CELEX: 32018M9041
Language: en
Date: 2018-08-31 00:00:00
Title: Commission Decision of 31/08/2018 declaring a concentration to be compatible with the common market (Case No COMP/M.9041 - Hutchison / Wind Tre) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                              Brussels, 31.8.2018
                                                              C(2018) 5870 final
  In the published version of this decision, some
  information has been omitted pursuant to                             PUBLIC VERSION
  Article 17(2) of Council Regulation (EC)
  No 139/2004 concerning non-disclosure of
  business secrets and other confidential
  information. The omissions are shown thus
  […]. Where possible the information omitted
  has been replaced by ranges of figures or a
  general description.
                                                              To the notifying party:
Subject:            Case M.9041 - HUTCHISON/WIND TRE
                    Commission decision pursuant to Article 6(1)(b) in conjunction with
                    Article 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 12 July 2018, the European Commission received a notification of a proposed
          concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004
          ("the Merger Regulation") by which CK Hutchison Holdings Limited
          ("Hutchison" or the "Notifying Party", Hong Kong) acquires within the meaning
          of Article 3(1)(b) of the Merger Regulation indirect sole control of the whole of
          Wind Tre S.p.A. ("Wind Tre", Italy) (the "New Transaction").3 The New
          Transaction is accomplished by way of purchase of shares. Hutchison and Wind
          Tre are hereinafter referred to as the "Parties".
1    OJ L 24, 29.1.2004, p. 1. 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').
3    OJ C253, 19.07.2018, p. 46.
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--- 2.      THE PARTIES AND THE NEW TRANSACTION
(2)     Hutchison is a multi-national conglomerate headquartered in Hong Kong, active
        in five core businesses: ports and related services, retail, infrastructure, energy
        and telecommunications. The telecommunications division includes interests in
        mobile and fixed operations in Austria, Denmark, Ireland, Italy, Sweden and the
        United Kingdom.
(3)     Wind Tre is the largest mobile telecommunications operator in Italy with
        approximately 29 million mobile customers and over 2.7 million fixed line
        customers. Wind Tre is currently controlled by the Luxembourg based entity VIP-
        CKH Luxembourg S.à. R.L. ("VIP-CKH"). VIP-CKH is a joint venture between
        Hutchison Europe Telecommunications S.à R.L. ("HET") and VEON
        Luxembourg Holdings ("VLH"). HET is an indirect wholly-owned subsidiary of
        Hutchison. VLH is an indirect wholly-owned subsidiary of VEON Ltd
        ("VEON").
(4)     Pursuant to a share purchase agreement entered into on 3 July 2018, Hutchison
        will acquire, by means of an indirect subsidiary, all the shares in VIP-CKH and
        thus sole control over Wind Tre. The New Transaction will thus lead to a change
        from joint control to sole control by Hutchison over Wind Tre and it constitutes a
        concentration within the meaning of Article 3(1)(b) of the Merger Regulation (the
        "Concentration").
3.      UNION DIMENSION
(5)     In 20174, the undertakings concerned have a combined aggregate world-wide
        turnover of more than EUR 5 000 million5 (Hutchison: EUR 45 083 million,
        Wind Tre: EUR 6 182 million).6 Each of them has an EU-wide turnover in excess
        of EUR 250 million (Hutchison: EUR […] million, Wind Tre: EUR 6 182
        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
        a Union dimension.
4.      COMPETITIVE ASSESSMENT
      4.1.    Introduction
(6)     Wind Tre was created in 2016 through a transaction by which HET and VLH
        contributed to a newly created joint venture ("JV") their respective Italian
4   The last financial year for which data were available at the time of the notification.
5   Turnover calculated in accordance with Article 5 of the Merger Regulation and the Commission
    Consolidated Jurisdictional Notice (OJ C 95, 16.4.2008, p. 1).
6   The Wind Tre turnover figures represent the full audited and published Wind Tre 2017 turnover
    figures. The Hutchison 2017 turnover figures include its 50% share of Wind Tre turnover.
                                                         2
 ---pagebreak---          telecommunication businesses H3G S.p.A. ("H3G")7                              and       WIND
         Telecomunicazioni S.p.A. ("WIND")8 (the "2016 Transaction").
(7)      The 2016 Transaction was assessed by the Commission in the decision related to
         case M.7758 – Hutchison 3G Italy / WIND / JV ("the 2016 Clearance Decision").9
         After an in-depth investigation, the Commission found that the 2016 Transaction
         would have significantly impeded effective competition for the following reasons.
(8)      First, in the 2016 Clearance Decision, the Commission concluded that the 2016
         Transaction was likely to give rise to non-coordinated anti-competitive effects on
         the retail market for mobile telecommunications services in Italy. Those effects
         would have arisen from the reduction of the number of mobile network operators
         ("MNOs") from four to three in a highly concentrated market with high barriers to
         entry. The 2016 Transaction would have removed from the market an important
         competitive force, H3G, as well as the competitive constraint exerted by WIND.
         H3G and WIND closely competed on the market, and exerted a competitive
         constraint on each other and the other MNOs. Following the 2016 Transaction,
         the JV would have had a significant market share, and would not have had the
         incentive to compete on the market in the same way as H3G and WIND did
         before the 2016 Transaction separately. Furthermore, the other MNOs, TIM
         S.p.A. ("TIM") and Vodafone Italia S.p.A. ("Vodafone"), would also not have
         had the incentive to vigorously compete against the JV to counter the
         anticompetitive unilateral effects of the Transaction. Mobile virtual network
         operators ("MVNOs") might have had the incentive to compete, but would have
         lacked the ability to do it effectively, and would thus have been unable to replace
         the competitive constraint exerted by H3G and WIND, which the 2016
         Transaction would have removed. This would have resulted in significant price
         effects, which would not have been offset by buyer power or market entry.
         Therefore, the Commission concluded that that the 2016 Transaction would have
         significantly impeded effective competition in the retail market for mobile
         telecommunications services in Italy as a result of horizontal non-coordinated
         effects.
(9)      Second, the Commission concluded that the 2016 Transaction was likely to give
         rise to coordinated anticompetitive effects in the retail market for mobile
         telecommunications services in Italy. Indeed, the 2016 Transaction would have
         increased the likelihood that the three remaining MNOs would be able to
         coordinate their behaviour and raise prices in a sustainable way, even without
         entering into an agreement or resorting to a concerted practice within the meaning
         of Article 101 of the TFEU. In particular, the 2016 Transaction would have led to
         an overall alignment of incentives of the JV, TIM and Vodafone to coordinate
         their competitive behaviour. Reaching terms of coordination would have been
         possible and coordination would have been likely to be sustainable after the 2016
         Transaction. Therefore, the Commission concluded that that the 2016 Transaction
7   H3G was active in Italy as a MNO, offering mobile telecommunications services under the "3" brand,
    including 2G, 3G and 4G services.
8   WIND was active in Italy as an MNO, offering mobile telecommunications services under the
    "WIND" brand, including 2G, 3G and 4G services. In addition, WIND also offers fixed
    telecommunications services (including fixed-line voice, broadband and data services) in Italy under
    the "Infostrada" brand.
9   Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV.
                                                       3
 ---pagebreak---        would have significantly impeded effective competition in the retail market for
       mobile telecommunications services in Italy also as a result of horizontal
       coordinated effects. In the 2016 Clearance Decision, the Commission considered
       that the effects from coordination in the retail market for mobile
       telecommunications services in Italy would have materialised in addition to the
       non-coordinated effects arising from the 2016 Transaction, leading to additional
       harm to consumers (over and above the harm implied by non-coordinated effects).
(10)   Third, the Commission concluded that the Transaction would have likely had
       anticompetitive effects in the wholesale market, by eliminating the important
       competitive constraints exerted by H3G and WIND in an oligopolistic market
       featuring a limited number of players and high barriers to entry. According to the
       2016 Clearance Decision, those effects would have been particularly relevant
       with respect to MVNOs which were not contractually bound to an MNO in the
       short term and with respect to potential new entrants. Therefore, the Commission
       concluded that the Transaction would have significantly impeded effective
       competition on the wholesale market in Italy due to non-coordinated effects.
(11)   The notifying parties to the 2016 Transaction (HET and VLH) offered
       commitments to address those concerns (the "2016 Commitments"). The 2016
       Commitments consisted of a number of elements designed to allow the entry of a
       fourth MNO (the "New MNO") into the Italian market, that is: (1) the transfer
       of spectrum and the option to acquire/co-locate on macro access sites;10 (2) an
       option to enter into a RAN sharing agreement; (3) a national roaming agreement;
       and (4) an option for […] and the provision of additional services. Each of these
       elements is described in turn below.
(12)   First, HET and VLH committed to transfer to the New MNO a total of 2x35 MHz
       of spectrum (the "Divestment Spectrum"), belonging to different frequency bands
       and to make available to the New MNO up to […] macro network sites (the
       "Divestment Sites"). The Divestment Spectrum and the Divestment Sites were to
       be released on a […] phased basis in accordance with the release plan attached to
       the 2016 Commitment, and the release of spectrum and sites had to be completed
       by […].11
(13)   Second, HET and VLH also committed to offer an option to enter with the New
       MNO into one-way (non-reciprocal) RAN sharing solution in the less densely
       populated areas of Italy (the "RAN Sharing Option"). The RAN Sharing Option
       would be made available for up to […] years at commercial conditions to be
       agreed between HET, VLH and the New MNO.
(14)   Third, HET and VLH committed to enter into a transitional national roaming
       agreement on the network of H3G or WIND (Wind Tre, following the
       consolidation of H3G and WIND networks) for all technologies (i.e. 2G, 3G, 4G
       and, if and when commercially launched, 5G; the "National Roaming
10   The 2016 Commitments concerned exclusively assets held by the Italian subsidiaries of HET and
     VLH (H3G and WIND), which are now owned by Wind Tre.
11   The […] phased release of spectrum and transfer of rights to the New MNO to use the spectrum
     will be completed in its entirety by the following dates: (a) in relation to the 900MHz Spectrum by
     […]; (b) in relation to the 1,800MHz Spectrum (block 1) by […]; (c) in relation to the 1,800MHz
     Spectrum (block 2) by […]; (d) in relation to the 2,100MHz Spectrum by […]; and (e) in relation to
     the 2,600MHz Spectrum […].
                                                       4
 ---pagebreak---        Agreement") for an initial term of […] years, with an optional extension of a
       further […]-year term. The purpose of the National Roaming Agreement was to
       allow the New MNO to operate for a transitional period of time, whilst it is
       rolling out its network based on the Divestment Spectrum and the Divestment
       Sites. The capacity offered under the National Roaming Agreement can also be
       used by the New MNO to offer wholesale access.
(15)   Finally, HET and VLH committed to […] to the New MNO to assist with the
       establishment and on-going operation of the New MNO’s network and to offer an
       option to provide transitional services, such as backhaul, transmission,
       interconnection, and SIM procurement.
(16)   The 2016 Commitments were offered as fix-it-first solution: the New MNO
       selected by HET and VLH was Iliad S.A. ("Iliad").
(17)   The 2016 Transaction was thus conditionally cleared on 1 September 2016. In the
       2016 Clearance Decision the Commission also approved Iliad as New MNO.
(18)   On 29 May 2018 Iliad started offering its services in Italy.
(19)   At the date of adoption of this Decision, the implementation of the 2016
       Commitments is on-going, in particular in relation to the transfer of the
       Divestment Spectrum and Divestment Sites and the implementation of the
       National Roaming Agreement.
(20)   It is against this background that the Commission has assessed the effects of the
       New Transaction.
     4.2.   Relevant markets
(21)   As mentioned in paragraphs (4) and (6), Wind Tre is the result of the combination
       of the Italian telecommunication businesses of HET and VLH and the New
       Transaction consists in a change of the quality of control exerted by Hutchison
       over Wind Tre, from joint control to sole control. Therefore, technically, no new
       horizontal overlaps or vertical links exist other than those raised by the 2016
       Transaction. Thus, in the present case the Commission has investigated product
       and geographic market definitions for the relevant markets analysed in M.7758 –
       Hutchison 3G Italy / WIND / JV to assess whether any development has occurred
       since the adoption of the 2016 Clearance Decision which would justify departing
       from the definitions retained in the 2016 Clearance Decision.
