CELEX: 32019M9370
Language: en
Date: 2019-07-15 00:00:00
Title: Commission Decision of 15/07/2019 declaring a concentration to be compatible with the common market (Case No COMP/M.9370 - TELENOR / DNA) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                Brussels, 15.7.2019
                                                                C(2019) 5434 final
                                                                                         PUBLIC VERSION
                                                                 In the published version of this decision,
                                                                 some information has been omitted
                                                                 pursuant to Article 17(2) of Council
                                                                 Regulation      (EC)      No     139/2004
                                                                 concerning non-disclosure of business
                                                                 secrets     and      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                                                                 information omitted has been replaced by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.9370 – Telenor/DNA
                    Commission decision pursuant to Article 6(1)(b) of Council Regulation
                    No 139/20041 and Article 57 of the Agreement on the European Economic
                    Area 2
Dear Sir or Madam,
(1)       On 7 June 2019, the European Commission received notification of a proposed
          concentration pursuant to Article 4 of the Merger Regulation by which Telenor ASA
          (“Telenor”, Norway) acquires sole control of the whole of DNA Plc (“DNA”,
          Finland) within the meaning of Article 3(1)(b) of the Merger Regulation (the
          “Transaction”)3. Telenor is designated hereinafter as the “Notifying Party”, while
          Telenor and DNA are together referred to as the “Parties”.
1    OJ L 24, 29.1.2004, p. 1 (the 'Merger Regulation'). With effect from 1 December 2009, the Treaty on the
     Functioning of the European Union ('TFEU') has introduced certain changes, such as the replacement of
     'Community' by 'Union' and 'common market' by 'internal market'. The terminology of the TFEU will be
     used throughout this decision.
2    OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement').
3    Publication in the Official Journal of the European Union No C 203, 17.6.2019, p. 6.
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--- 1.      THE PARTIES
(2)     Telenor is a telecommunications operator based in Norway. It provides mobile and
        fixed telecommunications services in Norway, Denmark and Sweden, and limited
        mobile telecommunications services in Finland. It also provides TV distribution
        services in Norway, Denmark, Finland and Sweden. Outside the EEA, Telenor
        provides mobile telecommunications services in Asia.
(3)     DNA is a telecommunications operator based in Finland. It provides mobile and
        fixed telecommunications services, broadband services and TV distribution services
        in Finland. DNA’s telecommunications activities outside of Finland are limited.
        DNA is listed on the Helsinki Stock Exchange and is not directly or indirectly
        controlled by any persons or person. Finda Telecoms Oy, a 100% subsidiary of
        Finda Oy, is the largest shareholder of DNA, holding a 28.26% shareholding
        interest. PHP Holding Oy is the second largest shareholder, holding a 25.78%
        shareholding interest. The remainder of DNA’s shares are widely dispersed.
2.      THE CONCENTRATION
(4)     Telenor Mobile Holdings AS (a wholly owned subsidiary of Telenor) has signed two
        separate Share Purchase Agreements on 9 April 2019: one with Finda Telecoms Oy
        and Finda Oy and the other with PHP Holding Oy (together, the "SPAs"). Pursuant
        to the SPAs, Telenor will acquire 28.26% and 25.78% of the issued and outstanding
        shares in DNA from Finda Telecoms Oy and PHP Holding Oy, respectively.
(5)     On 6 May 2019, the general meetings of Finda Telecoms Oy and PHP Holding Oy
        approved the transactions contemplated under the SPAs.
(6)     Upon closing of the transactions contemplated under the SPAs, Telenor is obligated
        to launch a mandatory takeover bid for all remaining issued and outstanding shares
        in DNA in accordance with the Finnish Securities Markets Act.
(7)     Following the Transaction, Telenor will own (at least) 54.04% of the issued and
        outstanding shares in DNA.
(8)     Therefore, the Transaction consists of the acquisition of sole control by Telenor over
        DNA within the meaning of Article 3(1)(b) of the Merger Regulation.
3.      EU DIMENSION
(9)     The undertakings concerned have a combined aggregate world-wide turnover of
        more than EUR 5 000 million4 (Telenor: EUR 11 437 million; DNA: EUR 912
        million; combined: EUR 12 349 million; in 2018). Each of them has an EU-wide
        turnover in excess of EUR 250 million (Telenor: EUR […]; DNA: EUR […];
        combined: EUR […]; in 2018), but they do not achieve more than two-thirds of their
        aggregate EU-wide turnover within one and the same Member State.
(10)    The Transaction therefore has an EU dimension pursuant to Article 1(2) of the
        Merger Regulation.
4   Turnover calculated in accordance with Article 5 of the Merger Regulation.
                                                          2
 ---pagebreak--- 4.     RELEVANT MARKETS
4.1.   Introduction
(11)   The Parties’ activities overlap in the areas of: (i) retail supply of TV services, (ii)
       wholesale acquisition of TV channels and (iii) machine-to-machine (“M2M”) mobile
       subscriptions to business customers only in Finland giving rise to a number of
       affected markets, as described in Section 5.2., paragraph 86 below.
(12)   In addition, the Parties are present in the areas of: (i) wholesale international
       roaming services and (ii) wholesale call termination services on fixed and mobile
       networks. Those services are vertically linked to the (i) retail supply of mobile
       telecommunications services and (ii) retail supply of fixed telephony services. This
       gives rise to a number of vertically affected markets, as described in Section 5.2.,
       paragraph 87 below.
4.2.   Market for retail supply of TV services
(13)   In the market for the retail supply of TV services, TV distributors provide end users
       with TV services, which typically consist of: (i) linear TV channels or packages of
       linear TV channels (the latter either acquired or produced themselves); and (ii)
       content aggregated in non-linear services, such as Subscription Video on Demand
       (“SVOD”), Transactional VOD (“TVOD”) and Advertising VOD (“AVOD”). Linear
       and non-linear TV services can be delivered to end users through several platforms
       including cable, satellite (“direct-to-home” or “DTH”), mobile, terrestrial (“digital
       terrestrial television” or “DTT”), IPTV and as an Over-the-Top (“OTT”) service.
       Finally, TV services can be delivered to end users living in single dwelling units
       (“SDUs”) or multi dwelling units (“MDUs”).
(14)   DNA offers retail TV services in Finland to end consumers via cable, mobile, IPTV,
       OTT and DTT. Telenor is active in the retail supply of TV services in Finland, via its
       subsidiary Canal Digital, offering retail TV services to end customers via DTH only.
4.2.1. Product market definition
(15)   The Notifying Party submits that the Transaction should be assessed on the basis of
       an overall market for the retail supply of TV services in Finland. In particular, the
       Notifying Party considers that it is not appropriate to sub-divide the market for the
       retail supply of TV services along the lines assessed in previous investigations,
       including on the basis of distribution technology/platform, nature of TV services (i.e.
       pay TV and free-to-air (“FTA”) TV, linear and non-linear services), or by type of
       dwelling unit. The main reasons put forward by the Notifying Party are as follows:
       (i) all technical forms of TV distribution are substitutable at least to some extent and
       all customers have access to more than one alternative form of TV distribution, (ii)
       from the viewpoint of end users there is substitutability among distributors of FTA
       channels, which traditionally represent over 90% of total viewing in Finland, and
       pay TV channels, (iii) linear and non-linear services have converged to the extent
       that it has become increasingly difficult to distinguish between them, and (iv) a
       segmentation by type of dwelling unit would not be appropriate because there are no
       significant differences of price, content or technological distribution platforms
       between MDUs and SDUs.
                                                  3
 ---pagebreak--- (16)    The Notifying Party concludes that the product market definition can be left open as
        the Transaction does not give rise to competition concerns on the basis of any
        plausible market definition of the relevant product market.
(17)    In the past, the Commission considered the retail provision of free-to-air (FTA) TV
        and pay TV services as separate markets, but ultimately left open the product market
        definition.5 The Commission also considered whether the provision of pay retail TV
        can be segmented further according to: (i) linear vs non-linear pay TV services6; and
        (ii) according to distribution technologies (e.g. cable, OTT, satellite, IPTV or
        terrestrial)7; and (iii) basic pay TV services vs premium pay TV services8 but has left
        open the market definition with regard to each of these potential sub-segments. The
        Commission has also previously considered whether retail TV services to SDUs and
        MDUs form part of the same product market but ultimately left the exact product
        market definition open.9
(18)    Most of the respondents to the market investigation indicated that the market for
        retail supply of TV services in Finland should not be segmented into (i) linear and
        non-linear services10 or by (ii) distribution technologies.11
(19)    With regard to a potential segmentation in FTA and pay TV services, the
        respondents to the market investigation provided mixed responses. While some
        respondents pointed to the different dynamics of these segments, most respondents
        did not consider FTA and pay TV services to be different markets, because both
5  Commission decision of 18 July 2007 in case M.4504 – SFR/Télé 2 France, recital 40, and Commission
   decision of 25 June 2008 in case M.5121 – News Corp/Premiere, recital 20. See also Commission
   decision of 8 December 2018 in case M.8842 – Tele2/Com Hem Holding, paragraph 35; Commission
   decision of 7 April 2017 in case M.8354 – Fox/Sky, paragraph 97; Commission decision of 3 August 2016
   in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph 56; Commission decision of 24 February
   2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media, recital 119-120; Commission
   decision of 25 June 2008 in case M.5121 – News Corp/Premiere, recitals 15 and 21; and Commission
   decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 71.
6  Commission decisions of 8 December 2018 in case M.8842 – Tele2/Com Hem Holding, paragraph 35;
   Commission decision of 6 February 2018 in case M.8665 – Discovery/Scripps, paragraph 33; Commission
   decision of 7 April 2017 in case M.8354 – Fox/Sky, paragraphs 98 and 99; Commission decision of 3
   August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph 58; Commission decision of
   24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media, recital 124;
   Commission decision of 25 June 2008 in case M.5121 – News Corp/Premiere, recital 21; and Commission
   decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 72.
7  Commission decision of 8 December 2018 in case M.8842 – Tele2/Com Hem Holding, paragraph 35;
   Commission decision of 6 February 2018 in case M.8665 – Discovery/Scripps, paragraph 33; Commission
   decision of 7 April 2017 in case M.8354 – Fox/Sky, paragraph 100; Commission decision of 3 August
   2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph 62; Commission decision of 24
   February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media, recital 127. Commission
   decision of 25 June 2008 in case M.5121 – News Corp/Premiere, recital 22; Commission decision of 21
   December 2010 in case M.5932 – News Corp/BskyB, recital 105. Commission decision of 30 May 2018 in
   case M.7000 – Liberty Global/Ziggo, paragraph 137.
8  Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver
   Media, recital 119.
9  Commission decision of 8 December 2018 in case M.8842 – Tele2/Com Hem Holding, paragraph 36;
   Commission decision of 20 September 2013 in case M.6990 – Vodafone/Kabel Deutschland, paragraphs
   92-96.
10 See replies to questionnaire Q1 – Questionnaire to competitors, questions 7 and 7.1.
11 See replies to questionnaire Q1 – Questionnaire to competitors, questions 3-4; replies to questionnaire Q3
   – Questionnaire to customers of TV distribution services, questions 3 and 3.1.
                                                         4
 ---pagebreak---         FTA and pay TV channels are consumed in bundles and have the same viewer
        base.12
(20)    As for a potential segmentation between basic pay TV services and premium pay TV
        services, the respondents to the market investigation provided mixed responses as
        well. Some respondents pointed to the fact that a clear distinction between the two
        would not be possible, while others stated that there is no basic pay TV per se in
        Finland and that the distinction is rather between FTA and premium pay TV.13
(21)    Regarding the possible segmentation by type of dwelling unit, the result of the
        market investigation is mixed as well. Most of the respondents did not consider this
        segmentation appropriate, while some pointed to the fact that the differentiation
        might be relevant for FTA channels, while for pay TV, each household enters into
        individual contracts, regardless of the type of dwelling unit. 14
(22)    The Commission considers that for the purposes of this Decision the question
        whether (i) FTA services and pay TV services, (ii) linear pay TV services and non-
        linear pay TV services, (iii) different distribution technologies, (iv) basic pay TV
        services and premium pay TV services, and (v) SDUs and MDUs belong to the same
        product market can be left open, as the Transaction does not raise serious doubts as
        to its compatibility with the internal market under any of the possible market
        definitions above.
