---pagebreak---   (69)     Moreover, ReteCapri could invest to improve the quality of its multiplex and
           make it a viable alternative for channels wishing to broadcast on DTT.
  (70)     Finally, a significant part of Persidera's current contracts with the TV channels
           has a sufficiently long duration so as to limit the risk of foreclosure.
              6.1.3.     Market investigation and Commission's assessment
  (71)     The ICA (as well as market participants52) has raised the concern that the
           Transaction would give rise to anticompetitive horizontal (unilateral and
           coordinated) and vertical effects, in light of Vivendi's participation in Mediaset.
           The Transaction creates structural links not only of horizontal nature between
           two operators holding 50% of the available transmission capacity in DTT, but
           also of vertical nature between an independent non-vertically integrator operator
           and its competitor active in the downstream markets.
  (72)     According to the ICA, post-Transaction, Vivendi might have an incentive to
           raise prices charged to TV channels for DTT capacity, thus benefiting either
           directly (through Persidera) or indirectly (recouping the lost profits through its
           shareholding in Mediaset). Furthermore, the Transaction might also have
           coordinated effects since the structural link might incentivize information
           exchange and price coordination.
  (73)     Finally, as to vertical effects of the Transaction, according to the ICA, Vivendi
           might have an incentive to raise prices to third-party TV channels in order to
           make it more difficult for them to compete against Mediaset's channels in the
           downstream TV market.
  (74)     The Commission considers that the Transaction raises serious doubts as to its
           compatibility with the internal market with regard to the DTT wholesale access.
  (75)     First, TIM's incentives to compete against Mediaset in DTT wholesale access
           will change as a result of the Transaction, since TIM's lost profits from raising
           prices or offering inferior conditions to TV channels wishing to broadcast over
           Persidera's MUXes would be recovered through Vivendi's minority shareholding
           in Mediaset. By worsening the conditions for access to Persidera's MUXes,
           Vivendi would financially benefit either directly (from higher prices charged for
           access to Persidera's MUXes) or indirectly from Mediaset's revenues (resulting
           from hosting additional third-party channels on its MUXes).
  (76)     Second, there are no sufficient competitive constraints against such strategy53 in
           light of the characteristics of the market:
             i.       The market is already concentrated and few players hold a considerable
                      part of transmission capacity. In this respect, besides the five MUXes it
                      directly holds, Mediaset's has entered into full service agreements for
52     See reply to question 7 of Questionnaire – Market test of commitments. According to one operator,
       the transaction "given both Vivendi’s and Mediaset’s upstream relationship to multiplexers, would
       lead to a material reduction in the competition on the market for wholesale access to digital
       terrestrial networks for the broadcast of TV channels".
53     See also reply to request for information of 21 April 2017, dated 27 April 2017.
                                                        15
 ---pagebreak---                       three additional MUXes (Prima TV, 3lettronica Industriale, and Cairo
                      Network), which grant it significant control over them;
             ii.      Persidera and Mediaset are the only MUX operators offering full
                      managed services to TV channels, including playout, encoding, and
                      monitoring and control as well as the provision of bandwidth and
                      multiplex transportation;
           iii.       With one exception,54 the capacity of RAI's MUXes55 is all occupied
                      and captive, as RAI only hosts its own TV channels;
            iv.       Rete Capri's MUX does not have equivalent characteristics in terms of
                      quality/coverage and, in addition, its capacity is fully occupied and
                      captive, as it does not currently offer it to third party TV channels;
             v.       Europa Way's MUX has inferior quality and limited territorial coverage
                      (mainly limited to the city of Rome) and the company holding it is
                      undergoing bankrupting proceedings, which significantly limited its
                      operations. In addition, this multiplex uses DVB-T2 technology, which
                      cannot be received by the majority of current set-top-boxes present in
                      viewers’ homes.56 Moreover, its capacity is limited as, together with
                      Rete Capri's MUX, they only have [5-10]% of the total transmission
                      capacity.
  (77)     Moreover, switching to a different MUX could be complex from a technical
           perspective because (i) it requires end-users to re-tune their equipment;
           (ii) MUXes might have different geographic coverage, due to differences in the
           transmission sites used; and (iii) reception equipment of end-users are not
           necessarily fully compatible with all MUXes (in particular in certain areas, e.g.
           Liguria region).57
  (78)     In addition, the overall available capacity will be further limited by the planned
           reallocation of spectrum resources (the 694-700MHz frequency band) in 2020,
           which would be transferred to mobile telecommunications.58 In particular, the
           ICA anticipates that 6 MUXes would be reallocated to mobile transmission, thus
           reducing the available frequencies for DTT by 33%.59 The reduction of the
           overall capacity will further reduce alternatives for TV channels and facilitate
           Vivendi's strategy to increase prices (or worsen the conditions) for wholesale
           DTT access.
  (79)     As to the Notifying Party's arguments, the Commission notes that:
         (i)      Mediaset's reported losses in 2016 do not affect Vivendi's incentive to
                  increase prices for wholesale DTT access post-Transaction since, in case
54     RAI only host one third-party channel, TV2000.
55     One of RAI's MUXes (MUX 5) is only used for testing activities.
56     See reply to request for information of 21 April 2017, dated 27 April 2017.
57     See reply to request for information of 21 April 2017, dated 27 April 2017 and reply to request for
       information of 20 April 2017, dated 26 April 2017.
58     See Proposal for a Decision of the European Parliament and of the Council on the use of the
       470-790 MHz frequency band in the Union, 13 May 2016, Interinstitutional file: 2016/0027 (COD).
59     ICA decision No. 26258 of 30 November 2016, IC41, Indagine Conoscitiva sul settore audiovisivo.
                                                         16
 ---pagebreak---                   TV channels were to switch to Mediaset's MUXes, Vivendi would still
                  financially benefit from increased revenues and, consequently, fewer
                  losses;
         (ii)     First, the Notifying Party has publicly announced that it reserves the right
                  to challenge the AGCOM Decision.60 Second, the AGCOM Decision does
                  not specifically impose on Vivendi the obligation to divest its
                  shareholding in Mediaset as the only way to remedy the violation. To the
                  contrary, the AGCOM Decision leaves Vivendi discretion to select the
                  appropriate measures and, to this end, requests it to submit a detailed plan
                  on the implementing measures within 60 days of the date of adoption.
                  Therefore, the AGCOM Decision cannot be considered, due to the
                  uncertainties as to the modalities of the solutions to be adopted by
                  Vivendi, to remove the concerns identified by the Commission in light of
                  Vivendi's stake in Mediaset;
         (iii)    The increase in DTT capacity stemming from the implementation of the
                  DVB-T2 standard is unclear in terms of timing and scope (the Notifying
                  Party itself fails to identify how much capacity could potentially be made
                  available as a result of the technology). Moreover, the vast majority of
                  DTT set-top-boxes present in Italian households are not suitable for DVB-
                  T2 standard and would therefore need to be replaced in order to receive
                  channels broadcast in this technology. Thus, the switch to DVB-T2 cannot
                  be considered to eliminate the competition concerns connected to the
                  Transaction;
         (iv)     Similarly, the investment required to upgrade Rete Capri's MUX is unclear
                  as to its size and possible advantages to counteract Vivendi's strategy post-
                  Transaction, especially considering that Rete Capri only holds one MUX;
         (v)      Finally, even assuming that the duration of a considerable part of
                  Persidera's current contracts with channels might reduce its ability to raise
                  prices to current customers, this does not exclude the application of
                  inferior conditions or higher prices to new entrants (i.e. additional
                  channels wishing to broadcast over DTT) or current customers for
                  additional channels.
  (80)     With regard to concerns relating to coordinated and vertical effects, the
           Commission considers that it is not necessary to take a view as to whether or not
           they are substantiated, since the commitments offered by the Notifying Party
           also address those potential concerns.
  (81)     In light of the foregoing, the Commission considers that the Transaction raises
           serious doubts as to its compatibility with the internal market with regard to the
           market for DTT wholesale access.
60  https://www.vivendi.com/presse/communiques-de-presse/vivendi-se-reserve-droit-dengager-toute-
    action-judiciaire-appropriee-a-suite-de-decision-de-lagcom/
                                                        17
 ---pagebreak--- 6.2. Non-horizontal effects
       6.2.1.    Legal framework
                        6.2.1.1.  Vertical non-coordinated effects
  (82)    According to the Non-Horizontal Guidelines,61 non-coordinated effects may
          significantly impede effective competition as a result of a vertical merger if such
          merger gives rise to foreclosure. Foreclosure occurs where actual or potential
          competitors' access to supplies or markets is hampered or eliminated as a result
          of the merger, thereby reducing those companies' ability and/or incentive to
          compete.62 Such foreclosure may discourage entry or expansion of competitors
          or encourage their exit.63
  (83)    The Non-Horizontal Guidelines distinguish between two forms of foreclosure.
          Input foreclosure occurs where the merger is likely to raise the costs of
          downstream competitors by restricting their access to an important input.
          Customer foreclosure occurs where the merger is likely to foreclose upstream
          competitors by restricting their access to a sufficient customer base.64
  (84)    With regard to input foreclosure, in assessing the likelihood of an
          anticompetitive foreclosure scenario, the Commission examines, first, whether
          the merged entity would have, post-Transaction, the ability to substantially
          foreclose access to inputs or customers, second, whether it would have the
          incentive to do so, and third, whether a foreclosure strategy would have a
          significant detrimental effect on competition.65
  (85)    With regard to customer foreclosure, in assessing the likelihood of an
          anticompetitive foreclosure scenario, the Commission examines, first, whether
          the merged entity would have the ability to foreclose access to downstream
          markets by reducing its purchases from its upstream rivals, second, whether it
          would have the incentive to reduce its purchases upstream, and third, whether a
          foreclosure strategy would have a significant detrimental effect on consumers in
          the downstream market.66
                        6.2.1.2.  Conglomerate non-coordinated effects
  (86)    According to the Non-Horizontal Guidelines, in the majority of circumstances,
          conglomerate mergers will not lead to any competition problems.67 However,
          foreclosure effects may arise when the combination of products in related
          markets may confer on the merged entity the ability and incentive to leverage a
          strong market position from one market to another closely related market by
          means of tying or bundling or other exclusionary practices. While tying and
61     Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the
       control of concentrations between undertakings ("Non-Horizontal Guidelines"), OJ C 265,
       18.10.2008, p. 6-25.
