CELEX: 32020M9674
Language: en
Date: 2020-03-06 00:00:00
Title: Commission Decision of 06/03/2020 declaring a concentration to be compatible with the common market (Case No COMP/M.9674 - VODAFONE ITALIA / TIM / INWIT JV ) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                Brussels, 6.3.2020
                                                                C(2020) 1573 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                                                                 information omitted has been replaced by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 parties
Subject:            Case M.9674 – VODAFONE ITALIA / TIM / INWIT JV
                    Commission decision pursuant to Article 6(1)(b) in conjunction with
                    Article 6(2) of Council Regulation No 139/20041 and Article 57 of the
                    Agreement on the European Economic Area2
Dear Sir or Madam,
(1)       On 17 January 2020, the European Commission (the “Commission”) received
          notification of a proposed concentration pursuant to Article 4 of the Merger
          Regulation by which Vodafone Europe B.V. and Telecom Italia S.p.A (“TIM”) will
          combine into a newly created joint venture their passive mobile telecommunications
          infrastructure businesses in Italy (the “Transaction”).3
1.        THE PARTIES
(2)       Vodafone Europe B.V. is part of the Vodafone Group, which operates
          telecommunications networks and offers telecommunications and other services in a
          number of countries across the globe. Within the EU, Vodafone is active in ten
          Member States. In particular, Vodafone Italia S.p.A. (“Vodafone”) provides mobile
          and fixed telecommunications services to consumers and businesses in Italy.
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 C29, 28.01.2020, p. 13.
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---         Vodafone Italia also owns its mobile network that consists of approximately 11 000
        passive sites and related infrastructure.
(3)     TIM provides mobile and fixed telecommunications services to consumers and
        businesses in Italy. Outside Italy, TIM is mainly active in Brazil. TIM owns the
        passive infrastructure of its mobile network in Italy through Infrastrutture Wireless
        Italiane S.p.A. ("INWIT"), a publicly listed, 60.33% owned subsidiary. INWIT
        operates approximately 11 000 passive infrastructure sites hosting equipment mainly
        for mobile network operators (“MNOs”) and other providers of electronic
        communication services.
(4)     Vodafone, TIM and INWIT are designated hereinafter as “Parties”.
2.      THE TRANSACTION
(5)     Pursuant to a Framework Agreement executed on 26 July 2019, the Parties intend to
        combine their passive infrastructure operations in Italy into a jointly controlled
        company (hereinafter, the “Joint Venture”, the “JV” or “INWIT”).
(6)     For this purpose, Vodafone Italia has created a separate legal entity, Vodafone
        Towers S.r.l. (“VOD Towers”), to which it has contributed its passive infrastructure
        operations. INWIT will acquire a minority participation (43.4%) in VOD Towers
        against the payment of a cash consideration. VOD Towers will then merge into
        INWIT. As a result, the Parties will each hold shares equal to approximately 37.5%
        of INWIT’s capital,4 whilst the remaining shares will be free-floating.5 The
        shareholders of INWIT will then adopt Amended By-Laws and the Parties will
        execute a Shareholders’ Agreement.
(7)     Finally, INWIT will execute with each of TIM and Vodafone Italia a Master Service
        Agreement (“MSA”) for the provision of hospitality services, for a term of […]
        years, with tacit renewal clause for an additional […] years. Under the terms of the
        MSAs:
        (a)       With respect to hospitality services on existing macro-sites6 […]:
                       (i) As result of the Transaction, INWIT will manage around 22 000
                             existing macro sites. […].
                       (ii) […].
                       (iii)[…].
                       (iv) […].
                       (v) […].7 […].
4   […].
5   This step of the Transaction is subject to the so called “whitewash procedure”, which requires the
    approval of the minority shareholders, to avoid the need by Vodafone and TIM to make a tender offer
    over the totality of the shares of INWIT.
6   For a definition of macro-sites, see paragraph (37).
7   […].