4.2.2. Geographic market definition
(23)    The Notifying Party submits that, in line with the Commission’s previous
        decisions15, the market for retail supply of TV services is national in scope, based on
        the following reasons: (i) suppliers of retail TV services compete on a national basis
        for end-customers; (ii) the Parties offer their Finnish TV channels for end-customers
        in Finland only; (iii) regulatory regimes for the retail supply of TV services are
        national; and (iv) many TV offerings are influenced by national cultural factors and
        domestic end-customer preferences.
(24)    The Notifying Party concludes that the geographic market definition can be left open
        in this case as the Transaction does not give rise to competition concerns on the basis
        of any plausible geographic market definition.
(25)    In previous decisions, the Commission has considered the geographic scope of the
        market as national, primarily since suppliers of retail TV services compete on a
12  See replies to questionnaire Q1 – Questionnaire to competitors, questions 5 and 5.1.
13  See replies to questionnaire Q1 – Questionnaire to competitors, questions 6 and 6.1.
14 See replies to questionnaire Q1 – Questionnaire to competitors, questions 8 and 8.1; replies to
    questionnaire Q3 – Questionnaire to customers of TV distribution services, questions 4 and 4.1.
15 Commission decision of 8 December 2018 in case M.8842 – Tele2/Com Hem Holding, paragraph 41;
    Commission decision of 26 February 2007 in case M.4521 – LGI/Telenet, recital 25; Commission
    decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media, recital
    139; Commission decision of 25 June 2008 in case M.5121 – News Corp/Premiere, recital 24;
    Commission decision of 25 January 2010 in case M.5734 – Liberty Global Europe/Unitymedia, recitals 40
    and 43; Commission decision of 21 December 2010 in case M.5932 – NewsCorp/BSkyB, recital 109;
    Commission decision of 21 December 2011 in case M.6369 – HBO/Ziggo/HBO Nederland, recital 42;
    Commission decision of 15 April 2013 in case M.6880 – Liberty Global/Virgin Media, recital 54;
    Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 140.
                                                         5
 ---pagebreak---         national basis, or limited to the coverage area of each operator. 16 The market
        investigation in this case has not provided any indication that the Commission
        should depart from its previous findings.
(26)    Therefore, for the purposes of this Decision, the Commission considers that the
        relevant market for the retail supply of TV services is national in scope.
4.3.    Market for wholesale acquisition of TV channels
(27)    In the market for wholesale acquisition of TV channels, TV distributors acquire the
        right to distribute TV channels from TV broadcasters. Some TV distributors are
        vertically integrated and distribute their own channels directly to the end-customers.
        Most broadcasters provide the same or a similar set of TV channels to several TV
        distributors.
4.3.1. Product market definition
(28)    The Notifying Party submits that the Transaction should be assessed on the basis of
        an overall market for the wholesale acquisition of TV channels. The Notifying Party
        considers that a further segmentation of the market into FTA and pay TV channels,
        by genre (e.g. films, sports, news, youth, etc.), or by the type of infrastructure used is
        not appropriate.
(29)    With regard to a possible segmentation into FTA and pay TV channels, the
        Notifying Party submits as one of its arguments against a distinction into different
        markets that TV distributors’ negotiations with broadcasters supplying TV channels
        usually cover all their channels at the same time. With regard to a possible
        segmentation by genre, the Notifying Party points out that any lack of
        substitutability between e.g. news and sports channels is compensated by the
        versatility of the main FTA channels, which account for a substantial portion of total
        viewing time and which include content from all genres in the same channels and
        due to the development of OTT services and TV streaming, viewers are able to look
        for content of a certain genre on the generalist channels, thus increasing the
        substitutability with the more specialised channels. Finally, with regard to a possible
        segmentation by infrastructure used, the Notifying Party points out that in Finland, a
        wholesale purchaser of TV channels broadcasting on several distribution
        platforms/technologies does not negotiate different contracts for each type of
        infrastructure, but rather as a whole package.
(30)    The Notifying Party concludes that the product market definition can be left open in
        this case as the Transaction does not give rise to competition concerns on the basis
        of any plausible product market definition.
(31)    In previous decisions, the Commission considered whether the market for wholesale
        acquisition of TV channels can be segmented further according to: (i) FTA channels
        and pay TV channels, (ii) genres; (iii) by the type of infrastructure used, or (iv) linear
16  See footnote 15.
                                                    6
 ---pagebreak---         TV channels and non-linear services, but has left open the market definition with
        regard to each of these potential sub-segments.17
(32)    Most competitors and most TV broadcasters who participated in the market
        investigation did not consider that the market for wholesale acquisition of TV
        channels should be segmented further.18 Some competitors however considered that
        the wholesale market should be segmented between FTA channels and premium pay
        TV channels.19 Moreover, while most TV broadcasters considered that OTT is
        increasingly becoming an alternative to other distribution technologies, the Finnish
        public broadcaster Yle submitted that distribution platforms are not substitutive to
        each other, because all of them are needed in order to reach all audiences.20
(33)    The Commission considers that for the purposes of this Decision the exact product
        market definition can be left open, as the Transaction does not raise serious doubts as
        to its compatibility with the internal market under any possible market definition.
4.3.2. Geographic market definition
(34)    The Notifying Party submits that the geographic scope of the market is national,
        because the Finnish-speaking region is limited to Finland itself and most distributors
        cover the Finnish territory. However, it submits that the market definition can be left
        open in the present case.
(35)    The Commission has previously considered the market for the wholesale acquisition
        of TV channels to cover either a Member State21, a linguistic region distributed over
        several states22, or a sub-national region defined by the footprint of a certain
        distribution network23. In certain cases, all three options were envisaged, and the
        market definition was left open.24
(36)    The market investigation indicated that the market could be national and regional
        (i.e. Nordic).25 Finnish competitors indicated that they acquire licensing rights to
        distribute TV channels and/or audiovisual content on a national level, while
        international competitors acquire licensing rights mainly on a national, but
        sometimes also on a regional (Nordic) level.26 The suppliers of TV channels (i.e. TV
17  Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 115;
    Commission decision of 6 February 2018 in case M.8665 – Discovery/Scripps, paragraph 23; Commission
    decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph 180;
    Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver
    Media, recital 101.
18  See replies to questionnaire Q1 – Questionnaire to competitors, questions 9 and 9.1; replies to
    questionnaire Q2 – Questionnaire to TV broadcasters, questions 5 and 5.1.
19  See replies to questionnaire Q1 – Questionnaire to competitors, question 9.1.
20  See replies to questionnaire Q2 – Questionnaire to TV broadcasters, question 5.1.
21  Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 121.
22  Commission decision of 6 February 2018 in case M.8665 – Discovery/Scripps, paragraph 27.
23  Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver
    Media, paragraph 108.
24  Commission decision of 7 April 2017 in case M.8354 – Fox/Sky, paragraph 89.
25  See replies to questionnaire Q1 – Questionnaire to competitors, questions 10 and 10.1; replies to
    questionnaire Q2 – Questionnaire to TV broadcasters, questions 6 and 6.1.
26  See replies to questionnaire Q1 – Questionnaire to competitors, question 10.
                                                         7
 ---pagebreak---         broadcasters) distribute their channels mainly on a national and regional (Nordic)
        level, but some also in the linguistic region or on EEA or worldwide level.27
(37)    The Commission considers that for the purposes of this Decision the exact
        geographic market definition can be left open, as the Transaction does not raise
        serious doubts as to its compatibility with the internal market under any possible
        market definition.
4.4.    Market for retail supply of mobile telecommunication services
(38)    Mobile telecommunications services to end customers include services for national
        and international voice calls, SMS (including MMS and other messages), mobile
        internet with data services, and retail international roaming services. 28 A possible
        segment of the market for retail mobile telecommunications services includes
        machine-to-machine (“M2M”) subscriptions. These allow machines, devices,
        appliances, etc., to connect wirelessly to the internet via mobile networks, or other
        technologies, permitting the transmission and receipt of data to a central server.
4.4.1. Product market definition
(39)    The Notifying Party submits that M2M subscriptions to business customers are a
        separate segment of the overall market for retail mobile telecommunications
        services, but does not take a position on the relevant product market apart from that.
(40)    In previous decisions, the Commission has considered that there is an overall retail
        market for mobile telecommunications services constituting a separate market from
        retail fixed telecommunication services.29 The Commission did not further segment
        the overall retail mobile market based on the type of service (voice calls, SMS,
        MMS, mobile Internet data services), or the type of network technology. The
        Commission considered possible segments of the overall retail market for mobile
        telecommunication services between pre-paid or post-paid services and private
        customers or business customers, concluding that these did not constitute separate
        product markets but represent rather market segments within an overall retail
        market.30 The Commission also considered whether M2M subscriptions constitute a
        separate product market or a segment of the market for retail mobile
        telecommunications services, and concluded that the overall retail mobile market
        excludes M2M services.31
27  See replies to questionnaire Q2 – Questionnaire to TV broadcasters, questions 6, 7 and 7.1.
28  Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 199.
29 Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK, recital 252;
    Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 207 and
    Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-Plus, recital 64.
30 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV, recital 162;
    Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph
    74; Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK, recitals
    255, 261, 270, 279, 287; Commission decision of 2 July 2014 in case M.7018 – Telefónica
    Deutschland/E-Plus, recitals 31 to 55; Commission decision of 30 May 2018 in case M.7000 – Liberty
    Global/Ziggo, paragraphs 201 and 207; Commission decision of 28 May 2014 in case M.6992 –
    Hutchison 3G UK/Telefónica Ireland, recital 141; Commission decision of 12 December 2012 in case
    M.6497 – Hutchison 3G Austria/Orange Austria, recital 58.
31 Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recitals 223 and
    224.
                                                         8
 ---pagebreak--- (41)    The market investigation in this case did not provide any new elements justifying a
        departure from Commission's previous decisions.32
(42)    For the purpose of this Decision, the Commission therefore concludes that M2M
        subscriptions constitute a separate market.As for the market for the provision of
        retail mobile telecommunications services, the exact product market definition can
        be left open as the Transaction does not raise serious doubts as to its compatibility
        with the internal market under any possible market definition.
4.4.2. Geographic market definition
(43)    The Notifying Party does not take a position on the geographic scope of the market
        for retail mobile telecommunications services. As for the market for M2M
        subscriptions, the Notifying Party submits that it is national in scope.
(44)    In previous decisions, the Commission has found that the markets for mobile
        telecommunication services to end consumers are national in scope. 33 It has not
        addressed the geographic scope of M2M subscripitons in previous decisions.
(45)    Most respondents to the market investigation did not take a view on the geographic
        market definition of this market. However, one respondent submitted that the market
        for mobile telecommunications services as well as the market for M2M subscriptions
        might be pan-Nordic in scope, i.e. including Finland, Norway, Denmark and
        Sweden. This is because business customers who are active at a pan-Nordic level
        seek M2M services at the same level.34
(46)    For the purpose of this Decision, the Commission concludes that the the market for
        the provision of retail mobile telecommunications services is national in scope. As
        for the market for M2M subscriptions, the exact geographic market definition can be
        left open as the Transaction does not raise serious doubts as to its compatibility with
        the internal market under any possible market definition.
4.5.    Market for retail supply of fixed telephony services
(47)    On the market for retail supply of fixed telephony services, operators provide fixed
        voice services to end customers. In line with previous Commission decisions, fixed
        voice services include the provision of connection services or access at a fixed
        location or address to the public telephone network for the purpose of making and
        receiving calls and related services.