            4.2.1.   Retail mobile telecommunications services
(22)   Mobile telecommunications services to end customers or "retail mobile services"
       include services for national and international voice calls, SMS (including MMS
       and other messages), mobile internet with data services, access to content via the
       mobile network and retail international roaming services.
(23)   In past decisions, the Commission has so far not segmented the overall retail
       mobile market further based on the type of service offered (voice calls, SMS,
       MMS, mobile Internet data services), or the type of network technology used (2G,
       3G, 4G). Such market was considered distinct from the supply of retail fixed
       telecommunications services. The Commission has also considered a possible
                                                5
 ---pagebreak---         segmentation of the overall retail market for mobile telecommunication services
        between pre-paid and post-paid services and between private customers and
        business customers, but it has considered that, for the purpose of assessing the
        transaction at stake, these did not constitute separate product markets but
        represent rather market segments within an overall retail market.12 In particular,
        in case M.7758 – Hutchison 3G Italy / WIND / JV, the Commission concluded
        that, for the assessment of the effects of the 2016 Transaction, that there was an
        overall product market for the retail provision of mobile telecommunications
        services.13
(24)    From a geographical perspective, the Commission has in its previous decisions
        considered that the market for retail mobile telecommunications services is
        national in scope.14 In particular, in case M.7758 – Hutchison 3G Italy / WIND /
        JV, the Commission concluded that the geographic scope of the relevant product
        market for the assessment of the 2016 Transaction was limited to the territory of
        Italy. 15
(25)    The evidence in the Commission's file has not revealed any new development in
        the present case which might justify departing from the conclusions reached with
        regard to the 2016 Transaction.
(26)    For the purposes of this Decision, the Commission therefore considers that there
        is an overall product market for the retail provision of mobile telecommunications
        services, whose geographical scope is national and limited to the territory of Italy.
             4.2.2.   Wholesale services for access and call origination on mobile
                      networks
(27)    MNOs sell access to their mobile network and the ability to make calls and
        exchange data traffic. MNOs that own mobile networks constitute the supply side,
        whereas MVNOs (which do not own a mobile network and thus seek access to
        one or more of the MNO networks in order to provide their mobile retail services)
        constitute the demand side of this market.
(28)    In previous cases, the Commission defined a single wholesale market including
        both access and call origination services on mobile networks, on the ground that
        MNOs generally supply these services jointly to MVNOs and both services are
        essential for MVNOs to be able to provide retail mobile communication services
12 Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK / Telefonica UK;
   Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-Plus; Commission
   decision of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland; Commission
   decision of 1 March 2010 in case M.5650 – T-Mobile/Orange.
13 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   recital 162.
14 Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK / Telefonica UK;
   Commission decision in case M.6497 – Hutchison 3G Austria/Orange Austria; Commission decision
   in case M.5650 – T Mobile/Orange UK; Commission decision of 28 May 2014 in case M.6992 –
   Hutchison 3G UK/Telefónica Ireland; and Commission decision of 2 July 2014 in case M.7018 –
   Telefónica Deutschland/E-Plus.
15 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   recital 166.
                                                    6
 ---pagebreak---         to end users.16 In particular, in case M.7758 – Hutchison 3G Italy / WIND / JV,
        the Commission considered that there was a distinct wholesale market for access
        and call origination on mobile networks, which includes voice, SMS and data
        traffic.17
(29)    In previous cases, the Commission has considered the wholesale market for
        access and call origination to be national in scope due to regulatory barriers
        stemming from the fact that licenses granted to MNOs are generally national in
        scope.18 In particular, in case M.7758 – Hutchison 3G Italy / WIND / JV, the
        Commission considered that the wholesale market for access and call origination
        on public mobile networks was national in scope, that is to say limited to the
        territory of Italy. 19
(30)    The evidence in the Commission's file has not revealed any new development in
        the present case which might justify departing from the conclusions reached with
        regard to the 2016 Transaction.
(31)    For the purposes of this Decision, the Commission therefore considers that the
        relevant product market is the wholesale market for access and call origination on
        mobile networks, which includes voice, SMS and data traffic and that the relevant
        geographical scope of that market is national and limited to the territory of Italy.
             4.2.3.   Wholesale international roaming services
(32)    In order for a provider of retail mobile services to be able to provide its end
        customers with telecommunication services outside their home country, it must
        enter into agreements with providers of wholesale international roaming services,
        which are primarily active in other national markets. Roaming agreements can be
        concluded with a preferred foreign operator which offers tailor-made service
        conditions, as can be seen in particular in the creation of international roaming
        alliances. Wholesale roaming services are thus upstream to the retail market for
        mobile telecommunications services.
(33)    In previous decisions, the Commission has defined a separate wholesale market
        for international roaming services comprising both terminating calls and
        originating calls. 20 For originating calls while roaming, the foreign or visited
        mobile network is used to make phone calls when abroad and a wholesale
        roaming charge is paid by the home network to the visited network. For
        terminating calls, the call is routed by the home network to the visited mobile
        network and the home network pays for the international carriage of the call and
16 Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK / Telefonica UK;
   Commission decision of 20 September 2013 in Case M.6990 - Vodafone/Kabel Deutschland;
   Commission decision of 1 March 2010 in Case M.5650 - T-Mobile/Orange.
17 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   recital 175.
18 Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK / Telefonica UK;
   Commission decision of 20 September 2013 in Case M.6990 - Vodafone/Kabel Deutschland;
   Commission decision of 1 March 2010 in Case M.5650 - T-Mobile/Orange.
19 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   recital 179.
20 Commission decision of 12 December 2012 in case M.6497 - Hutchison 3G Austria/Orange Austria,
   Commission decision of 1 March 2010 in case M.5650 - T-Mobile/Orange.
                                                   7
 ---pagebreak---         the normal termination charge to the visited network. Demand for wholesale
        international roaming services comes first from foreign mobile operators who
        wish to provide their own customers with mobile services outside their own
        network and also downstream from subscribers wishing to use their mobile
        telephones outside their own countries.21
(34)    In its previous decisions, the Commission has defined wholesale market for call
        termination as national in scope.22
(35)    Similar findings have been reached by the Commission in case M.7758 –
        Hutchison 3G Italy / WIND / JV.23
(36)    The evidence in the Commission's file has not revealed any new development in
        the present case which might justify departing from the conclusions reached with
        regard to the 2016 Transaction.
(37)    For the purposes of this Decision, the Commission therefore considers that the
        relevant product market is the wholesale market for international roaming
        services, comprising both terminating calls and originating calls and that the
        geographical market is national in scope.
             4.2.4.   Wholesale services for mobile call termination
(38)    In order for an MNO to be able to deliver calls upon the mobile network of
        another MNO, it must purchase wholesale termination services on the network of
        the other MNO. MNOs provide wholesale mobile call termination services to one
        another on the basis of interconnection agreements, upstream of the provision of
        retail mobile telecommunication services to end customers.
(39)    In its previous decisions, including in case M.7758 – Hutchison 3G Italy / WIND /
        JV,24 the Commission has found that there are no substitutes for wholesale call
        termination on each individual mobile network, since the operator transmitting
        the outgoing call can reach the intended recipient only through the operator of the
        network to which that recipient is subscribed.25 Therefore, each individual mobile
        network constitutes a separate wholesale market for call termination.
21 Commission decision of 2 July 2014 in case M.7018 - Telefónica Deutschland/E-Plus; 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; Commission decision
   of 1 March 2010 in case M.5650 - T-Mobile/Orange.
22 Commission decision of 2 July 2014 in case M.7018 - Telefónica Deutschland/E-Plus; Commission
   decision of 3 July 2012 in case M.6584 - Vodafone/Cable & Wireless; Commission decision of
   1 March 2010 in case M.5650 - T-Mobile/Orange.
23 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV, recitals
   184 and 187.
24 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   Section 6.5.1.2.
25 Commission Decision of 2 July 2014 in Case M.7018 - Telefónica Deutschland/E-Plus; Commission
   Decision of 12 December 2012 in Case M.6497 - Hutchison 3G Austria/Orange Austria; Commission
   Decision of 1 March 2010 in Case COMP/M.5650 - TMobile/Orange; Commission decision of
   7 October 2016 in case M.8131 - Tele2 Sverige / TDC Sverige.
                                                     8
 ---pagebreak--- (40)    In its previous decisions, including in case M.7758 – Hutchison 3G Italy / WIND /
        JV,26 the Commission has defined wholesale market for call termination as
        national in scope.27
(41)    The evidence in the Commission's file has not revealed any new development in
        the present case which might justify departing from the conclusions reached with
        regard to the 2016 Transaction.
(42)    For the purposes of this Decision, the Commission therefore considers that the
        relevant product market is the wholesale market for call termination on each
        individual mobile network and that the geographical market is national in scope.
             4.2.5.   Wholesale services for call termination on fixed networks
(43)    In its previous decisions, including in case M.7758 – Hutchison 3G Italy / WIND /
        JV,28 the Commission established that each individual fixed network constitutes a
        separate wholesale market for call termination.29 The Commission considered in
        its previous decisions that the geographic scope of each wholesale market for call
        termination should correspond to the dimensions of the operator’s network, which
        is limited to national borders due to regulatory barriers.30
(44)    The evidence in the Commission's file has not revealed any new development in
        the present case which might justify departing from the conclusions reached with
        regard to the 2016 Transaction.
(45)    For the purposes of this Decision, the Commission therefore considers that the
        relevant product market is the wholesale market for call termination on each
        operator's fixed network and that the geographical market is national in scope.
             4.2.6.   Wholesale services for fixed backhaul
(46)    Backhaul services are the connections between the antennae in a mast and the
        switches in the core network and are used to ensure the proper functioning of a
        mobile network. Backhaul are general wired connections based on either (i) fibre
        optic cables or (ii) copper cables. Backhaul providers are primarily fixed
        operators who are able to provide fibre optic or copper cables from their fixed
        network.
26 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   Section 6.5.2.2.
27 Commission decision of 2 July 2014 in case M.7018 - Telefónica Deutschland/E-Plus; Commission
   decision of 3 July 2012 in case M.6584 - Vodafone/Cable & Wireless; Commission decision of
   1 March 2010 in case M.5650 - T-Mobile/Orange; Commission decision of 7 October 2016 in case
   M.8131 - Tele2 Sverige / TDC Sverige.
28 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   Section 6.6.
29 Commission decision of 20 September 2013 in case M.6990 - Vodafone/Kabel Deutschland;
   Commission decision of 3 July 2012 in case M.6584 - Vodafone/Cable & Wireless; Commission
   decision of 1 March 2010 in case M.5650 T-Mobile/Orange; Commission decision of 7 October 2016
   in case M.8131 - Tele2 Sverige / TDC Sverige.
30 Commission decision of 20 September 2013 in case M.6990 - Vodafone/Kabel Deutschland;
   Commission decision of 1 March 2010 in case M.5650 - T-Mobile/Orange; Commission decision of
   7 October 2016 in case M.8131 - Tele2 Sverige / TDC Sverige.
                                                     9
 ---pagebreak--- (47)   In previous cases, the Commission has left open the product market definition for
       backhaul services.31
(48)   In case M.7758 – Hutchison 3G Italy / WIND / JV, the question of the exact
       product and geographic market definition for wholesale services for fixed
       backhaul was left open, as the 2016 Transaction did not raise competition
       concerns under any possible product market definition.32
(49)   The evidence in the Commission's file has not revealed any new development in
       the present case which might justify departing from the approach taken with
       regard to the 2016 Transaction.
     4.3.   Impact of the New Transaction
(50)   As mentioned in Section 4.1., in the 2016 Clearance Decision the Commission
       found that the 2016 Transaction would have significantly impeded effective
       competition only in the market for retail mobile telecommunications services in
       Italy and in the wholesale market for access and call origination on public mobile
       networks in Italy, while any competition concerns was excluded in relation to the
       other relevant markets identified in Section 4.2.
