CELEX: 32020M9866
Language: en
Date: 2020-08-13 00:00:00
Title: Commission Decision of 13/08/2020 declaring a concentration to be compatible with the common market (Case No COMP/M.9866 - UNITED GROUP / FORTHNET) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                Brussels, 13.08.2020
                                                                C(2020) 5688
                                                                                 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
                                                                 ... 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                                                                 omitted has been replaced by ranges of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.9866 – United Group / Forthnet
                    Commission decision pursuant to Article 6(1)(b) of Council Regulation
                    No 139/20041 and Article 57 of the Agreement on the European Economic
                    Area2
Dear Sir or Madam,
(1)        On 9 July 2020, the European Commission received notification of a proposed
           concentration (the “Transaction”) pursuant to Article 4 of the Merger Regulation
           by which United Group B.V. (“United Group”, Netherlands; the “Notifying
           Party”), through Newco United Group Hellas S.A.R.L, (“NewCo”, Luxembourg),3
           acquires within the meaning of Article 3(1)(b) sole control of the Hellenic
           Company for Telecommunications and Telematic applications S.A. (with the
           trading name “Forthnet”, Greece, or the “Target”).4 United Group and Forthnet are
           designated hereinafter 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    Newco, is a special purpose vehicle through which United Group acquires Forthnet. It is the entity which
     enters into the transaction agreements with the Sellers of Forthnet. (Reply to Commission’s request for
     information dated 30 July 2020.)
4    Publication in the Official Journal of the European Union No C 234,16.07.20, p.4.
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)        United Group is active in the provision of telecommunication and media services
           in South East Europe where it operates a multi-play cable and media platform.
           United Group’s activities focus on the production of pay-TV channels and content,
           distribution of content, retail distribution of pay-TV services, broadband internet
           and fixed and mobile telecommunication services. Within the EEA, it is active in
           Slovenia, Croatia, and Bulgaria with some minor activity in Greece and Cyprus.
           United Group is ultimately solely controlled by BC Partners LLP (“BC Partners”,
           United Kingdom), an international private equity firm, whose sole activity is to
           provide advisory services.5 The Transaction follows a stream of recent acquisitions
           by United Group, which most recently in 2020 acquired BTC, 6 prior to which it
           acquired Tele2 Croatia in May 2019 and NOVA TV in Croatia in August 2018.
(3)        Forthnet is a telecommunications provider active in Greece and Cyprus, operating
           under the brand “NOVA”.7 Forthnet provides fixed telephony and broadband
           internet services, only in Greece. Its pay-TV services are offered in both countries.
           At retail level, Forthnet’s pay-TV services are distributed via satellite (“direct-to-
           home” or “DTH”) and internet (through “Over-The-Top” services or “OTT”). At
           wholesale level, Forthnet is active in the supply of its own produced “NOVA”
           channels to pay-TV providers. Forthnet is a public company incorporated in
           Greece, with shares listed on the Athens Stock Exchange. Forthnet shares are
           currently held by Wind Hellas Telecommunications S.A. (21,05%), Piraeus Bank
           (15,11%), Go Plc (14,42%), Massar Investments LLC (14,42%), National Bank of
           Greece (12,14%), Alpha Bank (8,48%), Vodafone S.A. (4,15%), Attica Bank
           (0,46%) and the remaining shares (9,77%) being held by other shareholders.8
           [Information on corporate governance].9
2.         THE OPERATION
(4)        The Transaction consists of an acquisition of shares. Pursuant to [...]10 [...],11 [...],
           United Group will acquire sole control over Forthnet.
(5)        [Information strictly related to the implementation of the Transaction].
(6)        [Information strictly related to the implementation of the Transaction].12
(7)        [Information strictly related to the implementation of the Transaction]13
           [Information strictly related to the implementation of the Transaction].14
5   BC Partners’ acquisition of United Group has been approved by the Commission in Case M.9152 of 17
    December 2018.
6   United Group’s acquisition of the Bulgarian Telecommunications Company (“BTC”) has been approved
    by Commission’s decision in Case M.9679 of 3 April 2020 (not published yet).
7   The NOVA brand is unrelated to United Group’s NOVA TV.
8   Form CO, paragraph 36.
9   Reply to Commission’s request for information dated 13 August 2020.
10  [...].
11  [...].
12  Reply to Commission’s request for information dated 7 August 2020.
13  Form CO, paragraph 49.
14  Form CO, paragraph 49.
                                                        2
 ---pagebreak--- (8)        Following, therefore, [...], United Group will acquire sole control over Forthnet.
(9)         [Information strictly related to the implementation of the Transaction].15
(10)        [Information strictly related to the implementation of the Transaction].16
(11)        [Information strictly related to the implementation of the Transaction].17
            [Information strictly related to the implementation of the Transaction ]18
            [Information strictly related to the implementation of the Transaction].
(12)        In view of the above, the Commission considers that the completion of
            [Information strictly related to the implementation of the Transaction] can be
            treated as a single concentration for the purposes of the Merger Regulation.
3.          EU DIMENSION
(13)        The undertakings concerned have a combined aggregate world-wide turnover of
            more than EUR 5 000 million (EUR [...]). Each of them has an EU-wide turnover
            in excess of EUR 250 million (United Group: EUR [...]; Forthnet: EUR [...]), but
            not each of the undertakings concerned achieves more than two-thirds of its
            aggregate EU-wide turnover within one and the same Member State. The notified
            operation therefore has an EU dimension within the meaning of Article 1(2) of the
            Merger Regulation.
4.          RELEVANT MARKETS
(14)        The Transaction gives rise to a limited horizontal overlap in respect to the market
            for the retail supply of pay-TV services, where both United Group and Forthnet are
            active.
(15)        The Transaction also gives rise to vertically affected markets in connection with:
                at the upstream level: the supply of (i) wholesale mobile call terminations
                 services and (ii) wholesale fixed call terminations services, in the countries
                 where United Group and Forthnet operate;
                at the downstream level: (i) retail mobile communications services and (ii)
                 retail supply of fixed telephony services in the countries where United Group
                 and Forthnet operate (see table 3).19
15  [Information strictly related to the implementation of the Transaction]. Form CO, paragraphs 55-57, Reply
    to Commission’s request for information of 17 July 2020.
16  [Information strictly related to the implementation of the Transaction. ]. See also Form CO, paragraph 54.
17  [Information strictly related to the implementation of the Transaction].
18  [...].
19  [information related to the Acquirer’s shareholding structure].
                                                            3
 ---pagebreak--- 4.1.      Television markets
4.1.1.    Retail supply of TV services
(16)      Providers of retail TV services offer end users packages of linear and/or non-linear
          TV services. Linear services are services that broadcast scheduled programs, not
          streamed by a specific user. Non-linear services, or video-on-demand (“VOD”)
          services, are services provided for the viewing of programmes at the moment
          chosen by the users and at their individual request, on the basis of a catalogue of
          programmes.20 TV services may be offered either on a free-to-air (“FTA”) or pay-
          TV basis. Providers of retail TV services deliver their content to end customers via
          a number of technical means: (i) traditional networks, such as cable, satellite
          (“direct-to-home” or “DTH”), internet protocol television (“IPTV”), and to a lesser
          extent, digital terrestrial TV (“DTT”) and/or (ii) the “Over-The-Top” (“OTT”)
          distribution technology which allows TV content to be delivered through the use of
          open internet.
(17)      In the retail provision of TV services to end users: (a) Forthnet (under the brand
          NOVA) distributes pay-TV services via the use of satellite (DTH) and OTT
          platforms, in Greece and Cyprus; (b) United Group distributes pay-TV services via
          cable, satellite (DTH) and OTT at global level, including in Greece, Cyprus,
          Slovenia, Croatia and Bulgaria.21 Its OTT services are offered under the
          “Net.TV.Plus” brand.
4.1.1.1. Product market definition
(18)      The Commission has previously considered the retail provision of free-to-air
          (“FTA”) and pay TV services as separate product markets, but ultimately left open
          the product market definition.22 It has further considered whether pay-TV services
          could be segmented according to: (i) linear vs. non-linear TV services, (ii)
          premium vs. basic pay-TV services and (iii) the distribution technology employed,
          but has left the market open with regard to each of these potential sub-segments.23
          Nevertheless, in Telia/Bonnier Broadcasting, with regard to a segmentation of the
          market per type of distribution technology, the Commission recently concluded that
          the retail market for the provision of pay-TV services should be considered as
          encompassing all distribution technologies.24
20  Non-linear services can be further differentiated into Advertising Video On Demand (“AVOD”),
    Subscription Video On Demand (“SVOD”), Transactional Video-On-Demand (“TVOD”) and Pay-per-
    view.