32  See replies to questionnaire Q1 – Questionnaire to competitors, questions 13 and 13.1.
33  Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 234;
    Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV, recital 166;
    Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph
    76; Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK, recitals
    293; Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 211;
    Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-Plus, recital 74;
    Commission decision in case M.6497 – Hutchison 3G Austria/Orange Austria, recital 73; Commission
    decision in case M.5650 – T Mobile/Orange UK, paragraphs 25 and 26 and Commission decision of 28
    May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland, recital 164.
34 See replies to questionnaire Q1 – Questionnaire to competitors, questions 13 and 13.1.
                                                         9
 ---pagebreak--- 4.5.1. Product market definition
(48)     The Notifying Party does not take a position on the relevant product market.
(49)     In previous decisions35, the Commission considered whether a distinction between
         local/national and international calls as well as between residential and non-
         residential customers should be drawn on the basis of the distinctions in the
         Commission Recommendation 2003/311/EC but ultimately left the exact product
         market definition open.
(50)     More recently, the Commission also considered that managed Voice over Internet
         Protocol ("VoIP") services and traditional telephony are interchangeable and
         therefore belong to the same market.36 In Liberty Global/Ziggo37 the Commission
         left the exact market definition open (and in particular whether there is a separate
         market for residential and non-residential customers, as well as whether VoIP and
         traditional fixed telephony belong to the same market) while in Liberty
         Global/BASE38 and in Vodafone/Liberty Global/Dutch JV39 the Commission
         considered that an overall retail market for fixed telephony services exists.
(51)     The market investigation in this case did not provide any new elements justifying a
         departure from Commission's previous decisions.40
(52)     For the purpose of this Decision, the exact product market definition can be left open
         as the Transaction does not give rise to serious doubts as to its compatibility with the
         internal market under any possible market definition.
4.5.2. Geographic market definition
(53)     The Notifying Party does not take a position on the relevant geographic market.
(54)     In its previous decisions, the Commission concluded that the retail market for the
         provision of fixed telephony services was national in scope.41
(55)     Most respondents to the market investigation did not take a view on the geographic
         scope of this market. However, one respondent considered the market to be narrower
         than national, while another submitted that business customers that operate in more
35  Commission decision of 7 September 2005 in case M.3914 – Tele2/Versatel, paragraph 10; Commission
    decision of 29 June 2010 in case M.5532 – Carphone Warehouse/Tiscali UK, paragraphs 35 and 39;
    Commission decision of 9 January 2010 in case M.5730 – Telefónica/Hansenet Telekommunikation,
    paragraphs 16 and 17.
36  Commission decision of 20 September 2013 in case M.6990 – Vodafone/Kabel Deutschland, paragraph
    131.
37  Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph147.
38  Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium, recital 69.
39  Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph
    26.
40  See replies to questionnaire Q1 – Questionnaire to competitors, questions 13 and 13.1.
41  Commission decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 150;
    Commission decision of 19 May 2015 in case M.7421 – Orange/Jazztel, recital 37; Commission decision
    of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph 29.
                                                         10
 ---pagebreak---          than one Nordic country require pan-Nordic mobile and fixed telecommunication
         services.42
(56)     For the purpose of this Decision, the exact geographic market definition in relation
         to the provision of retail supply of fixed telephony services can be left open as the
         Transaction does not raise serious doubts as to its compatibility with the internal
         market under any possible market definition.
4.6.     Market for wholesale international roaming services
(57)     International roaming services allow mobile telecommunications subscribers to
         make and receive calls and use other services such as SMS and data services when
         abroad. To be able to offer this service to their customers, MNOs conclude
         wholesale agreements with other MNOs providing access and capacity on mobile
         networks in their respective countries. Demand for wholesale international roaming
         services comes from MNOs who wish to provide their own customers with mobile
         services outside their own network. At a downstream level, retail customers demand
         access to mobile telecommunications services when abroad.
4.6.1. Product market definition
(58)     The Notifying Party submits, in accordance with Commission practice, that there is a
         market for the provision of wholesale international roaming services.
(59)     In previous decisions, the Commission has considered a separate product market for
         wholesale international roaming services comprising both terminating calls and
         originating calls.43
(60)     The market investigation in this case did not provide any new elements justifying a
         departure from Commission's previous decisions.44
(61)     Therefore, the Commission retains its previous product market definition of a
         wholesale market for international roaming services comprising both terminating and
         originating calls.
4.6.2. Geographic market definition
(62)     The Notifying Party submits, in accordance with Commission practice, that the
         market for the provision of wholesale international roaming services is national
         scope.
(63)     In previous decisions, the Commission found that the wholesale market for
         international roaming services is national in scope, given that wholesale international
         agreements can be concluded only with companies which have an operating licence
42  See replies to questionnaire Q1 – Questionnaire to competitors, questions 13 and 13.1.
43  Commission decision of 8 October 2018 in case M.8842 – Tele2/Com Hem Holding, paragraph 82;
    Commission decision of 27 July 2018 in case M.8883 – PPF Group/Telenor Target Companies,
    paragraph 40; Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV,
    recitals 182-184; Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G
    Austria/Orange Austria, recital 64.
44 See replies to questionnaire Q1 – Questionnaire to competitors, questions 11 and 11.1.
                                                         11
 ---pagebreak---          in the relevant country and the licences to provide mobile services are restricted to a
         national territory.45
(64)     Most respondents to the market investigation did not take a view on the geographic
         market definition. One respondent however considered that the market might be pan-
         Nordic, because the demand for such services from both consumers and business
         customers is pan-Nordic.46
(65)     The Commission concludes that the markets for wholesale international roaming
         services are national.
4.7.     Market for wholesale mobile call termination services
(66)     Call termination is the service provided by network operator B to network operator
         A whereby a call originating on operator A's network is delivered to a user on
         operator B's network. Call termination therefore allows users of different networks to
         communicate with one another. Call termination is a wholesale service that the
         various network operators provide to one another on the basis of interconnection
         agreements, upstream of the provision of communication services to end customers.
4.7.1. Product market definition
(67)     The Notifying Party does not take a position on the relevant product market but
         instead refers to the Commission’s previous decisions where it has defined the
         relevant market as the provision of wholesale call termination services on mobile
         networks.
(68)     As established in previous Commission decisions47, there is no substitute for call
         termination on each individual network since the operator transmitting the outgoing
         call can reach the intended recipient only through the operator of the network to
         which the recipient is connected.
45  Commission decision of 8 October 2018 in case M.8842 – Tele2/Com Hem Holding, paragraph 84;
    Commission decision of 27 July 2018 in case M.8883 – PPF Group/Telenor Target Companies,
    paragraph 43; Commission decision of 28 May 2014 in case M.6992 – H3G/Telefónica Ireland, recital
    151; Commission decision of 20 September 2013 in case M. 6990 – Vodafone/Kabel Deutschland, recital
    252; Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria,
    recital 78; Commission decision of 1 March 2010 in case M.5650 – T-Mobile/Orange, recital 35;
    Commission decision of 20 August 2007 in case M.4748 – T-Mobile/Orange Netherlands, recital 27;
    Commission decision of 26 April 2006 in case M.3916 – T-Mobile Austria/Tele.ring, recital 28.
46 See replies to questionnaire Q1 – Questionnaire to competitors, questions 11 and 11.1 as well as the non-
    confidential minutes of the call with Elisa on 13 June 2019.
47 Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 259;
    Commission decision of 27 July 2018 in case M.8883 – PPF Group/Telenor Target Companies,
    paragraph 26; Commission decision of 1 September 2016 in case M.7758 – Hutchinson 3G Italy/Wind/JV,
    recital 192; Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV,
    paragraphs 193 and 206; Commission decision of 2 July 2014 in case M.7018 – Teléfonica Deutschland
    /E-Plus, recital 89; Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G
    Austria/Orange Austria, paragraph 69; Commission decision of 1 March 2010 in case M.5650 –
    TMobile/Orange, paragraph 37; Commission decision of 27 September 2006 in case M.2803 –
    Telia/Sonera, paragraphs 29 and 32; Commission decision of 10 June 2005 in case M.3806 –
    Télefonica/Cesky, paragraph 16.
                                                           12
 ---pagebreak--- (69)     The market investigation in this case did not provide any new elements justifying a
         departure from Commission's previous decisions.48
(70)     The Commission considers that as regards wholesale call termination services, and
         in line with previous decisions, termination on each individual mobile network
         constitutes a separate product market.
4.7.2. Geographic market definition
(71)     The Notifying Party does not take a position on the relevant geographic market but
         instead refers to the Commission’s previous decisions49 where it defined the relevant
         market as national.
(72)     The market investigation in this case did not provide any new elements justifying a
         departure from Commission's previous decisions.50
(73)     The Commission concludes, in line with previous decisions, that the market for
         mobile call termination services is national in scope, as each wholesale market for
         call termination corresponds to the dimensions of the operator’s network and
         therefore is limited to the national territory of the operator's network. This is
         primarily due to regulatory barriers as the geographic scope of a network licence is,
         in principle, limited to areas which do not extend beyond the borders of a Member
         State.
4.8.     Market for wholesale fixed call termination services
(74)     As in the case of call termination on mobile networks, call termination on fixed
         networks is the service provided by network operator B to network operator A
         whereby a call originating on operator A's network is delivered to a user on operator
         B's network. Call termination therefore allows users of different networks to
         communicate with one another. Call termination is a wholesale service that the
         various network operators provide to one another on the basis of interconnection
         agreements, upstream of the provision of communication services to end customers.
4.8.1. Product market definition
(75)     The Notifying Party does not take a position on the relevant product market but
         instead refers to the Commission’s previous decisions where it has defined the
         relevant market as the provision of wholesale fixed call termination services.
(76)     As established in previous Commission decisions51, there is no substitute for call
         termination on each individual network since the operator transmitting the outgoing
48  See replies to questionnaire Q1 – Questionnaire to competitors, questions 12 and 12.1.
49  Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 263;
    Commission decision of 27 July 2018 in case M.8883 – PPF Group/Telenor Target Companies,
    paragraph 28; Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV,
    recital 196; Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-Plus, recital
    91; Commission decision of 1 March 2010 in case M.5650 – T-Mobile/Orange, paragraph 37;
    Commission decision of 27 November 2007 in case M.4947 – Vodafone/Tele2 Italy/Tele2 Spain,
    paragraph 13; Commission decision of 10 January 2006 in case M.4035 – Télefonica/O2, paragraph 10;
    Commission decision of 10 June 2005 in case M.3806 – Télefonica/Cesky, para. 16.
50 See replies to questionnaire Q1 – Questionnaire to competitors, questions 12 and 12.1.
                                                         13
 ---pagebreak---          call can reach the intended recipient only through the operator of the network to
         which the recipient is connected.
(77)     The market investigation in this case did not provide any new elements justifying a
         departure from Commission's previous decisions.52
(78)     The Commission considers that as regards wholesale call termination services, and
         in line with previous decisions, termination on each individual fixed network
         constitutes a separate product market.
4.8.2. Geographic market definition
(79)     The Notifying Party does not take a position on the relevant geographic market but
         instead refers to the Commission’s previous decisions53 where it defined the relevant
         market as national.
(80)     While most respondents to the market investigation did not take a view on the
         geographic market definition, one respondent submitted that the market might be
         narrower than national in scope, since the Finnish regulator Traficom defined fixed
         network termination services as regional geographic markets and concluded that
         there are several companies having significant market power whithin their respective
         regional markets..54
(81)     The Commission concludes, in line with previous decisions, that the wholesale
         market for fixed call termination services is national in scope, considering 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.