(51)   As further explained in this Section, based on a first phase market investigation,
       the Commission considers that, other than the creation of Wind Tre and the
       commercial launch of Iliad, no significant change has occurred in the competitive
       landscape on the relevant markets in comparison to the competitive landscape
       assessed by the Commission in the 2016 Clearance Decision. Thus, in a scenario
       where the 2016 Commitments were not in place, the New Transaction would give
       rise to the same competition concerns as the 2016 Transaction.
            4.3.1.    Retail mobile telecommunications services
(52)   The Commission considers that, other than the creation of Wind Tre and the
       commercial launch of Iliad, no significant change has occurred in the competitive
       landscape on the market for the provision of retail mobile telecommunications
       services in Italy.
(53)   First, no new MNO (other than Iliad) has entered the market and only a few
       MVNOs have launched services since the adoption of the 2016 Clearance
       Decision.
(54)   Second, most of the respondents to the market investigation in the present case
       considered that there has not been any material development in the Italian market
       for the provision of retail mobile telecommunications services (other than the
       creation of the Wind Tre and the entry of Iliad) since the adoption of the 2016
       Clearance Decision.33 The only relevant facts mentioned by respondents to the
       market investigation are the entrance of Iliad as a result of the 2016 Commitment
       and the launch of Ho.Mobile and Kena, respectively Vodafone's and TIM's low
31 Commission decision of 20 September 2013 in case M.6990 – Vodafone/Kabel Deutschland; case
   M.6584 – Vodafone/Cable & Wireless.
32 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   Section 6.7.
33 Responses to questionnaire to MNOs and MVNOs – RFI 2, question 1.
                                                10
 ---pagebreak---        cost brands launched on 22 June 2018 and 30 March 2017. Respondents,
       including Tiscali and PosteMobile, highlighted how the launch of Vodafone's and
       TIM's low-brand offerings was in reaction to Iliad's entrance in the market.
(55)   Few respondents to the market investigation, including Poste Italiane S.p.A.
       ("Poste Mobile") and Fastweb S.p.A. ("Fastweb"), the largest MVNOs in the
       Italian market, consider that Iliad, Ho.Mobile and Kena's entrance is creating a
       distortion on the market due to the fact that these new players benefit from
       artificial wholesale access conditions that are not replicable by other MVNOs.34
       In this respect the Commission notes that, first, Ho.Mobile and Kena are
       effectively second brands of MNOs and should be considered as such. Second,
       Iliad's wholesale access conditions are set forth in the 2016 Commitments
       precisely with a view to allowing Iliad to compete aggressively. Third, the fact
       that certain MVNOs are unable to effectively compete with the MNOs due to
       their access conditions is a separate issue, which the Commission already noted in
       the 2016 Clearance Decision.35
(56)   Thus, it appears that, other than the creation of Wind Tre and the entry of Iliad as
       a result of the 2016 Commitments, the conditions of competition in the retail
       mobile market in Italy have not significantly changed since the adoption of the
       2016 Clearance Decision.
(57)   However, in the absence of Iliad’s entry and development as New MNO (which
       requires the full implementation of the 2016 Commitments, which is scheduled to
       occur over a long period of time36), the combination of Wind’s and H3G’s would
       likely result in the anticompetitive effects predicted in the 2016 Decision.
(58)   In fact, the Commission considers that, if the 2016 Commitments were not
       confirmed (ensuring the full development of a competitive New MNO), the New
       Transaction would raise serious doubts as to its compatibility with the internal
       market with regard to the market for the provision of retail mobile
       telecommunications services on the basis of the same findings discussed in
       Section 7.3 of the 2016 Clearance Decision. In particular, as discussed in
       Section 4.1., the Commission considers that, if the 2016 Commitments were not
       confirmed, the New Transaction would likely give rise to both horizontal
       coordinated and non-coordinated anti-competitive effects on that market since, in
       the absence of the 2016 Commitments, the anticompetitive effects of the 2016
       Transaction would likely materialise.
(59)   Nonetheless, the Commission considers that the New Transaction will not raise
       additional competition concerns not identified in the 2016 Clearance Decision
       (and addressed by the 2016 Commitments).
(60)   In this respect, the Commission notes that, first, the fact that the company
       combining Wind’s and H3G’s activities is jointly or solely controlled does not
       change the nature and breath of the competition problems stemming from the
       combination of Wind’s and H3G’s activities.
34 Responses to questionnaire to MNOs and MVNOs – RFI 2.
35 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   Section 7.3.2.4.c)ii.
36 Some of the obligations foreseen in the 2016 Commitments could last more than […] years.
                                                    11
 ---pagebreak--- (61)      Second, following the announcement of Iliad's entry and the implementation of
          the 2016 Commitments until the date of adoption of this Decision, mobile prices
          have continued to decline and competition among mobile operators has
          intensified.37
(62)      In fact, data compiled by the Italian telecommunications regulatory authority,
          Autorità per le Garanzie nelle Comunicazioni ("AGCOM"), shows that, following
          the creation of Wind Tre and the announcement and the first phase of
          implementation of the 2016 Commitments (leading to Iliad’s entry in the Italian
          market), existing MNOs have continued to compete aggressively against each
          other and the MVNOs. The continuously declining mobile prices are inter alia
          reflected in average consumer prices on telecoms services reaching a historical
          low in 2017 (as shown in Figure 1)38, while at the same time data usage and
          demand strongly increased (as shown in Figures 2 and 3) and the general
          consumer price index has also increased.
       Figure 1: Evolution of telecom consumer prices index compared to general
                           consumer price index in Italy (2010 – 2017)
                     Source: AGCOM 2018 Annual Report, Figure 3.1.1. (available at:
 https://www.agcom.it/documents/10179/11258925/Relazione+annuale+2018/24dc1cc0-27a7-4ddd-9db2-
                                                cf3fc03f91d2)
                                               Note: 2010=100
37   See also paragraph (82) of this Decision on the price pressure exerted by the largest MVNOs.
38   In the 2016 Clearance Decision the Commission found that price was the most important parameter of
     competition in the Italian retail mobile market, see Commission decision of 1 September 2016 in case
     M.7758 – Hutchison 3G Italy / WIND / JV, Section 7.3.1.3.b).
                                                          12
 ---pagebreak---               Figure 2: Evolution of data traffic (March 2014 to March 2018)
                   Source: AGCOM's quarterly updates, 2/2018, page 15 (available at:
  https://www.agcom.it/documents/10179/11373550/Documento+generico+20-07-2018/d5191177-1864-
                               43d5-86d8-a0b3fd8fa687?version=1.0).
(63)      The competitive nature of the Italian mobile telecommunications market, even
          prior to Iliad’s entry, is also reflected by the increased number of consumers
          switching their mobile provider, as shown by the mobile number portability data
          (MNP) published by AGCOM. Such data shows an upward trend between 2013
          and 2017, and show an all-time peak in 2017.
                                                    13
 ---pagebreak---    Figure 3: Evolution of number of subscriptions and customer switching (March
                                           2014 to March 2018)
                     Source: AGCOM's quarterly updates, 2/2018, page 16 (available at:
  https://www.agcom.it/documents/10179/11373550/Documento+generico+20-07-2018/d5191177-1864-
                                    43d5-86d8-a0b3fd8fa687?version=1.0).
(64)      The above data still not report the impact of the entry of Iliad, occurred on 29
          May 2018. Nonetheless they reflect the fact that even the mere announcement of
          the entry of Iliad has preserved the competitive nature of the Italian retail mobile
          market. Indeed, the other players undertook several competitive measures in
          response to the announcement of such entry.
(65)      The entry of Iliad has been perceived as significantly aggressive in the market, as
          shown by the responses to the market investigation,39 but also analyst reports and
          press coverage.40 The other MNOs reacted strongly to Iliad’s market entry offer
          by doubling or tripling the data allowances included in their respective
          underground offers compared to previous years, while keeping prices consistent
          as shown by Figure 4 below illustrating MNOs' offers in June 2018.
39   Responses to questionnaire to MNOs and MVNOs – RFI 2.
40   For example, Moodys's research report "Italian mobile operators feel the heat from French newcomer
     Iliad" of 18 July 2018 states: "Iliad will exacerbate competition in Italy, a credit negative for all mobile
     companies operating there. French telecoms company Iliad launched its mobile service in Italy in May
     2018. As a result, we expect the mobile service revenues of existing operators to decline on average by
     4%-6% annually for the next 18 months. Challenger companies that compete in lower-cost segments
     will be most affected. While the largest mobile operators say that they will not undercut Iliad, in an
     effort to protect their higherpriced customer bases, their significant price cuts and sales promotions
     since Iliad's entry, on top of the sharp price per Gigabyte (Gb) declines of up to 60% over the last
     year, increase the risk of a price war."
                                                           14
 ---pagebreak---  Figure 4: Comparison of MNOs' offers in June 2016, 2017 and 2018 to Iliad's offer
                                                   2016
                                                   […]
                               Source: Parties' response to RFI 1, Figure 4.
(66)   Consumer uptake of Iliad’s offer has been rapid with Iliad reporting that it has
       already reached 1 million customers within the first two months of operation,
       which corresponds to a market share of approximately 1,4% in the pre-paid
       segment based on 2017 subscriber numbers.41
(67)   Thus, the conditions of competition in the retail mobile market in Italy do not
       appear to have degraded during the implementation of the 2016 Commitments
       until the date of adoption of this Decision.
(68)   Third, most of the respondents to the market investigation considered that, if the
       2016 Commitments were confirmed, the New Transaction would have a neutral
       or positive impact on the retail mobile market.42 Only one respondent, Fastweb,
       considered that the New Transaction would have an impact on the Italian retail
       mobile telecommunications market. In particular, Fastweb considers that the
       removal of VEON as shareholder from the decision-making process may increase
       the risk of coordination in the Italian retail mobile telecommunications markets.
       First, the New Transaction would facilitate Wind Tre reaching terms of
       coordination with Iliad. Second, since Iliad is only focused on the low-end of the
       market, the remaining MNOs will have the ability and incentive to coordinate
       better than they did before on the remaining of the market. Third, according to
       Fastweb, the New Transaction will increase Hutchison’s incentives to coordinate
       with its competitors in the other European markets where it operates, namely the
       UK, Sweden, Denmark, Austria and Ireland.43
(69)   In this regard, the Commission notes that, first, it is not clear why the removal of
       VEON as shareholder of Wind Tre would increase the risk of coordination in the
       Italian market. Indeed, Wind Tre is a full function joint venture, independent from
       an operational and financial perspective from its shareholders. Therefore,
       assuming that Fastweb's claim is based on a reduction of the number of players
       who would coordinate their market behaviour, Wind Tre's incentive to coordinate
       with the other market players would be the same irrespective of its ownership
       structure.
(70)   Second, as explained in Section 4.2.1. there is no segmentation of the market for
       retail mobile telecommunications services based on different price points (such as
       "low-cost" vs "high-cost") and, as described also in the 2016 Clearance Decision,
       price is the most important parameter of competition for customers choosing
       retail mobile services in Italy.44 Therefore, aggressive pricing would benefit all
       customers in the retail mobile telecommunications market, thereby disrupting a
       possible coordination.
41 Parties' response to RFI 1.
42 Responses to questionnaire to MNOs and MVNOs – RFI 2, questions 2 and 5.
43 Fastweb's submission of 23 August 2018.
44 See footnote 38.
                                                       15
 ---pagebreak--- (71)    Third, the launch of low-cost brands by TIM and Vodafone in reaction to Iliad's
        entry shows that the MNOs in the market perceive Iliad as a threat and they are
        reacting to its entrance in order to defend their customer base. To the contrary, no
        attempt to search a new "equilibrium with Vodafone and TIM" with respect to the
        "higher spending segment" could be identified.
(72)    Finally, with respect to Fastweb's claim that the New Transaction will increase
        Hutchison’s incentives to coordinate with its competitors in the other European
        markets, the Commission note that in no other market outside Italy Vodafone,
        TIM and Iliad are all present and Vodafone competes against Hutchison only in
        Ireland and the UK. Thus, the risk of coordination on retail markets different
        other than the Italian retail mobile market where WindTre is active is unlikely to
        increase as a result of the New Transaction.