21  In particular, United Group offers pay-TV services, cable Pay TV through its SBB/Telemach brand, and
    DTH pay TV through its Total TV brand in Slovenia, Serbia, Montenegro, Bosnia and Herzegovina and
    North Macedonia (Total TV only). United Group owns three national TV stations which include Nova TV
    in Croatia, Nova BH in Bosna and Herzegovina, and Nova M in Montenegro.
22  Commission decisions: of 6 November 2018 in case M.8785 - Disney/Fox, paragraph 98; of 24 February
    2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver Media, paragraph 152.
23  Commission decisions: of 7 April 2017 in case M.8354, Fox/Sky, paragraphs 80 and 81; of 24 February
    2015 in case M.7194, Liberty Global / Corelio / W&W / De Vijver Media, paragraphs 90, 119 and 124; of
    6 November 2018 in case M.8785 - Disney/Fox, paragraphs 94 and 98.
24   Commission decision of 12 November 2019 in case M.9064, Telia Company/Bonnier Broadcasting,
    paragraph 200. The Commission has, nevertheless, left open the question with regard to alternative
    possible segmentations discussed in this section. In Greece, the media law (Law 3592/2007 on the
    concentration and licensing of media enterprises, as amended and in force) makes a distinction between
    media of informative and non-informative content, and sets specific provisions for the former, aiming,
                                                         4
 ---pagebreak--- (19)      The Notifying Party submits that the relevant market is the market for the retail
          provision of pay-TV services encompassing: (i) all distribution technologies, since
          most, if not at all of the content, is available on each technology; (ii) non-linear and
          linear content, as both compete for viewing time and (iii) basic and premium pay
          TV. In its view, the precise product market can be left open, since the Transaction
          does not give rise to any competitive concerns irrespective of the precise market
          definition. 25
(20)      For the purpose of the present decision, the Commission considers that the question
          whether the retail supply of TV services can be segmented between FTA and pay
          TV services and in turn pay TV services should be further segmented according to:
          (i) linear and non-linear pay TV services, (ii) basic and premium pay TV services,
          and (iii) the distribution technology employed, can be left open since the
          Transaction does not raise serious doubts as to its compatibility with the internal
          market or the functioning of the EEA Agreement under any of the possible product
          market definitions set out in this paragraph.
4.1.1.2. Geographic market definition
(21)      In its previous decisions, the Commission has considered that the geographic scope
          of the market for the retail provision of TV services is either national, since TV
          distributors compete on a nationwide basis or limited to the coverage area of each
          cable operator.26
(22)      The Notifying Party submits that the precise geographic market can be left open,
          given that the Transaction does not raise any competitive concerns irrespective of
          the precise geographic market definition.
(23)      Commission’s market investigation has confirmed that pay-TV operators in
          Greece, offer their services at national level. The Commission further observes,
          that, in Greece, the provision of pay-TV services, including the licensing procedure
          of pay-TV operators are subject to national regulatory framework.27
(24)      In light of the above and for the purpose of the present decision, the Commission
          considers that the relevant market for the retail supply of TV services is national in
          scope. The Commission considers that the competitive assessment in Section 5.3
          would remain the same also on a geographic market comprising the coverage area
          of each cable operator.
    principally at safeguarding media pluralism and freedom of expression. The said legislation provides that
    concentrations of media of non-informative content are governed by the general competition rules set
    forth by Law 3959/2011 (“Protection of Free Competition”, Gov't Gazette Issue A' 93/20.04.2011). The
    Hellenic Competition Commission (HCC), in its recent decision No 656/2018, on the acquisition of
    CYTA Hellas by Vodafone Greece, considered that the market for the retail provision of pay-TV services,
    irrespective of the different means of distribution, constitutes a distinct market, which is not included in
    the market for media of informative content and, thus, falls within the provisions of Law 3959/2011.
25 Form CO, paragraph 167.
26 Commission decisions: of 8 December 2018 in case M.8842 – Tele2/Com Hem Holding paragraphs 37-
    38; of 24 February 2015 in case M.7194, Liberty Global / Corelio / W&W / De Vijver Media, paragraphs
    132-139;; of 21 December 2010 in case M.5932, News Corp/BskyB, paragraphs 86–88.
27 Articles 1-3, Law 2644/1998 and Article 15 Law 3592/2007.
                                                           5
 ---pagebreak--- 4.2.      Telecommunication markets
4.2.1.    Retail mobile communication services
(25)      Mobile communications services to end customers or "retail mobile communication
          services" include services for national and international voice calls, SMS (including
          MMS and other messages), mobile internet with data services, access to content via
          the mobile network and retail international roaming services.
4.2.1.1. Product market definition
(26)      In previous decisions, the Commission has not further segmented 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 has
          considered possible segments of the overall retail market for mobile
          telecommunication services by distinguishing between pre-paid and post-paid
          services and between private customers and business customers, concluding that
          these did not constitute separate product markets but rather were market segments
          within an overall retail market. 28
(27)      The Notifying Party submits that, in the present case, the relevant product market
          should be defined in line with the Commission’s previous decisional practice, i.e.
          as the overall retail market for the mobile telecommunication services without
          further segmentation.
(28)      For the purpose of the present decision, the Commission considers that the exact
          product market definition in relation to the provision of retail mobile
          telecommunications services (whether there is an overall market for retail mobile
          communication services or whether this market should be segmented between pre-
          paid and post-paid or between private and business customers) can be left open
          since the Transaction does not give rise to serious doubts as to its compatibility
          with the internal market or the functioning of the EEA Agreement under any such
          product market definition.
4.2.1.2. Geographic market definition
(29)      The Commission has consistently found the market for retail mobile
          communication services to be national in scope.29
(30)      The Notifying Party considers that the market should be considered national in
          scope, in line with the approach adopted by the Commission in previous decisions.
28  Commission decisions: of 15 July 2019 in case M.9370, Telenor/DNA, paragraph 41; of 27 November
    2018 in case M.8792, T-Mobile NL/Tele2 NL.
29 Commission decisions: of 12 November 2019, in case M.9064, Telia/Bonnier Broadcasting, paragraph
    251; of 15 July 2019 in case M.9370, Telenor/DNA, paragraphs 44-46; of 27 November 2018 in case
    M.8792, T-Mobile NL/Tele2 NL, paragraphs 232-233; 8 October 2018 in case M.8842 – Tele2/Com
    Hem, paragraph 49; of 27 July 2018 in case M.8883, PPF/Telenor Target Companies paragraphs 15-16.
    The Greek National Regulatory Authority (National Telecommunications and Post Commission or
    “EETT”), responsible, inter alia, for regulating any issue related to the market definition of the relevant
    electronic communications products or services within Greece (under Law 4070/2012), has found that the
    geographic scope of the market for the retail provision of mobile communication services corresponds to
    the territory of Greece (EETT decision 399/1/16.8.2016, on the acquisition by Cosmote Greece of
    MOBILBEEP Ltd; Gov't Gazette Issue B΄1376 / 14.09.2006).
                                                          6
 ---pagebreak--- (31)      The Commission observes that nothing in the present case indicates that it would be
          justified to depart from its position – in particular considering that licences to
          mobile operators are granted on a national basis. Consequently, for the purpose of
          the present decision and in line with its previous decisional practice, the
          Commission considers the market for retail mobile services to be national in scope.
4.2.2.    Retail supply of fixed telephony services
(32)      Fixed telephony services comprise the provision of connection services at a fixed
          location or access to the public telephone network, for the purpose of making
          and/or receiving calls and related services.
4.2.2.1. Product market definition
(33)      In previous decisions, the Commission considered that managed Voice over
          Internet Protocol (“VoIP”)30 services and fixed voice services provided through
          fixed lines are interchangeable and therefore belong to the same market.31
(34)      The Notifying Party submits that the relevant product market should be defined in
          line with previous Commission decisions, as the overall retail market for fixed line
          telephony services, including VoIP services.
(35)      For the purpose of the present decision, the Commission considers that the exact
          product market definition (whether there is an overall market for the retail supply
          of fixed telephony services or whether this market should be segmented into fixed
          voice services and VoIP services) can be left open as the Transaction does not give
          rise to serious doubts as to its compatibility with the internal market or the
          functioning of the EEA Agreement under any such possible product market
          definition.