51  Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 300;
    Commission decision of 27 July 2018 in case M.8883 – PPF Group/Telenor Target Companies,
    paragraph 32; Commission decision of 1 September 2016 in case M.7758 – Hutchinson 3G Italy/Wind/JV,
    recital 202; Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV,
    paragraphs 193 and 206; Commission decision of 2 July 2014 in case M.7018 – Teléfonica Deutschland
    /E-Plus, recital 89; Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G
    Austria/Orange Austria, paragraph 69; Commission decision of 1 March 2010 in case M.5650 –
    TMobile/Orange, paragraph 37; Commission decision of 27 September 2006 in case M.2803 –
    Telia/Sonera, paragraphs 29 and 32; Commission decision of 10 June 2005 in case M.3806 –
    Télefonica/Cesky, paragraph 16.
52 See replies to questionnaire Q1 – Questionnaire to competitors, questions 12 and 12.1.
53 Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 302;
    Commission decision of 27 July 2018 in case M.8883 – PPF Group/Telenor Target Companies,
    paragraph 35; Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV,
    recital 205; Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-Plus, recital
    91; Commission decision of 1 March 2010 in case M.5650 – T-Mobile/Orange, paragraph 37;
    Commission decision of 27 November 2007 in case M.4947 – Vodafone/Tele2 Italy/Tele2 Spain,
    paragraph 13; Commission decision of 10 January 2006 in case M.4035 – Télefonica/O2, paragraph 10;
    Commission decision of 10 June 2005 in case M.3806 – Télefonica/Cesky, para. 16.
54 See replies to questionnaire Q1 – Questionnaire to competitors, questions 12 and 12.1.
                                                        14
 ---pagebreak--- 5.      COMPETITIVE ASSESSMENT
5.1.    Analytical framework
(82)    Under Article 2(2) and (3) of the Merger Regulation, the Commission must assess
        whether a proposed concentration would significantly impede effective competition
        in the internal market or in a substantial part of it, in particular through the creation
        or strengthening of a dominant position.
(83)    In this respect, a merger may entail horizontal and/or non-horizontal effects.
        Horizontal effects are those deriving from a concentration where the undertakings
        concerned are actual or potential competitors of each other in one or more of the
        relevant markets concerned. Non-horizontal effects are those deriving from a
        concentration where the undertakings concerned are active in different relevant
        markets.
(84)    As regards non-horizontal mergers, two broad types of such mergers can be
        distinguished: vertical mergers and conglomerate mergers.55 Vertical mergers
        involve companies operating at different levels of the supply chain.56 Conglomerate
        mergers are mergers between firms that are in a relationship which is neither
        horizontal (as competitors in the same relevant market) nor vertical (as suppliers or
        customers).57
(85)    The Commission appraises horizontal effects in accordance with the guidance set out
        in the relevant notice, that is to say the Horizontal Merger Guidelines.58
        Additionally, the Commission appraises non-horizontal effects in accordance with
        the guidance set out in the relevant notice, that is to say the Non-Horizontal Merger
        Guidelines.59
5.2.    Identification of affected markets
(86)    In the present case, the Transaction gives rise to horizontally affected markets in the
        retail supply of TV services in Finland, in the wholesale acquisition of TV channels
        in Finland and at pan-Nordic level, and in the supply of M2M mobile subscriptions
        in Finland and at a possible pan-Nordic level.
(87)    The Transaction gives also rise to vertically affected markets in relation to the
        upstream provision of wholesale international roaming services in Norway and the
        downstream supply of retail mobile telecommunications services in Finland, as well
        as the upstream provision of wholesale international roaming services in Finland,
        and the downstream supply of retail mobile telecommunication services in Norway.
        In addition, the Transaction gives rise to affected markets in relation to the upstream
        provision of wholesale mobile and fixed call termination services and the
        downstream provision of retail mobile telecommunication services and retail fixed
        telephony services in Norway, Finland, Sweden and Denmark.
55  Non-Horizontal Merger Guidelines, paragraph 3.
56  Non-Horizontal Merger Guidelines, paragraph 4.
57 Non-Horizontal Merger Guidelines, paragraph 5.
58 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of
    concentrations between undertakings ("Horizontal Merger Guidelines"), OJ C 31, 05.02.2004.
59 Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of
    concentrations between undertakings ("Non-Horizontal Merger Guidelines"), OJ C 265, 18.10.2008.
                                                      15
 ---pagebreak--- 5.3.     Horizontal unilateral effects
5.3.1. Introduction
(88)     The Horizontal Merger Guidelines distinguish between two main ways in which
         mergers between actual or potential competitors on the same relevant market may
         significantly impede effective competition, namely non-coordinated and coordinated
         effects.60
(89)     Under the substantive test set out in Article 2(2) and (3) of the Merger Regulation,
         also mergers that do not lead to the creation or the strengthening of the dominant
         position of a single firm may be incompatible with the internal market. Indeed, the
         Merger Regulation recognises that in oligopolistic markets, it is all the more
         necessary to maintain effective competition. This is in view of the more significant
         consequences that mergers may have on such markets. For this reason, the Merger
         Regulation provides that "under certain circumstances, concentrations involving the
         elimination of important competitive constraints that the merging parties had
         exerted upon each other, as well as a reduction of competitive pressure on the
         remaining competitors, may, even in the absence of a likelihood of coordination
         between the members of the oligopoly, result in a significant impediment to effective
         competition".61
(90)     The Horizontal Merger Guidelines list a number of factors which may influence
         whether or not significant horizontal non-coordinated effects are likely to result from
         a merger, such as the large market shares of the merging firms, the fact that the
         merging firms are close competitors, the limited possibilities for customers to switch
         suppliers, or the fact that the merger would eliminate an important competitive force.
         That list of factors applies equally regardless of whether a merger would create or
         strengthen a dominant position, or would otherwise significantly impede effective
         competition due to non-coordinated effects. Furthermore, not all of these factors
         need to be present to make significant non-coordinated effects likely and it is not an
         exhaustive list.62
(91)     Finally, the Horizontal Merger Guidelines describe a number of factors, which could
         counteract the harmful effects of the merger on competition, including the likelihood
         of buyer power, entry and efficiencies.
60  In the present case, the Commission has not found evidence that the Transaction would raise serious
    doubts as regards its compatibility with the internal market with respect to coordinated effects in any of
    the horizontally affected markets indicated in paragraph 5.2. During the market investigation, the
    Commission received no complaints about possible anti-competitive coordinated effects arising from the
    Transaction.
61 Merger Regulation, recital 25. Similar wording is also found in paragraph 25 of the Horizontal Merger
    Guidelines. See also Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-
    Plus, recital 113; Commission decision of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica
    Ireland, recital 179; Commission decision of 12 December 2012 in case M.6497 – Hutchison 3G
    Austria/Orange Austria, recital 88.
62 Horizontal Merger Guidelines, paragraph 26.
                                                          16
 ---pagebreak--- 5.3.2. Retail supply of TV services
5.3.2.1.          Introduction
(92)     The Parties’ activities overlap in the overall market for the retail supply of TV
         services in Finland, as well as in the following possible segmentations: (i) pay TV,
         (ii) basic pay TV, (iii) premium pay TV, (iv) pay TV for MDUs, and (v) pay TV for
         SDUs. The Commission notes that in all of these possible segments, Telenor/Canal
         Digital is only active via satellite/DTH. The tables bellow illustrate the Parties’
         market shares by number of subscribers in the affected markets.63
         Table 1: Overall market for the retail supply of TV services in Finland (excluding Netflix, HBO
         Nordic and other non-linear OTT providers), by subscribers
                                               2016                       2017                     2018
         DNA                                [20-30]%                   [20-30]%                 [20-30]%
         Telenor/Canal Digital                [0-5]%                     [0-5]%                   [0-5]%
         Combined                           [20-30]%                   [20-30]%                 [20-30]%
         Digita                             [20-30]%                   [20-30]%                 [20-30]%
         Telia                              [10-20]%                   [10-20]%                 [10-20]%
         Elisa                              [10-20]%                   [10-20]%                 [10-20]%
         Viasat                              [5-10]%                    [5-10]%                  [5-10]%
         Other cable/IPTV                     [0-5]%                     [0-5]%                   [0-5]%
         Other OTT                          [10-20]%                   [10-20]%                 [10-20]%
         Source: Form CO, Table 27.
63  The Parties‘ overlapping activities do not give rise to an affected market in the overall market for the retail
    supply of TV services in Finland, as well as the possible segments for non-linear pay TV in Finland,
    premium pay TV in Finland, premium pay TV in Finland (excluding Netflix, HBO Nordic and other non-
    linear OTT providers), as well s pay TV for SDUs in Finland, because their combined market shares lie
    well below 20% in each of these markets or possible segments.
                                                            17
 ---pagebreak--- Table 2: Pay TV segment in Finland, by subscribers
                                  2016                    2017                 2018
DNA                            [20-30]%                [20-30]%             [20-30]%
Telenor/Canal Digital            [0-5]%                  [0-5]%               [0-5]%
Combined                       [20-30]%                [20-30]%             [20-30]%
Telia                          [10-20]%                [10-20]%             [10-20]%
Elisa                          [10-20]%                [10-20]%             [10-20]%
Viasat                          [5-10]%                 [5-10]%              [5-10]%
Netflix                        [20-30]%                [20-30]%             [20-30]%
HBO Nordic                       [0-5]%                  [0-5]%               [0-5]%
Other cable/IPTV                 [0-5]%                  [0-5]%               [0-5]%
Other OTT                      [10-20]%                [10-20]%             [10-20]%
Source: Form CO, Table 28.
Table 3: Pay TV segment in Finland (excluding Netflix, HBO Nordic and other non-linear OTT
providers), by subscribers
                                  2016                    2017                 2018
DNA                            [20-30]%                [20-30]%             [20-30]%
Telenor/Canal Digital            [0-5]%                  [0-5]%               [0-5]%
Combined                       [30-40]%                [30-40]%             [20-30]%
Telia                          [20-30]%                [20-30]%             [20-30]%
Elisa                          [10-20]%                [20-30]%             [20-30]%
Viasat                          [5-10]%                 [5-10]%              [5-10]%
Other cable/IPTV                 [0-5]%                  [0-5]%               [0-5]%
Other OTT                      [10-20]%                [10-20]%             [10-20]%
Source: Form CO, Table 29.
                                            18
 ---pagebreak--- Table 4: Basic pay TV segment in Finland, by subscribers
                                  2016                    2017     2018
DNA                            [30-40]%                [30-40]% [30-40]%
Telenor/Canal Digital            [0-5]%                  [0-5]%   [0-5]%
Combined                       [30-40]%               [30-40]%  [30-40]%
Telia                          [20-30]%                [20-30]% [20-30]%
Elisa                          [20-30]%                [20-30]% [20-30]%
Other cable/IPTV                [5-10]%                 [5-10]%  [5-10]%
Source: Form CO, Table 31.
Table 5: Pay TV segment for MDUs in Finland, by subscribers
                                  2016                    2017     2018
DNA                            [20-30]%                [20-30]% [20-30]%
Telenor/Canal Digital            [0-5]%                  [0-5]%   [0-5]%
Combined                       [20-30]%               [20-30]%  [20-30]%
Telia                          [10-20]%                [10-20]% [20-30]%
Elisa                          [10-20]%                [10-20]% [10-20]%
Viasat                          [5-10]%                 [5-10]%  [5-10]%
Netflix                        [10-20]%                [10-20]% [10-20]%
HBO Nordic                       [0-5]%                  [0-5]%   [0-5]%
Other cable/IPTV                 [0-5]%                  [0-5]%   [0-5]%
Other OTT                       [5-10]%                 [5-10]%  [5-10]%
Source: Form CO, Table 34.