             4.3.2.   Wholesale services for access and call origination on mobile
                      networks
(73)    The Commission considers that, other than the creation of Wind Tre and the
        commercial launch of Iliad, no significant change has occurred in the competitive
        landscape on the market for the provision of wholesale access and call origination
        services on mobile networks in Italy.
(74)    First, no new MNO (other than Iliad) has entered the market and started offering
        wholesale access and call origination services in Italy, neither have the competent
        Italian authorities modified the regulatory framework concerning the provision of
        those services.
(75)    Second, most of the respondents to the market investigation in the present case
        considered that there has not been any material development in the Italian market
        for the provision of wholesale access and call origination services on mobile
        networks (other than the creation of the Wind Tre and the entry of Iliad) since the
        adoption of the 2016 Clearance Decision.45
(76)    A few MVNO respondents explained that there is still little competition in the
        market for wholesale access and call origination, that new MVNOs have
        difficulties to obtain an access agreement in Italy and that no new MVNO has
        entered the market since 1 September 2016 and small MVNOs have exited the
        market since that same date.46
(77)    In this respect, the Commission notes that the difficulties in obtaining an access
        agreement in Italy from MVNOs were not merger specific in themselves already
        at the time the Commission assessed the 2016 Transaction. Indeed, the results of
        the market investigation in case M.7758 - Hutchison 3G Italy / WIND / JV
        indicated that MVNOs are rarely approached by MNOs unless the MVNO takes
        the initiative to a negotiation or announces its intentions.47 As explained in the
        2016 Clearance Decision, MNOs provide wholesale access in order to make use
        of spare capacity and the possibility to generate incremental revenue; however,
45 Responses to questionnaire to MNOs and MVNOs – RFI 2, question 3.
46 Responses to questionnaire to MNOs and MVNOs – RFI 2, question 3.
47 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   recital 1225.
                                                 16
 ---pagebreak---         because MNOs are vertically integrated and operate at both retail and wholesale
        level, there is a risk that they will lose some of their retail subscribers to the
        MVNOs they host (so called "risk of cannibalization"). Thus, only if the MNOs
        and the MVNOs target different customer segments in the retail market, the risk
        of cannibalisation is lower, and MNOs may be more inclined to provide
        wholesale access to the MVNO.48 There is therefore no indication that the
        MVNOs’ difficulties to obtain an access agreement in Italy are the result of the
        2016 Transaction, which was approved on the basis of Commitments designed to
        eliminate competition concerns also on the wholesale market, through the
        development of a New MNO having the ability and the incentives to grant
        wholesale access to MVNOs.
(78)    Thus, it appears that, other than the creation of Wind Tre and the entry of Iliad as
        a result of the 2016 Commitments, the conditions of competition in the wholesale
        mobile market in Italy have not significantly changed since the adoption of the
        2016 Clearance Decision.
(79)    However, in the absence of Iliad’s entry and development as New MNO (which
        requires the full implementation of the 2016 Commitments), the combination of
        Wind’s and H3G’s would likely result in the anticompetitive effects predicted in
        the 2016 Decision.
(80)    In fact, on the basis of the same findings discussed in Section 7.4 of the 2016
        Clearance Decision, the Commission considers that, if the 2016 Commitments
        were not confirmed (ensuring the full development of a New MNO, having the
        ability and the incentives to compete also at the wholesale level), the New
        Transaction would raise serious doubts as to its compatibility with the internal
        market also with regard to the market for the provision of wholesale access and
        call origination services on mobile networks. In particular, as discussed in
        Section 4.1., the Commission considers that, if the 2016 Commitments were not
        confirmed, the New Transaction would likely give rise to horizontal non-
        coordinated anti-competitive effects on that wholesale market since, in the
        absence of the 2016 Commitments, the anticompetitive effects of the 2016
        Transaction would likely materialise.
(81)    Nonetheless the Commission considers that the New Transaction will not raise
        additional competition concerns not identified in the 2016 Clearance Decision
        (and addressed by the 2016 Commitments).
(82)    In this respect the Commission notes that, first, the fact that the company
        combining Wind’s and H3G’s activities is jointly or solely controlled does not
        change the nature and breath of the competition problems stemming from the
        combination of Wind’s and H3G’s activities.
(83)    Second, most of the respondents to the market investigation considered that the
        New Transaction would only have a neutral impact on the market for the
        provision of wholesale access and call origination services on mobile networks in
        Italy, with only a minority considering that the impact of the New Transaction
48 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   recitals 1226-1228.
                                                 17
 ---pagebreak---        could be negative.49 Among such minority, Transatel stated that the "full takeover
       of WINDTre by H3G might change the governance of the 3rd Italian MNO and
       H3G shareholders vision might be actually to limit the wholesale business of H3G
       Italy in order to give more room to the retail business." In this respect the
       Commission notes that the reduction of the number of hosting MNOs from four to
       three and the creation of a larger player with less incentives to host MVNOs was
       in fact one of the elements underpinning the finding of competition concerns in
       the 2016 Clearance Decision and that the 2016 Commitments aimed at
       remedying.
(84)   Finally, similar to its assessments in the 2016 Clearance Decision,50 the
       Commission considers that it is not necessary to take a view on whether the New
       Transaction raises serious doubts as to its compatibility with the internal market
       due to horizontal coordinated effects on the wholesale market, as the
       commitments offered by the Notifying Party on 9 August 2018 would address
       such coordinated effects, as the 2016 Commitments did.51
            4.3.3.    Conclusion
(85)   In light of the above, the Commission considers that, if the 2016 Commitments
       were not confirmed, the New Transaction would raise serious doubts as to its
       compatibility with the internal market with regard to the market for the provision
       of retail mobile telecommunications services on the basis of the same findings
       discussed in Section 7.3 of the 2016 Clearance Decision as well as with regard to
       the market for the provision of wholesale access and call origination services on
       mobile networks on the basis of the same findings discussed in Section 7.4 of the
       2016 Clearance Decision.
5.     COMMITMENTS
(86)   In order to remove the serious doubts arising from the New Transaction described
       in Section 4, on 9 August 2018 the Notifying Party submitted commitments
       pursuant to Article 6(2) of the Merger Regulation (the "New Commitments"),
       which are annexed to this Decision and form an integral part thereof.
(87)   In particular, since the 2016 Commitments have not yet been fully implemented,
       Hutchison has committed to fully comply, or to procure full compliance from any
       of its group companies, with the 2016 Commitments and to take full and sole
       responsibility for the implementation of the 2016 Commitments.
(88)   The Commission considers that the New Commitments entered into by Hutchison
       are sufficient to eliminate the serious doubts as to the compatibility of the New
       Transaction with the internal market.
49 Responses to questionnaire to MNOs and MVNOs – RFI 2, question 4.
50 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV,
   Section 7.4.2.
51 The 2016 Commitments allow Iliad to offer wholesale access to MVNOs in Italy, which in the 2016
   Decision was considered sufficient to remove the concerns on the wholesale market (see Commission
   decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND / JV, Section 8.6.1.6.c).
                                                     18
 ---pagebreak--- (89)    First, as described in Section 4.3.1 and 4.3.2, the market investigation has shown
        that there have been no significant changes to the markets for the provision of
        wholesale and retail mobile services in Italy since the adoption of the 2016
        Clearance Decision other than the creation of Wind Tre and the entry of Iliad.52
(90)    Second, as described in Section 4.3.1 and 4.3.2, no new competition concerns
        arise from the New Transaction.
(91)    Third, the Commission considers that there is no need to modify the 2016
        Commitments since (i) their implementation is on track and all the main
        milestones laid down in the 2016 Commitments have been achieved so far53 and
        (ii), as indicated above, the entry of Iliad following the first phase of
        implementation of the 2016 Commitments is maintaining effective competition in
        the relevant markets.
(92)    In this respect, the Commission notes that the Italian competition authority, the
        Autorità Garante della Concorrenza e del Mercato, also considered that the 2016
        Commitments had a beneficial effect on the Italian retail mobile
        telecommunications market both in terms of price and quality and such measures
        should be confirmed in the Commission's decision assessing the New
        Transaction.54
(93)    As regards the wholesale market, the Commission notes that, since
        1 September 2016 there has been new MVNOs launches. In particular, Nextus
        Telecom – hosted by TIM – launched its services in November 2016, Rabona
        Mobile in 2017 and Welcome Italia in 2018, both of them hosted by TIM.
        Moreover, ENEL is expected to launch its own MVNO by the end of 2018.
        Further, there have been migrations of MVNOs from one network to another
        (e.g. Optima previously hosted on the Hutchinson network moved in 2017 on
        Vodafone network).55
(94)    Further the Commission notes that there has been a continuous increase of the
        total market size of the wholesale market in terms of subscribers before and after
        the 2016 Transaction, as shown by the data of the analyst firm Busacca &
        Associati, presented in Table 5 below.
52 TIM expressed the concern that the National Roaming Agreement could distort competition providing
   conditions which under normal commercial negotiation would not be available to an incoming new
   operator nor to another access seeker (i.e. MVNO), see response to questionnaire to MNOs and
   MVNOs – RFI 2, question 5. In this respect the Commission notes that the commercial conditions of
   the National Roaming Agreement aim at granting the New MNO a cost structure similar to the cost
   structure and incentives to offer wholesale access of the other MNOs during the transitional period
   when it is rolling out its network. In particular, in the first […] during which the New MNO enjoys a
   capacity based price model, the New MNO the incentives to aggressively acquire new customers (as
   Iliad's entry as shown) as well as to offer wholesale access to the extent it has not used its capacity
   commitment. This is precisely the same economics which drive an MNO's decision to offer wholesale
   access. See Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / WIND /
   JV, recitals 1223-1228 and Section 8.6.1.6.c).
53 Grant Thornton, Status of implementation report to the European Commission pursuant the case
   M.7758 of 24 August 2018.
54 Autorità Garante della Concorrenza e del Mercato, Observations on the M.9041 – Hutchison / Wind
   Tre case.
55 Vodafone's response to questionnaire to MNOs and MVNOs – RFI 2, question 3, and Parties' response
   to RFI 1.
                                                          19
 ---pagebreak---  Table 5: Evolution of total market size and market shares in wholesale market for
              access and call origination on public mobile networks in Italy
                                    (subscriptions, 2014-2017)
                       2014                   2015                   2016                   2017
                   mln       Share      mln        Share       mln       Share          mln      Share
                              [10-                                                                [20-
   Tre Wind       […]                   […]      [30-40]%      […]     [30-40]%        […]
                             20]%                                                                30]%
                  […]         [10-      […]                    […]                                [30-
      TIM                                        [10-20]%              [10-20]%        […]
                             20]%                                                                40]%
                  […]         [60-      […]                    […]                     […]        [30-
   Vodafone                                      [50-60]%              [50-60]%
                             70]%                                                                40]%
     Total        […]        100%       […]        100%        […]       100%          […]       100%
           Source: Busacca & Associati (Parties' reply to RFI 1 and 2016 Clearance Decision).
(95)    A similar increase in the number of subscribers of MVNOs (represented in terms
        of number of SIM cards) is also constantly reported by AGCOM, in its quarterly
        updates on key developments in the telecommunications sector.56
(96)    Thus, it appears that the implementation of the 2016 Commitments has preserved
        the conditions of competition in the wholesale mobile market in Italy as in the
        pre-2016 Transaction scenario.
(97)    Fourth, no evidence in the Commission's file suggests that Hutchison is less likely
        or able to implement the Commitment than Hutchison and VEON together.
(98)    Under the first sentence of the second subparagraph of Article 6(2) of the Merger
        Regulation, the Commission may attach to its decision 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 the
        concentration compatible with the internal market.