4.2.2.2. Geographic market definition
(36)      In previous decisions, the Commission has consistently found the market for the
          supply of fixed telephony services to be national in scope, as this reflects the
          continuing importance of the role of national regulation in the telecommunications
          sector, the supply of upstream wholesale services on a national basis, as well as the
          fact that the pricing policies of telecommunications providers are predominantly
          national.32
30  Voice over internet protocol, is a technology allowing to deliver voice communication services through IP
    network, such as the internet.
31 Commission decisions: of 03 August 2016 in case M.7978, Vodafone/Liberty Global/Dutch JV, paragraph
    40; of 04 February 2016 in case M.7637, Liberty Global/BASE Belgium, paragraph 64.
32 Commission decisions: of 27 November 2018 in case M.8792, T-Mobile NL/Tele2 NL, paragraph 271; of
    27 July 2018 in case M.8883, PPF/Telenor Target Companies, paragraph 22; of 3 August 2016 in case
    M.7978, Vodafone/Liberty Global/Dutch JV, paragraph 40; of 4 February 2016 in case M.7637, Liberty
    Global/BASE Belgium, paragraph 64. The Greek NRA, taking into account, inter alia, the barriers to
    entry which are structural and related to high and non-recoverable costs and the pricing policy of both the
    incumbent and alternative operators, considered that the market for the retail provision of fixed telephony
    services is national and corresponds to the Greek territory. (Notification to the European Commission,
    BEREC and National Regulatory Authorities on the definition of, the analysis of competition and the
    proposed regulatory obligations, on inter alia, the markets for retail fixed telephony services October
    2016; Under decision No 792/08/22.12.2016, the Greek NRA found that this market is no longer
    susceptible to ex ante regulation.) In its earlier decision No 733/047/18.09.2014, on the acquisition by
                                                           7
 ---pagebreak--- (37)       The Notifying Party, based on the Commission's precedents, considers the market
           to be national in scope.
(38)       The Commission observes that nothing in the present case indicates that it would be
           justified to depart from its position –in particular taking into account the
           importance of national regulation in the telecommunications sector and the fact that
           the upstream wholesale services are provided on a national basis. Consequently, or
           the purpose of the present decision and in line with its previous decisional practice,
           the Commission considers that the market for the supply of fixed telephony
           services is national in scope.
4.2.3.     Wholesale market for mobile and fixed call termination services
(39)       Call termination is the service provided by a network operator on the supply side to
           other network operators on the demand side, whereby a call originating in a
           demand side operator's network is delivered to a user in the supply side operator's
           network. This service is required by every originating operator, as it is necessary
           for its customers to be able to communicate with the customers of other networks.
           Call termination is therefore a wholesale service that is resold or used as an input
           for the provision of downstream retail telephony and mobile services. In previous
           decisions, the Commission has identified relevant markets for the provision of
           wholesale call termination on mobile and fixed networks.33
4.2.3.1. Wholesale market for mobile call termination services
4.2.3.1.1.         Product market definition
(40)       In previous decisions, the Commission has found that there is no substitute for call
           termination on each individual network, as the operator transmitting the call can
           reach the intended recipient only through the operator of the network to which the
           recipient is connected.34
(41)       The Notifying Party agrees with the Commission’s approach and, submits that the
           relevant product market is the market for wholesale call termination services.
    Vodafone Greece of Hellas Online, EETT considered that the relevant geographic market shall correspond
    to the entire territory of Greece, to the extent that conditions of competition are not differentiated.
33 Accordingly, the 2003 Commission’s Recommendation on the relevant product and service markets
    within the electronic communications sector susceptible to ex ante regulation in accordance with the
    Framework Directive (Directive 2002/21/EC of the European Parliament and of the Council on a common
    regulatory framework for electronic communications networks and services) has distinguished call
    termination on individual networks, mobile or fixed as separate markets. A distinction between
    termination on these networks is further justified by the characteristics of the terminals themselves such as
    the different functionalities and the mobility guaranteed by the mobile service.
34 Commission decisions: of 27 November 2018 in case M.8792, T-Mobile NL/Tele2 NL, paragraph 259; of
    15 July 2019 in case M.9370, Telenor/DNA, paragraph 70; of 27 July 2018 in case M.8883, PPF/Telenor
    Target Companies, paragraph 26; of 12 December 2012 in case M.6497, Hutchison 3G Austria/Orange
    Austria, paragraph 68. Similarly, the Greek NRA, in its decision No 815/002/22.06.2017 (Gov't Gazette
    Issue B' 2530/20.07.2017), concerning “The definition of wholesale voice call termination on individual
    mobile networks, the determination of operators holding significant market power and the regulatory
    obligations imposed on them” (“Market 2” in Commission’s recommendation of 9 October 2014) has
    considered the existence of a distinct market for the provision of wholesale mobile call termination
    services per each individual mobile network operator. Accordingly, it has designated each mobile network
    operator in Greece, as having significant market power on their respective networks.
                                                              8
 ---pagebreak--- (42)       The Commission observes that nothing in the present case indicates that it would be
           justified to depart from its position –in particular considering that a network
           operator transmitting a call can reach the intended recipient only through the
           operator of the network to which the recipient is connected. Consequently, for the
           purpose of the present decision, and in line with its previous decisional practice, the
           Commission considers that, as regards wholesale call termination services,
           termination on each individual mobile network constitutes a separate product
           market.
4.2.3.1.2.        Geographic market definition
(43)       In previous decisions, the Commission considered that the market for wholesale
           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 is
           limited to the national territory of the operator's network.35 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.
(44)       In line with previous Commission decisions, the Notifying Party submits that the
           market for wholesale mobile call termination services should be considered
           national in scope.
(45)       The Commission observes that nothing in the present case indicates that it would be
           justified to depart from its position – in particular, considering that the geographic
           scope of each wholesale market for mobile call termination corresponds to the
           geographic dimension of each mobile operator’s network which, due to regulatory
           barriers, is limited to the national territory within which it operates. Consequently,
           for the purpose of the present decision, and in line with its previous decisional
           practice the Commission considers that the market for wholesale mobile call
           termination services is national in scope.
4.2.3.2. Wholesale market for fixed call termination services
4.2.3.2.1.        Product market definition
(46)       As in the case of wholesale mobile call termination services, in previous decisions
           the Commission has established that there are no potential substitutes for call
           termination on each fixed network since the operator transmitting the call can reach
           the intended recipient only through the operator of the network to which the
           recipient is connected.36
35  Commission decisions: of 27 November 2018 in case M.8792, T-Mobile NL/Tele2 NL, paragraph 263; of
    15 July 2019 in case M.9370, Telenor/DNA, paragraph 73; of 27 July 2018 in case M.8883, PPF/Telenor
    Target Companies, paragraph28; of 3 August 2016 in case M.7978, Vodafone/Liberty Global/Dutch JV,
    para 196.
36 Commission decisions: of 27 November 2018 in case M.8792, T-Mobile NL/Tele2 NL, paragraph 259, of
    15 July 2019 in case M.9370, Telenor/DNA, paragraph78, of 27 July 2018 in case M.8883, PPF/Telenor
    Target Companies, paragraph 32; of 12 December 2012 in case M.6497, Hutchison 3G Austria/Orange
    Austria, paragraph 68. Accordingly, the Greek NRA, in its decision No 714/09/10.04.2014 (Gov't Gazette
    Issue B' 1049/08.04.2014), concerning “The definition of wholesale call termination on public telephone
    network provided at fixed location, the determination of operators holding significant market power and
    the regulatory obligations imposed on them” (third round of market analysis), has found distinct markets
    for the provision of wholesale call termination services per each individual fixed network operator.
                                                           9
 ---pagebreak--- (47)      The Notifying Party, in accordance with Commission’s decisional practice, submits
          that the relevant product market is the market for wholesale call termination
          services on fixed networks.
(48)      The Commission observes that nothing in the present case indicates that it would be
          justified to depart from its position –in particular considering that a fixed network
          operator transmitting a call can reach the intended recipient only through the
          operator of the network to which the recipient is connected. Consequently, for the
          purpose of the present decision, and in line with its previous decisional practice the
          Commission considers that, as regards wholesale call termination services,
          termination on each individual fixed network constitutes a separate product market.
4.2.3.2.2.       Geographic market definition
(49)      In previous decisions, the Commission has found that the market for wholesale
          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.37
(50)      The Notifying Party submits that, in line with previous Commission decisions, the
          market for wholesale fixed call termination services is national.