                                             19
 ---pagebreak---         Table 6: Pay TV segment for MDUs in Finland (excluding Netflix, HBO Nordic and other non-
        linear OTT providers), by subscribers
                                           2016                2017                  2018
        DNA                             [30-40]%            [30-40]%              [20-30]%
        Telenor/Canal Digital             [0-5]%              [0-5]%                [0-5]%
        Combined                        [30-40]%            [30-40]%              [20-30]%
        Telia                           [20-30]%            [20-30]%              [20-30]%
        Elisa                           [20-30]%            [20-30]%              [20-30]%
        Viasat                           [5-10]%             [5-10]%               [5-10]%
        Other cable/IPTV                 [5-10]%             [5-10]%               [5-10]%
        Other OTT                       [10-20]%            [10-20]%               [5-10]%
        Source: Form CO, Table 36.
        Table 7: Pay TV segment for SDUs in Finland (excluding Netflix, HBO Nordic and other non-
        linear OTT providers), by subscribers
                                           2016                2017                  2018
        DNA                             [20-30]%            [10-20]%              [10-20]%
        Telenor/Canal Digital            [5-10]%             [5-10]%               [5-10]%
        Combined                        [30-40]%            [20-30]%              [20-30]%
        Telia                            [5-10]%             [5-10]%               [5-10]%
        Elisa                             [0-5]%             [5-10]%               [5-10]%
        Viasat                          [20-30]%            [20-30]%              [20-30]%
        Other cable/IPTV                  [0-5]%              [0-5]%                [0-5]%
        Other OTT                       [30-40]%            [30-40]%              [30-40]%
        Source: Form CO, Table 37
5.3.2.2.         Notifying Party’s view
(93)    The Notifying Party submits that the Transaction would not give rise to any
        competitive concerns in relation to the market for the retail supply of TV services or
        any plausible segment thereof for the following reasons. First, the overlap between
        the Parties’ activities is de minimis, except in the possible segment of pay TV for
        SDUs. Second, the merged entity will face fierce competition from a wide range of
        TV distributors. Finally, the Notifying Party submits that the distribution of pay-TV
        services over DTT and DTH is in structural decline in Finland, while streaming of
        TV and video and the corresponding use of mobile data is rapidly growing in
        Finland.
                                                  20
 ---pagebreak--- 5.3.2.3.         Commission’s assessment
(94)    The Commission considers that the Transaction is unlikely to result in any
        significant horizontal non-coordinated effects on the market for the retail supply of
        TV services in Finland or any subsegment thereof, for the following reasons.
(95)    First, if the overall market for retail supply of TV services (excluding non-linear
        OTT providers) is considered, the combined market share of the Parties would be
        below 25%. This could be an indication that the Transaction is not liable to impede
        effective competition in relation to this market..64
(96)    Second, as shown in Tables 1-7, the increment brought about by the Transaction
        would be less than [0-5]% under any of the possible market segmentations, except
        the possible segment for pay TV services to SDUs. Such a low increment indicates
        that the Transaction is unlikely to affect the structure of the market.
(97)    Third, a sufficient number of viable alternative distributors of TV channels will
        remain on the Finnish market post-Transaction, covering also the different
        technology platforms for distribution, including Digita (who is the primary DTT
        distributor in Finland), Telia, Elisa (who are both offering retail TV services via
        cable, IPTV and OTT) and Viasat (who is offering retail TV services via
        satellite/DTH, as well as cable, IPTV and DTT).
(98)    Fourth, there are new players in the distribution of TV channels to end consumers,
        namely the broadcasters that distribute their channels over-the-top, including
        Bonnier/MTV, Sanoma/Nelonen, Yle and Discovery.
(99)    Fifth, the results of the market investigation confirmed that Telenor/Canal Digital
        and DNA are not close competitors in the Finnish market for the retail supply of TV
        services. Telenor/Canal Digital is mainly competing with Viasat, while DNA is
        mainly competing with Telia and Elisa.65
(100) Finally, while the majority of competitors responding to the market investigation
        considered that competition would likely decrease66, large customers of TV
        distribution services considered that the Transaction would have either a positive or
        no material impact on the intensity of competition.67
5.3.2.4.         Conclusion
(101) In light of the above, the Commission considers that the Transaction does not raise
        serious doubts as to its compatibility with the internal market as regards the market
        for the retail supply of TV services or any subsegment thereof in Finland.
64  Horizontal Merger Guidelines, point 18. OJ C 31, 05.02.2004, p. 5-18.
65  See replies to questionnaire Q1 – Questionnaire to competitors, questions 16 and 17; replies to
    questionnaire Q3 – Questionnaire to customers of TV distribution services, questions 7 and 8.
66 See replies to questionnaire Q1 – Questionnaire to competitors, questions 25 and 25.1. One competitor
    however considered that due to the fact that the market is undergoing a general transformation, where
    OTT giants are entering the national markets on a large scale, overall competition was likely to increase
    post-Transaction.
67 See replies to questionnaire Q3 – Questionnaire to customers of TV distribution services, questions 12 and
    12.1.
                                                        21
 ---pagebreak--- 5.3.3. Wholesale acquisition of TV channels
5.3.3.1.          Introduction
(102) Both Parties68 are active in the wholesale acquisition of TV channels in Finland.
         Telenor is also active in the other three Nordic countries, i.e. Norway, Denmark and
         Sweden. Table 8 below illustrates the Parties’ market shares by number of
         subscribers in the overall market for wholesale aquisiton of TV channels in
         Finland.69
         Table 8: Market shares for the wholesale acquisition of TV channels in Finland by subscribers
                                               2016                       2017                     2018
         DNA                                [20-30]%                   [10-20]%                 [10-20]%
         Telenor/Canal Digital                [0-5]%                     [0-5]%                   [0-5]%
         Combined                           [20-30]%                  [10-20]%                  [10-20]%
         Telia                               [5-10]%                    [5-10]%                  [5-10]%
         Elisa                               [5-10]%                   [10-20]%                 [10-20]%
         Viasat                             [20-30]%                   [20-30]%                 [20-30]%
         Other cable/IPTV                     [0-5]%                     [0-5]%                   [0-5]%
         Other OTT                          [30-40]%                   [30-40]%                 [30-40]%
         Source: Form CO, Table 33 and paragraphs 338 and 339.
68  Telenor through ist subsidiary Canal Digital.
69  The Notifying Party used the market shares for the premium pay TV sector in Finland (excluding Netflix,
    HBO Nordic and other non-linear OTT providers) at a retail level as a proxy for estimating the market
    shares in the market for wholesale acquisition of TV channels. This is because they exclude FTA channels
    (for which TV distributors do not pay for channels), as well as basic pay TV channels (which in Finland
    account for a relatively small proportion of the total cost of wholesale acquisition of TV channels). Even if
    the market shares would reflect a different segmentation of the retail TV market, the parties’ overlap
    would remain de minimis, due to Telenor/Canal Digital’s limited presence in Finland.
                                                            22
 ---pagebreak--- (103) Table 9 below illustrates the Parties’ estimated market shares by cost in the overall
       market for wholesale aquisiton of TV channels at a possible pan-Nordic level.
       Table 9: Market shares for the wholesale acquisition of TV channels at a pan-Nordic level in
       2018 by cost
                                             2018
       Telenor                            [10-20]%
       DNA                                 [5-10]%
       Combined                           [20-30]%
       Telia                              [10-20]%
       Com Hem                            [10-20]%
       Viasat                             [10-20]%
       TDC                                 [5-10]%
       Elisa                                [0-5]%
       Stofa                                [0-5]%
       Lyse                                 [0-5]%
       RiksTV                               [0-5]%
       Boxer                                [0-5]%
       Others                              [5-10]%
       Source: Notifying Party’s estimates.
(104) The Parties’ combined estimated market share by subscribers in the overall market
       for wholesale acquisition of TV channels in Finland is of only [10-20]%.
       Telenor/Canal Digital has an estimated market share of [0-5]% and DNA an
       estimated market share of [10-20]%. The Notifying Party confirmed that in relation
       to a possible segmentation by genre, the market shares would not vary significantly,
       since the TV channels on offer are similar for most TV distributors in Finland. As
       for a possible segmentation by type of infrastructure used, the Notifying Party
       submitted that there is no overlap between the Parties’ activities based on
       infrastructure.
(105) At a possible pan-Nordic level, i.e. including Finland, Norway, Denmark and
       Sweden, the merged entity would have an estimated combined market share by cost
       in the overall market for wholesale acquisition of TV channels of [20-30]%, with
       Telenor having an estimated share of [10-20]% and DNA an estimated share of [5-
       10]%.70 The merged entity’s main competitors would be Telia with an estimated
       share of [10-20]%, Com Hem with an estimated share of [10-20]% and Viasat with
       an estimated share of [10-20]%. The Notifying Party confirmed that the market
       shares for the overall market for wholesale acquisition of TV channels broadly
70 Source of the market shares: Notifying Party’s estimates by cost for 2018.
                                                        23
 ---pagebreak---         reflect the market shares in relation to a possible segmentation by genre, type of
        infrastructure or linear TV channels and non-linear TV services.
(106) Therefore, the overall market for the wholesale acquisition of TV channels,
        regardless of possible segmentations, is horizontally affected on the demand side in
        Finland as well as at a possible pan-Nordic level.
5.3.3.2.         Notifying Party’s view
(107) The Notifying Party submits that the shares in the market for the wholesale
        acquisition of TV channels in Finland reflect those of the market for premium pay-
        TV services (excluding Netflix, HBO Nordic and other non-linear OTT providers).
        This is because they exclude FTA services (for which TV distributors do not pay for
        channels) as well as basic pay TV channels (which in Finland account for a
        relatively small proportion of total cost of wholesale acquisition of TV channels).
(108) The Notifying Party submits that even if the Parties' shares in the market for
        wholesale acquisition of TV channels reflect a different segmentation of the overall
        market for the retail supply of TV services in Finland, the Transaction will have no
        significant impact on competition as Telenor/Canal Digital's limited presence on the
        market in Finland means that any overlap is de minimis.
(109) The Notifying Party submits that Telenor/Canal Digital has a small customer base
        and distributes TV services only via one type of distribution platform
        (satellite/DTH). Hence, the combination of DNA with Telenor/Canal Digital would
        not significantly enhance the bargaining position of the merged entity vis-à-vis the
        wholesale suppliers of TV channels (i.e. broadcasters).
5.3.3.3.         Commission’s assessment
(110) The Commission considers that the Transaction is unlikely to result in any
        significant horizontal non-coordinated effects on the market for wholesale
        acquisition of TV channels (or any subsegment thereof) in Finland or at the pan-
        Nordic level, for the following reasons.
(111) First, the combined market share of the Parites in any possible market for wholesale
        acquisition of TV channels in Finland or at a pan-Nordic level would remain below
        30%.
(112) Second, the increment brought by the Transaction would only be between [0-5]%
        and Telenor/Canal Digital is only active as an acquirer and distributor of TV
        channels via satellite/DTH.
(113) Third, the Parties are not close competitors in Finland or at a pan-Nordic level. At
        both levels, sufficient alternative suppliers would remain: Viasat, Elisa and Telia in
        Finland and Telia, Com Hem and Viasat at a pan-Nordic level, as well as a number
        of smaller suppliers.
                                                   24
 ---pagebreak--- (114) Finally, the Commission notes that it has not received any complaints from the
         respondents to the market investigation regarding the market for wholesale
         acquisition of TV channels.71
(115) The Commission considers that, as a result of the Transaction, there will also be no
         increase in buyer power vis-à-vis TV channels providers in Finland or at a pan-
         Nordic level. Telenor’s share in the acquisition of TV channels is minimal in
         Finland. Therefore, its addition would not bring about a significant change in the
         balance of bargaining power vis-à-vis TV channels providers. The same is true for
         DNA at a pan-Nordic level.
5.3.3.4.         Conclusion
(116) In light of the above, the Commission considers that the Transaction does not raise
         serious doubts as to its compatibility with the internal market as regards the market
         for the wholesale acquisition of TV channels or any segementations thereof in
         Finland or at a possible pan-Nordic level.