(99)    The achievement of the measure that gives rise to the change of the market is a
        condition, whereas the implementing steps which are necessary to achieve this
        result are generally obligations on the parties. 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 6(3)(b) of the Merger Regulation. The undertakings
56 See        in      particular      update       1/2017,       pages       8-10       (available     at:
   https://www.agcom.it/documents/10179/7278186/Studio-Ricerca+20-03-2017/ff456794-5ad4-47cd-
   ad5c-4099d84a2f5c?version=1.0),           2/2017,        pages       12-14          (available      at:
   https://www.agcom.it/documents/10179/8144896/Studio-Ricerca+20-07-2017/d784816b-708d-471b-
   adc3-82337ce08b98?version=1.0),           3/2017,         pages       8-10          (available      at:
   https://www.agcom.it/documents/10179/8772724/Studio-Ricerca+23-10-2017/46e00143-f550-44ef-
   8089-05d16113b0a5?version=1.2),            4/2017,        pages        8-10         (available      at:
   https://www.agcom.it/documents/10179/9315395/Documento+generico+11-01-2018/30d3e2fa-2f9e-
   4c14-be41-6ffa278593f5?version=1.0),           1/2018,       pages       9-11        (available     at:
   https://www.agcom.it/documents/10179/10293149/Studio-Ricerca+16-04-2018/1c205715-a147-43fa-
   a9a1-f778690fe65b?version=1.4), and 2/2018 (the last available at the time of adoption of this
   Decision),                   pages                 12-14                  (available                at:
   https://www.agcom.it/documents/10179/11373550/Documento+generico+20-07-2018/d5191177-
   1864-43d5-86d8-a0b3fd8fa687?version=1.0).
                                                       20
 ---pagebreak---       concerned may also be subject to fines and periodic penalty payments under
      Articles 14(2) and 15(1) of the Merger Regulation.
(100) In accordance with the basic distinction between conditions and obligations
      described above, Section B (including Annexes 1 to 9) of Annex 1 to the New
      Commitments, constitute conditions attached to this Decision, as only through full
      compliance therewith can the structural changes in the relevant markets be
      achieved. Sections C to F of Annex 1 to the New 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.
(101) As a consequence of the entry into force of the New Commitments, VEON will
      be released from all of its obligations under the 2016 Commitments.
6.    CONCLUSION
(102) For the above reasons, the Commission has decided not to oppose the notified
      operation as modified by the commitments and to declare it compatible with the
      internal market, subject to full compliance with the conditions in Section B
      (including Annexes 1 to 9) of Annex 1 to the New Commitments annexed to the
      present decision and with the obligations contained in the other sections of the
      said 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
                                               21
 ---pagebreak---                                     ANNEX 1
European Commission
DG Competition Place Madou 1
1210 Saint-Josse-ten-Noode
                                    CASE M.9041
                             HUTCHISON / WIND TRE
             COMMITMENTS TO THE EUROPEAN COMMISSION
                                    9 August 2018
On 18 July 2016, in case M.7758, Hutchison Europe Telecommunications S.À R.L.
(HET) and VimpelCom Luxembourg Holdings S.À R.L., which has since been
renamed VEON Luxembourg Holdings (VLH), jointly entered into certain
Commitments (the 2016 Commitments, attached in Annex 1) vis-à-vis the European
Commission (Commission) with the view to rendering the creation of a joint venture,
Hutchison 3G Italy Investments S.À R.L., which has since been renamed VIP-CKH
Luxembourg S.à. R.L. (VIP-CKH), compatible with the internal market and the
functioning of the EEA Agreement. The Commission cleared the creation of a joint
venture, Hutchison 3G Italy Investments S.À R.L., subject to full compliance with the
2016 Commitments (the 2016 Clearance Decision).
On 3 July 2018, CK Hutchison Holdings Limited, which indirectly wholly owns and
controls HET, and VEON Ltd, which indirectly wholly owns and controls VLH
(together with other companies in their respective corporate groups) agreed that HET
would acquire the entirety of VLH’s shareholding in VIP-CKH (the Transaction).
Accordingly, HET will obtain sole control of VIP-CKH and VLH will cease being a
shareholder in VIP-CKH.
Pursuant to Article 6(2) of Council Regulation (EC) No 139/2004 (the Merger
Regulation), HET hereby enters into the following commitment (the Commitment)
vis-à-vis the Commission with the view to rendering the Transaction compatible with
the internal market and the functioning of the EEA Agreement:
HET commits to fully comply, or to procure full compliance from any of its group
companies, with the 2016 Commitments.
 ---pagebreak--- Thus, HET will take full and sole responsibility for the implementation of the 2016
Commitments and, as of the closing of the Transaction, releases VLH from all of its
obligations under the 2016 Commitments.
This Commitment shall take effect upon the date of adoption of the Commission’s
Decision pursuant to Article 6(2) of the Merger Regulation to declare the
concentration in case M.9041 compatible with the internal market and the functioning
of the EEA Agreement (the Decision).
This text shall be interpreted in the light of the Decision, in the general framework of
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). Annex 1 shall also be interpreted in light of the 2016 Clearance Decision.
EXECUTED by Hutchison Europe Telecommunications S.À R.L.
……………………………………
duly authorised for and on behalf of
Hutchison Europe Telecommunications S.À R.L.
                                                                                         2
 ---pagebreak---                                         Annex 1
European Commission
DG Competition Place Madou 1
1210 Saint-Josse-ten-Noode
                                    CASE M.7758
          HUTCHISON EUROPE TELECOMMUNICATIONS S.À R.L/
               VIMPELCOM LUXEMBOURG HOLDINGS S.À R.L
             COMMITMENTS TO THE EUROPEAN COMMISSION
                                      18 July 2016
Pursuant to Article 8(2) and 10(2) of Council Regulation (EC) No 139/2004 (the
Merger Regulation), Hutchison Europe Telecommunications S.À R.L. and
VimpelCom Luxembourg Holdings S.À R.L. (together the Parties) hereby enter into
the following commitments (the Commitments) vis-à-vis the European Commission
(the Commission) with the view to rendering the creation of a joint venture,
Hutchison 3G Italy Investments S.À R.L. (H3GII), (the Concentration) compatible
with the internal market and the functioning of the EEA Agreement.
The Commitments shall take effect upon the date of adoption of the Decision (the
Effective Date).
This text shall be interpreted in the light of the Commission’s Decision pursuant to
Article 8(2) 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 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).
A.      DEFINITIONS
1.      For the purpose of the Commitments, the following terms shall have the
        following meaning:
        2G National Roaming Services: has the meaning given in paragraph 21.
        3G/4G MOCN Services: has the meaning given in paragraph 21.
        [the most densely populated area]: means an area to be agreed between the
        Parties and the New MNO and corresponding to the most densely-populated
        areas of Italy […].
        Affiliated Undertakings: means any undertakings controlled by the Parties
        and/or by the ultimate parents of the Parties, 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.
        Annual Capacity Commitment: has the meaning given in paragraph 22(f)(ii).
                                                                                         3
 ---pagebreak--- Capacity Commitment: has the meaning given in paragraph 22(f)(ii).
Closing: means the completion of the Concentration whereby the Parties
create a joint venture, H3GII.
Co-location Sites: means macro access network sites owned by the Parties (or
their Affiliated Undertakings) on which the Parties co-locate with the New
MNO in accordance with the Co-location Agreement.
Confidential Information: means 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: means any conflict of interest that impairs the Monitoring
Trustee’s objectivity and independence in discharging its duties under the
Commitments.
[…]: […].
Divestment Spectrum: means:
    •    the 2x5MHz spectrum block ([…]) on the 900 MHz frequency
         currently held by […] (the 900MHz Spectrum);
    •    the 2x5MHz spectrum block ([…]) or, with the consent of the New
         MNO, the 2x5MHz spectrum block ([…]) on the 1800 MHz frequency
         currently held by […] (the 1800 MHz Spectrum Block 1);
    •    the 2x5MHz spectrum block ([…]) on the 1800 MHz frequency
         currently held by […] (the 1800 MHz Spectrum Block 2 and together
         with the 1800MHz Spectrum Block 1, the 1800MHz Spectrum);
    •    the 2x5 MHz spectrum block ([…]) on the 2100 MHz FDD frequency
         currently held by […] (the 2100MHz Spectrum Block 1);
    •    the 2x5 MHz spectrum block ([…]) on the 2100 MHz FDD frequency
         currently held by […] (the 2100MHz Spectrum Block 2 and together
         with the 2100MHz Spectrum Block 1, the 2100MHz Spectrum); and
    •    the two 2x5MHz spectrum blocks ([…]) on the 2600 MHz frequency
         currently held by […] (the 2600MHz Spectrum).
Effective Date: means the date of adoption of the Decision.
Extended Sites: means […] Sites in the [least densely populated area]
(comprising approximately […] Transfer Sites and approximately […] Co-
location Sites) or such lower number to which the Monitoring Trustee does not
object in accordance with paragraph 12. More particularly, the Extended Sites
will be located within the least densely populated areas of Italy […].
Extended Term: has the meaning given in paragraph 22(b).
Fast Track Dispute Resolution Mechanism: has the meaning given in
paragraph 24.
Further Sites: means […] Sites in the [least densely populated area]
(comprising approximately […] Transfer Sites and approximately […] Co-
                                                                                 4
 ---pagebreak--- location Sites) or such lower number to which the Monitoring Trustee does not
object in accordance with paragraph 12.
H3G: means H3G S.p.A., a joint stock company with a sole shareholder
incorporated under the laws of Italy, whose registered office is at Via
Leonardo Da Vinci 1, 20090 Trezzano sul Naviglio, Milan, Italy and
registered with the Register of Enterprises of Milan with tax code and
registration number 02517580920.
H3GII: means a joint venture company, Hutchison 3G Italy Investments S.À
R.L., which upon Closing will be jointly controlled by HET and VIP, the
holding companies of H3G and WIND.
HET: means Hutchison Europe Telecommunications S.À R.L., a société à
responsabilité limitée incorporated under the laws of the Grand Duchy of
Luxembourg, having its registered office at 7, rue du Marché-aux-Herbes, L-
1728 Luxembourg, Grand Duchy of Luxembourg, registered with the
Luxembourg Trade and Companies’ Register under number B74649.
Indemnified Party: has the meaning given in paragraph 51.
Initial Sites: means […] Sites in the [most densely populated area]
(comprising approximately […] Transfer Sites and approximately […] Co-
location Sites) or such lower number to which the Monitoring Trustee does not
object in accordance with paragraph 10.
Initial Term: has the meaning given in paragraph 22(b).
[least densely populated area]: means an area to be agreed between the Parties
and the New MNO and corresponding to the least densely populated areas of
Italy […] (i.e. all areas in Italy excluding the [most densely populated area]).
Monitoring Trustee: means one or more natural or legal person(s) who is/are
approved by the Commission and appointed by the Parties, and who has/have
the duty to monitor the Parties’ compliance with the conditions and obligations
attached to the Decision.
Monitoring Trustee Proposal: has the meaning given in paragraph 27.
Network: means (as the context requires) the H3G or WIND publicly available
cellular radio access network (including that of the combined business as it is
consolidated post-Closing) in Italy from time to time. For the avoidance of
doubt, the 2G National Roaming Services and 3G/4G MOCN Services shall be
provided on the publicly available cellular radio access network operated or
used by WIND in Italy (including that of H3G as it is consolidated with
WIND post-Closing) and, once the consolidation has been completed, on the
consolidated network.
New MNO: means Iliad S.A. a société anonyme incorporated under the laws
of France, having its registered office at 16, rue de la Ville l’Evêque, 75008
Paris, France and registered in Paris in the Trade and Companies Register
under no. 342 376 332 (or an Affiliated Undertaking).
New MNO Agreements: has the meaning given in paragraph 5(a).
RAN Sharing: has the meaning given in paragraph 18.
Ready for Service Date: has the meaning given to it in paragraph 22(a).
                                                                                 5
 ---pagebreak---    Request: has the meaning given to it in paragraph 25.
   Response: has the meaning given to it in paragraph 25.
   Sites: means the Initial Sites, the Further Sites and the Extended Sites as the
   context requires all of which shall be macro access network sites.