(51)      The Commission observes that nothing in the present case indicates that it would be
          justified to depart from its position –in particular, considering that the geographic
          scope of each wholesale market for fixed call termination corresponds to the
          dimension of each operator’s network which, due to regulatory barriers, is limited
          to the national territory within it operates. Consequently, for the purpose of the
          present decision, and in line with its previous decisional practice the Commission
          considers that the market for wholesale fixed call termination services is national in
          scope.
5.        COMPETITIVE ASSESSMENT
5.1.      Analytical framework
(52)      Article 2 of the Merger Regulation requires the Commission to examine whether
          notified concentrations are compatible with the internal market, by assessing
          whether they 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.
(53)      The Commission Guidelines on the assessment of horizontal mergers under the
          Merger Regulation (the "Horizontal Merger Guidelines") distinguish two main
          ways in which mergers between actual or potential competitors on the same
37  Commission decisions: of 27 November 2018 in case M.8792, T-Mobile NL/Tele2 NL, paragraph 263; of
    15 July 2019 in case M.9370, Telenor/DNA, paragraph 81; of 27 July 2018 in case M.8883, PPF/Telenor
    Target Companies, paragraph 35; of 3 August 2016 in case M.7978, Vodafone/Liberty Global/Dutch JV,
    paragraph 210.
                                                     10
 ---pagebreak---            relevant market may significantly impede effective competition, namely non-
           coordinated effects and coordinated effects.38
(54)       Non-coordinated effects may significantly impede effective competition by
           eliminating the competitive constraint imposed by one merging party on the other,
           as a result of which the merged entity would have increased market power without
           resorting to coordinated behaviour.
(55)       The Horizontal Merger Guidelines list a number of factors which may influence
           whether or not significant 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. Not all of these factors need to be present for significant non-
           coordinated effects to be likely. The list of factors, any one is not necessarily
           decisive, is also not an exhaustive list.39
(56)       A transaction may also entail vertical effects. In that respect, the Commission
           Guidelines on the assessment of non-horizontal mergers under the Merger
           Regulation (the "Non-Horizontal Merger Guidelines") distinguish between two
           main ways in which vertical mergers may significantly impede effective
           competition, namely input foreclosure and customer foreclosure.
(57)       For a transaction to raise input foreclosure competition concerns, the merged entity
           must have a significant degree of market power upstream. In assessing the
           likelihood of an anticompetitive input foreclosure strategy, the Commission has to
           examine whether (i) the merged entity would have the ability to substantially
           foreclose access to inputs; (ii) whether it would have the incentive to do so; and
           (iii) whether a foreclosure strategy would have a significant detrimental effect on
           competition downstream.
(58)       For a transaction to raise customer foreclosure competition concerns, the merged
           entity must be an important customer with a significant degree of market power in
           the downstream market. In assessing the likelihood of an anticompetitive customer
           foreclosure strategy, the Commission has to examine whether (i) the merged entity
           would have the ability to foreclose access to downstream markets by reducing its
           purchases from upstream rivals; (ii) whether it would have the incentive to do so
           and (iii) whether a foreclosure strategy would have a significant detrimental effect
           on consumers in the downstream market.
5.2.       Identification of affected markets
(59)       In the present case, the Transaction gives rise to horizontally affected markets in
           the retail supply of pay-TV services, in Greece.40
38  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of
    concentrations between undertakings, OJ C 31, 5.2.2004 p.5.
39 Horizontal Merger Guidelines, paragraphs 26-38.
40 As set out in recital (17), Forthnet offers its pay-TV services in Cyprus, via both satellite and OTT.
    According to the Parties’ submission, Forthnet’s market share in Cyprus: (i) in the overall market for the
    retail supply of pay-TV services, is estimated at [0-5]% (in volume). The Notifying Party submits that
    there is no public information on value data and the Cypriot Authority only reports volume data for the
                                                         11
 ---pagebreak--- (60)       The Transaction also gives rise to vertically affected markets in connection with the
           (A) upstream markets for the wholesale supply of call termination services on
           mobile and fixed networks and (B) the downstream markets for retail mobile
           communication services and the retail supply of fixed telephony services, in the
           countries where United Group and Forthnet operate.
5.3.       Horizontally affected markets
5.3.1.     Retail supply of pay-TV services in Greece
5.3.1.1. The Notifying Party’s view
(61)       The Notifying Party considers that the Transaction is unlikely to raise any
           horizontal non-coordinated effects on the market for pay-TV (and its possible
           segments) in Greece for the reasons set out below.
(62)     First, the Notifying Party argues that the Transaction results in a very limited
         increment of less than [0-5]% (even in the narrowest possible segment for retail
         supply of pay-TV services distributed through OTT). In the Notifying Party’s view,
         [information related to the geographic coverage of the Acquirer’s activities], Greece
         is not the target market. This is further demonstrated by the limited number of
         subscribers and revenues United Group generates from that activity ([...]).41
(63)       Second, the Notifying Party submits that post-Transaction, Forthnet and United
           Group (together forming the merged entity) will continue to face strong
           competitive pressure from telecom operators providing such services as well as
           from global or regional OTT platform. In Greece, in particular, international OTT
           operators (Netflix, Amazon Prime and Apple TV) are active since two years and
           are expanding their activities significantly.42
5.3.1.2. The Commission’s assessment
(64)       Both Forthnet and United Group are active in the markets for the retail supply of
           pay-TV services in Greece, and in particular in the possible market for the retail
           provision of OTT services.
    pay-TV market. In its consideration, as a rough estimate, for 2019, the market shares in value should be
    comparable to the market shares in volume; (ii) in the possible narrower OTT segment, its market share is
    estimated at [0-5]%, in both value and volume. United Group’s market share, in the possible segment of
    the retail provision of pay-TV services via OTT in 2019, is estimated to be below [0-5]%, both in value
    and volume. In addition, the Parties submit that OTT services in Cyprus are offered by the local telecom
    operators (Cytavision, Cablenet, Primetel and MTN) and global operators (such as Netflix). (Form CO
    paragraph 199; Annex 11. 1 to the Form CO; Response to Commission’s RFI dated 17 July 2020). The
    Parties’ combined market share is, therefore, estimated to be below [0-5]% (both value and volume), in
    the possible market for the retail supply of OTT services, and therefore, as to the market for pay-TV
    services in Cyprus the Transaction does not lead to affected markets and is not liable. to impede effective
    competition. Respondents to Commission’s market investigation, on the supply-side, have confirmed that
    “[t]he Transaction is not expected to have any impact on the intensity of competition in the retail market
    for the supply of TV services in Cyprus”. (Questionnaire Q1, replies to questions 8.1.2 and 8.1.2.1).
41 Form CO, paragraphs 193-195.
42 Form CO, paragraphs 197-199.
                                                          12
 ---pagebreak---  ---pagebreak---  ---pagebreak---            significant market position, who will continue exerting a significant competitive
           constraint on the merged entity. The Commission’s market investigation has
           confirmed their significant presence. 49
(71)       Third, the market investigation indicated an absence of competition concerns.50 A
           vast majority of respondents considered that the Transaction would not have a
           negative effect on the market for the retail supply of pay-TV services.51
(72)       Additionally, the Commission observes that the market investigation indicated that
           potential advantages to competition could arise from the Transaction, to the extent
           that “it will provide Forthnet with extra financing, which will improve its status in
           the market”.52 In that respect, from the supply side, a pay-TV provider active in
           Greece considers that [...].53 The Transaction is, therefore, likely to result in an
           increase in competition in the retail market for the supply of pay-TV services in
           Greece.54
(73)       On the basis of the foregoing, the Commission concludes that the Transaction does
           not raise serious doubts as to its compatibility with the internal market with respect
           to horizontal non-coordinated effects as to the market for the retail provision of
           pay-TV services and its possible narrower sub-segments (according to: (i) linear
           and non-linear pay TV services; (ii) basic and premium pay TV services; and (iii)
           the distribution technology employed), in Greece.