62     See Non-Horizontal Guidelines, paragraph 18.
63     See Non-Horizontal Guidelines, paragraph 29.
64     See Non-Horizontal Guidelines, paragraph 30.
65     See Non-Horizontal Guidelines, paragraph 32.
66     See Non-Horizontal Guidelines, paragraph 59.
67     See Non-Horizontal Guidelines, paragraph 92.
                                                    18
 ---pagebreak---            bundling have often no anticompetitive consequences, in certain circumstances
           such practices may lead to a reduction in actual or potential competitors' ability
           or incentive to compete. This may reduce the competitive pressure on the
           merged entity allowing it to increase prices.68
  (87)     In assessing the likelihood of anticompetitive foreclosure effects, the
           Commission examines, first, whether the merged firm would have the ability to
           foreclose its actual or potential competitors, second, whether it would have the
           economic incentive to do so and, third, whether a foreclosure strategy would
           have a significant detrimental effect on competition, thus causing harm to
           consumers.69
       6.2.2.     Vertical links between Vivendi's upstream activity in the licensing of TV
                  content and TIM's downstream activity in the retail provision of TV
                  services
  (88)     With regard to the vertical links between Vivendi's upstream activity in the
           licensing of TV content, and potential narrower market segments, and TIM's
           downstream activity in the retail provision of TV services, the Notifying Party
           submits that the Transaction would not give rise to any competition concern
           based on either input or customer foreclosure. With regard to input foreclosure,
           Vivendi's content could not be considered as an important input to compete in
           the market for the provision of pay-TV services. With regard to customer
           foreclosure, TIM is only one of several distribution platforms to provide pay-TV
           services in Italy and alternative providers of fixed internet access services would
           be available in the market.
                         6.2.2.1.     Input foreclosure – access to Vivendi's content
  (89)     The Notifying Party submits that it would not have the ability to foreclose TIM's
           competitors since it is only marginally active in the market for the licensing of
           broadcasting rights for audio-visual content, including both films and other TV
           content and several alternative operators would remain active in the market.
  (90)     Some of TIM's competitors in the market for the retail provision of fixed
           internet access services expressed the concern that, post-Transaction, Vivendi
           would give TIM privileged access to Vivendi and Mediaset's premium content.70
           By having exclusive access to this premium content and bundling it with its
           mobile and fixed telecommunication offering, TIM would be able to strengthen
           its position in the retail market for the provision of fixed internet access
           services.
  (91)     The Commission considers that, with regard to Mediaset, Vivendi would not
           have the ability to foreclose TIM downstream rivals by denying access to its
           content or IPTV offering. As described at paragraph (49), while Vivendi holds a
           significant stake in Mediaset, this does not confer on Vivendi control or other
           type of influence over Mediaset’s business decisions, such as, for example,
           those concerning the distribution of Mediaset’s content. Therefore, Vivendi does
68     See Non-Horizontal Guidelines, paragraphs 91 and 93.
69     See Non-Horizontal Guidelines, paragraph 94.
70     See replies to Commission questionnaire Q1 to market participants, questions 3.1, 3.2 and 3.3. See
       also replies to the market test questionnaire, questions 3.
                                                          19
 ---pagebreak---            not have the ability to influence Mediaset’s distribution of its content and retail
           pay-TV offering.
  (92)     With regard to Vivendi's content, the Commission considers that Vivendi would
           not have the ability to successfully engage in the foreclosure of TIM's
           downstream rivals. First, based on its actual content offering, Vivendi is a very
           small player in the upstream market for the licensing of TV broadcasting rights
           for audio-visual content in Italy (market share below [0-5]%, with sales of only
           EUR[…]).71 Second, Vivendi does not hold significant broadcasting rights
           relating to TV content for Italy.72 Third, several alternative competitors would
           remain active in the market including all the six major-US studios (20th Century
           Fox, Warner Bros, Paramount, Universal and Walt Disney), Sky Italia (the
           leading provider of retail pay-TV services in Italy) and Netflix, one of the main
           over-the-top ("OTT") players in the market.
  (93)     In light of the above, the Commission considers that the Transaction does not
           give rise to serious doubts with regard to its compatibility with the internal
           market as a result of input foreclosure effects to the detriment of providers of
           TV retail services and fixed broadband retail services in Italy.
                         6.2.2.2.    Customer foreclosure – distribution through TIM's fixed
                                     network
  (94)     The Notifying Party submits that it would not have the ability to foreclose TIM's
           competitors in the market for the provision of retail pay-TV services since TIM
           is just one of several platforms to distribute pay-TV services available to Italian
           customers. Moreover, Vivendi would not have the incentive to deny or
           hindering access to other operators (e.g. Sky and Netflix) to distribute their
           offering through its IPTV73 service since it would lose the revenue deriving
           from those agreements and its retail broadband customers would switch to
           another telecom operator offering those services.
  (95)     [CONFIDENTIAL]74 raised the concern that, post-Transaction, Vivendi would
           foreclose Mediaset's competitors in the retail pay-TV market by denying them
           access to TIM’s broadband customer base, which could only or best be reached
           via fixed broadband (i.e. IPTV services) in light of the difficulties that retail
           customers may have to receive pay-TV services via DTH (for example, due to
           urban planning restrictions).
  (96)     The Commission considers that Vivendi would not have the ability to foreclose
           access to the market for the provision of pay-TV services in Italy.
71     In the market for licensing of broadcasting rights relating to films in Italy, Vivendi holds a market
       share of less than [0-5]% with sales of EUR […]. In the market for licensing of broadcasting rights
       relating to other TV content in Italy, Vivendi holds a market share of less than [0-5]% with sales of
       EUR […]. Vivendi submits that its market shares would not be materially different under any
       narrower product market definition.
72     See Notifying Party's reply to request for information n.1 of 4 April 2017, question 4.
73     Internet Protocol television (IPTV) is the delivery of television content using signals based on the
       logical Internet protocol (IP), rather than through traditional terrestrial ("DTT"), satellite signal
       ("DTH"), and cable television formats.
74     See replies to Questionnaire 1 to market participants, question 3.3.
                                                         20
 ---pagebreak---   (97)     First, IPTV is not an essential technology to compete since Sky and Mediaset,
           with a combined market share of over 90% in the Italian pay-TV market,
           distribute almost exclusively through non-IPTV technology (Sky through DTH
           and Mediaset through DTT). Moreover, only a limited number of retail pay-TV
           customers have access to pay-TV services in Italy through IPTV network
           ([0-5]% of Sky's total customer base and [0-5]% of Mediaset Premium's total
           customer base as of April 2017).
  (98)     Second, TIM does not have the ability to restrict access to a significant customer
           base by refusing to distribute other pay-TV offering through its IPTV service
           since only approximately [CONFIDENTIAL] of the overall 25 million
           households in Italy75 would not able to access pay-TV services through DTH
           technology.
  (99)     Third, even if TIM has a significant share of [40-50]% in the market for the
           supply of retail fixed internet services, alternative providers would be able to
           offer those services directly or indirectly in the market in the coming years. For
           example, with regard to fiber connections, which are the most suitable to
           provide IPTV services, WIND Tre and Vodafone have agreements with Enel
           Open Fiber, which plans to roll-out its network in both densely and not-densely
           populated areas, to access its infrastructure to provide retail services76. Fastweb,
           the other major player in the retail market, serves approximately 7 million
           households with speed connection of 100 mega bit per second ("Mbps") and it
           plans to extend its fiber network over the next years covering 50% of the Italian
           territory starting with the most densely populated area.77 Moreover, TIM also
           provides regulated wholesale access services to other fixed operators in Italy.78
  (100) Fourth, TIM would not have the ability to deny Sky access to its network at least
           until [CONFIDENTIAL]. Sky and TIM have indeed signed an agreement,
           pursuant to which TIM’s customers are offered [CONFIDENTIAL] Sky TV
           offering (“Sky IPTV Offer”) through TIM’s broadband fixed-line network.
           Based on the agreement, [CONFIDENTIAL].
  (101) Sixth, [CONFIDENTIAL]. On these points, the Commission notes that, first, the
           lawsuit between Sky and TIM is still pending and, second, while
           [CONFIDENTIAL].
  (102) The Commission further considers that Vivendi would not likely have the
           incentive to foreclose access to the market for the provision of pay-TV services
           in Italy. First, [CONFIDENTIAL]. Second, [CONFIDENTIAL].79
75     See reply to request for information of 21 April 2017, dated 27 April 2017.
76     See Commission decision of 15 December 2016 in Case M.8234, Enel / CDP Equity / Cassa
       Depositi e Prestiti / Enel Open Fiber / Metroweb Italia, paragraph 38.
77     See "Fastweb, the Network", available at: http://www fastweb.it/chi-siamo/la-nostra-rete-in-fibra-
       ottica
78     See AGCOM "Servizi di accesso disaggregato (Unbundled access services)", available at:
       https://www.agcom.it/servizi-di-accesso-disaggregato. See also, TIM "Wholesale – braoadband and
       ultra broadband", available at https://www.wholesale.telecomitalia.com/en/catalogo_en/-
       /catalogo_aggregator/article/58334?p_r_p_564233524_categoryId=58336&p_r_p_564233524_activ
       ePortletId=noportlet
79     See [CONFIDENTIAL].
                                                         21
 ---pagebreak---   (103) Regardless of whether Vivendi has either the ability or the incentive to foreclose
          rivals by denying access to downstream customers, the Commission does not
          consider that such a strategy would have an impact on effective competition.
          First, alternative providers of retail pay TV services are today active and would
          remain active in the market in the next years including Sky, the leading provider
          of pay-TV services in Italy with a market share of approximately [70-80]%
          in 2015, and Netflix. With regard to Sky, its ability to compete in the next years
          would not be affected by not having access to TIM's IPTV services. As
          indicated above, less than [0-5]% of Sky's overall customers in Italy have access
          to Sky's offering through TIM's IPTV offering. In particular, while
          [CONFIDENTIAL], Sky's ability to compete in the market has not been
          impacted in the last year as confirmed by its latest financial results which show
          a strong increase in revenue (7%), operating profit (237%) and customer base.80
          With regard to Netflix and other providers of OTT TV services, an agreement
          between those operators and TIM is not necessary for the final customer who
          will still be able to subscribe to their services if they wish.
  (104) With regard to the area not able to access pay-TV services through DTH
          technology in Italy, the Commission firstly notes that this would correspond
          only to a limited fraction of the overall customer base in Italy in the market for
          the provision of pay-TV services in Italy. Second, not all the households in Italy
          could be served by TIM's IPTV services since TIM is able to offer those
          services, which require a broadband speed connection of at least 20 Mbps81, to
          approximately 60% of the households in Italy and not the entire Italian
          territory.82 Therefore TIM could serve through IPTV only a subset of the
          households who are not able to access pay-TV services through DTH
          technology in Italy. Moreover, the Commission notes that alternative operators
          would be able to provide high speed fixed internet access services over the next
          years directly (e.g. Fastweb) and indirectly by relying on third party
          infrastructure network operator (e.g. Enel Open Fiber or regulated wholesale
          access). Finally, Sky, the main pay-TV operator in Italy, has an agreement in
          place with TIM which will ensure that it would be able to offer those services
          over the next years and, as described above in paragraph (99), after the expiry of
          the contract, it could team up with other providers of fixed internet access
          services83.
  (105) In light of the above, the Commission considers that the Transaction does not
          give rise to serious doubts with regard to its compatibility with the internal
80    See Sky's "Unaudited results for the nine months to 31 March 2017", available at:
      https://corporate.sky.com/documents/investors/results/2017 results/q3 1617 trading statement.pdf.
81    See TIM Smart casa e Sky TV offering, available at: https://www.tim.it/offerte/fisso/internet-voce-
      e-timvision/adsl/tim-smart-casa-e-sky.