   Transfer Sites: means macro access network sites which the Parties will divest
   to the New MNO in accordance with the Commitment in Section B.II. The
   assets/rights to be available at each Transfer Site consist of (i) the transfer of a
   ground lease or site use agreement for the Transfer Site (including any rights
   and obligations arising from such lease or agreement, and if applicable, any
   construction permits or agreements allowing the use of any such Transfer
   Sites), but excluding any permits relating to the operation of active equipment;
   and (ii) the transfer of title to the applicable passive equipment owned by the
   Parties at the Transfer Site. For the avoidance of doubt, radio base station
   equipment, microwave transmission equipment, and any other electronic
   equipment which carries traffic shall not be transferred to the New MNO.
   VIP: means VimpelCom Luxembourg Holdings S.À R.L., a société à
   responsabilité limitée incorporated under the laws of the Grand Duchy of
   Luxembourg, having its registered office at 15, rue Edward Steichen, L-2540
   Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg
   Trade and Companies’ Register under number B199019.
   WIND: means Wind Telecomunicazioni S.p.A, a joint stock company with a
   sole shareholder incorporated under the laws of Italy, whose registered office
   is at Via Cesare Giulio Viola, 48 Rome, 00148, Italy and registered with the
   Register of Enterprises of Rome with tax code and registration number
   05410741002.
B. NEW MNO COMMITMENT
2. The Parties commit to (i) divest the Divestment Spectrum to the New MNO in
   accordance with paragraphs 6 and 7; (ii) divest the Initial Sites and/or co-
   locate with the New MNO on the Initial Sites in accordance with paragraphs 9
   and 10; (iii) divest and/or co-locate with the New MNO in respect of the
   Further Sites and the Extended Sites in accordance with paragraphs 11 and 12,
   unless the New MNO enters RAN Sharing with the Parties in accordance with
   paragraphs 18 to 20; (iv) provide the 2G National Roaming Services and the
   3G/4G MOCN Services to the New MNO in accordance with paragraph 22;
   and (v) offer […] to the New MNO in accordance with paragraph 23. With
   respect to (ii) and (iii) the Parties commit to comply with the procedure and
   terms set out in paragraphs 13 to 17.
3. Subject to paragraph 8 below, in order to maintain the structural effect of the
   Commitments, the Parties 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 New MNO’s activities in the mobile telephony sector in
   Italy and/or otherwise acquire the Divestment Spectrum or the Sites unless,
   following the submission of a reasoned request from the Parties showing good
   cause and accompanied by a report from the Monitoring Trustee, the
   Commission finds that the re-acquisition of some or all of the Sites or the
                                                                                        6
 ---pagebreak---    Divestment Spectrum does not undermine the effectiveness of the
   Commitments.
4. The Concentration shall not be implemented before the Parties have entered
   into the New MNO Agreements and the Commission has approved the New
   MNO Agreements.
5. The Parties shall be deemed to have complied with the Commitments in
   Section B upon the Parties (and/or their respective Affiliated Undertakings)
   having:
   (a)     entered into the following agreements with the New MNO:
           (i)      the Framework and Transfer Agreement;
           (ii)     the Co-location Agreement;
           (iii)    the National Roaming Agreement; and
           (iv)     the RAN Sharing Agreement,
           (together the New MNO Agreements);
   (b)     transferred and released the Divestment Spectrum to the New MNO in
           accordance with the dates indicated in paragraph 6;
   (c)     divested to the New MNO or entered into site specific agreements for
           co-location with the New MNO on the Initial Sites by […] in
           accordance with paragraphs 9 and 10;
   (d)     either (i) divested to the New MNO or entered into co-location with the
           New MNO on the Further Sites and Extended Sites in accordance with
           paragraphs 11 and 12; or (ii) enabled the Network for the provision of
           RAN Sharing in accordance with paragraph 18; and
   (e)     enabled the Network for the provision of the 2G National Roaming
           Services and 3G/4G MOCN Services to the New MNO by the Ready
           for Service Date in accordance with paragraph 22(a).
   B.I: Divestment Spectrum
6. The Parties commit to divest the Divestment Spectrum to the New MNO on a
   [phased] basis substantially in accordance with the indicative spectrum release
   plan attached as Annex 1 (which may be modified from time to time in
   accordance with terms agreed between the Parties and the New MNO and
   approved by the Monitoring Trustee), subject to any adjustments required in
   order to obtain all necessary approvals required under applicable Italian
   legislation and regulation. The [phased] release of spectrum and transfer of
   rights to the New MNO to use the spectrum will be completed in its entirety
   by the following dates (subject to any changes to the release dates due to
   technical reasons which are agreed between the Parties and the New MNO,
   communicated to the Monitoring Trustee and approved by the Commission):
   (a)     in relation to the 900MHz Spectrum by […];
   (b)     in relation to the 1800MHz Spectrum (Block 1) by […];
                                                                                   7
 ---pagebreak---     (c)      in relation to the 1800MHz Spectrum (Block 2) by […];
    (d)      in relation to the 2100MHz Spectrum (Block 1 and Block 2) by […];
             and
    (e)      in relation to the 2600MHz Spectrum by […].
7.  […].
8.  If following the transfer of the Divestment Spectrum and before the end of the
    Initial Term:
    (a)      the New MNO seeks to transfer more than […]% of the overall
             Divestment Spectrum (whether or not in the ordinary course of
             business) to any third party (excluding Affiliated Undertakings of the
             New MNO);
    (b)      the New MNO seeks to transfer […]% (or less) of the overall
             Divestment Spectrum outside of the ordinary course of business to any
             third party (excluding Affiliated Undertakings of the New MNO); or
    (c)      there is a combination or transfer of business or a sale of shares in the
             New MNO or any of its Affiliated Undertakings with or to a mobile
             network operator in Italy,
    the Parties shall have the right, subject to applicable approvals under Italian
    and/or EU law and the approval of the Monitoring Trustee, to […]. […].
    B.II: Sites
    [Most densely populated area]
9.  Subject to paragraph 10, the Parties commit to divest to the New MNO or to
    enter into co-location with the New MNO in respect of […] Initial Sites.
10. The number of Initial Sites can be reduced on a pro rata basis if the New
    MNO:
    (a)      obtains sites from a third party, provided that the New MNO obtains a
             total of approximately […] macro access network sites (through
             acquisition or co-location from the Parties and/or third parties) located
             in the [most densely populated area] by […]; or
    (b)      enables technical solutions to achieve substantially the same coverage
             in the [most densely populated area] as would be achieved with […]
             macro access network sites,
    in each case provided that the New MNO notifies the Monitoring Trustee in
    advance and the Monitoring Trustee does not object.
    [Least densely populated area]
11. In respect of the [least densely populated area], the Parties commit to either:
    (a)      activate the RAN Sharing with the New MNO in accordance with
             paragraph 18; or
                                                                                       8
 ---pagebreak---     (b)    subject to paragraph 12, divest to the New MNO or enter into co-
           location with the New MNO in respect of […] Further Sites and […]
           Extended Sites.
12. The number of Further Sites and the number of Extended Sites can be reduced
    on a pro rata basis if the New MNO:
    (a)    obtains sites from a third party, provided that (i) the New MNO obtains
           a total of approximately […] macro access network sites (through
           acquisition or co-location from the Parties and/or third parties) located
           in the [least densely populated area] by the last date on which the RAN
           Sharing option may be exercised by the New MNO in accordance with
           paragraph 19 below; and (ii) the total number of sites obtained from
           third parties (together with Sites obtained from the Parties) enables the
           New MNO to achieve in the [least densely populated area]
           substantially the same coverage that would be achieved with […]
           macro access network sites; or
    (b)    enables technical solutions to achieve substantially the same coverage
           in the [least densely populated area] as would be achieved with […]
           macro access network sites,
    in each case provided that the New MNO notifies the Monitoring Trustee in
    advance and the Monitoring Trustee does not object.
    Terms of co-location
13. The Parties commit to co-locate with the New MNO on Co-location Sites
    substantially in accordance with the following:
    (a)    the New MNO shall have the right to install, operate, maintain and use
           its equipment in respect of Co-location Sites for the provision of
           current and future wireless and wireline communication services,
           provided that the New MNO shall not be permitted to operate any
           equipment, technology or spectrum except to the extent it is for its own
           sole use;
    (b)    the Parties shall offer co-location on each Co-location Site for a term
           of […] years starting from the date of the relevant agreement in respect
           of the Co-location Site and, at the New MNO’s request, the Parties will
           discuss in good faith with the New MNO a possible extension on terms
           and conditions to be agreed; and
    (c)    in consideration for co-location on each Co-location Sites, the New
           MNO shall pay a set-up fee covering the […] in connection with co-
           location and […] for each Co-location Site based on the rent, rates,
           energy, maintenance and other costs incurred by the Parties in respect
           of each Co-location Site.
    Process for making Sites available
14. The Parties commit to making the Sites available for divestment or co-location
    in accordance with the indicative site release plan attached as Annex 2, which
    may be modified from time to time in accordance with terms agreed between
                                                                                     9
 ---pagebreak---     the Parties and the New MNO and approved by the Monitoring Trustee. The
    release of the Sites to the New MNO will be completed in its entirety by […],
    subject to any change due to technical reasons which are agreed between the
    Parties and the New MNO, communicated to the Monitoring Trustee and
    approved by the Commission.
15. The procedure by which the Sites shall be made available for divestment or
    co-location shall be substantially in accordance with Annex 3.
    Site suitability criteria and coverage
16. The Sites shall meet the site suitability criteria set out in Annex 4 save as
    otherwise requested by the New MNO and agreed between the Parties and the
    New MNO on a site by site basis.
17. The Initial Sites, the Further Sites and the Extended Sites (or the RAN Sharing
    sites as defined in paragraph 18) shall be capable of enabling the New MNO to
    provide outdoor coverage on the 900 MHz Spectrum for […]% of the Italian
    population ([…]% for indoor) provided the New MNO installs the appropriate
    equipment and takes the requisite steps needed to do so.
    B.III: RAN Sharing option
18. The Parties commit to offer the New MNO an option to enter into a one-way
    radio access network (RAN) sharing solution covering a minimum of […] sites
    located in the [least densely populated area] (RAN Sharing) on substantially
    the following terms:
    (a)      the RAN Sharing shall be based on a multi-operator radio access
             network (MORAN) architecture and the New MNO shall gain access
             to the Parties’ active network equipment at the sites (including
             antennas, base stations, backhaul and radio network controllers);
    (b)      the RAN Sharing shall cover 3G and 4G technology, and, following
             commercial launch by H3GII, all future technologies (including 5G) as
             agreed between the Parties and the New MNO and subject to technical
             feasibility. The RAN Sharing shall be provided using the Divestment
             Spectrum;
    (c)      the RAN Sharing shall be activated on a [phased] basis as 3G/4G
             MOCN Services are phased out;
    (d)      the RAN Sharing shall be made available for a total term of […] from
             the date of initial activation and any extension shall be subject to terms
             to be agreed between the Parties and the New MNO;
    (e)      the procedure by which macro access network sites shall be made
             available for RAN Sharing shall be as agreed between the Parties and
             the New MNO and shall be substantially in accordance with Annex 5;
    (f)      in consideration for the RAN Sharing, the New MNO shall pay a set-
             up fee and a contribution to on-going costs as set out in Annex 6;
                                                                                        10
 ---pagebreak---     (g)      the New MNO may request a unilateral deployment of new
             technologies on the RAN Sharing macro access network sites and the
             Parties shall implement such unilateral requests subject to certain
             conditions to be further discussed and agreed from time to time
             between the Parties and the New MNO; and
    (h)      the Parties shall ensure that the technical specifications of the hardware
             and software used to implement the RAN Sharing at each macro access
             network site to provide mobile telecommunications carriers on the
             New MNO’s radio access network are substantially equivalent to the
             technical specifications of the hardware and software used by the
             Parties at that macro access network site to provide mobile
             telecommunications carriers on the Parties own radio access network.
             This is subject to any differentiation due to: (i) the spectrum holdings
             of the New MNO and the Parties; (ii) the features, functionality and
             location of the New MNO’s and the Parties’ unilateral macro access
             network sites; and (iii) any fault of the New MNO.