5.4.       Non-horizontally affected markets
(74)       As set out in paragraph (39), call termination services are wholesale services
           provided by network operators that allow users of different networks to
           communicate with each other. The market for wholesale termination of calls on
           mobile fixed networks is therefore vertically related to the retail markets for fixed
           and mobile telephony services. In this regard, the Transaction gives rise to the
           below vertically affected markets in the telecommunications sector:
         (a) the upstream market for the wholesale provision of call termination services on
              Forthnet’s fixed network in Greece, in connection with:
49  Questionnaire Q1 – Replies to questions 2.3 [...]
50  The Commission recalls that, as set out in paragraph (3) Forthnet is also active in the production of its
    own TV channels (and its own TV content), which it subsequently offers to pay-TV providers, active
    downstream, at the retail supply of TV services (see also Reply of Wind to question 3.2 –Questionnaire
    Q1). This upstream market for the “wholesale supply and acquisition of TV channels” is not an affected
    market. In any event, the Commission considers that the Transaction is not likely to indirectly affect this
    upstream market, as result of the increase of merged entity’s market position downstream: Due to
    marginal increment to be brought, as discussed in this section, the Transaction is not in the nature of
    reinforcing the merged entity’s market position. Second, according to the Notifying Party, OTE is also
    active on the production and supply of TV content, and will exert a pressure in the entity post-Transaction.
    Third, the Commission considers that it will be in Forthnet’s interest to distribute its channels and content
    to a large number of TV platforms, with the aim to attract a large customer base. In this regard, it will not
    have the incentive to offer its content at unfavorable terms.
51  Questionnaire Q1 – Replies to questions 8.1.1.1 and 6.1.
52  Questionnaire Q1 – Reply by a federation active in Greece, in question 8.1.1.1.
53  Questionnaire Q1 – Reply to question 6.1.
54  Questionnaire Q1 – Replies to question 8.1.1. (Vodafone Group; S.E.P.E.: Federation of Hellenic ICT
    Enterprises).
                                                            15
 ---pagebreak---            -   the downstream market for the retail provision of mobile communication
               services in the countries where United Group is active (Slovenia, Croatia and
               Bulgaria); and
           -   the downstream market for the retail provision of fixed telephony services in
               the countries where United Group is active (Slovenia and Bulgaria);
       (b) the upstream market for the wholesale provision of call termination services on
           United Group’s fixed networks in Slovenia (Telemach) and Bulgaria (BTC) in
           connection with the downstream market for the retail provision of fixed
           telephony services in Greece (Forthnet);
       (c) the upstream market for the wholesale provision of call termination services on
           United Group’s mobile networks in Slovenia (Telemach), Croatia (Tele2) and
           Bulgaria (BTC) in connection with the downstream market for the retail
           provision of fixed telephony services in Greece (Forthnet).
Table 3: Non-horizontally affected markets in Greece, Slovenia, Croatia and Bulgaria
    Upstream markets                           Downstream markets
    Wholesale      fixed   call   termination (i) Retail mobile telecommunications
    services:                                  services:
    - Forthnet (100% in Greece)                - United Group: Slovenia, Croatia and
                                               Bulgaria
                                               (ii) Retail fixed telephony services in:
                                                    - United Group: Slovenia, Bulgaria
    Wholesale      fixed   call   termination (ii) Retail fixed telephony services in:
    services:
                                                    - Forthnet: Greece
    - United Group: 100% in Slovenia
    (Telemach); 100% in Bulgaria (BTC)
    Wholesale      mobile   call  termination
    services:
    - United Group: 100% in Slovenia
    (Telemach); 100% in Bulgaria (BTC);
    100% in Croatia (Tele2)
         Source: Form CO
                                                 16
 ---pagebreak---  ---pagebreak---  ---pagebreak--- (79)       First, the Notifying Party submits that the markets for provision of wholesale
           mobile call termination services are subject to ex ante regulation in the Member
           States. Such national regulations ensure that access to call termination is granted on
           reasonable conditions and rates remain reasonable and non-discriminatory. In
           addition, the Notifying Party submits that, by 31 December 2020, mobile and fixed
           termination rates will no longer be established by the national regulators, but by the
           Commission through a delegated act.58 Therefore, in the Notifying Party’s view, in
           line with previous Commission decisions,59 the merged entity would not have the
           ability to discriminate against Forthnet’s competitors in Greece for access to
           mobile call termination services in Slovenia, Croatia and Bulgaria.60
(80)       Second, the Notifying Party asserts, in essence, that any attempt by United Group
           to foreclose Forthnet’s competitors in Greece, by means of wholesale mobile call
           termination services is unlikely to be effective, since neither Telemach, Tele2 or
           BTC can influence the cost structure of Forthnet’s competitors in a significant
           manner.61 According to the Notifying Party, traffic flows originating from Greece
           and terminating in Slovenia, Croatia or Bulgaria are extremely limited. Any
           attempt, therefore, by United Group to increase its termination charges would have
           little or no impact on the cost structure of Forthnet’s competitors in Greece. In
           addition, the Notifying Party submits that traffic flows originating from Slovenia,
           Croatia and Bulgaria and terminating to Greece, are limited. Therefore, Forthnet
           cannot influence the cost structure of United Group’s competitors in Slovenia,
           Bulgaria and Croatia.62
5.4.1.1.2.        The Commission's assessment
(81)       The Commission considers that the Transaction does not raise any input foreclosure
           concerns on the market for retail fixed telephony services in Greece, by means of
           discrimination against Forthnet’s competitors for access to call termination services
           in the countries where United Group operates (Slovenia, Croatia and Bulgaria) or
           by degrading terms and conditions for access to these services, for the following
           reasons.
(82)       First, the Commission notes the existence of a regulatory framework for the
           electronic communications networks and services comprising of five Directives.
           This legislative package aims at establishing a harmonised regulatory framework
           for networks and services across the EU. Pursuant to Article 15 of the Framework
           Directive,63 the Commission is required to adopt a recommendation on relevant
           product and services markets with the aim to identify those product and services
           markets within the electronic communications sector whose characteristics justify
           the imposition of regulatory obligations. The market for wholesale call termination
           services on mobile networks has been identified as one of these markets and as
           such has been listed in the Annex to the Recommendation on the relevant product
           and service markets within the electronic communication sector of 9 October
58  Form CO, paragraph 216.
59  Commission decisions: of 15 July 2019 in case M.9370, Telenor/DNA, paragraph 136; of 3 April 2020 in
    case M.9679, United Group/Bulgarian Telecommunications Company, paragraph 95.
60  Form CO, paragraph 217.
61  Form CO, paragraph 232.
62  Form CO, paragraphs 219-220.
63  Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework
    for electronic communication networks and services. OL L 108, 24 04 2002, p. 0033-0050.
                                                        19
 ---pagebreak---          2014,64 which the Commission has adopted pursuant to the Framework Directive.
         By this inclusion, this market is subject to ex ante regulation.65 Pursuant to this ex
         ante regulation, which is laid out in the specific Directives, the National Regulatory
         Authorities (“NRAs”) have designated operators with significant market power,
         including operators of wholesale call termination services on mobile networks, and
         imposed on them a number of regulatory obligations. Accordingly, the Slovenian,
         Croatian and Bulgarian NRAs, by virtue of the relevant decisions, have designated
         Telemach (United Group), Tele2 (United Group) and BTC (United Group) as
         operators holding significant market power in the market for the provision of
         wholesale mobile call termination services.66
(83)     Those regulatory obligations include access to and use of specific network
         facilities.67 In this regard, operators are required, inter alia, to give third parties
         access to specified network elements, to negotiate in good faith with undertakings
         requesting access and to not withdraw access to facilities already granted.
         Additional obligations include transparency (in relation to the publication of draft
         interconnection agreements on the network operator’s website),68 non-
         discrimination, to ensure that operators apply equivalent conditions in equivalent
         circumstances to undertakings providing equivalent services,69 including a ban on
         favouring their own services, and price control. 70
(84)     Furthermore, as established by Article 75 of the European Electronic
         Communications Code,71 by 31 December 2020 the Commission shall adopt a
         delegated act setting the Eurorates (a single Union-wide mobile and a single
         Union-wide fixed termination rate). More precisely, the European Electronic
         Communications Code, with the aim to “reduce the regulatory burden in
         addressing the competition problems relating to wholesale voice call termination
         consistently across the Union”, empowers the Commission to establish by means
         of a delegated act a single maximum voice termination rate for mobile services,
         that apply Union-wide. That means that termination rates, currently established by
         the Bulgarian, the Slovenian and the Croatian regulators, will be determined by the
         European Commission through a delegated act, to be adopted pursuant to the said
64 Commission Recommendation of 9 October 2014, on relevant product and service markets within the
   electronic communications sector susceptible to ex ante regulation in accordance with Directive
   2002/21/EC of the European Parliament and of the Council on a common regulatory framework for
   electronic communications networks and services. OJ L 295, 11.10.2014, p. 79–84 (revising the
   Recommendation 2007/879/EC of 17 December 2007.