82    See          TIM's         wholesale       offering,         bitstream,       available          at:
      https://www.wholesale.telecomitalia.com/en/catalogo en/-
      /catalogo aggregator/article/58347? 2 WAR nwscatalogoportlet redirect=%2fen%2fcatalogo en
      %2f-
      %2fcatalogo aggregator%2farticle%2f58334& 2 WAR nwscatalogoportlet resourcePrimKey2=5
      8347&p r p 564233524 activePortletId=noportlet. "Bitstream services are characterised by very
      widespread geographical coverage in that ADSL services operating at up to 7 Mbit/s are available
      on about 97% of the telephone lines while ADSL services operating at up to 20 Mbit/s are available
      on around 62% of the telephone lines."
83    [CONFIDENTIAL].
                                                      22
 ---pagebreak---        market as a result of customer foreclosure effects to the detriment of providers
       of TV retail services in Italy.
    6.2.3.    Vertical links between Vivendi's upstream activity in the market for
              provision of wholesale digital recorded music with TIM's downstream
              activity in the retail market
(106) Vivendi (through its subsidiary, Universal Music Group “UMG”) is active in the
       wholesale supply of digital recorded music in Italy. Its main competitors are
       Sony Music and Warner Music. TIM is a customer in the market and it is active
       in the retail supply of digital recorded music in Italy through its "TIM Music"
       platform. TIM's main competitors include Apple and Spotify.
(107) The Notifying Party submits that the Transaction would not give rise to any
       competition concern based on either input or customer foreclosure. With regard
       to input foreclosure, Vivendi would not have the incentive to deny access to its
       content to large downstream providers such as Apple and Spotify. With regard
       to customer foreclosure, TIM is only one of several retail streaming services for
       digital recorded music available in Italy and alternative services would be
       accessible in the market.
                    6.2.3.1.   Input foreclosure - access to Vivendi's content
(108) The vertical link between the Parties’ activities with regard to digital recorded
       music gives rise to a vertically affected market, as Vivendi has a market share of
       [30-40]% in 2016 in the market for the wholesale of digital recorded music in
       Italy. Vivendi, post-Transaction, may restrict access to its music content and
       distribute it only through TIM's retail platform.
(109) The Commission considers that Vivendi would not have the ability to foreclose
       TIM's downstream rivals. First, none of the respondents to the market
       investigation raised such concerns. Second, while Vivendi, through UMG, has
       the second largest market share in Italy, several alternative providers would
       remain in the market, including large multinationals as Sony Music and Warner
       Music with market share of respectively of [30-40]% and [10-20]% in 2016.
(110) The Commission further considers that Vivendi would not have the incentive to
       deny its music content to TIM's competitors. First, TIM represents less than
       [10-20]% of Vivendi's revenue in the market; therefore, any attempt to restrict
       access to TIM's competitors would negatively impact the distribution of
       Vivendi’s music in Italy and deprive the company of more than [80-90]% of the
       revenue in the market. Second, by refusing to supply its music content to TIM's
       competitors, Vivendi would risk undermining its commercial relationships with
       its key digital customers, many of which operate not just in Italy but on a
       worldwide basis, such as Apple, Spotify, Amazon, and Deezer.
(111) In light of the above, the Commission considers that the Transaction does not
       give rise to serious doubts with regard to its compatibility with the internal
       market as a result of input foreclosure effects to the detriment of downstream
       providers of retail digital recorded music in Italy.
                                                23
 ---pagebreak---                        6.2.3.2.    Customer foreclosure – distribution through TIM's retail
                                   platform
  (112) A respondent to the market investigation84 raised the concern that Vivendi could
         foreclose providers of wholesale digital recorded music from reaching an
         important segment of their potential customer base, by denying them access to
         TIM’s customer base.85
  (113) The Commission considers that Vivendi would not have the ability to foreclose
         its upstream rivals from the market for the provision of retail digital recorded
         music in Italy. First, while TIM is one of the main customers in the market, it
         has a market share of only [10-20]% in the retail market for the provision of
         digital recorded music in Italy in 2016. Second, as confirmed by the market
         investigation, alternative suppliers of retail digital recorded music (e.g. Apple
         and Spotify) accounting for over [80-90]% of the market would remain available
         to upstream competitors.
  (114) Third, Vivendi would not have the incentive to foreclose its upstream
         competitors active in the market for the provision of wholesale digital recorded
         music since, by losing access to a significant repertoire of other record
         companies, it would mainly impact the quality of TIM's retail service.
  (115) Regardless of whether Vivendi has either the ability or the incentive to foreclose
         competing upstream competitors active in the market for the provision of
         wholesale digital recorded music, the Commission does not consider that such a
         strategy would have an impact on effective competition. Alternative operators
         such as Apple and Spotify would remain active in the market for the provision
         of retail digital recorded music. Therefore, Vivendi's competitors, including
         multinational such as Sony Music and Warner Music, will continue to be able to
         offer their music to alternative downstream providers as Apple and Spotify,
         ensuring that final customers would be able to have access to content on the
         same condition they would have done absent the Transaction. Moreover,
         Vivendi's competitors are multinational organizations and their investment
         choice in music content would not likely be impacted by not having access to
         TIM's retail customer base.
  (116) In light of the above, the Commission considers that the Transaction does not
         give rise to serious doubts with regard to its compatibility with the internal
         market as a result of customer foreclosure effects to the detriment of upstream
         providers of wholesale digital recorded music in Italy.
      6.2.4.     Conglomerate relationship between Vivendi's distribution of mobile games
                 in Italy and TIM's provision of retail mobile telecommunication services in
                 Italy
  (117) Vivendi is active in the retail supply of mobile games in Italy through its
         subsidiary Gameloft. TIM is active in the provision of retail mobile
         telecommunication services with a market share of [30-40]%.
84    See replies to Questionnaire 1 to market participants, question 4.3.
85    TIM, with […] users through TIM Music, is the second largest music streaming service in Italy after
      Spotify.
                                                        24
 ---pagebreak---   (118) One respondent to the market investigation86 indicated that, post-Transaction,
         Vivendi would offer its mobile games only through TIM's mobile services and it
         would therefore strengthen TIM's position in the market for the provision of
         retail mobile telecommunication services.
  (119) The Notifying Party submits that the Transaction would not give rise to any
         competition concern with regard to its activities in the retail distribution of
         mobile games since its position in the market is limited and several alternative
         providers would remain active in the market.
  (120) The Commission considers that the Transaction does not raise serious doubts
         based on conglomerate concerns with respect to the market for the supply of
         games and the market for the provision of retail mobile telecommunication
         services for the following reasons. First, Vivendi is a small player in the market
         for the supply of mobile games in Italy with a market share of [0-5]% in 2016.
         Second, alternative providers of mobile games would remain active in the
         market including Supercell and King with market shares of respectively
         [10-20]% and [10-20]%. Third, alternative providers of retail mobile
         telecommunication services would remain active in the market, including WIND
         Tre and Vodafone with market shares of respectively [30-40]% and [30-40]%.
         Finally, all mobile games will remain available on platform such as Apple's App
         Store and Google Play which constitute the main distribution channel in Italy.
         Therefore, TIM's competitors in the mobile space and Vivendi's competitors in
         the market for the supply of mobile games would also be able to offer similar
         packages of mobile telecommunication services and mobile games.
            6.2.5.     Vertical links between Vivendi's upstream activity (through Havas) in
                       the markets for the provision of MBS and MCS services with Telecom
                       Italia's downstream activity as customer in the markets;
  (121) With regard to these vertical relationships, Vivendi, through its affiliate Havas,87
         is active in the upstream markets for the provision of MBS and MCS in Italy and
         TIM acts as a customer in those markets. The Transaction does not give rise to
         an affected market since Vivendi has a market share significantly below 30%
         in 201688 ([10-20]% in the MCS market and [5-10]% in the MBS market, which
         would not be materially different in any possible sub-market) and in the
         downstream markets, based on the data provided by the Notifying Party, TIM's
         advertising spending is limited and significantly below 30% (even considering
         possible sub-markets).89
  (122) In any event, the Commission considers the Transaction does not raise serious
         doubts as to its compatibility to the internal market with regard to MCS and
         MBS markets, even under potential narrower market segments.
  (123) With respect to MCS, first, most of the respondents to the market investigation
         consider that the Transaction would have a neutral impact on the market.
         Second, Vivendi would not have the ability and the incentive to foreclose TIM's
86    See replies to Questionnaire 1 to market participants, question 3.7.
87    See Commission decision of 24 April 2017 in case M.8392, Bolloré/Vivendi.
88    See Notifying Party's reply to RFI n.5 of 27 April 2017.
89    See Notifying Party's reply to RFI n. 5 of 27 April 2017.
                                                        25
 ---pagebreak---          competitors since its services could not be considered an important input, in
         light of its limited market share, under any narrower product market definition,
         and the presence of alternative suppliers. Third, Vivendi would not have the
         ability to foreclose its competitors to access a significant customer base
         downstream in the MCS market since TIM's spending in the MCS market is
         limited (approximately EUR […] for MCS in 2016) which, based on the data
         provided by the Notifying Party, corresponds to [0-5]% of the overall spending
         in the MCS market in Italy.
  (124) With regard to MBS, most of the respondents to the market investigation
         consider that the Transaction would have either a positive or neutral impact on
         the MBS market. In particular, one of Havas's main competitors in Italy
         considers that the market would remain competitive following the Transaction.
         However, three respondents indicated that the Transaction may have a negative
         effect on the MBS market in Italy. In particular, a TV channel provider notes
         that, post-Transaction, TIM would no longer acquire advertising space on third
         party services (e.g. TV channels) and transmit advertising services only on its
         services/platform (e.g. TIM Vision retail TV platform). However, such concern
         would not be merger specific. Today, TIM has already the ability to divert its
         advertising expenditure to its TV platform. The other two respondents did not
         substantiate their claim and noted that the relationships between Havas, Vivendi
         and TIM should be investigated. However, the Commission considers that the
         Transaction does not raise serious doubts with regard to MBS in Italy for the
         following reasons. First, Vivendi would not have the ability and the incentive to
         foreclose TIM's competitors since its services could not be considered an
         important input (it has a market share of approximately [5-10]% in the MBS
         market in Italy90 and alternative suppliers would remain active in the market)
         and the strategy would not be profitable (Vivendi would lose more than
         [70-80]% of its revenues by exclusively relying on TIM as a customer). Third,
         Vivendi would not have the ability to foreclose its competitors to access a
         significant customer base downstream in the MBS market since Telecom Italia's
         spending is limited (approximately EUR […] for MBS in 2016) which, based on
         the data provided by the Notifying Party, corresponds to [0-5]% of the overall
         spending in the MBS market in Italy.
7.       COMMITMENTS
 7.1.  Introduction
  (125) In order to remove the serious doubts arising from the Transaction described in
         Section 6.1 in relation to the Italian market for DTT wholesale access, on
         4 May 2017 the Notifying Party submitted commitments pursuant to Article 6(2)
         of the Merger Regulation (the "Initial Commitments").