5.3.4. Market for M2M subscriptions
5.3.4.1.         Introduction
(117) In the market for M2M mobile subscriptions, the Parties’ activities in Finland and at
         a possible pan-Nordic level. The merged entity would have a combined market share
         of [20-30]% by revenue (DNA: [20-30]%, Telenor: [0-5]%). At a possible pan-
         Nordic level, the merged entity would have a combined estimated market share of
         [60-70]% by revenue (DNA: [0-5]%, Telenor: [50-60]%).72 Therefore, the market
         for M2M mobile subscriptions is horizontally affected.73
5.3.4.2.         Notifying Party’s view
(118) The Notifying Party submits that, since the overlap between the Parties is de minimis
         and the merged entity will face fierce competition from a wide range of M2M
         providers including the two other Finnish MNOs, namely Elisa and Telia, the
         Transaction will not affect competition in this segment.
71  See replies to questionnaire Q1 – Questionnaire to competitors, questions 26 and 26.1; replies to
    questionnaire Q2 – Questionnaire to TV broadcasters, questions 15 and 15.1.
72 Source: Form CO, table 5 and note 2.
73 The Commission notes that the Transaction does not give rise to a horizontal overlap in the provision of
    mobile (except M2M) or fixed telecommunications services and fixed internet access services to business
    customers in Finland, Norway, Denmark or Sweden, since Telenor does not offer such services in Finland
    and DNA does not offer them in Norway, Denmark and Sweden. The Commission further notes that pre-
    Transaction, Telenor had a […] Partnership Agreement in place with Elisa, pursuant to which […].
    However, the majority of respondents to the market investigation expect the competition in this markets to
    stay the same or increase due to the Transaction; see replies to questionnaire Q1 – Questionnaire to
    competitors, questions 30 and 30.1; replies to questionnaire Q4 – Questionnaire to business customers,
    questions 4 and 4.1. Therefore, the Commission concludes that the Transaction does not give rise to
    serious doubts as to the compatibility with the internal market as regards the markets for the provision of
    mobile (except M2M) or fixed telecommunications services and fixed internet access services to business
    customers.
                                                          25
 ---pagebreak--- 5.3.4.3.          Commission’s assessment
(119) The Commission considers that the Transaction is unlikely to result in any
         significant horizontal non-coordinated effects on the market for M2M subscriptions
         in Finland or at the pan-Nordic level, for the following reasons.
(120) First, the combined market share of the Parties in Finland would be below 25% by
         revenue. Additionally, the Commission notes that the increment brought about by
         the Transaction would be of [0-5]%. At a possible pan-Nordic level, the increment
         brought about by the Transaction would be of [0-5]% or less.
(121) Second, the merged entity would continue to face strong competition in Finland
         from Telia, who has a market share [20-30]% by revenue, and from Elisa, who has a
         market share of [10-20]% by revenue. At a possible pan-Nordic level, the merged
         entity would mainly face competition from Telia, who has a market share of [10-
         20]% by revenue, and Tele2, who has a market share of [5-10]% by revenue.
(122) Third, the majority of the repondents that took part in the market investigation
         confirmed that competition in the market for M2M subscriptions will likely stay the
         same.74 One competitor pointed to the fact that customers are increasingly looking
         for pan-Nordic or even global coverage.75
(123) Regarding the pan-Nordic level, the Commission notes that pre-Transaction only
         Telia was truly able to offer M2M subscriptions at a pan-Nordic level, because
         Telenor had only a de minimis presence in Finland. Post-Transaction, Telenor would
         become the first undertaking to be able to compete with Telia at a pan-Nordic level.
         Additionally, while the merged entity would have very large market shares at a pan-
         Nordic level, the Commission notes that it would likely not have the ability to
         foreclose competitors in any of the countries, since M2M subscriptions are in
         principle covered by the EU Roaming Regulation.76
5.3.4.4.          Conclusion
(124) In light of the above, the Commission concludes that the Transaction does not raise
         serious doubts as to its compatibility with the internal market as regards the market
         for M2M subscriptions in Finland or at a possible pan-Nordic level.
5.4.     Vertical effects
5.4.1. Introduction
(125) A merger between companies which operate at different levels of the supply chain
         may significantly impede effective competition if such merger gives rise to
74  See replies to questionnaire Q1 – Questionnaire to competitors, questions 31 and 31.1; replies to
    questionnaire Q4 – Questionnaire to business customers, questions 5 and 5.1.
75 See non-confidential minutes of the call with Elisa on 13 June 2019.
76 Regulation (EU) No 531/2012 of the European Parliament and of the Council of 13 June 2012 on roaming
    on public mobile communications networks within the Union (OJ 2012 L 172/10), last amended by
    Regulation (EU) 2017/920 of the European Parliament and of the Council of 17 May 2017 (OJ 2017 L
    147/1) (the "Roaming Regulation"). The Commission notes that the Roaming Regulation applies to the
    entire EEA, including Norway. The EFTA incorporated both Regulation (EU) No. 531/2012 and
    Regulation (EU) No. 2017/920 into the EEA Agreement with as of 7 December 2012 and 14 June 2017,
    respectively (see https://www.efta.int/eea-lex/32012R0531 and https://www.efta.int/eea-lex/32017R0920).
                                                         26
 ---pagebreak---        foreclosure.77 Foreclosure occurs where actual or potential competitors' access to
       supplies or markets is hampered or eliminated as a result of the merger, thereby
       reducing those companies' ability and/or incentive to compete.78 Such foreclosure
       may discourage entry or expansion of competitors or encourage their exit.79
(126) The Non-Horizontal Merger Guidelines distinguish between two forms of
       foreclosure. Input foreclosure occurs where the merger is likely to raise the costs of
       downstream competitors by restricting their access to an important input. Customer
       foreclosure occurs where the merger is likely to foreclose upstream competitors by
       restricting their access to a sufficient customer base.80
(127) Pursuant to the Non-Horizontal Merger Guidelines, input foreclosure arises where,
       post-merger, the new entity would be likely to restrict access to the products or
       services that it would have otherwise supplied absent the merger, thereby raising its
       downstream rivals' costs by making it harder for them to obtain supplies of the input
       under similar prices and conditions as absent the merger.81
(128) For input foreclosure to be a concern, the merged entity should have a significant
       degree of market power in the upstream market. Only when the merged entity has
       such a significant degree of market power, can it be expected that it will significantly
       influence the conditions of competition in the upstream market and thus, possibly,
       the prices and supply conditions in the downstream market.82
(129) In assessing the likelihood of an anticompetitive input foreclosure scenario, the
       Commission examines, first, whether the merged entity would have, post-merger, the
       ability to substantially foreclose access to inputs, second, whether it would have the
       incentive to do so, and third, whether a foreclosure strategy would have a significant
       detrimental effect on competition downstream.83
(130) Pursuant to the Non-Horizontal Merger Guidelines, customer foreclosure may occur
       when a supplier integrates with an important customer in the downstream market and
       because of this downstream presence, the merged entity may foreclose access to a
       sufficient customer base to its actual or potential rivals in the upstream market (the
       input market) and reduce their ability or incentive to compete, which in turn, may
       raise downstream rivals' costs by making it harder for them to obtain supplies of the
       input under similar prices and conditions as absent the merger. This may allow the
       merged entity profitably to establish higher prices on the downstream market.84
(131) For customer foreclosure to be a concern, a vertical merger must involve a company
       which is an important customer with a significant degree of market power in the
       downstream market. If, on the contrary, there is a sufficiently large customer base, at
77 Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of
   concentrations between undertakings ("Non-Horizontal Merger Guidelines"), OJ C 265, 18.10.2008, p. 11,
   paragraphs 17-18.
78 See Non-Horizontal Guidelines, paragraph 18.
79 See Non-Horizontal Guidelines, paragraph 29.
80 See Non-Horizontal Guidelines, paragraph 30.
81 See Non-Horizontal Guidelines, paragraph 31.
82 See Non-Horizontal Guidelines, paragraph 35.
83 See Non-Horizontal Guidelines, paragraph 32.
84 See Non-Horizontal Guidelines, paragraph 58.
                                                     27
 ---pagebreak---        present or in the future, that is likely to turn to independent suppliers, the
       Commission is unlikely to raise competition concerns on that ground.85
(132) In assessing the likelihood of an anticompetitive customer foreclosure scenario, the
       Commission examines, first, whether the merged entity would have the ability to
       foreclose access to downstream markets by reducing its purchases from its upstream
       rivals, second, whether it would have the incentive to reduce its purchases upstream,
       and third, whether a foreclosure strategy would have a significant detrimental effect
       on consumers in the downstream market.86
(133) The Parties’ market shares in the relevant markets are presented in Table 10.
       Table 10: Vertically affected markets in Finland, Norway, Denmark and Sweden
       Upstream                                          Downstream
       Wholesale international roaming                   Retail mobile telecommunications services
       Telenor: [50-60]% in Norway; [20-30]% in          Telenor: [40-50]% in Norway; [20-30]% in
       Denmark; [10-20]% in Sweden                       Denmark; [10-20]% in Sweden
       DNA: [20-30]% in Finland                          DNA: [20-30]% in Finland
       Wholesale fixed call termination                  Retail fixed telephony services
       Telenor: 100% in Norway; 100% in Denmark;         Telenor: [80-90]% in Norway; [0-5]% in
       100% in Sweden                                    Denmark; [5-10]% in Sweden
       DNA: 100% in Finland                              DNA: [10-20]% in Finland
                                                         Retail mobile telecommunications services
                                                         Telenor: [40-50]% in Norway; [20-30]% in
                                                         Denmark; [10-20]% in Sweden
                                                         DNA: [20-30]% in Finland
       Wholesale mobile call termination                 Retail fixed telephony services
       Telenor: 100% in Norway; 100% in Denmark;         Telenor: [80-90]% in Norway; [0-5]% in
       100% in Sweden                                    Denmark; [5-10]% in Sweden
       DNA: 100% in Finland                              DNA: [10-20]% in Finland
                                                         Retail mobile telecommunications services
                                                         Telenor: [40-50]% in Norway; [20-30]% in
                                                         Denmark; [10-20]% in Sweden
                                                         DNA: [20-30]% in Finland
       Source: Form CO, Tables 1, 11-13 and 20-23, as well as the Notifying Party’s reply to the reguest for
       information 4, question 8..
85 See Non-Horizontal Guidelines, paragraph 61.
86 See Non-Horizontal Guidelines, paragraph 59.
                                                     28
 ---pagebreak--- 5.4.2. Wholesale markets for call termination services on fixed and on mobile networks –
        Retail market for fixed telephony services and retail market for mobile
        telecommunications services
(134) As regards the wholesale markets for call termination on fixed and mobile networks,
        given that the network operators have a 100% market share on call termination
        services on their own fixed or mobile network, Telenor has a 100% market share on
        fixed and mobile call termination services on its own networks in Norway, Denmark
        and Sweden and DNA has a 100% market share on fixed and mobile call termination
        services on its own network in Finland. As the Parties are active on separate markets
        for fixed and mobile call termination services over their respective networks, there is
        no horizontal overlap between their respective activities in these markets. However,
        the Transaction gives rise to vertically affected markets since Telenor is a customer
        of DNA and DNA is a customer of Telenor with regard to wholesale call termination
        services on fixed and mobile networks on their respective telephony networks.
(135) However, the markets for wholesale call termination on fixed and mobile networks
        are regulated ex-ante by the Finnish Transport and Communications Agency, the
        Norwegian Communications Authority, the Danish Business Authority and the
        Swedish Post and Telecom Authority. These regulators ensure that access to call
        termination is granted on reasonable conditions and that rates remain reasonable and
        non-discriminatory. Moreover, the Commission notes that, as established by Article
        75 of the European Electronic Communications Code87, by 31 December 2020 the
        Commission shall adopt a delegated act setting the Eurorates (a single Union-wide
        fixed and a single Union-wide mobile termination rate). That means that fixed and
        mobile termination rates, currently established by the Finnish, Swedish, Danish and
        Norwegian regulators, will be set by the European Commission through the
        delegated act.