                                                         2
 ---pagebreak---                        (vi) […].
         (b)      With respect to hospitality services on new macro sites or small cells8, […]:
                       (i) […].
                       (ii) […], the Parties grant INWIT the status of preferred supplier for the
                            provision of services on new sites, […].
         (c)      […], each of the Parties commit to entrust INWIT the provision of hospitality
                  services on macro sites and small cells, as well as fiber backhaul services,
                  […].
         (d)      […].
         (e)      […]:
                       (i) […].
                       (ii) […].
(8)      Thus, the MSAs contain several provisions which afford preferential rights to the
         Parties to access the sites managed by the Joint Venture. The rationale of these
         provisions is to ensure that INWIT’s ability to offer hospitality to third parties on
         any of the sites contributed by the Parties is restricted to the space that the Parties
         will leave free after the Parties have activated the passive sharing. Thus such
         provisions are functional to the additional agreements entered into by the Parties
         described in Section 3.3. And in particular to the agreement related to passive
         sharing.
(9)      The MSAs will be taken into account in the assessment of the effects of the
         Transaction. On the one hand, these are long-term supply contracts, which arguably
         go beyond what normally required in a transitory period for the implementation of a
         transaction. On the other hand, being these binding contracts that will define the
         rights of the Parties over the assets managed by the Joint Venture, the MSAs will
         have an influence over the competitive behaviour of the Joint Venture.
3.       THE CONCENTRATION
3.1.     Joint control
(10)     Post-Transaction INWIT will be jointly controlled by Vodafone and TIM within the
         meaning of Article 3(1)(b) of the Merger Regulation for the following reasons:
         (a)      First, the Parties will each hold 37.5% of INWIT’s capital and thus together
                  hold more than 50%.
8   In respect to small cells, see paragraph (38).
                                                      3
 ---pagebreak---          (b)      Second, the Amended By-Laws set out, in particular, the following
                  governance principles:
                  –       The Board of Directors will consist of 13 members appointed
                          following a list mechanism. According to this mechanism, if two lists
                          obtain each the votes of at least 25% of INWIT capital (but less
                          than 50% - which would be the case for the lists presented by
                          Vodafone and TIM), such lists appoint each 5 directors. The
                          remaining directors are appointed from the minority lists. Thus the
                          Parties will be able to appoint each 5 directors.
                  –       A number of reserved matters, including, among others, the budget
                          and the business plan, the nomination of the CEO and the Chairman,
                          could be decided by the Board only with a supermajority of
                          9 directors. Thus, in principle, the favourable vote of directors
                          nominated both by TIM and Vodafone is required.
         (c)      Third, pursuant to the Shareholders’ Agreement, TIM and Vodafone have
                  agreed to appoint each an equal number of member of the Board of Directors
                  of INWIT. For the first term, TIM designates the CEO, while Vodafone
                  designates the Chairman and the CFO. Subsequently, in the absence of
                  agreement, a rotation mechanism for the designation of key managers is
                  applied between Vodafone and TIM. Finally, a three years lock-up period is
                  foreseen on any sale of shares of INWIT.9
3.2.     Full-functionality
(11)     The Parties submit that the proposed Joint Venture would not be full-function, for
         the following reasons:
         (a)      the primary purpose of the Joint Venture would not be the formation of an
                  independent tower company active on the Italian market; rather it would be to
                  hold and manage the Parties’ combined passive infrastructure assets for the
                  benefit of the Parties, with third-party sales representing an ancillary element;
         (b)      the Joint Venture’s third party sales are expected to remain below […]% and
                  the Joint Venture is expected to remain economically dependent on sales to
                  its parent companies in the long-term;
         (c)      the governance and contractual rights of the Joint Venture’s parents will
                  significantly limit the Joint Venture’s operational autonomy, in that the Joint
                  Venture will need to prioritise the critical infrastructure needs of TIM and
                  Vodafone over any commercialisation of assets towards third parties;
         (d)      the relationship between the Joint Venture and the parent companies is not
                  “truly commercial” in nature, as the Parties enjoy preferential super anchor
                  tenant rights, which would not be made available on the market by an
                  independent tower company;
9   In the past the Commission has considered that 3 years was a sufficient period of time for establishing the
    long-lasting change of control pursuant to Article 3 of the Merger Regulation (see Commission decision
    of 8 May 2014 in Case M.6905 – INEOS / SOLVAY / JV, recital 6).