65 Ibid.
66 For Telemach (ex Tusmobil), see decision of Agency for Communication Networks and Services of the
   Republic of Slovenia (AKOS), No 38294-8/2009-3 of 24.09.2009; For Tele-2, see decision of Croatian
   Regulatory Authority for Network Industries (HAKOM) 376-11-13-16, of 10 June 2013; For BTC see
   decision of Communications Regulations Commission (CRC) of 23 June 2016.
67 Article 12 of the Access Directive.
68 Article 9 of the Access Directive.
69 Article 10 of the Access Directive.
70 With respect to Slovenia, see Commission decision of 8 March 2016, in case SI/2016/1841: Wholesale
   voice call termination on individual mobile networks in Slovenia – Remedies. With respect to Bulgaria,
   see Commission Decision of 21 November 2016 in case BG/2016/1924, Call termination on individual
   mobile telephone networks in Bulgaria and corresponding national market review performed by the
   national regulatory authority. With respect to Croatia, see Commission Decision of 13 February 2019 in
   ;case HR/2019/2140: Wholesale voice call termination on individual mobile networks in Croatia.
71 Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018
   establishing the European Electronic Communications Code.
                                                        20
 ---pagebreak---           Directive. The Commission observes that while the said act is not yet in force, the
          fact that its introduction is imminent implies that even if the merged entity could
          discriminate– which does not appear likely in light of the reasons set out in this
          section – any such effects would not be long-term.
(85)      In addition, the Commission observes that the provision of wholesale mobile call
          termination services originating from Greece and terminating in Slovenia, Croatia
          and Bulgaria,–ie., to Telemach, Tele2 and BTC and their competitors are limited.72
          In this regard, the Commission considers that any increase by the merged entity of
          its termination charges upstream would have little or no impact on the cost
          structure of the merged entities’ competitors in Greece. Therefore, a possible input
          foreclosure strategy is unlikely to be profitable for the merged entity. In addition, in
          view of the small traffic volume of fixed calls originating from Greece and
          terminating in Slovenia, Croatia or Bulgaria, the Transaction is not expected to
          have a detrimental effect on competition in the downstream market for the retail
          supply of fixed telephony services in Greece.
(86)      The Commission further considers that the Transaction does not lead to any
          customer foreclosure concerns, in United Group’s network in Slovenia, Croatia and
          Bulgaria.
(87)    In that respect, the Commission observes that Forthnet’s presence in the downstream
        market for the retail supply of fixed telephony services is limited (estimated below
        [5-10]% in value). Assuming possible segmentations of this market, in the possible
        narrower segment of VoIP services, Forthnet held a market share of [0-5]% (in
        value). The Commission observes that in the possible segment of fixed lines, in
        2019, Forthnet’s presence appears to be more significant (with a market share of [20-
        30]%, in value, and [30-40]% in volume). Ιn 2017 and 2018, however, the respective
        market shares Forthnet held in this possible sub-segment, were more limited ([10-
        20], in value and [10-20]%, in volume). The Parties submit that, the significant
        increase in Forthnet’s 2019 market shares is due to [information related to a
        competitor’s activities].73
(88)      The Commission considers that in view of the regulatory obligations applicable to
          the upstream market for wholesale mobile call termination services, set out in
          recitals (82)-(84), foreclosure of United Group’s rivals in the upstream market,
          cannot be effective. Such obligations include an obligation on operators to meet a
          reasonable request for access to and use of their network facilities, in, inter alia,
          situations “where denial of access or unreasonable terms and conditions having a
          similar effect would hinder the emergence of a sustainable competitive market at
          the retail level”.74 In that respect, the Commission recalls that such regulatory
          obligations aim at addressing market failures identified at retail level.75 Additional
          obligations such as non-discrimination or price control are likely to reduce, the
72 In line with the Notifying Party’s submission, the traffic flow originating from Greece (all operators, in
   minutes), in 2019, and terminating in Slovenia, Bulgaria and Croatia, represented respectively: [0-5]% ;
   [5-10]% % and [0-5]% of total international traffic which terminates in Telemach’s, BTC’s and Tele2’
   network, respectively. (Information generated from Annexes 11.1, 11.2, 11.3 and 11.4 to the Form CO).
73 Reply to Commission’s request for information dated 30 July 2020.
74 Article 12 of the Access Directive.
75 See Commission’s Recommendation of 9 October 2014, recital (7), providing that “For both the
   Commission and national regulatory authorities the starting point for the identification of wholesale
   markets susceptible to ex ante regulation is the analysis of corresponding retail markets”.
                                                          21
 ---pagebreak---          merged entity’s incentive to reduce purchases from United Group’s rivals in the
         upstream market, since United Group will not have the possibility to benefit from
         higher prices in the upstream market.
(89)     On the basis of the data provided by the Notifying Party, in this market there are
         alternative operators active, with higher market shares in the overall market of
         retail fixed telephony services (in 2019, OTE: of [50-60]%, Vodafone: [20-30]%
         and Wind: [10-20]%, in volume).76 With regard to a possible segment for fixed
         voice services, the Commission’s market investigation indicated that alternative
         telecoms operators are active in this narrower possible segment, where Forthnet has
         a modest market share of [30-40]%.77 In view of this, the Transaction is not
         expected to have detrimental effects on the upstream market for the provision of
         wholesale mobile call termination services in Slovenia, Croatia and Bulgaria.
(90)     Finally, the Commission notes that the vast majority of the respondents to the
         market investigation did not raise any concerns related to vertical issues arising
         from the Transaction in the market for wholesale mobile call termination services
         on the one hand, and the retail supply of fixed telephony services on the other
         hand.78 In that respect, according to a Greek telecommunications operator, no
         “material change in the structure of the retail market for fixed telephony services”
         should be anticipated in the foreseeable future.79
(91)     Therefore, the Commission considers that the Transaction will not have any
         appreciable negative impact on prices or other terms or conditions in the
         downstream markets for the retail supply of fixed telephony services (and all
         possible sub-segments set out at paragraph (32)), in Greece.
(92)     On the basis of the foregoing, 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 mobile call
         termination services and the downstream market for retail supply of fixed
         telephony services.
5.4.1.2. Wholesale market for fixed call termination services – Retail market for fixed
         telephony services and retail market for mobile telecommunications services
(93)     Forthnet is active on the market for wholesale fixed call termination services on its
         own network in Greece. United Group is also active on the market for wholesale
         fixed call termination services on its own networks in Slovenia and Bulgaria. The
         wholesale market where the Parties hold 100% market share on their own networks
         is upstream of the markets for (i) the retail supply of fixed telephony services and
         (ii) the retail supply of mobile communication services, where the Parties’ market
         shares are presented in the Tables (4) and (5) above.
76  Annex 11.1 to the Form CO.
77  Questionnaire Q1 – reply to questions 3.2,4, and 5.2.
78 Questionnaire Q1 – Vodafone’s response to question 7.1.1.
79 (“over the next 3-5 years) Questionnaire Q1 – reply to questions 7.1, 7.1.1, 7.4 and 7.4.1.
                                                          22
 ---pagebreak--- 5.4.1.2.1.       Wholesale market for fixed call termination services – Retail market for
                 fixed telephony services.
5.4.1.2.1.1.     The Notifying Party’s view
(94)      The Notifying Party submits that the Transaction will not result in any
          anticompetitive foreclosure concerns for the reasons set out below.