(136) Therefore, the merged entity would not have the ability to discriminate against
        Telenor’s competitors in Norway, Denmark and Sweden for access to call
        termination services in Finland. Similarly, Telenor would not have the ability to
        discriminate against DNA’s competitors in Finland for access to call termination
        services in Norway, Denmark and Sweden.
(137) In light of the above, the Commission concludes that the Transaction does not give
        rise to serious doubts as to the compatibility with the internal market in relation to
        the vertical link between the upstream markets for the wholesale supply of call
        termination services on fixed and on mobile networks and the downstream markets
        for the retail supply of fixed telephony services and retail supply of mobile
        telecommunications services.
87  Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018
    establishing the European Electronic Communications Code (OJ 2018 L 321/36).
                                                      29
 ---pagebreak--- 5.4.3. Wholesale market for international roaming services – Retail market for mobile
         telecommunications services
5.4.3.1.          Introduction
(138) Telenor is active on the market for wholesale international roaming services on its
         own mobile networks in Norway, Denmark and Sweden. DNA is active on this
         market on its own network in Finland. Telenor is a purchaser of international
         roaming services in Finland, and DNA is a purchaser of international roaming
         services in Norway, Denmark and Sweden.
(139) As shown in Table 10 above, the only vertically affected markets are:
         (a)      the upstream wholeale market for international roaming services in Finland
                  and the downstream retail market for mobile telecommunications services in
                  Norway; and
         (b)      the upstream wholesale market for international roaming services in Norway
                  and the downstream retail market for mobile telecommunications services in
                  Finland.
(140) On the wholesale market for international roaming services in Finland, which is
         upstream to the market for retail mobile telecommunications services in Norway, the
         market shares of DNA and its competitors are presented in Table 11:
         Table 11: Wholesale market for international roaming services in Finland in 2018 by revenue88
                                          Revenue in EUR             Market share by
                                                                               revenue
         DNA                                          […]                   [20-30]%
         Elisa                                        […]                    [40-50]%
         Telia                                        […]                    [30-40]%
         Total                                        […]                        100%
         Source: Telenor’s response to RFI 5
88  The Notifying Party indicates that it […] estimated the market shares on the wholesale market for
    international roaming services in Finland based on DNA’s actual revenue figures generated from
    international roaming in Finland, along with estimates for Elisa and Telia, scaling up retail mobile shares
    as a “reasonable proxy” for shares in the wholesale market for international roaming.
                                                         30
 ---pagebreak--- (141) On the market for retail mobile telecommunication services in Norway, which is
        downstream to the market for international roaming services in Finland, the market
        shares of Telenor and its competitors are presented in Table 12:
        Table 12: Retail mobile telecommunication services in Norway in 2018 by subscribers
                                              Subscribers           Market share by
                                                                         subscribers
        Telenor                                      […]                  [40-50]%
        Telia                                        […]                   [30-40]%
        Ice                                          […]                    [5-10]%
        Others                                       […]                    [5-10]%
        Total                                        […]                       100%
        Source: NKOM, Form CO, paragraph 167, Table 11
(142) On the wholesale market for international roaming services in Norway, which is
        upstream to the market for retail mobile telecommunications services in Finland, the
        market shares of Telenor and its competitors are presented in Table 13:
        Table 13: Wholesale market for international roaming services in Norway in 2018 by revenue89
                                         Revenue in EUR             Market share by
                                                                             revenue
        Telenor                                      […]                  [50-60]%
        Telia                                        […]                   [30-40]%
        Ice                                          […]                 [5-10]%90
        Total                                        […]                       100%
        Source: Telenor’s response to RFI 3 and RFI 4
89 The Notifying Party indicates that it […] estimated the market shares on the wholesale market for
   international roaming services in Norway on the basis of retail mobile shares that it considers as a
   “reasonable proxy” for shares in the wholesale market for international roaming.
90 Ice has confirmed that it does not have any agreements on wholesale international roaming services in
   Norway today. Ice explains that as a pure 4G network operator in Norway it is unable to offer ordinary
   inbound roaming until VoLTE roaming is rolled out (see non-confidential version of Ice submission of 3
   July 2019 in response to questions 4a-b of the Request for Information of 25 June 2019). Consequently,
   the market shares provided by the Notifying Party for the market for international roaming services in
   Norway overestimates the position of Ice, and underestimates that of both Telenor and Telia (with 2G, 3G
   and 4G networks in Norway).
                                                        31
 ---pagebreak--- (143) On the market for retail mobile telecommunication services in Finland, which is
        downstream to the market for international roaming services in Norway, the market
        shares of DNA and its competitors are presented in Table 14:
        Table 14: Retail mobile telecommunication services in Finland in 2018 by subscribers
                                           Subscribers          Market share by
                                                                    subscribers
        DNA                                       […]                 [20-30]%
        Elisa                                     […]                  [30-40]%
        Telia                                     […]                  [30-40]%
        Others                                    […]                    [0-5]%
        Total                                     […]                     100%
        Source: Traficom, Form CO paragraph 146, Table 5.
(144) Both Parties have entered into discount agreements for international roaming
        (“Discount Agreements”) with a large number of MNOs in the Nordic countries. As
        result of these Discount Agreements, the average prices for international roaming
        calls, SMS messages and data services charged by Telenor for Finnish mobile
        customers roaming on its own network in Norway and the average prices charged by
        DNA for Norwegian mobile customers roaming on its network in Finland are lower
        than the price caps foreseen in the Roaming Regulation.
5.4.3.2.         Notifying Party’s view
Finland
(145) The Notifying Party submits that the Transaction would not affect competition on
        the market for the provision of retail mobile telecommunication services in Finland
        for the following reasons.
(146) First, the Transaction would not have any impact on the cost structures of the
        merged entity’s competitors. Any attempts to disadvantage competitors in Finland
        by raising the charges for international roaming would be ineffective considering
        that the cost of outbound roaming by MNOs in Finland in Telenor countries,
        including Norway, only represent a fraction of the competing MNOs’ total costs, i.e.
        less than [0-5]%.91
(147) Second, the merged entity’s competitors would continue to have access to alternative
        providers of wholesale international roaming services in each country in which
        Telenor operates, including in Norway.92
(148) Third, the Roaming Regulation prevents Telenor from charging in excess of
        prescribed price levels for roaming services.93
91  Form CO, paragraphs 148-153.
92  Form CO, paragraph 154.
                                                     32
 ---pagebreak--- (149) The Notifying Party also argues that it would lack both the ability and incentive to
       cease entering into, or deteriorate the conditions of Discount Agreements with
       competing MNOs in Finland. […]. The Notifying Party refers to the Discount
       Agreement with […].94
(150) The Notifying Party submits that, on the wholesale market for international roaming
       services in Finland, the Transaction would also not affect competition in Finland for
       the following reasons.
(151) First, Telenor accounts for a relatively small share of demand for wholesale
       international roaming in Finland.95
(152) Second, roaming in Finland does not account for a significant portion of Telenor’s
       outbound roaming. Telenor indicates that demand from Telenor in 2018 accounted
       for approximately [10-20]% of the total wholesale international roaming costs
       incurred in Finland. Even if Telenor would, post-Transaction, steer away all
       international roaming […] to DNA, this would not have a significant impact on the
       market position of […] in Finland considering that Telenor’s purchasing of
       wholesale roaming services in Finland in 2018 amounted to only EUR […], which
       accounts for less than […]% of […] total revenue in 2018.96
(153) Third, the Roaming Regulation imposes a price cap on the average wholesale charge
       that the mobile operator of a visited network may levy from the mobile operators of
       a roaming customer’s home network for the provision of a regulated roaming call
       originating on that visited network.97
       Norway
(154) The Notifying Party submits that the Transaction would not affect competition on
       the market for the provision of retail mobile telecommunication services in Norway
       for the following reasons.
(155) First, international roaming in Finland is not a significant factor in the competition
       for Norwegian retail customers. As an illustration, the Notifying Party refers to the
       minutes generated by Norwegian customers roaming on DNA’s network in Finland
       in 2018 accounting for less than [0-5]% of DNA’s total inbound international
       roaming minutes.98
(156) Second, the merged entity’s competitors in Norway would continue to have access to
       alternative providers of wholesale international roaming services in Finland, namely
       Telia and Elisa.99
(157) Third, the Transaction would not have any impact on the cost structures of the
       merged entity’s competitors in Norway, namely Telia and Ice, as the roaming costs
       in Finland of Telia and Ice’s Norwegian customers are estimated at less than [0-5]%
93 Form CO, paragraph 155.
94 Notifying Party’s response to question 5 of RFI 3.
95 Form CO, paragraph 157
96 Form CO, paragraphs 158-161
97 Form CO, paragraph 162-164.
98 Form CO, paragraph 169.
99 Form CO, paragraph 169
                                                      33
 ---pagebreak---         of the total costs of these operators. As a result, any attempt by the merged entity to
        raise Finnish charges for international roaming services would be ineffective and
        would not impact on competition in the retail mobile telecommunications market in
        Norway.100
(158) The Notifying Party also submits that, on the wholesale market for international
        roaming services in Norway, the Transaction would also not affect competition in
        Norway considering the very limited revenue generated by Finnish roaming
        customers. The Notifying Party estimates that its competitors Telia and Ice generated
        roaming revenue from DNA of less than [0-5]% of their total revenue and
        consequently, even if all DNA customers were to be steered to Telenor’s network in
        Norway, that would not represent a significant revenue loss for Telia or Ice.101
5.4.3.3.          Commission’s assessment
(159) The Commission considers that the Transaction does not give rise to serious doubts
        as to its compatibility with the internal market in relation to the vertical link between
        the upstream markets for wholesale international roaming services and the
        downstream markets for the retail supply of mobile telecommunication services.
(160) The Commission notes that the markets for wholesale international roaming
        activities are subject to sector-specific EU regulation, which prevents mobile
        operators from refusing access to their network and from charging excessive
        termination fees. Under the Roaming Regulation, 102 MNOs must meet all reasonable
        requests for wholesale roaming access and MNOs are bound by the price cap
        imposed by the Roaming Regulation on the wholesale prices that MNOs can charge
        from their roaming customers. Key obligations under the regulation include an
        obligation to meet all reasonable requests, an obligation to publish a reference offer,
        caps on wholesale and retail charges (for calls, SMS messages and data services),
        and transparency and information requirements. The Roaming Regulation therefore
        effectively prevents MNOs from refusing access to their respective network and
        from charging excessive termination fees.
(161) That said, it is to be noted that actual market prices for international roaming
        services may be significantly lower than the price caps foreseen by the Roaming
        Regulation. In fact, as part of their wholesale roaming agreements, MNOs can agree
        on discounted rates for calls, SMS messages and data services, which in some cases
        can be a fraction of the maximum price foreseen by the Roaming Regulation.
(162) As discussed in paragraph 144, the Parties have entered into Discount Agreements
        with a large number of MNOs in the Nordic countries. Telenor has entered into
        Discount Agreements with […].103 Neither DNA nor Elisa have own mobile
        networks in any of the countries in which Telenor has its own networks, namely
        Norway, Denmark and Sweden, and are therefore fully dependent on international
        roaming agreements with MNOs in those countries. Telia, […], is present in all four
        Nordic countries with its own mobile network, including in each of Telenor’s
        markets, and is therefore less dependent on the mobile networks of competing
100 Form CO, paragraph 170.
101 Form CO, paragraph 171
102 See Article 3 of the Roaming Regulation.
103 Form CO, paragraph 163.
                                                   34
 ---pagebreak---         MNOs in these countries for international roaming services.104 As for DNA, it has
        entered into Discount Agreements with […].105
(163) As a result of these Discount Agreements, the average prices for international
        roaming calls, SMS messages and data services charged by Telenor for Finnish
        mobile customers roaming on its network in Norway and the average prices charged
        by DNA for Norwegian mobile customers roaming on its network in Finland are
        lower than the price caps foreseen in the Roaming Regulation. The average prices
        are presented in the tables below:
        Table 15 – Wholesale prices for international roaming services charged by Telenor for Finnish
        mobile customers roaming on Telenor’s network in Norway
                                     Calls (EUR/minute)       SMS (EUR/minute)             Data (EUR/Mb)
        Price (average)                            […]                        […]                     […]
        Maximum price under                       0.032                     0.010                    0.006
        Roaming Regulation
        Source: Form CO, paragraph 163, Table 9.