  (126) The Commission launched a market test of the Initial Commitments on
         5 May 2017. The Commission informed the Notifying Party of the results of the
         market test on 16 May 2017. Following the feedback received from the
90    Vivendi submits that its market shares would not be materially different under any narrower product
      market definition.
                                                      26
 ---pagebreak---          Commission, the Notifying Party submitted a revised set of commitments on
         17 May 2017 (the "Final Commitments").
  (127) The Final Commitments are annexed to this decision and form an integral part
         thereof.
 7.2.  Analytical framework
  (128) Where the Commission considers that a concentration will raise competition
         concerns the parties may seek to modify the concentration in order to resolve such
         competition concerns and thereby gain clearance of their merger.91
  (129) In Phase I, commitments offered by the parties can only be accepted where the
         competition problem is readily identifiable and can easily be remedied. The
         competition problem therefore needs to be so straightforward and the remedies so
         clear-cut that it is not necessary to enter into an in-depth investigation and that the
         commitments are sufficient to clearly rule out "serious doubts" within the meaning
         of Article 6(1)(c) of the Merger Regulation. Where the assessment confirms that
         the proposed commitments remove the grounds for serious doubts on this basis, the
         Commission clears the merger in Phase I.92
  (130) In assessing whether the proposed commitments will likely eliminate the
         competition concerns identified, the Commission considers all relevant factors
         including inter alia the type, scale and scope of the proposed commitments, judged
         by reference to the structure and particular characteristics of the market in which
         the competition concerns arise, including the position of the parties and other
         participants on the market.93
  (131) In order for the commitments to comply with these principles, commitments must
         be capable of being implemented effectively within a short period of time.94
         Where, however, the parties submit remedies proposals that are so extensive and
         complex that it is not possible for the Commission to determine with the requisite
         degree of certainty, at the time of its decision, that they will be fully implemented
         and that they are likely to maintain effective competition in the market, an
         authorisation decision cannot be granted.95
  (132) As concerns the form of acceptable commitments, the Merger Regulation leaves
         discretion to the Commission as long as the commitments meet the requisite
         standard.96 Structural commitments will meet the conditions set out above only in
         so far as the Commission is able to conclude with the requisite degree of certainty
         that it will be possible to implement them and that it will be likely that the new
         commercial structures resulting from them will be sufficiently workable and
91    Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under
      Commission Regulation (EC) No 802/2004 (the "Remedies Notice"), OJ 2008/C 267/01,
      Paragraph 5.
92    Remedies Notice, Paragraph 81.
93    Remedies Notice, Paragraph 12.
94    Remedies Notice, Paragraph 9.
95    Remedies Notice, Paragraphs 13, 14 and 61 et seq.
96    Case T-177/04 easyJet v Commission [2006] ECR II-1913, Paragraph 197.
                                                     27
 ---pagebreak---          lasting to ensure that the significant impediment to effective competition will not
         materialise.97
  (133) Divestiture commitments are generally the best way to eliminate competition
         concerns resulting from horizontal overlaps, although other structural
         commitments, such as access remedies, may be suitable to resolve concerns if
         those remedies are equivalent to divestitures in their effects.98
  (134) It is against this background that the Commission analysed the proposed
         commitments in this case.
 7.3.  Initial Commitments
7.3.1. Description of the Initial Commitments
  (135) The Initial Commitments consisted of the divestment of TIM's 70% stake in
         Persidera (the "Divestment Business").
  (136) The Divestment Business also included, unless otherwise agreed with the
         purchaser, the benefit of all current arrangements under which TIM or its
         subsidiaries supply products or services to the Divestment Business, for a
         transitional period of up to […] after the transfer of the legal title to the
         Divestment Business to the purchaser and on terms and conditions equivalent to
         those at present afforded to the Divestment Business. The Notifying Party
         committed to put in place strict firewall procedures so as to ensure that any
         competitively sensitive information related to, or arising from such supply
         arrangements (for example, product roadmaps) will not be shared with, or
         passed on to, anyone outside the relevant business unit/division providing the
         product/services operations.
  (137) The Initial Commitments included a revised version of the review clause
         whereby the Commission may, "in response to a reasoned request from the
         Notifying Party showing good cause waive, modify or substitute, in exceptional
         circumstances, one or more of the undertakings in these Commitments, […].
7.3.2. Results of the market test
  (138) The results of the market test were generally positive.
  (139) The majority of the respondents to the market test considered that the
         Divestment Business includes all necessary tangible and intangible assets for the
         purchaser to operate and effectively compete on the Italian market for DTT
         wholesale access.99 This is because the Divestment Business consists of a
         participation to the share capital of Persidera, which is the undertaking currently
         running the activities of TIM in the market for DTT wholesale access. In this
         vein, one respondent explains that, "[s]ince the Divestment Business is a
         participation to Persidera's share capital and the Company (i.e. Persidera) is
         currently running the business, [it believes] that the Divestment Business
         includes all necessary assets for the purchaser of the shares to operate and
97    Remedies Notice, Paragraph 10.
98    Remedies Notice, Paragraph 19.
99    See replies to Question 3 of Initial Commitment's market test.
                                                       28
 ---pagebreak---           effectively compete on the market." Only one respondent indicated that the
          Divestment Business should also include the right to access and exploit at least
          800 fully-equipped transmission sites.
  (140) The view of the respondents were mixed with respect to the issue as to whether,
          in order to run the Divestment Business efficiently as a viable and competitive
          force in the Italian market for DTT wholesale access, the purchaser should have
          any specific characteristics other than those mentioned in section D, paragraph
          17 of the Initial Commitments.100 In this respect, four respondents indicated that
          the purchaser should fulfil additional criteria. One of them stated that the Initial
          Commitments should be revised so to explicitly state that the purchaser should
          not be an entity connected to the Mediaset Group. The replies of other three
          respondents suggest that the purchaser should not be vertically integrated in the
          retail supply of TV channels to have all the incentives to grant access and top
          quality service to its customers not owning DTT infrastructures nor be a
          prominent player in other distribution platform, nor an operator already active in
          the DTT wholesale access market.
  (141) The majority of the respondents also considered that the provisions of the Initial
          Commitments (including its schedule) are sufficiently clear and capable of being
          implemented.101 Only one respondent indicated that it was not clear from
          paragraph 18 of the Initial Commitments whether the sale of single assets owned
          by Persidera, such as one of the MUXes, was possible on a standalone basis.
  (142) Finally, the majority of the respondents stated that, according to them, the Initial
          Commitments will ensure that post-Transaction there would remain sufficient
          competition in the Italian market for DTT wholesale access.102 In this vein, one
          respondent stated that "the divestment of Persidera is critical to the effective
          functioning of the Italian market for wholesale access to digital terrestrial
          networks for the broadcast of TV channels."
  (143) Nonetheless, two respondents have raised some concerns as regards the viability
          of the Divestment Business. According to one of these respondents, Persidera
          would not be a viable business for two main reasons: first, its (increasing)
          dependency on Discovery due to the loss of Cairo as customer; second, the
          uncertainty in the regulatory framework for DTT broadcasting in Italy, "due to
          the switching in 2020 of the 900 [sic] MHz spectrum band for use in mobile
          telecommunications"; third, the lack of a partnership with a tower operator and
          in particular with EI Tower. The other respondent indicated instead that the
          Initial Commitments would be effective, but only for a limited period of time
          because "[s]ome Persidera’s MUX DVB-T (TIM B1, TIM B2, RETE A2) are
          allocated within 700 Mhz frequencies that will used for Digital terrestrial
          broadcasting transmission until 2022 end after such date, 700 Mhz frequencies
          will change their destination use from DTT to mobile services (for Supplemental
          Downlink id est “SDL”)."
100   Notably, independence from Vivendi, financial resources, proven expertise and incentive to
      maintain and develop the Divestment Business as a viable and active competitive force. See replies
      to Question 4 of Initial Commitment's market test.
101   See replies to Question 6 of Initial Commitment's market test.
102   See replies to Question 7 of Initial Commitment's market test.
                                                       29
 ---pagebreak---   (144) In addition, the Commission notes that the ICA has expressed a positive opinion
          on the Initial Commitments and it considered that such commitments are
          "suitable to solve the competition concerns, as they represent a structural
          solution". Nonetheless, the ICA stated that an appropriate transitional period
          should be foreseen to enable a smooth change of supplier for all the inputs
          currently supplied to Persidera by TIM and that the identity of purchaser should
          be carefully assessed to ensure that it would not raise concerns of vertical
          foreclosure.
7.3.3. Commission's assessment of the Initial Commitments
  (145) The Commission considers that the Initial Commitments would in principle
          have been capable of removing the serious doubts raised by the Transaction, and
          identified in Section 6.1, in a clear-cut manner. Such ability may though be
          affected by the limited duration of the transitional period.
  (146) First, the Commission considers that the scope of the Divestment Business is
          sufficiently comprehensive. Persidera is a distinct legal entity, which is active on
          a stand-alone basis in the Italian market for DTT wholesale access. Persidera
          holds the know-how, the staff, the assets, resources necessary and authorizations
          to perform its activities; Persidera’s has its own management; all current
          customer contracts for the supply of digital broadcasting services are held by
          Persidera. Moreover, the divestment of the Divestment Business would remove
          in full the overlap between Mediaset's and TIM's activities in the market for
          DTT wholesale access.
  (147) Nonetheless, the Commission notes that currently there are few operational links
          between Persidera and TIM. These include access to transmission sites. Indeed,
          Persidera owns a limited number of transmission sites (25). For the remaining
          number of sites it needs for its activities, Persidera relies to a limited extent on
          transmission sites controlled by TIM (around 60 sites)103 and satisfies its access
          needs predominantly through contracts with third party providers (RAI and EI
          Towers).104
  (148) The Initial Commitments foresaw that the contracts between Persidera and TIM
          would continue for the transitional period of […]. Considering that for certain
          supplies, the process of selecting a new provider and switching may take longer
          than[…], the duration of the transitional period pursuant to the Initial
          Commitments does not seem to be sufficient.
  (149) Second, the Commission considers that the Divestment Business is viable.
          Persidera is indeed the largest provider of DTT wholesale access to independent
          TV channels with stable revenues.105 In this regard, the Commission considers
          that, contrary to what a respondent to the market investigation claimed, the
          increased "dependency" on Discovery, due to the loss of Cairo as customer,
          does not affect Persidera' business viability, but rather demonstrates that the
          only alternative solution to Persidera for an independent TV channel is to enter
103   See reply to request for information to TIM of 27 April 2017, dated 3 May 2017.
104   In total Persidera has access to about 1000 transmission sites.
105   Reply to request for information of 15 May 2017, dated 17 May 2017.
                                                        30
 ---pagebreak---           the DTT wholesale access market, which is complex and costly and therefore an
          option not generally available to Persidera's customers.
  (150) The Commission also considers that the viability of the Divestment Business is
          not likely to be affected by the refarming of the 700 Mhz frequencies, currently
          used for DTT broadcasting and to be allocated to mobile telecommunications by
          2020. Indeed, this would only concern one of Persidera's MUXes and is an event
          which will affect the whole Italian DTT wholesale access market and AGCOM
          has already stated that "the refarming of the 700 MHz band will necessarily
          involve the redefinition of the entire Italian radio and television system through
          the replanification of spectral resources which could be used for the radio and
          television broadcasting services, be them offered on the UHF-IV / V band or on
          the VHF-III band."106 In this context, it is not likely that Persidera will be
          prejudiced to a greater extent than its competitors.