(95)      First, the Notifying Party submits that the market for the provision of wholesale
          fixed call termination services are subject to ex ante regulation by the respective
          national regulatory authorities. Such regulations ensure that access to call
          termination is granted on reasonable conditions and rates remain reasonable and
          non-discriminatory. In addition, as set out in paragraph (75) following the adoption
          of the respective delegated act, by 31 December 2020, mobile and fixed
          termination rates will no longer be established by the national regulators, but by the
          Commission through a delegated act.80 Therefore, in the Notifying Party’s view, in
          line with previous Commission decisions,81 the merged entity would not have the
          ability to discriminate against each United Group’s competitors in Slovenia,
          Bulgaria and Forthnet’s competitors in Greece, for access to fixed call termination
          services in these countries.82
(96)      Second, the Notifying Party asserts that in essence, any attempt by the Parties to
          foreclose each other’s competitors is unlikely to be effective, since neither Forthnet
          nor United Group can influence the cost structure of Telemach/BTC and Forthnet’s
          competitors, respectively, in a significant manner. In view of the extremely limited
          traffic flows between, on the one hand Slovenia, Bulgaria and Greece, on the other
          hand, according to the Notifying Party, any attempt by Forthnet or United Group to
          increase its termination charges would have little or no impact on the cost structure
          of United Group’s competitors in Slovenia and Bulgaria and on Forthnet’s
          competitors in Greece.83
5.4.1.2.1.2.     The Commission’s assessment
(97)      The Commission, first, considers that the Transaction does not raise any input
          foreclosure concerns with respect to the market for (i) the retail supply of fixed
          telephony services in Slovenia and Bulgaria, and (ii) the retail supply of fixed
          telephony services in Greece, by means of discrimination against Telemach’s
          (United Group) and BTC’ (United Group) competitors for access to fixed call
          termination services in Greece, and Forthnet’s competitors for access to fixed call
          termination services in Slovenia and Bulgaria,or by degrading terms and conditions
          for access to these services, for the following reasons.
(98)      In line with what has been discussed in recital (82), the Commission notes that,
          pursuant to Article 15 of the Framework Directive, the upstream market for the
          provision of wholesale call termination services on fixed networks is included in
          the Annex to Commission’s Recommendation, on the relevant product and service
          markets within the electronic communication sector susceptible to ex ante
80  Form CO, paragraphs 228-231.
81  Commission decisions: of 15 July 2019 in case M.9370, Telenor/DNA, paragraph 136; of 3 April 2020 in
    case M.9679, United Group/Bulgarian Telecommunications Company, paragraph 95.
82 Form CO, paragraph 217.
83 Form CO, paragraph 232.
                                                      23
 ---pagebreak---          regulation.84 In this regard, the National Regulatory Authorities, in each of Greece,
         Slovenia and Bulgaria have imposed a number of regulatory obligations on
         operators holding a significant market power.85 Such regulatory obligations include
         obligation of access to and use of specific network facilities. 86 Accordingly, the
         Slovenian, Bulgarian and Greek NRAs, by virtue of their decisions, have
         designated Telemach (United Group), BTC (United Group) and Forthnet (Greece)
         as operators holding significant market power in the market for the provision of
         wholesale fixed call termination services.87
(99)     In this regard, network operators should meet reasonable requests for access to and
         use of their network elements and associated facilities. Additional obligations
         include, transparency (in relation to publication of draft interconnection agreements
         on the network operator’s website),88 non-discrimination, aiming at ensuring that
         operators apply equivalent conditions in equivalent circumstances to undertakings
         providing equivalent services, including a ban on favouring their own services89
         and price control. 90
(100)    Furthermore, as established by Article 75 of the European Electronic
         Communications Code, by 31 December 2020 the Commission shall adopt a
         delegated act setting the Eurorates (a single Union-wide mobile and a single
         Union-wide fixed termination rate). More precisely, the European Electronic
         Communications Code, with the aim to “reduce the regulatory burden in
         addressing the competition problems relating to wholesale voice call termination
         consistently across the Union”, empowers the Commission to establish by means
         of a delegated act a single maximum voice termination rate for fixed services that
         apply Union-wide. That means that termination rates, currently established by the
         Bulgarian, Slovenian and the Greek regulators, will be set by the European
         Commission through a delegated act, to be adopted pursuant to the said Directive.
         The Commission observes that while the said act is not yet in force, the fact that its
         introduction is imminent implies that even if the merged entity could discriminate –
         which does not appear likely in light of the reasons set out in this section– any such
         effects would not be long-term.
84 Commission Recommendation of 9 October 2014, on relevant product and service markets within the
   electronic communications sector susceptible to ex ante regulation in accordance with Directive
   2002/21/EC of the European Parliament and of the Council on a common regulatory framework for
   electronic communications networks and services. OJ L 295, 11.10.2014, p. 79–84.
85 With respect to Greece, see Commission decision of 10/03/2014 in case EL/2OL4/1563, Wholesale call
   termination on individual public telephone networks provided at a fixed location in Greece, With respect
   to Bulgaria, see Commission Decision of 26 May, 2016 in case BG/2016/1862, Call termination on
   individual public telephone provided at a fixed location in Bulgaria. With respect to Slovenia, see
   Commission Decision of 7 March 2016, in case SI/2016/1840, Wholesale call termination on individual
   public telephone networks provided at a fixed location in Slovenia – Remedies.
86 Article 12 of Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on
   access to, and interconnection of, electronic communications networks and associated facilities (Access
   Directive), O.J. L. 108, 24.04.2002, p.007.
87 For Telemach, see decision of Agency for Communication Networks and Services of the Republic of
   Slovenia (AKOS), No 38294-8/2009-3 of 24.09.2009; For BTC see decision of Communications
   Regulations Commission (CRC) of 23 June 2016; For Forthnet see decision of EETT No 714/09 of 28
   April 2014 (third round of analysis).
88 Article 9 of the Access Directive.
89 Article 10 of the Access Directive.
90 Article 13 of the Access Directive.
                                                        24
 ---pagebreak--- (101)     Therefore, Forthnet will not have the ability to discriminate against United Group’s
          competitors in Slovenia and Bulgaria for access to fixed call termination services in
          Greece. Similarly, United Group would not have the ability to discriminate against
          Forthnet’s competitors in Greece for access to fixed call termination in Slovenia
          and Bulgaria.
(102)     In addition, the Commission observes that the provision of (i) wholesale fixed call
          termination services in Slovenia and Bulgaria to Greece (fixed networks) and (ii)
          wholesale fixed call termination services in Greece to Slovenia, and Bulgaria (fixed
          networks) are limited. 91 In this regard, the Commission considers that any increase
          by the merged entity of its termination charges would have little or no impact on
          the cost structure of the merged entities’ competitors in these countries. Therefore,
          a possible input foreclosure strategy is unlikely to be profitable for the merged
          entity. In addition, in view of the small traffic volume, the Transaction is not
          expected to have a detrimental effect on the downstream retail markets for fixed
          telephony services in Slovenia, Bulgaria and Greece.
(103) The Commission, second, considers that the Transaction does not lead to any
        customer foreclosure concerns in the market for the provision of wholesale fixed call
        termination services nor in the countries where United Group is active (Slovenia and
        Bulgaria) neither in Greece (Forthnet’s network).
(104)     In that respect, the Commission observes that Forthnet’s presence on the
          downstream market for retail fixed telephony services in Greece is limited ([5-
          10]%, see also recital (85)). United Group is active in Slovenia, where, on the
          market for the retail provision of fixed telephony services, it holds a market share
          of [30-40]% (Telemach) and in Bulgaria, with a market share of [80-90]% (BTC).92
          The Commission, on the basis of the provided information, observes that in
          Slovenia there are alternative operators active, with Telecom Slovenia holding a
          market share of [30-40]%.93 In Bulgaria, nevertheless, the merged entity will hold a
          strong presence in the downstream market for the retail supply of fixed telephony
          services. The Commission, however, considers, that to the extent that each network
          operator holds a 100% market share in its individual network in the upstream
          market for wholesale fixed call termination services, and, as set out in recital (100),
          and in line with what has been discussed in recital (88) regulatory obligations exist,
          foreclosure of rivals in the upstream market is not effective. To the extent that fixed
          voice call termination rates is envisaged to be established by the European
          Commission, following adoption of the relevant delegated act, the merged entity
          will not be in a position to impede United Group’s and Forthnet’s competitors
          from obtaining access to fixed call termination services, in the Greece on the one
          hand, and, on the other hand, in Slovenia and Bulgaria.
91 In line with the Notifying Party’s submission, the incoming traffic flow to Slovenia (Telemach) and
   Bulgaria (BTC), originating from Greece (all operators; fixed networks, minutes) represented: [0-5]% and
   [0-5]%, against total international traffic which terminates in Telemach’s and BTC’s network,
   respectively. Similarly, the incoming traffic flow to Greece (all operators; fixed networks, minutes),
   originating from Slovenia (all operators) and Bulgaria (all operators), represented, respectively: [0-5]%
   and [0-5]% from all other International and Transit Operators that Forthnet is in commercial agreement
   with. (Information generated from Annexes 11.1, 11.2 and 11.4 to the Form CO).
92 Assuming possible segmentations of the market, the Commission recalls that United Group’s achieved
   market shares do not materially differ than those achieved in the overall market for retail fixed
   telecommunication services (see footnote 60).