        Table 26 – Wholesale prices for international roaming services charged by DNA for Norwegian
        mobile customers roaming on DNA’s network in Finland
                                     Calls (EUR/minute)       SMS (EUR/minute)             Data (EUR/Mb)
        Price (average)                            […]                        […]                     […]
        Maximum price under                       0.032                     0.010                    0.006
        Roaming Regulation
        Source: Form CO, paragraph 163, Table 9.
(164) The Discount Agreements that Telenor has in place with […] are lower than the
        average prices presented in Table 6 above, in particular for […]. The actual
        discounted wholesale prices […] are presented in the table below:
104 The Notifying Party explains that Telenor […], see Notifying Party’s response to question 1c of RFI 3,
    and question 3a of RFI 5 of 28 June 2019.
105 Form CO, paragraph 164.
                                                       35
 ---pagebreak---         Table 17 – Wholesale prices for international roaming services charged by Telenor for Finnish
        mobile customers […] roaming on Telenor’s network in Norway (situation as of June 2019)
                              Calls (EUR/minute)       SMS (EUR/minute)         Data (EUR/Mb)
        […]                   […]                      […]                      […]
        […]                   […]                      […]                      […]
        Source: Form CO, paragraph 163, Table 9.
(165) Absent the Discount Agreements, wholesale prices charged by Telenor to Finnish
        MNOs, such as Elisa, would therefore be significantly higher.
        Market power
(166) In line with the Non-Horizontal Guidelines, for input foreclosure to be a concern, the
        merged entity should have a significant degree of market power in the upstream
        market. Only when the merged entity has such a significant degree of market power,
        can it be expected that it will significantly influence the conditions of competition in
        the upstream market and thus, possibly, the prices and supply conditions in the
        downstream market.106
(167) On the basis of the market shares provided by the Notifying Party (see Table 3), and
        the limited number of alternative providers of wholesale international roaming
        services, Telenor may have a certain degree of market power in the wholesale
        market for international roaming in Norway. This power is, however, limited by the
        Roaming Regulation, as explained in paragraph 156 above.
(168) As for DNA, the market share figures provided by the Notifying Party (see Table 2)
        do not provide any indication of significant market power on the market for
        wholesale international roaming services in Finland. In any case, any market power
        held by DNA would be limited by the Roaming Regulation, as explained above in
        paragraph 156.
(169) Considering the lack of market power of DNA on the wholesale market for
        international roaming in Finland, the remainder of the assessment in this section will
        focus on whether the merged entity, through its more significant position in the
        market for wholesale international roaming services in Norway, could foreclose
        competing MNOs in the downstream market for mobile telecommunications in
        Finland.
106 See Non-Horizontal Guidelines, paragraph 35.
                                                     36
 ---pagebreak---         Ability and Incentive to foreclose
(170) In line with the Non-Horizontal Guidelines, in assessing the likelihood of an
        anticompetitive input foreclosure scenario, the Commission examines, first, whether
        the merged entity would have, post-merger, the ability to substantially foreclose
        access to inputs, second, whether it would have the incentive to do so, and third,
        whether a foreclosure strategy would have a significant detrimental effect on
        competition downstream.107
(171) In this case, the Commission considers that the merged entity would not have the
        ability or incentive to foreclose downstream competitors by refusing to enter into
        Discount Agreements with competing MNOs in Finland.
(172) The Commission considers that any risk of foreclosure would be limited to the
        Finnish MNO Elisa, with which Telenor today has a Partnership Agreement108 and
        Telenor and Elisa are […].
(173) Through the Transaction, Telenor would acquire a mobile network in Finland, and
        hence the importance for Telenor to have a Discount Agreement with Elisa covering
        the Finnish market would diminish109. Telenor has indicated that […].110 As
        explained by the Notifying Party, post-Transaction Telenor expects to […].111
(174) Post-Transaction, Elisa would also be the only MNO in Finland without its own
        mobile networks in any of the other Nordic countries and would be reliant on its
        direct competitors in Finland, namely the merged entity and Telia, for wholesale
        roaming services in Norway (where Telenor and Telia are currently the only MNOs
        offering international roaming services).
(175) As explained by the Notifying Party, the Finnish market is distinguished by the
        higher consumption of mobile data than virtually any other country in the world,
        with MNOs offering unlimited data as a standard package and data transfer speeds
        exceeding 100 Mbps being commonplace. The Notifying Party refers to figures from
        Traficom which estimate that approximately 80% of all B2C mobile subscriptions in
        Finland have unlimited data transfer and all three MNOs, namely DNA, Elisa and
        Telia offer such subscriptions with unlimited data as standard, with pricing
        differentiated primarily on the basis of data transfer speed. 112 Apart from unlimited
        data within Finland, it is also commonplace for Finnish MNOs to offer unlimited
        data roaming across the Nordic and Baltic countries.113 Such offers rely (at least
107 See Non-Horizontal Guidelines, paragraph 32.
108 As explained in footnote 69, pre-Transaction Telenor had a […] Partnership Agreement in place with
    Elisa, pursuant to which […].
109 It would in fact be limited to areas in which Elisa’s mobile network would have a better coverage than the
    current DNA mobile network.
110 Form CO, paragraph 220 as well as Annex 5.
111 The Notifying Party explains that Telenor […], see Form CO, paragraph 156.
112 Form CO, paragraphs 61, 74, 373-374.
113 Telia offers numerous mobile subscriptions with unlimited data roaming across the Nordic and Baltic
    countries (i.e. the countries in which it has its own mobile networks), including “Rajaton 450 M”,
    “Rajaton 200 M”, “Rajaton 100 M”, “Rajaton 20 M”. Data roaming elsewhere in the EEA is limited to 3-
    20 Gb/month, see https://kauppa.telia.fi/yksityisille/tuotteet/puhelinliittymat.aspx (situation as of 4 July
    2019); Elisa offers numeroud mobile subscriptions with unlimited data roaming across the Nordic and
    Baltic countries, including “Saunalahti Huoleton Premium 150M”, “Saunalahti Huoleton Premium+”,
    “Saunalahti Huoleton 5G 1000M”, “Saunalahti Huoleton 5G 600M”, “Saunalahti Tarkka Premium
                                                           37
 ---pagebreak---          partially) on the MNO having access to its own mobile networks in those roaming
         countries or having roaming agreements with discounted rates for data in place with
         competing MNOs. Telia can rely on its own mobile networks in all Nordic countries
         and the Baltics, while Elisa has benefitted pre-Transaction from a Discount
         Agreement with Telenor […].
(176) Absent such a Discount Agreement, the cost of offering mobile subscribers an
         unlimited data roaming package in all Nordic countries would be higher for an MNO
         such as Elisa.
(177) The Commission considers, however, that the Transaction would not affect Elisa’s
         ability to offer unlimited data packages on its own network to its mobile subscribers
         in Finland, but could only affect, to a limited degree, Elisa’s ability to offer such
         packages for use by its mobile subscribers when travelling in other Nordic countries
         where Elisa currently relies on the Discount Agreement with Telenor.
(178) The Commission furthermore considers that the price caps foreseen by the Roaming
         Regulation provide a limit on the price increase that could affect Elisa should the
         Discount Agreement that it has negotiated with Telenor be terminated.114
(179) The Commission also considers that several viable alternative providers of wholesale
         international roaming services remain with which Elisa could seek to negotiate
         Discount Agreements. In Sweden, in addition to Telenor and Telia, also Tele2 and
         Hi3G provide wholesale international roaming services. In Denmark, in addition to
         Telenor and Telia, also TDC and Hi3G provide such services. The number of viable
         alternatives in Norway today is more limited, with only Telenor, Telia and Ice being
         active as MNOs. Ice is a pure 4G network operator and is currently not active in the
         provision of wholesale international roaming services. It is, however, a possible
         entrant on that market in the near future, in particular once VoLTE roaming is rolled
         out.115
(180) Furthermore, in a situation where neither Telenor nor Telia would agree to enter into
         a Discount Agreement with Elisa for wholesale international roaming services in
         Norway, but Elisa would succeed in negotiating a Discount Agreement in Sweden
         and Denmark, the proportion of roaming traffic that would not be charged at
         discounted rates would be limited to the traffic generated by Elisa’s mobile
         subscribers roaming in Norway. In 2018, the data traffic volume of Elisa into
         Telenor’s networks in Norway represented only [20-30]% (i.e. [… ] Gb out of a total
    150M”. Data roaming elsewhere in the EEA is limited to 10-23 Gb/month, see
    https://elisa.fi/kauppa/puhelinliittymat/ (situation as of 4 July 2019).
114 The Notifying Party submits that even if the entirety of Elisa’s data traffic into Telenor’s networks in
    Norway, Sweden and Denmark in 2018 were chaged at the maximum EU regulated rate of EUR
    0.006/Mb, it would represent only approximately [0-5]% of Elisa’s total costs in 2018, see Notifying
    Party’s response to question 6 of RFI 4.
115 Ice has confirmed that it does not have any agreements on wholesale international roaming services in
    Norway today. Ice explains that as a pure 4G network operator in Norway it is unable to offer ordinary
    inbound roaming until VoLTE roaming is rolled out. Ice confirms, however, that it is evaluating the
    market which it regards as a prioritised business opportunity in the near future. See non-confidential
    version of Ice submission of 3 July 2019 in response to questions 4a-b of the Request for Information of
    25 June 2019.
                                                             38
 ---pagebreak---         of […] Gb) of Elisa’s total traffic volumes into Telenor’s networks in Nordic
        countries (i.e. Norway, Sweden, and Denmark).116
(181) The Commission also takes note of the agreement reached between Telenor and
        Elisa on […], by which the two sides agree to extend the Discount Agreement in
        place between Telenor and Elisa […], at the following rates117:
        Table 18 – Wholesale prices for international roaming services agreed between Telenor and
        Elisa […]
                               Calls (EUR/minute)          SMS (EUR/minute)  Data (EUR/Mb)
        […]                    […]                         […]               […]
        […]                    […]                         […]               […]
        […]                    […]                         […]               […]
(182) By reaching this agreement with Telenor, Elisa will continue to benefit from
        discounted rates […]. The data roaming rates agreed therein correspond to […].
(183) In light of all the above, the Commission considers that the merged entity has neither
        the ability nor the incentive to foreclose its competitors, in particular Elisa, on the
        downstream market for mobile telecommunications in Finland.
5.4.3.4.         Conclusion
(184) In light of the analysis above, the Commission concludes that the Transaction does
        not give rise to serious doubts as to its compatibility with the internal market in
        relation to the vertical link between the upstream markets for wholesale international
        roaming services in Norway and Finland and the downstream markets for the retail
        supply of mobile telecommunication services in Norway and Finland.
6.      CONCLUSION
(185) For the above reasons, the European Commission has decided not to oppose the
        notified operation and to declare it compatible with the internal market and with the
        EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the
        Merger Regulation and Article 57 of the EEA Agreement.
116 Notifying Party’s response to RFI 4, Annex 1.
117 See email from the Notifying Party to the case team of […].
                                                         39
 ---pagebreak---    For the Commission
   (Signed)
   Margrethe VESTAGER
   Member of the Commission
40