19. The RAN Sharing option shall be exercisable by the New MNO at any time
    from […] until the later of: (i) […]; and (ii) […].
20. The number of sites referred to in paragraph 18 can be reduced on a pro rata
    basis, if the New MNO:
    (a)      obtains sites from a third party by the date referred to in paragraph 19,
             provided that the total number of sites obtained from third parties
             (together with Sites obtained from the Parties) enables the New MNO
             to achieve in the [least densely populated area] substantially the same
             coverage that would be achieved with […] macro access network sites;
             or
    (b)      enables technical solutions to achieve substantially the same coverage
             in the [least densely populated area] as would be achieved with […]
             macro access network sites,
    in each case provided that the New MNO notifies the Monitoring Trustee in
    advance and the Monitoring Trustee does not object.
    B.IV: 2G National Roaming Services and 3G/4G MOCN Services
21. The Parties commit to (or procure that one or more of their respective
    Affiliated Undertakings) enter into an agreement (the National Roaming
    Agreement) to (i) provide 2G national roaming services to the New MNO to
    allow the New MNO’s customers to roam onto the Network (2G National
    Roaming Services); and (ii) implement and operate a 3G and 4G MOCN
    solution to link the Network and the New MNO’s core network (3G/4G
    MOCN Services).
22. The 2G National Roaming Services and 3G/4G MOCN Services shall be
    provided on substantially the following terms:
    (a)      the Network will be ready for the provision of 2G National Roaming
             Services and 3G/4G MOCN services to the New MNO as soon as
                                                                                        11
 ---pagebreak---     practicable within […] of Closing (the Ready for Service Date),
    subject to any delays caused by acts or omissions of the New MNO;
(b) the 2G National Roaming Services and 3G/4G MOCN Services shall
    be provided for an initial term ending at least […] from the Ready for
    Service Date (Initial Term) with the option for the New MNO to
    prolong for a further […] (Extended Term);
(c) in consideration for the provision of the 2G National Roaming Services
    and the 3G/4G MOCN Services the New MNO shall pay an initial set-
    up fee […] and, in addition, the fees described at paragraphs 22(e)(iii)
    and 22(f)(iii)-(iv) below;
(d) the Parties shall provide the 2G National Roaming Services and 3G/4G
    MOCN Services in a manner that enables the quality of the radio
    access network services provided by the New MNO to its retail
    customers to be non-discriminatory and substantially equivalent to the
    corresponding quality of radio access network services provided by the
    Parties to the Parties’ retail customers on the Network. […];
(e) in relation to the 2G National Roaming Services:
    (i)      the Parties shall provide 2G voice and SMS and 2G data
             services operated from time to time on the Network to the New
             MNO;
    (ii)     as from the […] contract year, the New MNO shall be subject
             […];
    (iii)    charges for 2G National Roaming Services shall be payable
             […]; and
    (iv)     the 2G National Roaming Services shall be provided on a
             national basis until the earlier of […];
(f) in relation to the 3G/4G MOCN Services:
    (i)      the 3G/4G MOCN Services shall cover 3G and 4G technology,
             and, following commercial launch by H3GII, all future
             technologies (including 5G) as agreed between the Parties and
             the New MNO and subject to technical feasibility;
    (ii)     the Parties shall make available a minimum of […] million
             gigabytes (Capacity Commitment) which the New MNO has
             agreed with the Parties to acquire during the first […] years of
             the National Roaming Agreement as follows (each an Annual
             Capacity Commitment):
                     […];
    (iii)    For the first […], the following pricing structure for the 3G/4G
             MOCN Services shall apply:
             (A)     a fixed fee agreed between the Parties and the New
                     MNO for the Capacity Commitment. For the avoidance
                                                                              12
 ---pagebreak---                of doubt, the fixed fee shall not vary in accordance […]
               served by the New MNO or the amount of data
               consumed […] served by the New MNO, in each case
               during the first […] of the National Roaming
               Agreement. No additional fee shall be charged for
               usage within the Capacity Commitment;
       (B)     for the volumes exceeding the Capacity Commitment a
               […] per gigabyte;
       (C)     for voice and SMS, […];
       in each case substantially in accordance with Annex 7;
(iv)   For the remaining term, the following pricing structure for the
       3G/4G MOCN Services shall apply:
       (A)     […] per gigabyte; and
       (B)     for voice and SMS, a […];
       in each case substantially in accordance with Annex 7;
(v)    the New MNO shall be subject to overall 3G/4G capacity caps
       which shall be (during the […]) set at a level above the
       applicable Annual Capacity Commitment and which shall be
       calculated on an annual basis as a percentage of Network
       capacity in accordance with the principles set out in Annex 7;
(vi)   as from the […] contract year, the New MNO shall be subject
       to a 3G/4G consumption cap of […] of the New MNO’s
       forecast traffic (subject to the overall capacity cap) in
       accordance with the principles set out in Annex 8, provided
       that (during the […]) the consumption caps shall be at least
       equal to the Annual Capacity Commitment. In the […], no
       consumption cap will apply;
(vii)  in the event that the New MNO […] of its Annual Capacity
       Commitment in the […] contract year, it shall be entitled to
       […] a proportion of the […] Annual Capacity Commitment into
       the immediately ensuing contract year as follows: (A) at the
       end of the […] contract year, no more than […] of the Annual
       Capacity Commitment for the […] contract year and (B) at the
       end of the […] contract year, no more than […] of the Annual
       Capacity Commitment for the […] contract year. For the
       avoidance of doubt, there shall be no […] Annual Capacity
       Commitments […] and in any subsequent contract year;
(viii) […];
(ix)   3G/4G MOCN Services shall initially be provided on a national
       geographic basis. The New MNO may nominate macro access
       network sites on which the Parties shall withdraw 3G/4G
       MOCN Services (i.e. as the New MNO rolls out its own
                                                                        13
 ---pagebreak---                     network). […] of such macro access network sites, the Parties
                    shall […] to provide 3G/4G MOCN Services on […] in
                    accordance with Annex 9 and the following:
                    (A)     if the New MNO […], the Parties shall […] MHz
                            spectrum on withdrawn macro access network sites
                            during a […] from the date of the availability of the
                            […]; or
                    (B)     if the New MNO does […], the Parties will provide
                            3G/4G MOCN Services on […] to the New MNO on
                            withdrawn macro access network sites […].
             (x)    If the New MNO exercises the […] option in accordance with
                    paragraph 18, the Parties shall […] in the [least densely
                    populated area] substantially in accordance with Annex 9.
    B.V: […]
23. […].
    B.VI: Fast Track Dispute Resolution
24. In the event that there is a dispute between the Parties and the New MNO as to
    the implementation of the Commitments in paragraphs 6 (including the
    relevant provisions of Annex 1), 14 (including the relevant provisions of
    Annex 2), 15 (including the relevant provisions of Annex 3), 16 (including the
    relevant provisions of Annex 4) and 17 of the Commitments, the New MNO
    shall have recourse to the following fast track dispute resolution mechanism
    (the Fast Track Dispute Resolution Mechanism) for the sole purposes of
    resolving matters of fact in relation to the implementation of these paragraphs
    of the Commitments.
    Pre-dispute escalation
25. If the New MNO wishes to avail of the fast-track dispute resolution procedure,
    it shall send a written request to that effect (the Request) to the Parties, with a
    copy to the Monitoring Trustee. In the Request, the New MNO shall set out in
    detail the reasons leading it to believe that the Parties have not properly
    implemented the Commitments referred to in paragraph 24 above. If the
    Parties so wish, they shall provide a response (Response) by no later than […]
    working days following the receipt of the Request, with copies to the
    Monitoring Trustee.
26. Within a reasonable period of time not exceeding […] working days after
    receipt of the Request by the Parties (or Response by the New MNO,
    whichever is the later), the New MNO and the Parties will use their best
    efforts to resolve through cooperation and consultation all differences of
    opinion and to settle all disputes underlying the Request. If the settlement of
    the disputes fails within these […] working days, the CEOs of the Parties and
    a nominee of the New MNO may seek to resolve the matters in dispute within
    an additional […] working days from expiry of the initial […] working days
    period.
                                                                                        14
 ---pagebreak--- 27. The Monitoring Trustee shall present to the New MNO and the Parties with its
    own proposal (the Monitoring Trustee Proposal) for resolving the dispute
    within […] working days after receipt of the Request by the Monitoring
    Trustee, specifying in writing the action(s), if any, to be taken by the Parties in
    order to ensure compliance with the Commitments vis-à-vis the New MNO,
    and be prepared, if requested, to facilitate the settlement of the dispute. To the
    extent the Parties and the New MNO have settled a dispute on the basis of the
    Monitoring Trustee Proposal and the Parties comply with such settlement, the
    Parties shall be deemed not to be in breach of the Commitments.
28. If the Parties and the New MNO have failed to resolve their differences under
    the process set out above, and provided that the CEOs of the Parties and the
    New MNO have not resolved the matters in dispute within […] working days
    of the matter being escalated to them in writing by either party, the dispute
    resolution procedure below shall apply upon written notice by one party to the
    other provided such notice is given within […] working days of the end of the
    […] working day period specified in this paragraph.
    Dispute Resolution Procedure
29. The Parties and the New MNO shall appoint a panel of experts (the Expert) to
    determine any matter pursuant to paragraph 24 above.
30. This panel shall comprise:
    (a)     one expert appointed jointly by the Parties;
    (b)     one expert appointed by the New MNO; and
    (c)     one expert appointed by the two experts so appointed provided that if
            they fail to appoint the third expert within […] calendar days from
            their appointment, either the Parties or the New MNO may request the
            Monitoring Trustee to appoint the third expert, provided that each
            person so appointed shall be an independent, suitably qualified and
            experienced expert.
31. The process shall be conducted in private and shall be confidential but under
    supervision of the Monitoring Trustee. The language of the process shall be in
    English.
32. The Expert shall act on the following basis:
    (a)     the Expert shall act fairly and impartially;
    (b)     each party shall submit to the Expert its brief and its submission in
            relation to the matter in dispute within […] calendar days of the
            Expert's appointment;
    (c)     the Expert shall decide the procedure to be followed within […]
            calendar days of their appointment, which may be the rules of
            arbitration of the London Court of International Arbitration;
                                                                                        15
 ---pagebreak---     (d)     the Parties and the New MNO shall assist and provide such
            documentation as the Expert reasonably requires to consider the
            matters referred to it in accordance with paragraph 24 by the New
            MNO;
    (e)     decisions of the Expert shall be based on majority votes of the panel;
    (f)     the Expert’s determination in relation to any matter pursuant to
            paragraph 24 shall be given within a maximum period of […] of the
            Expert’s appointment;
    (g)     the Expert's determination in relation to any matter pursuant to
            paragraph 24 shall (save for manifest error or fraud) be final and
            binding on the Parties and the New MNO;
    (h)     any challenge to the Expert’s determination in accordance with clause
            32(g) shall be made in the Courts of England and Wales;
    (i)     each party shall carry out the actions required to comply with the
            obligations set out in the Expert’s determination in relation to any
            matter pursuant to paragraph 24 within any time-limits specified by the
            Expert; and
    (j)     the Expert shall determine how and by whom the costs of the
            determination in relation to any matter pursuant to paragraph 24
            including the fees and expenses of the Expert are to be paid.
33. The Commission shall be allowed and enabled to participate in all stages of
    the fast-track dispute resolution procedure by:
    (a)     receiving all written submissions (including documents and reports,
            etc.) made by the Parties and the New MNO to the procedure;
    (b)     receiving all documents exchanged by the Expert with the Parties and
            the New MNO to the procedure;
    (c)     filing any written submissions; and
    (d)     being present at the hearing(s) and being allowed to ask questions to
            the Parties and the New MNO.
34. The Expert shall forward, or shall order the Parties and the New MNO to
    forward, the documents mentioned in paragraphs 33(a) and 33(b) to the
    Commission without delay.