93 Annex 11.2 to the Form CO.
                                                       25
 ---pagebreak--- (105)     Finally, the Commission notes that the majority of the respondents to the market
          investigation did not raise any concerns related to the vertical issues arising from
          the Transaction in the market for wholesale fixed call termination services on the
          one hand, and the retail supply of fixed telephony services, on the other hand.94 The
          market investigation has confirmed that the level of competition in these markets,
          in Greece, is anticipated to not change as a result of the Transaction.95 In addition,
          from the supply-side, telecommunications operators active in Bulgaria and
          Slovenia, do not expect “any changes in the level of competition” in the countries
          where they operate.96
(106)     Furthermore, according to some participants to the market investigation, the
          Transaction will improve Forthnet’s financial position, which is, accordingly,
          expected to “improve [Forthnet’s] status on the market” for retail fixed telephony
          services.97 To the extent that Forthnet, post-Transaction may gain access to
          financial resources, as has been observed in the context of the market investigation,
          [...].98 In this regard, the Transaction is likely to intensify competition in fixed
          telecommunications markets.99
(107)     On the basis of the foregoing, 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 market for wholesale fixed call
          termination services and the downstream markets for retail supply of fixed
          telephony services (and its possible sub-segments into fixed voice services and
          VoIP services).
5.4.1.2.2.        Wholesale market for fixed call termination services – Retail market for
                  mobile communication services.
5.4.1.2.2.1.      The Notifying Party’s view
(108)     The Notifying Party submits that the Transaction will not result in any
          anticompetitive foreclosure concerns.
(109)     In addition to the arguments put forth in recital (96), the Notifying Party asserts that
          any attempt by Forthnet to foreclose United Group’s competitors is unlikely to be
          effective, since Forthnet cannot influence the cost structure of
          Telemach/Tele2/BTC’ competitors in a significant manner. In view of the
          extremely limited traffic flows between, on the one hand Slovenia, Croatia,
          Bulgaria and Greece, on the other hand, according to the Notifying Party, any
          attempt by Forthnet to increase its termination charges would have little or no
          impact on the cost structure of United Group’s competitors in these countries.100
94  Questionnaire Q1 – replies to questions 7.1.1, 7.2.1, 7.3 and 7.3.1.
95  Questionnaire Q1 – replies to questions 7.1, 7.2, 7.3 and 7.4 (Telenor Bulgaria).
96  Questionnaire Q1 – replies to questions 7.1.1 and 7.2.1 (Telenor Bulgaria, Telekom Slovenia).
97  Questionnaire Q1 – replies to question 7.1.1.
98  Questionnaire Q1 – replies to question 7.1.1.
99  Questionnaire Q1 – replies to questions 7.1, 7.2, 7.2.1 (Vodafone Group) 7.3, 7.4 (S.E.P.E.: Federation of
    Hellenic ICT Enterprises), 7.4.1 (Vodafone Group) and 8.1.1.1.
100 Form CO, paragraphs 219 and 232.
                                                           26
 ---pagebreak--- 5.4.1.2.2.2.      The Commission’s assessment
(110)      First, the Commission considers that the Transaction does not raise any input
           foreclosure concerns in the market for the retail supply of mobile communication
           services in Slovenia, Croatia and Bulgaria.
(111)      The Commission observes that, for the reasons set out in recitals (98) - (100), the
           merged entity will not have the ability to discriminate against United Group’s
           competitors in Slovenia, Croatia and Bulgaria, for access to fixed call termination
           services in Greece. Accordingly, the Commission also considers that the merged
           entity will also not have the ability to otherwise degrade terms and conditions for
           the provision of wholesale fixed call termination services.
(112)      In addition, the Commission observes that the provision of wholesale fixed call
           termination services, originating from Slovenia, Croatia and Bulgaria (mobile
           networks) and terminating to Greece are limited.101 In this regard, the Commission
           considers that any increase by the merged entity of its termination charges would
           have little or no impact on the cost structure of United Group’s competitors in these
           countries. Therefore, in view of the small traffic volume, the Transaction is not
           expected to have a detrimental effect on competition in the downstream markets for
           the supply of retail mobile communication services, in Slovenia, Croatia and
           Bulgaria.
(113) The Commission, second, considers that the Transaction does not lead to any
         customer foreclosure concerns in the wholesale market for the provision of fixed call
         termination services in Greece.
(114)      In that respect, the Commission observes that United Group’s market shares in the
           countries where it operates are modest (for Telemach: [10-20]%, Tele2: [20-30]%
           and BTC: [20-30]%). Furthermore, due to the existence of regulatory obligations in
           the upstream market for wholesale fixed call termination services which Forthnet is
           subject to, as set out in recital (100), in line with what has been discussed in recital
           (88) and recital (104), foreclosure of Forthnet’s rivals in the upstream market is not
           effective. On the basis of the data provided by the Notifying Party, in this market,
           there are alternative operators holding higher market shares, in 2019 such as:
           “Telekom Slovenije”, and “A1 Slovenia” holding, respectively, a market share of
           [40-50]% and [20-30]%, in Slovenia; “HT” and “A1”, with a market share of,
           respectively, [40-50]% and [30-40]%, in Croatia; and “Telenor” and “A1 Bulgaria”
           holding, respectively, a market share of [40-50]% and [30-40]%, in Bulgaria.102 In
           view, therefore, of a sufficient large customer base to be addressed, other than the
           merged entity’s customer base, the Transaction is not expected to have a
           detrimental effect on the upstream market for the provision of wholesale fixed call
           termination services in Greece.
(115)      Assuming possible segmentations of the market, the Commission recalls that
           United Group’s market shares remain moderate and similar to those achieved in the
           overall market for retail mobile communication services (see footnote 56).
101 In line with the Notifying Party’s submission, the traffic flow originating from Slovenia (Telemach),
    Bulgaria (BTC), and Croatia (Tele2) and terminating to Greece represented (in minutes): [0-5]%; [0-5]%;
    and [0-5]%, against total incoming traffic from all other International and Transit Operators that Forthnet
    is in commercial agreement. (Information generated from Annexe 11.1 to the Form CO).
102 Annexes 11.2, 11.3 and 11.4 to the Form CO.
                                                          27
 ---pagebreak---          However, in certain sub-segments, and in particular, in a possible segmentation per
         type of customers and per type of services, United Group appears to hold an
         important market share in Bulgaria ([30-40]% in a possible narrow segment for
         private customers; [40-50]% -by value- in a possible narrow segment for SMS) and
         in Croatia ([30-40]%, in both value and volume, in a possible sub-segment for
         MMS). The Commission observes the presence of alternative operators in these
         possible sub-segments.103 In the context of the market investigation, it has been
         indicated that the Transaction will provide Forthnet with additional financing. In
         that respect, a market participant observes that [...]. Therefore, [...], and is likely to
         lead into an intensification of competition in the market for the provision of
         wholesale fixed call termination services in Greece.104 Additionally, according to a
         participant, if voice traffic increases as a result of the Transaction, there will be
         more opportunity, for other operators to win traffic. As has been further observed,
         in view of Forthnet’s upcoming entry in the retail mobile market as a Mobile
         Virtual Network Operator, Forthnet should attempt to increase its customer base.
         On the basis of the foregoing, it will not be profitable for the merged entity to
         engage in a customer foreclosure strategy. The market investigation confirmed that
         telecommunication operators, active in Bulgaria, Croatia and Slovenia do not
         expect competition in the retail market for mobile communication services, in the
         countries where they operate to be affected, as a result of the Transaction.
(116)    Finally, the Commission notes that the majority of the respondents to the market
         investigation did not raise any concerns related to the vertical issues arising from
         the Transaction in the market for wholesale fixed call termination services on the
         one hand, and the retail supply of mobile communication services, on the other
         hand.105
(117)    On the basis of the foregoing, 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 market for wholesale fixed call
         termination services and the downstream market for retail mobile
         telecommunications services and its possible sub-segments (between pre-paid and
         post-paid; private and business customers; or per type of service provided).
103 Questionnaire Q1 –replies to question 5.2 (Telenor Bulgaria; HT Croatia).
104 Questionnaire Q1 –replies to questions 7.3, 7.3.1 and 7.4.1.
105 Questionnaire Q1 – replies to questions 7.2, 7.3 and 7.3.1.
                                                          28
 ---pagebreak--- 6.    CONCLUSION
(118) 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.
                                                   For the Commission
                                                   (Signed)
                                                   Margrethe VESTAGER
                                                   Executive Vice-President
                                              29