  (151) Third, the Commission considers that, by removing the overlap between
          Mediaset's and TIM's activities in the market for DTT wholesale access, the
          Initial Commitments would be effective as it would solve in a clear-cut manner
          all competition concerns identified in Section 6.1.
  (152) As regards those comments received in the market test in relation to possible
          competition concerns arising from the sale of the Divestment Business to certain
          purchasers, the Commission considers that any risks in this regard is normally
          avoided in the purchaser approval process, where one of the elements that the
          Commission assesses is whether the purchaser is likely to create prima facie
          competition concerns. A clause in this respect is also included in the Initial
          Commitments.
 7.4.   Final Commitments
7.4.1. Description of the Final Commitments
  (153) The Final Commitments are in all material respect identical to the Initial
          Commitments with two exceptions:
        (i)      Transitional period:
                 a)       The Divestment Business has been amended to extend the benefit
                          of all current arrangements under which TIM or its subsidiaries
                          supply products or services to the Divestment Business until their
                          current expiry date;
                 b)       With respect to access to transmission sites, Vivendi commits to
                          procure that TIM will grant the purchaser an option to renew the
                          contracts between INWIT and Persidera for […] after their current
                          expiry date at the same terms and condition of the current
                          contracts;
106   AGCOM, Decision n. 40/17/CONS: "il refarming della banda 700 MHz comporterà
      necessariamente la ridefinizione dell’intero assetto del sistema radiotelevisivo italiano attraverso la
      ripianificazione delle risorse frequenziali utilizzabili per il servizio di radiodiffusione, siano esse in
      banda UHF-IV/V che in banda VHF-III."
                                                          31
 ---pagebreak---         (ii)    Review clause: the review clause has been amended and it states that, […],
                the Commission may wave or substitute one, more or all of the
                undertakings in the Final Commitment.107 In other words, […]
7.4.2. Commission's assessment of the Final Commitments
  (154) The Commission considers that the amendments to the Initial Commitments
          fully address the shortcomings of the Initial Commitments with respect to the
          duration of the transitional period, in particular with respect to access to
          transmission sites.
  (155) With particular regard to the renewal of the contracts between INWIT and
          Persidera, the Commission considers that the extended duration of this
          contractual relationship will not hamper the principle of independence of the
          purchaser. This is because, within that timeframe, an important re-planification
          of DTT networks will have to be undertaken to take into account the refarming
          of the 700 MHz band. Therefore, a longer transition period with respect to the
          contracts for access to transmission sites will avoid that the purchaser will have
          to perform twice the same exercise, first to take into account the expiry of the
          contracts with INWIT and then to take into account of the refarming of the
          700 MHz band. This double exercise could negatively affect the Divestment
          Business performance.
  (156) Therefore, the Commission considers that the Final Commitment, which are in
          all other respect identical to the Initial Commitments, are capable of removing
          the serious doubts raised by the Transaction in a clear-cut manner.
 7.5.   Conclusion
  (157) For the reasons outlined above, the Final Commitments entered into by the
          Notifying Party are sufficient to eliminate the serious doubts as to the
          compatibility of the Transaction with the internal market.
  (158) Under the first sentence of the second subparagraph of Article 6(2) of the
          Merger Regulation, the Commission may attach to its decisions conditions and
          obligations intended to ensure that the undertakings concerned comply with the
          commitments they have entered into vis-à-vis the Commission with a view to
          rendering a notified concentration compatible with the internal market.
  (159) The achievement of the measure that gives rise to the structural change of the
          market is a condition, whereas the implementing steps which are necessary to
          achieve this result are generally obligations on the Notifying Party. Where a
          condition is not fulfilled, the Commission's decision declaring the concentration
          compatible with the internal market no longer stands. Where the undertakings
          concerned commit a breach of an obligation, the Commission may revoke the
          clearance decision in accordance with Article 8(6) of the Merger Regulation.
          The undertakings concerned may also be subject to fines and periodic penalty
          payments under Articles 14(2) and 15(1) of the Merger Regulation.
107   In its contacts with the Notifying Party before the presentation of the Final Commitments, the
      Commission Services had clarified that, based on the available information, […]. The text of the
      review clause in the Final Commitments should therefore be read in the light of this preliminary
      assessment, which was not questioned by the Notifying Party.
                                                     32
 ---pagebreak---  (160) The commitments in paragraphs 2 and 5-7 of the Final Commitments constitute
       conditions attached to this decision, as only through full compliance therewith
       can the structural changes in the relevant markets be achieved. The other
       commitments set out in the Final Commitments constitute obligations, as they
       concern the implementing steps which are necessary to achieve the
       modifications sought in a manner compatible with the internal market.
8.     CONCLUSION
 (161) For the above reasons, the Commission has decided not to oppose the
       Transaction as modified by the Final Commitments and to declare it compatible
       with the internal market and with the functioning of the EEA Agreement,
       subject to full compliance with the conditions in paragraphs 2 and 5-7 of the
       Final Commitments annexed to this decision and with the obligations contained
       in the other paragraphs of the Final Commitments. This decision is adopted in
       application of Article 6(1)(b) in conjunction with Article 6(2) of the Merger
       Regulation and Article 57 of the EEA Agreement.
                                                   For the Commission
                                                   (signed)
                                                   Margrethe VESTAGER
                                                   Member of the Commission
                                             33
 ---pagebreak---                                                                                             17/05/2017
                          Case M. 8465 – VIVENDI / TELECOM ITALIA
                     COMMITMENTS TO THE EUROPEAN COMMISSION
Pursuant to Article 6(2) of Council Regulation (EC) No 139/2004 (the “Merger Regulation”), Vivendi
S.A. (“Vivendi” or the “Notifying Party”) hereby enters into the following Commitments (the
“Commitments”) vis-à-vis the European Commission (the “Commission”) with a view to rendering
the acquisition of a de facto sole control by Vivendi over Telecom Italia S.p.A. (the “Concentration”)
compatible with the internal market and the functioning of the EEA Agreement.
This text shall be interpreted in light of the Commission’s decision pursuant to Article 6(1)(b) of the
Merger Regulation of the Merger Regulation to declare the Concentration compatible with the internal
market and the functioning of the EEA Agreement (the “Decision”), in the general framework of
European Union law, in particular in light of the Merger Regulation, and by reference to the
Commission Notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under
Commission Regulation (EC) No 802/2004 (the “Remedies Notice”).
Section A.        Definitions
1. For the purpose of the Commitments, the following terms shall have the following meaning:
    Affiliated Undertakings: undertakings controlled by Vivendi and/or by the ultimate parent of
    Vivendi, whereby the notion of control shall be interpreted pursuant to Article 3 of the Merger
    Regulation and in light of the Commission Consolidated Jurisdictional Notice under Council
    Regulation (EC) No 139/2004 on the control of concentrations between undertakings (the
    "Consolidated Jurisdictional Notice").
    Assets: the assets that contribute to the current operation or are necessary to ensure the viability
    and competitiveness of the Divestment Business as indicated in Section B, paragraphs 5 and 6 (a),
    (b) and (c) and described more in detail in the Schedule.
    Closing: the transfer of the legal title to the Divestment Business to the Purchaser.
    Closing Period: the period of [...] from the approval of the Purchaser and the terms of sale by the
    Commission.
    Confidential Information: any business secrets, know-how, commercial information, or any
    other information of a proprietary nature that is not in the public domain.
    Conflict of Interest: any conflict of interest that impairs the Trustee's objectivity and
    independence in discharging its duties under the Commitments.
    Divestment Business: the business as defined in Section B and in the Schedule which the
    Notifying Party commits to divest.
    Divestiture Trustee: one or more natural or legal person(s) who is/are approved by the
    Commission and appointed by Vivendi and who has/have received from Vivendi the exclusive
 ---pagebreak---                                                                            Non-Confidential Version
Trustee Mandate to sell the Divestment Business, without prejudice to any rights of L’Espresso, to
a Purchaser at no minimum price.
Effective Date: the date of adoption of the Decision.
First Divestiture Period: the period of [...] from the Effective Date.
Hold Separate Manager: the person appointed by Telecom Italia for the Divestment Business to
manage the day-to-day business under the supervision of the Monitoring Trustee.
Key Personnel: all personnel necessary to maintain the viability and competitiveness of the
Divestment Business, as listed in the Schedule, including the Hold Separate Manager.
Mediaset Group: Mediaset S.p.A. and the companies controlled by Mediaset S.p.A whereby the
notion of control shall be interpreted pursuant to Article 3 of the Merger Regulation and in light of
the Consolidated Jurisdictional Notice.
Monitoring Trustee: one or more natural or legal person(s) who is/are approved by the
Commission and appointed by Vivendi, and who has/have the duty to monitor Vivendi’s
compliance with the conditions and obligations attached to the Decision.
Parties: the Notifying Party and the undertaking that is the target of the concentration.
Personnel: all staff currently employed by the Divestment Business, including staff seconded to
the Divestment Business, shared personnel as well as the additional personnel listed in the
Schedule.
Purchaser: the entity approved by the Commission as acquirer of the Divestment Business in
accordance with the criteria set out in Section D.
Purchaser Criteria: the criteria laid down in paragraph 18 of these Commitments that the
Purchaser must fulfil in order to be approved by the Commission.
Schedule: the schedule to these Commitments describing more in detail the Divestment Business.
TI or Telecom Italia: Telecom Italia S.p.A. and the companies controlled by Telecom Italia
S.p.A whereby the notion of control shall be interpreted pursuant to Article 3 of the Merger
Regulation and in light of the Consolidated Jurisdictional Notice.
Trustee(s): the Monitoring Trustee and/or the Divestiture Trustee as the case may be.
Trustee Divestiture Period: the period of [...] from the end of the First Divestiture Period.
Vivendi: Vivendi S.A., a company incorporated under the laws of France, with its registered
office at 42, avenue de Friedland, 75380 Paris Cedex 08, France, incorporated under the Registrar
of Companies of the Paris Commercial Court Company under number 343 134 763 and all of the
undertakings controlled by Vivendi S.A. pursuant to Article 3 of the Merger Regulation (EC)
No 139/2004 notably Telecom Italia.
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Section B.        The commitment to divest and the Divestment Business
       Commitment to divest
2. In order to maintain effective competition, Vivendi commits to procure the divestiture of the
    Divestment Business by the end of the Trustee Divestiture Period as a going concern to a
    purchaser and on terms of sale approved by the Commission in accordance with the procedure
    described in paragraph 19 of these Commitments. To carry out the divestiture, Vivendi commits
    that Telecom Italia shall find a purchaser and shall enter into a final binding sale and purchase
    agreement for the sale of the Divestment Business within the First Divestiture Period. If Telecom
    Italia has not entered into such an agreement at the end of the First Divestiture Period, Telecom
    Italia shall grant the Divestiture Trustee an exclusive mandate to sell the Divestment Business in
    accordance with the procedure described in paragraph 31 in the Trustee Divestiture Period.