35. The Monitoring Trustee shall receive copies of:
    (a)     all submissions made by the Parties and the New MNO in relation to
            the matters they wish to have resolved by the Expert, on the day when
            these have been submitted to the Expert;
                                                                                    16
 ---pagebreak---     (b)      all other documentation provided by the Parties and the New MNO, on
             the day when these have been submitted to the Expert; and
    (c)      the determination made by the Expert, on the day when the
             determination has been provided to the Parties and the New MNO.
36. Following the final transfer of Sites and the Divestment Spectrum in
    accordance with these Commitments the dispute procedure set out above shall
    no longer apply. The Fast Track Dispute Resolution Mechanism is without
    prejudice to any other rights and remedies that may be available to the New
    MNO or the Parties as the case may be in respect of any breach of any of the
    New MNO Agreements. For the avoidance of doubt, the Expert shall have no
    authority to determine any liability (including any damages or other remedy)
    in relation to matters subject to the Fast Track Dispute Resolution Mechanism
    and any dispute on liability between the Parties and the New MNO shall be
    governed solely by the terms of the New MNO Agreements.
C.  RELATED COMMITMENTS
    […]
37. […].
D.  MONITORING TRUSTEE
    Appointment procedure
38. The Parties shall appoint a Monitoring Trustee to carry out the functions
    specified in paragraph 46 below. The Parties commit not to close the
    Concentration before the appointment of a Monitoring Trustee.
39. The Monitoring Trustee shall: (i) at the time of appointment, be independent
    of the Parties and their 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.
40. The Monitoring Trustee shall be remunerated by the Parties in a way that does
    not impede the independent and effective fulfilment of its mandate.
    Proposal by the Parties
41. No later than two weeks after the Effective Date, the Parties shall submit the
    name or names of one or more natural or legal persons whom the Parties
    propose to appoint as the Monitoring Trustee to the Commission for approval.
    The proposal shall contain sufficient information for the Commission to verify
    that the person or persons proposed as Monitoring Trustee fulfil the
    requirements set out in paragraph 39 and shall include:
    (a)      the full terms of the proposed mandate, which shall include all
             provisions necessary to enable the Monitoring Trustee to fulfil its
             duties under these Commitments; and
    (b)      the outline of a work plan which describes how the Monitoring Trustee
             intends to carry out its assigned tasks.
                                                                                   17
 ---pagebreak---     Approval or rejection by the Commission
42. 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 Monitoring Trustee to fulfil its obligations. If only
    one name is approved, the Parties shall appoint or cause to be appointed the
    person or persons concerned as Monitoring Trustee, in accordance with the
    mandate approved by the Commission. If more than one name is approved,
    the Parties shall be free to choose the Monitoring Trustee to be appointed from
    among the names approved. The Monitoring Trustee shall be appointed within
    one week of the Commission’s approval, in accordance with the mandate
    approved by the Commission.
    New proposal by the Parties
43. If all the proposed Monitoring Trustees are rejected, the Parties 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 38 and 41 of
    these Commitments.
    Monitoring Trustee nominated by the Commission
44. If all further proposed Monitoring Trustees are rejected by the Commission,
    the Commission shall nominate a Monitoring Trustee, whom the Parties shall
    appoint, or cause to be appointed, in accordance with a trustee mandate
    approved by the Commission. The Monitoring Trustee shall also fulfil the
    requirements set out in paragraph 39.
    Functions of the Monitoring Trustee
45. The Monitoring 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 Monitoring Trustee or the Parties,
    give any orders or instructions to the Monitoring Trustee in order to ensure
    compliance with the conditions and obligations attached to the Decision.
    Duties and obligations of the Monitoring Trustee
46. The Monitoring Trustee shall:
    (a)      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;
    (b)      monitor compliance by the Parties with the conditions and obligations
             attached to the Decision. In particular, the Monitoring Trustee shall
             specifically monitor compliance with the Commitments in paragraphs
             6, 15 and 18(e);
    (c)      propose to the Parties such measures as the Monitoring Trustee
             considers necessary to ensure the Parties’ compliance with the
             conditions and obligations attached to the Decision;
                                                                                    18
 ---pagebreak---     (d)   provide to the Commission, sending the Parties a non-confidential
          copy at the same time, the following:
          (i)    a written report in relation to the transfer of the Divestment
                 Spectrum in accordance with paragraph 6, to be provided
                 within […] calendar days of the end of every […] from the
                 appointment of the Monitoring Trustee until the Divestment
                 Spectrum has been transferred in full to the New MNO;
          (ii)   a written report in relation to the Commitment to divest or co-
                 locate on Sites in accordance with paragraphs 9 to 12 and in
                 respect of the making available of Sites in accordance with
                 paragraphs 14 to 15, to be provided within […] calendar days
                 of the end of every […] from the appointment of the
                 Monitoring Trustee until the Sites have been transferred to the
                 New MNO or the Parties have entered into co-location on the
                 Sites (as applicable);
          (iii)  if the RAN Sharing option is exercised in accordance with
                 paragraph 19, a written report in relation to the implementation
                 of RAN Sharing in accordance with paragraph 18, to be
                 provided within […] calendar days of the end of every […]
                 from the date on which the RAN Sharing option is exercised
                 until the RAN Sharing has been activated […];
          (iv)   a written report in relation to the implementation of the 2G
                 National Roaming Services and 3G/4G MOCN Services, to be
                 provided within […] calendar days of the end of every […]
                 from the entering into of the National Roaming Agreement in
                 accordance with paragraph 21 until the Ready for Service Date;
    (e)   promptly report in writing to the Commission, sending the Parties a
          non-confidential copy at the same time, if it concludes on reasonable
          grounds that the Parties are failing to comply with these Commitments;
    (f)   upon request in accordance with paragraph 3, provide a report to the
          Commission regarding the re-acquisition of some or all of the Sites or
          Divestment Spectrum;
    (g)   upon receipt of a request from the Parties (or the New MNO) referring
          to paragraphs 6, 8, 14, or 22(d), communicate to the Parties (or the
          New MNO) and the Commission whether it grants its approval as
          provided for in those paragraphs;
    (h)   assume the functions assigned to the Monitoring Trustee in relation to
          the Fast Track Dispute Resolution Mechanism in paragraphs 25, 27,
          30(c) and 31.
    (i)   assume the other functions assigned to the Monitoring Trustee under
          the conditions and obligations attached to the Decision.
47. The documents provided for above shall be prepared in English.
                                                                                  19
 ---pagebreak---     Duties and obligations of the Parties
48. The Parties shall provide and shall cause its advisors to provide the Monitoring
    Trustee with all such co-operation, assistance and information as the Trustee
    may reasonably require to perform its tasks. The Monitoring Trustee shall
    have full and complete access to any of the Parties’ books, records, documents,
    management or other personnel, facilities, sites and technical information
    necessary for fulfilling its duties under the Commitments and the Parties shall
    provide the Monitoring Trustee upon request with copies of any document.
    The Parties shall make available to the Monitoring Trustee one or more offices
    on their premises and shall be available for meetings in order to provide the
    Monitoring Trustee with all information necessary for the performance of its
    tasks.
49. The Parties shall provide the Monitoring Trustee with all administrative
    support that it may reasonably request.
50. The Parties shall indemnify the Monitoring Trustee and its employees and
    agents (each an Indemnified Party) and hold each Indemnified Party harmless
    against, and hereby agree that an Indemnified Party shall have no liability to
    the Parties for, any liabilities arising out of the performance of the Monitoring
    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 Monitoring Trustee, its employees, agents or advisors.
51. At the expense of the Parties, the Monitoring Trustee may appoint advisors (in
    particular for corporate finance or legal advice), subject to the Parties’
    approval (this approval not to be unreasonably withheld or delayed) if the
    Monitoring Trustee reasonably 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
    Monitoring Trustee are reasonable. Should the Parties refuse to approve the
    advisors proposed by the Monitoring Trustee the Commission may approve
    the appointment of such advisors instead, after having heard representations
    from the Parties. Only the Monitoring Trustee shall be entitled to issue
    instructions to the advisors. Paragraph 50 of these Commitments shall apply
    mutatis mutandis.
52. The Parties agree that the Commission may share Confidential Information
    proprietary to the Parties with the Monitoring Trustee. The Monitoring
    Trustee shall not disclose such information and the principles contained in
    Article 17 (1) and (2) of the Merger Regulation apply mutatis mutandis.
53. At any point in time during its mandate the Monitoring Trustee shall be
    entitled to seek the expert advisory opinion of the Autoritá per le Garanzie per
    le Comunicazioni (AGCOM) on specific issues concerning: (i) the Italian
    regulatory framework for mobile telecommunications, (ii) market conditions
    in the Italian retail mobile telecommunications market, (iii) the authorisation
    by MISE of the transfer of the Divestment Spectrum (pursuant to art 14-ter of
    the Electronic Communications Code) and, where relevant, any implications
    of such authorisations regarding the release of the Divestment Spectrum, and
    (iv) questions regarding the laws and regulations applicable to radio frequency
                                                                                      20
 ---pagebreak---     emissions at Sites. To this end, the Monitoring Trustee shall be entitled to
    share Confidential Information proprietary to the Parties with AGCOM,
    provided that the Monitoring Trustee provides the Parties with prior notice and
    a reasonable opportunity to make representations before sharing such
    information with AGCOM.
54. The Parties agree 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 of the identity and
    the tasks of the Monitoring Trustee.
55. 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.
    Replacement, discharge and reappointment of the Monitoring Trustee
56. If the Monitoring 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 Monitoring Trustee and the
             Parties, require the Parties to replace the Trustee; or
    (b)      the Parties may, with the prior approval of the Commission, replace the
             Monitoring Trustee.
57. If the Monitoring Trustee is removed according to paragraph 56 of these
    Commitments, the Monitoring Trustee may be required to continue in its
    function until a new Monitoring Trustee is in place to whom the Monitoring
    Trustee has effected a full hand over of all relevant information. The new
    Monitoring Trustee shall be appointed in accordance with the procedure
    referred to in paragraphs 38 to 44 of these Commitments.
58. Unless removed according to paragraph 56 of these Commitments, the
    Monitoring Trustee shall cease to act as Monitoring Trustee only after the
    Commission has discharged it from its duties after all the Commitments with
    which the Monitoring 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.
E.  THE REVIEW CLAUSE
59. The Commission may extend the time periods foreseen in the Commitments in
    response to a request from the Parties or, in appropriate cases, on its own
    initiative. Where the Parties request an extension of a time period, they 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 Parties. Only in
    exceptional circumstances shall the Parties be entitled to request an extension
    within the last month of any period.
                                                                                     21
 ---pagebreak--- 60.    The Commission may further, in response to a reasoned request from the
       Parties showing good cause waive, modify or substitute, in exceptional
       circumstances, one or more 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 Parties.
       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.
F.     ENTRY INTO FORCE
61.    The Commitments shall take effect upon the date of adoption of the Decision.
EXECUTED by the Parties:
……………………………………
duly authorised for and on behalf of
Hutchison Europe Telecommunications S.À R.L.
……………………………………
duly authorised for and on behalf of
VimpelCom Luxembourg Holdings S.À R.L.
                                                                                          22
 ---pagebreak---         ANNEX 1: INDICATIVE SPECTRUM RELEASE PLAN
                              […]
            ANNEX 2: INDICATIVE SITE RELEASE PLAN
                              […]
   ANNEX 3 - PROCESS FOR SELECTION AND RELEASE OF SITES
                              […]
             ANNEX 4 - SITE SUITABILITY CRITERIA
                              […]
                 ANNEX 5 - RAN SHARING SITES
                              […]
 ANNEX 6 - SET-UP FEES AND ONGOING COSTS FOR RAN-SHARING
                              […]
 ANNEX 7: CAPACITY AND FEES UNDER THE NATIONAL ROAMING
       AGREEMENT CAPACITY AND CONSUMPTION CAPS
                              […]
ANNEX 8: FORECAST MECHANISM UNDER THE NATIONAL ROAMING
                          AGREEMENT
                              […]
               ANNEX 9: MOCN REDUCTION PLAN
                              […]
                                                         23