3. Vivendi shall be deemed to have complied with this commitment if:
       (a)       by the end of the Trustee Divestiture Period, Telecom Italia or the Divestiture Trustee
                 has entered into a final binding sale and purchase agreement and the Commission
                 approves the proposed purchaser and the terms of sale as being consistent with the
                 Commitments in accordance with the procedure described in paragraph 19; and
       (b)       the Closing of the sale of the Divestment Business to the Purchaser takes place within
                 the Closing Period.
4. In order to maintain the structural effect of the Commitments, the Notifying Party shall, for a
    period of 10 years after Closing, not acquire, whether directly or indirectly, the possibility of
    exercising influence (as defined in paragraph 43 of the Remedies Notice, footnote 3) over the
    whole or part of the Divestment Business, unless, following the submission of a reasoned request
    from the Notifying Party showing good cause and accompanied by a report from the Monitoring
    Trustee (as provided in paragraph 45 of these Commitments), the Commission finds that the
    structure of the market has changed to such an extent that the absence of influence over the
    Divestment Business is no longer necessary to render the proposed concentration compatible with
    the internal market.
       Structure and definition of the Divestment Business
5. The Divestment Business consists of TI’s entire shareholding interest in Persidera, a digital
    broadcast operator. TI holds 70% of Persidera’s share capital, whereas L’Espresso Group owns
    30%. Persidera has five digital multiplexers and provides DTT broadcasting, content preparation,
    play-out, over-the-top (OTT) delivery, connectivity and several other multimedia services to the
    main television editors that operate in the Italian market.
6. The legal and functional structure of the Divestment Business as operated to date is described in
    the Schedule. The Divestment Business, described in more detail in the Schedule, includes all
    assets and staff that contribute to the current operation or are necessary to ensure the viability and
    competitiveness of the Divestment Business, in particular:
       (a)       all tangible and intangible assets (including intellectual property rights);
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 ---pagebreak---                                                                                Non-Confidential Version
       (b)        all licences, permits and authorisations issued by any governmental organisation for
                  the benefit of the Divestment Business;
       (c)        all contracts (including all current arrangements under which TI or its Affiliated
                  Undertakings supply products or services to the Divestment Business, as detailed in
                  the Schedule, until their expiry date), leases, commitments and customer orders of the
                  Divestment Business; all customer, credit and other records of the Divestment
                  Business; and
       (d)        the Personnel.
7. In addition, Vivendi commits to procure that, in the final binding sale and purchase agreement TI
    or its Affiliated Undertakings will grant the purchaser an option for the renewal for extra [...] (after
    the expiry date), at the same terms and conditions currently afforded, of the agreements for hosting
    services for Persidera transmission equipment on INWIT transmission sites.
8. Strict firewall procedures will be adopted so as to ensure that any competitively sensitive
    information related to, or arising from the supply arrangements between the Divestment Business,
    on the one hand, and TI or its Affiliated Undertakings, on the other hand, (for example, product
    roadmaps) will not be shared with, or passed on to, anyone outside the relevant business
    unit/division providing the product/services operations.
 Section C.         Related commitments
       Preservation of viability, marketability and competitiveness
9. From the Effective Date until Closing, the Notifying Party shall procure the preservation of the
    economic viability, marketability and competitiveness of the Divestment Business, in accordance
    with good business practice, and shall minimise as far as possible any risk of loss of competitive
    potential of the Divestment Business. In particular Vivendi undertakes:
       (a)        not to carry out any action that might have a significant adverse impact on the value,
                  management or competitiveness of the Divestment Business or that might alter the
                  nature and scope of activity, or the industrial or commercial strategy or the investment
                  policy of the Divestment Business;
       (b)        procure to make available sufficient resources for the development of the Divestment
                  Business, on the basis and continuation of the existing business plans;
       (c)        procure that all reasonable steps are being taken, including appropriate incentive
                  schemes (based on industry practice), to encourage all Key Personnel to remain with
                  the Divestment Business, and not to solicit or move any Personnel to Vivendi’s or
                  Telecom Italia’s remaining business. Where, nevertheless, individual members of the
                  Key Personnel exceptionally leave the Divestment Business, Vivendi shall provide a
                  reasoned proposal to replace the person or persons concerned to the Commission and
                  the Monitoring Trustee. Vivendi must be able to demonstrate to the Commission that
                  the replacement is well suited to carry out the functions exercised by those individual
                  members of the Key Personnel. The replacement shall take place under the
                  supervision of the Monitoring Trustee, who shall report to the Commission.
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 ---pagebreak---                                                                              Non-Confidential Version
       Hold-separate obligations
10. The Notifying Party commits, from the Effective Date until Closing, to keep the Divestment
    Business separate from the businesses it is retaining and to ensure that unless explicitly permitted
    under these Commitments: (i) management and staff of the businesses retained by Vivendi have
    no involvement in the Divestment Business; (ii) the Key Personnel and Personnel of the
    Divestment Business have no involvement in any business retained by Vivendi and do not report
    to any individual outside the Divestment Business.
11. Until Closing, Vivendi shall assist the Monitoring Trustee in ensuring that the Divestment
    Business is managed as a distinct and saleable entity separate from the businesses which Vivendi
    is retaining. Immediately after the adoption of the Decision, Vivendi shall procure that Telecom
    Italia appoints a Hold Separate Manager. The Hold Separate Manager, who shall be one of the
    representatives of the Key Personnel, shall, without prejudice to any rights of L’Espresso, manage
    and exercise Telecom Italia’s rights relating to the Divestment Business independently and in the
    best interest of the business with a view to ensuring its continued economic viability, marketability
    and competitiveness and its independence from the businesses retained by Vivendi. The Hold
    Separate Manager shall closely cooperate with and report to the Monitoring Trustee and, if
    applicable, the Divestiture Trustee. Any replacement of the Hold Separate Manager shall be
    subject to the procedure laid down in paragraph 9 (c) of these Commitments. The Commission
    may, after having heard Vivendi, require Vivendi to procure via Telecom Italia the replacement of
    the Hold Separate Manager.
12. To ensure that the Divestment Business is held and managed as a separate entity, Vivendi will
    procure that the Monitoring Trustee exercise TI’s rights as shareholder in Persidera (except for its
    rights in respect of dividends that are due before Closing), with the aim of acting in the best
    interest of the business, which shall be determined on a stand-alone basis, as an independent
    financial investor, and with a view to fulfilling Vivendi’s obligations under the Commitments.
    Furthermore, the Monitoring Trustee shall have the power to replace members of the supervisory
    board or non-executive directors of the board of directors of Persidera, who have been appointed
    on behalf of TI. Upon request of the Monitoring Trustee, TI shall resign as a member of the boards
    or shall cause such members of the boards to resign.
       Ring-fencing
13. Vivendi shall implement, or procure to implement, all necessary measures to ensure that it does
    not, after the Effective Date, obtain any Confidential Information relating to the Divestment
    Business and that any such Confidential Information obtained by Vivendi before the Effective
    Date will be eliminated and not be used by Vivendi. This includes measures vis-à-vis TI’s
    appointees on the supervisory board and/or board of directors of the Divestment Business. In
    particular, the participation of the Divestment Business in any central information technology
    network shall be severed to the extent possible, without compromising the viability of the
    Divestment Business. Vivendi may obtain or keep information relating to the Divestment Business
    which is reasonably necessary for the divestiture of the Divestment Business or the disclosure of
    which to Vivendi is required by law.
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 ---pagebreak---                                                                              Non-Confidential Version
       Non-solicitation clause
14. The Parties undertake, subject to customary limitations, not to solicit, and to procure that
    Affiliated Undertakings do not solicit, the Key Personnel transferred with the Divestment Business
    for a period of [...] after Closing.
       Due diligence
15. In order to enable potential purchasers to carry out a reasonable due diligence of the Divestment
    Business, Vivendi shall procure that Telecom Italia will, subject to customary confidentiality
    assurances and dependent on the stage of the divestiture process:
       (a)       provide to potential purchasers sufficient information as regards the Divestment
                 Business;
       (b)       provide to potential purchasers sufficient information relating to the Personnel and
                 allow them reasonable access to the Personnel.
       Reporting
16. Vivendi shall submit written reports in English on potential purchasers of the Divestment Business
    and developments in the negotiations with such potential purchasers to the Commission and the
    Monitoring Trustee no later than 10 days after the end of every month following the Effective
    Date (or otherwise at the Commission’s request). Vivendi shall submit a list of all potential
    purchasers having expressed interest in acquiring the Divestment Business to the Commission at
    each and every stage of the divestiture process, as well as a copy of all the offers made by
    potential purchasers within five days of their receipt.
17. Vivendi shall inform the Commission and the Monitoring Trustee on the preparation of the data
    room documentation and the due diligence procedure and shall submit a copy of any information
    memorandum to the Commission and the Monitoring Trustee before sending the memorandum out
    to potential purchasers.
Section D.        The Purchaser
18. In order to be approved by the Commission, the Purchaser must fulfil the following criteria:
       (a) The Purchaser shall be independent of and unconnected to the Notifying Party and its
           Affiliated Undertakings (this being assessed having regard to the situation following the
           divestiture);
       (b) The Purchaser shall have the financial resources, proven expertise and incentive to maintain
           and develop the Divestment Business as a viable and active competitive force in
           competition with the Parties and other competitors;
       (c) The acquisition of the Divestment Business by the Purchaser must neither be likely to
           create, in light of the information available to the Commission, prima facie competition
           concerns nor give rise to a risk that the implementation of the Commitments will be
           delayed. In particular, the Purchaser must reasonably be expected to obtain all necessary
                                                        6
 ---pagebreak---                                                                               Non-Confidential Version
             approvals from the relevant regulatory authorities for the acquisition of the Divestment
             Business.
19. The final binding sale and purchase agreement (as well as ancillary agreements) relating to the
    divestment of the Divestment Business shall be conditional on the Commission’s approval. When
    Telecom Italia has reached an agreement with a purchaser, Vivendi shall submit a fully
    documented and reasoned proposal, including a copy of the final agreement(s), within one week to
    the Commission and the Monitoring Trustee. Vivendi must be able to demonstrate to the
    Commission that the purchaser fulfils the Purchaser Criteria and that the Divestment Business is
    being sold in a manner consistent with the Commission's Decision and the Commitments. For the
    approval, the Commission shall verify that the purchaser fulfils the Purchaser Criteria and that the
    Divestment Business is being sold in a manner consistent with the Commitments including their
    objective to bring about a lasting structural change in the market. The Commission may approve
    the sale of the Divestment Business without one or more Assets or parts of the Personnel, or by
    substituting one or more Assets or parts of the Personnel with one or more different assets or
    different personnel, if this does not affect the viability and competitiveness of the Divestment
    Business after the sale, taking account of the proposed purchaser.
Section E.          Trustee
       I.           Appointment procedure
20. Vivendi shall appoint a Monitoring Trustee to carry out the functions specified in these
    Commitments for a Monitoring Trustee. The Notifying Party commits not to exercise any voting
    rights or other influence over Persidera before the appointment of a Monitoring Trustee.
21. If Telecom Italia has not entered into a binding sale and purchase agreement regarding the
    Divestment Business one month before the end of the First Divestiture Period or if the
    Commission has rejected a purchaser proposed by Vivendi at that time or thereafter, Vivendi shall
    appoint a Divestiture Trustee. The appointment of the Divestiture Trustee shall take effect upon
    the commencement of the Trustee Divestiture Period.
22. The Trustee shall:
       (i)       at the time of appointment, be independent of the Notifying Party and its Affiliated
                 Undertakings;
       (ii)      possess the necessary qualifications to carry out its mandate, for example have
                 sufficient relevant experience as an investment banker or consultant or auditor; and
       (iii)     neither have nor become exposed to a Conflict of Interest.
23. The Trustee shall be remunerated by the Notifying Party in a way that does not impede the
    independent and effective fulfilment of its mandate. In particular, where the remuneration package
    of a Divestiture Trustee includes a success premium linked to the final sale value of the
    Divestment Business, such success premium may only be earned if the divestiture takes place
    within the Trustee Divestiture Period.
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 ---pagebreak---                                                                                Non-Confidential Version
                   Proposal by Vivendi
24. No later than two weeks after the Effective Date, Vivendi shall submit the name or names of one
    or more natural or legal persons whom Vivendi proposes to appoint as the Monitoring Trustee to
    the Commission for approval. No later than one month before the end of the First Divestiture
    Period or on request by the Commission, Vivendi shall submit a list of one or more persons whom
    Vivendi proposes to appoint as Divestiture Trustee to the Commission for approval. The proposal
    shall contain sufficient information for the Commission to verify that the person or persons
    proposed as Trustee fulfil the requirements set out in paragraph 22 and shall include:
       (a)        the full terms of the proposed mandate, which shall include all provisions necessary to
                  enable the Trustee to fulfil its duties under these Commitments;
       (b)        the outline of a work plan which describes how the Trustee intends to carry out its
                  assigned tasks;
       (c)        an indication whether the proposed Trustee is to act as both Monitoring Trustee and
                  Divestiture Trustee or whether different trustees are proposed for the two functions.
                   Approval or rejection by the Commission
25. The Commission shall have the discretion to approve or reject the proposed Trustee(s) and to
    approve the proposed mandate subject to any modifications it deems necessary for the Trustee to
    fulfil its obligations. If only one name is approved, Vivendi shall appoint or cause to be appointed
    the person or persons concerned as Trustee, in accordance with the mandate approved by the
    Commission. If more than one name is approved, Vivendi shall be free to choose the Trustee to be
    appointed from among the names approved. The Trustee shall be appointed within one week of the
    Commission’s approval, in accordance with the mandate approved by the Commission.
                   New proposal by Vivendi
26. If all the proposed Trustees are rejected, Vivendi shall submit the names of at least two more
    natural or legal persons within one week of being informed of the rejection, in accordance with
    paragraphs 20 and 25 of these Commitments.
                   Trustee nominated by the Commission
27. If all further proposed Trustees are rejected by the Commission, the Commission shall nominate a
    Trustee, whom Vivendi shall appoint, or cause to be appointed, in accordance with a trustee
    mandate approved by the Commission.
       II.         Functions of the Trustee
28. The Trustee shall assume its specified duties and obligations in order to ensure compliance with
    the Commitments. The Commission may, on its own initiative or at the request of the Trustee or
    Vivendi, give any orders or instructions to the Trustee in order to ensure compliance with the
    conditions and obligations attached to the Decision.
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 ---pagebreak---                                                                              Non-Confidential Version
                Duties and obligations of the Monitoring Trustee
29. The Monitoring Trustee shall:
    (i)   propose in its first report to the Commission a detailed work plan describing how it
          intends to monitor compliance with the obligations and conditions attached to the
          Decision.
    (ii)  oversee, in close co-operation with the Hold Separate Manager, the on-going management
          of the Divestment Business with a view to ensuring its continued economic viability,
          marketability and competitiveness and monitor compliance by Vivendi with the conditions
          and obligations attached to the Decision. To that end the Monitoring Trustee shall:
             (a) monitor the preservation of the economic viability, marketability and
                 competitiveness of the Divestment Business, and the keeping separate of the
                 Divestment Business from the business retained by Vivendi, in accordance with
                 paragraphs 9 and 10 of these Commitments;
             (b) supervise the management of the Divestment Business as a distinct and saleable
                 entity, in accordance with paragraph 11 of these Commitments;
             (c) with respect to Confidential Information:
                   −    determine all necessary measures to ensure that Vivendi does not after the
                        Effective Date obtain any Confidential Information relating to the
                        Divestment Business,
                   −    in particular strive for the severing of the Divestment Business’ participation
                        in a central information technology network to the extent possible, without
                        compromising the viability of the Divestment Business,
                   −    make sure that any Confidential Information relating to the Divestment
                        Business obtained by Vivendi before the Effective Date is eliminated and
                        will not be used by Vivendi and
                   −    decide whether such information may be disclosed to or kept by Vivendi as
                        the disclosure is reasonably necessary to allow Vivendi to carry out the
                        divestiture or as the disclosure is required by law;
             (d) monitor the splitting of assets and the allocation of Personnel between the
                 Divestment Business and Vivendi or Affiliated Undertakings;
    (iii) propose to Vivendi such measures as the Monitoring Trustee considers necessary to
          ensure Vivendi’s compliance with the conditions and obligations attached to the Decision,
          in particular the maintenance of the full economic viability, marketability or
          competitiveness of the Divestment Business, the holding separate of the Divestment
          Business and the non-disclosure of competitively sensitive information;
    (iv)  review and assess potential purchasers as well as the progress of the divestiture process
          and verify that, dependent on the stage of the divestiture process:
             (a) potential purchasers receive sufficient and correct information relating to the
                 Divestment Business and the Personnel in particular by reviewing, if available, the
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                     data room documentation, the information memorandum and the due diligence
                     process, and
                (b) potential purchasers are granted reasonable access to the Personnel;
    (v)      act as a contact point for any requests by third parties, in particular potential purchasers, in
             relation to the Commitments;
    (vi)     provide to the Commission, sending Vivendi a non-confidential copy at the same time, a
             written report within 15 days after the end of every month that shall cover the operation
             and management of the Divestment Business as well as the splitting of assets and the
             allocation of Personnel so that the Commission can assess whether the business is held in
             a manner consistent with the Commitments and the progress of the divestiture process as
             well as potential purchasers;
    (vii)    promptly report in writing to the Commission, sending Vivendi a non-confidential copy at
             the same time, if it concludes on reasonable grounds that Vivendi is failing to comply with
             these Commitments;
    (viii)   within one week after receipt of the documented proposal referred to in paragraph 19 of
             these Commitments, submit to the Commission, sending Vivendi a non-confidential copy
             at the same time, a reasoned opinion as to the suitability and independence of the
             proposed purchaser and the viability of the Divestment Business after the Sale and as to
             whether the Divestment Business is sold in a manner consistent with the conditions and
             obligations attached to the Decision, in particular, if relevant, whether the Sale of the
             Divestment Business without one or more Assets or not all of the Personnel affects the
             viability of the Divestment Business after the sale, taking account of the proposed
             purchaser;
    (ix)     assume the other functions assigned to the Monitoring Trustee under the conditions and
             obligations attached to the Decision.
30. If the Monitoring and Divestiture Trustee are not the same legal or natural persons, the Monitoring
    Trustee and the Divestiture Trustee shall cooperate closely with each other during and for the
    purpose of the preparation of the Trustee Divestiture Period in order to facilitate each other's tasks.
                   Duties and obligations of the Divestiture Trustee
31. Within the Trustee Divestiture Period, the Divestiture Trustee shall, without prejudice to any
    rights of L’Espresso, sell at no minimum price the Divestment Business to a purchaser, provided
    that the Commission has approved both the purchaser and the final binding sale and purchase
    agreement (and ancillary agreements) as in line with the Commission's Decision and the
    Commitments in accordance with paragraphs 18 and 19 of these Commitments. The Divestiture
    Trustee shall include in the sale and purchase agreement (as well as in any ancillary agreements)
    such terms and conditions as it considers appropriate for an expedient sale in the Trustee
    Divestiture Period. In particular, the Divestiture Trustee may include in the sale and purchase
    agreement such customary representations and warranties and indemnities as are reasonably
    required to effect the sale. The Divestiture Trustee shall protect the legitimate financial interests of
    Vivendi, subject to the Notifying Party’s unconditional obligation to divest, without prejudice to
    any rights of L’Espresso, at no minimum price in the Trustee Divestiture Period.
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32. In the Trustee Divestiture Period (or otherwise at the Commission’s request), the Divestiture
    Trustee shall provide the Commission with a comprehensive monthly report written in English on
    the progress of the divestiture process. Such reports shall be submitted within 15 days after the end
    of every month with a simultaneous copy to the Monitoring Trustee and a non-confidential copy to
    the Notifying Party.
       III.       Duties and obligations of the Parties
33. Vivendi shall procure that Telecom Italia will provide and shall cause its advisors to provide the
    Trustee with all such co-operation, assistance and information as the Trustee may reasonably
    require to perform its tasks. The Trustee shall have full and complete access to the Divestment
    Business’ books, records, documents, management or other personnel, facilities, sites and
    technical information necessary for fulfilling its duties under the Commitments and the
    Divestment Business shall provide the Trustee upon request with copies of any document.
    Telecom Italia and the Divestment Business shall make available to the Trustee one or more
    offices on their premises and shall be available for meetings in order to provide the Trustee with
    all information necessary for the performance of its tasks.
34. Vivendi shall procure that Telecom Italia will provide the Monitoring Trustee with all managerial
    and administrative support that it may reasonably request on behalf of the management of the
    Divestment Business. This shall include all administrative support functions relating to the
    Divestment Business which are currently carried out at headquarters level. Vivendi shall procure
    that Telecom Italia shall provide and shall cause its advisors to provide the Monitoring Trustee, on
    request, with the information submitted to potential purchasers, in particular give the Monitoring
    Trustee access to the data room documentation and all other information granted to potential
    purchasers in the due diligence procedure. Vivendi shall procure that Telecom Italia will inform
    the Monitoring Trustee on possible purchasers, submit lists of potential purchasers at each stage of
    the selection process, including the offers made by potential purchasers at those stages, and keep
    the Monitoring Trustee informed of all developments in the divestiture process.
35. Vivendi shall grant or procure Affiliated Undertakings to grant comprehensive powers of attorney,
    duly executed, to the Divestiture Trustee to effect the sale (including ancillary agreements), the
    Closing and all actions and declarations which the Divestiture Trustee considers necessary or
    appropriate to achieve the sale and the Closing, including the appointment of advisors to assist
    with the sale process. Upon request of the Divestiture Trustee, Vivendi shall cause the documents
    required for effecting the sale and the Closing to be duly executed.
36. Vivendi shall indemnify the Trustee and its employees and agents (each an “Indemnified Party”)
    and hold each Indemnified Party harmless against, and hereby agrees that an Indemnified Party
    shall have no liability to Vivendi for, any liabilities arising out of the performance of the Trustee’s
    duties under the Commitments, except to the extent that such liabilities result from the wilful
    default, recklessness, gross negligence or bad faith of the Trustee, its employees, agents or
    advisors.
37. At the expense of Vivendi, the Trustee may appoint advisors (in particular for corporate finance or
    legal advice), subject to Vivendi’s approval (this approval not to be unreasonably withheld or
    delayed) if the Trustee considers the appointment of such advisors necessary or appropriate for the
    performance of its duties and obligations under the Mandate, provided that any fees and other
    expenses incurred by the Trustee are reasonable. Should Vivendi refuse to approve the advisors
    proposed by the Trustee the Commission may approve the appointment of such advisors instead,
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    after having heard Vivendi. Only the Trustee shall be entitled to issue instructions to the advisors.
    Paragraph 36 of these Commitments shall apply mutatis mutandis. In the Trustee Divestiture
    Period, the Divestiture Trustee may use advisors who served Vivendi during the Divestiture
    Period if the Divestiture Trustee considers this in the best interest of an expedient sale.
38. Vivendi agrees that the Commission may share Confidential Information proprietary to Vivendi
    with the Trustee. The Trustee shall not disclose such information and the principles contained in
    Article 17 (1) and (2) of the Merger Regulation apply mutatis mutandis.
39. The Notifying Party agrees that the contact details of the Monitoring Trustee are published on the
    website of the Commission's Directorate-General for Competition and they shall inform interested
    third parties, in particular any potential purchasers, of the identity and the tasks of the Monitoring
    Trustee.
40. For a period of 10 years from the Effective Date the Commission may request all information
    from the Parties that is reasonably necessary to monitor the effective implementation of these
    Commitments.
        IV.       Replacement, discharge and reappointment of the Trustee
41. If the Trustee ceases to perform its functions under the Commitments or for any other good cause,
    including the exposure of the Trustee to a Conflict of Interest:
    (a) the Commission may, after hearing the Trustee and Vivendi, require Vivendi to replace the
         Trustee; or
    (b) Vivendi may, with the prior approval of the Commission, replace the Trustee.
42. If the Trustee is removed according to paragraph 41 of these Commitments, the Trustee may be
    required to continue in its function until a new Trustee is in place to whom the Trustee has
    effected a full hand over of all relevant information. The new Trustee shall be appointed in
    accordance with the procedure referred to in paragraphs 20-27 of these Commitments.
43. Unless removed according to paragraph 41 of these Commitments, the Trustee shall cease to act as
    Trustee only after the Commission has discharged it from its duties after all the Commitments
    with which the Trustee has been entrusted have been implemented. However, the Commission
    may at any time require the reappointment of the Monitoring Trustee if it subsequently appears
    that the relevant remedies might not have been fully and properly implemented.
Section F.        The review clause
44. The Commission may extend the time periods foreseen in the Commitments in response to a
    request from Vivendi or, in appropriate cases, on its own initiative. Where Vivendi requests an
    extension of a time period, it shall submit a reasoned request to the Commission no later than one
    month before the expiry of that period, showing good cause. This request shall be accompanied by
    a report from the Monitoring Trustee, who shall, at the same time send a non-confidential copy of
    the report to the Notifying Party. Only in exceptional circumstances shall Vivendi be entitled to
    request an extension within the last month of any period.
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45. The Commission may further, in response to a reasoned request from the Notifying Party showing
    good cause waive, modify or substitute, in exceptional circumstances, one or more of the
    undertakings in these Commitments. Moreover, the Commission may, in response to a reasoned
    request from the Notifying Party, waive or substitute one, more or all of the undertakings in these
    Commitments, [...] This request shall be accompanied by a report from the Monitoring Trustee,
    who shall, at the same time send a non-confidential copy of the report to the Notifying Party. The
    request shall not have the effect of suspending the application of the undertaking and, in particular,
    of suspending the expiry of any time period in which the undertaking has to be complied with.
Section G.        Entry into force
46. The Commitments shall take effect upon the date of adoption of the Decision.
        duly authorised for and on behalf of Vivendi
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                                             SCHEDULE
    1. The Divestment Business as operated to date has the following legal and functional
         structure:
The Divestment Business consists of Telecom Italia’s 70% shareholding interest in Persidera S.p.A.
On December 1, 2014 Rete A S.p.A. was merged by incorporation into Telecom Italia Media
Broadcasting S.r.l., which had changed its name in Persidera S.p.A. (“Persidera”). Effective from
September 30, 2015, Telecom Italia Media, the company directly holding 70% shares of Persidera,
was merged by incorporation into Telecom Italia S.p.A.
Therefore, currently Telecom Italia S.p.A. owns 70% share in Persidera. The remaining 30% share
capital is held by Gruppo Editoriale L’Espresso.
Organizational chart (as of 26 April 2017):
Timb2 S.r.l. has been created in 2014 but is not currently active.
Please also note that, on April 11, 2017 the merger for incorporation of Beigua S.r.l. in Persidera has
been approved by the shareholders meetings of both Beigua and Persidera. Closing is currently
envisaged in the third quarter of 2017.
Persidera also holds some minority participations in the following consortia, dealing with the
management of transmission sites:
•   Consorzio emittenti Radio Televisive – C.E.R.T.
•   Consorzio Antenna Monte Conero
•   Consorzio Colle Maddalena
•   Consorzio Puglia Basilicata e Molise S.r.l.
•   Consorzio Antenna Colbuccaro
•   Consorzio Antenna Tolentino
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Business Management: assigned to [...], for the development of the portfolio of services, commercial
management of clients, revenue assurance and management of the supply chain, linking with the
relevant divisions of Telecom Italia.
Administration, Finance & Control: assigned to [...], for ensuring the management of the
administrative/accounting processes, fiscal and financial activities, management control, linking with
the relevant divisions of Telecom Italia.
Legal & Regulatory: assigned to [...], for legal support, commercial contracts, regulatory issues,
representation of the company.
    2. In accordance with paragraphs 5 and 6 of these Commitments, the Divestment Business
         includes, but is not limited to:
             a. the following main tangible and intangible assets:
Persidera’s network consists of three main parts:
             -    Network Assets;
             -    Head End;
             -    Network Operations Centre (“NOC”).
                      i. Network Assets
The Network Assets consists of transmission sites, a national fibre backbone, a regional contribution
network, an international gateway of interconnection and a satellite hub.
Transmission Sites: The network includes around 1.000 antenna sites with digital television
equipment for the 5 DVB-T multiplexers. Persidera owns around 25 sites and has the contractual
rights to use the remaining ones whereas the equipment is owned by Persidera. All sites are equipped
with satellite receivers, radiolink and fully redundant transmission equipment; the most important sites
are also equipped with business continuity and on site spare parts. More than 500 sites are equipped
with telemetry devices.
National Fiber Backbone: Persidera’s high capacity fibre optic backbone consists of a new generation
high-capacity network which supports a variety of transmission signals, and has been designed to
guarantee maintenance of service under any circumstances.
Contribution: Persidera implemented a national backbone network using IP / SDH (Synchronous
Digital Hierarchy) radiolinks. Through this National radiolink network all regional centers are
supplied with MUX signals. Persidera’s IP/Radiolink Contributions are new generation wired/wireless
network for national contributions.
Persidera can count also on a contribution fiber optic network which interconnects regional Points-of-
Presence to Rome. The contribution network uses technology and service level agreement of the
highest standard and in line with Telecom Italia’s optical network.
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International Gateway of Interconnection: Using optical interconnections with TI Sparkle Network,
Persidera can provide high capacity connectivity to hubs in London (Arqiva) and Milano Caldera.
International gateways are able to handle any kind of TV signal (IP, ASI, SDI, HD SDI even
uncompressed) and deliver it to the ultimate client all over the world.
Satellite Hub: Persidera’s satellite hub, based in Rome, allows a point-to-point and point-to-multipoint
distribution of audio/video signals in live or on demand mode, both in DVB–S and DVB-S2 standard.
The hub is used both for broadcasting (as backup) and for contribution purposes.
                       ii. Head End
Persidera’s IP based head end handles all contribution signal formats (ASI, SDI, IP, etc.) preparing
them for all distribution platforms (DTT, satellite and web) through the same infrastructure.
Persidera head end infrastructure is based in Rome, Via della Pineta Sacchetti 229 and currently
manages 7 multiple transport streams:
             -    4 Dvb-T MUXes SFN at 22.4 Mbps and 1 Dvb-T MUX SFN at 24.9 Mbps;
             -    3 satellite transponders, respectively at 54, 17 and 12 MHz.
                      iii. Network Operations Centre
Based in Rome, Persidera’s NOC is in charge of all configuration, management and real-time
monitoring of terrestrial and satellite broadcasting network.
The NOC provides first-level support for trouble-shooting and represents the single contact point for
all TIMB’s external customers and for all technical problems faced by the network operator with
minimal manual intervention.
             b. the following main licences, permits and authorisations:
Persidera has a general authorization for TV broadcasting in DTT on a national basis, according to
article 25 of legislative decree no. 259/2003 (the “Communications Code”) and article 15 of the
TUSMAR.
On 28 June 2012, following the analogue switch-off, Telecom Italia Media Broadcasting S.r.l. and
Rete A were assigned by MISE digital frequency rights for a 20-year duration, till the end of 2032, for
the operation respectively of 3 and 2 DVB-T multiplexers on a Single Frequency Network basis. In
particular:
             -    Persidera is assignee of frequency rights as a result of some Determine Direttoriali of
                  the Ministry of Economic Development (reference no. DGSCER/Div. III/53913 of
                  June 28, 2012, as amended by reference no. DGSCER DIR/51843 of August 6, 2013
                  and reference no. DGSCER DIR/58122 of September 26, 2013 for National MUX
                  TIMB1, TIMB2 and TIMB3;
             -    Effective from December 1st 2014, Persidera has merged by incorporation its fully
                  controlled subsidiary Rete A S.p.A., a national digital terrestrial network operator
                  assignee of frequency rights as result of some Ministry of Economic Development’s
                  Determine Direttoriali (reference no. DGSCER/Div. III/53916 of June 28, 2012, as
                  amended by reference no. DGSCER/Div. III/25593 of April 9, 2013 for National
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             (ii) Contracts with [...]
                [...]
             d. the following customer, credit and other records:
A list of Persidera’s customers is provided below: [...]
According to Persidera’s Annual Report 2015, as of 31 December 2015 it had commercial credits for
about EUR [...]; commercial debts vis-à-vis third parties amounted to about EUR [...].
             e. the following Personnel:
As of 26 April 2017, Persidera has [...] employees.
             f.    the following Key Personnel:
For Persidera’s key personnel, see above the information on the managers at the head of each division
of Persidera.
    3. The Divestment Business shall not include:
Not applicable.
    4. If there is any asset or personnel which is not be covered by paragraph 2 of this Schedule
         but which is both used (exclusively or not) in the Divestment Business and necessary for
         the continued viability and competitiveness of the Divestment Business, that asset or
         adequate substitute will be offered to potential purchasers.
Not applicable to Vivendi’s knowledge.
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