                                                          4
 ---pagebreak---         (e)       finally, the fact that the Joint Venture is listed on the Italian Stock Exchange
                  and does have third party minority shareholders does not have any impact on
                  the above-mentioned analysis.
(12)    The Commission considers that Post-Transaction INWIT will constitute a full-
        function Joint Venture within the meaning of Article 3(4) of the Merger Regulation
        for the following reasons.
3.2.1. Sufficient Resources
        First, the Joint Venture will have sufficient resources to operate independently on the
        hospitality services markets.10 INWIT is an existing company, listed in the Italian
        stock exchange and after the Transaction about 25% of its share capital will continue
        to be held by the public and INWIT will thus remain a publicly traded company.
        INWIT already has and will continue to have a management dedicated to its day-to-
        day operations with “managerial autonomy” and will continue to have access to
        sufficient resources (including its own finance, staff and assets) to conduct its
        business activities independently . In any case, the Parties do not contest this element
        of the analysis.
3.2.2. Presence on the market
(13)    INWIT will not take over one specific function within the parent companies’
        business activities and will have its own presence on the market.11
(14)    As it will be better explained at following Section 7.2, already today both INWIT
        and VOD Towers (albeit to a lesser extent) offers telecommunications hospitality
        services to third parties in Italy and post-Transaction the Joint Venture will continue
        to be active in the hospitality services markets in Italy, similarly to any other
        operator on the same markets. The Parties have clearly stated that INWIT will be
        able to supply third parties on market terms as it sees fit and that it will be better
        placed to monetise Vodafone’s passive infrastructure by increasing third party
        tenancies (see below at section 7.5.2).
(15)    Concerning the sales by the JV to the parent companies, the essential question is
        whether the JV will be geared to play an active role on the market and can be
        considered economically autonomous from an operational viewpoint.12 In case of
        significant sales of the JV to the parents, a finding of operational autonomy is
        possible if the relationship between the JV and its parents is truly commercial in
        character as “the greater the proportion of sales likely to be made to the parents, the
        greater will be the need for clear evidence of the commercial character of the
        relationship”.13
10  Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004  on the
    control of concentrations between undertakings, paragraph 94 (OJ C 95, 16.4.2008, p. 1).
11 Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004   on the
    control of concentrations between undertakings, paragraph 95.
12 Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004   on the
    control of concentrations between undertakings, paragraph 98.
13   Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the
     control of concentrations between undertakings, paragraph 98.
                                                         5
 ---pagebreak--- (16)     Therefore, it is important to consider whether INWIT deals with the Parties at arm’s
         length. The simple fact that the Parties reserve for themselves a large proportion of
         the JV’s infrastructure, which is reflected in the high percentage of revenues
         expected to be realised with the Parties, does not as such exclude that the
         relationship between the JV and the parents is at arm’s length.
(17)     In this respect, in the present case there are strong indications that the Parties will
         have access to INWIT’s infrastructure at market terms.
(18)     While the Parties can reserve for themselves a large part of the JV’s infrastructure, as
         they have priority access to most of its sites, they still have to pay a market price for
         that access. Indeed, under the MSAs, to access INWIT’s infrastructure the Parties
         will […]. The […] fees paid by the Parties appears to be the market remuneration for
         the preferential super anchor tenant rights that the Parties will enjoy on INWIT’s
         infrastructure. Nothing in the Commission’s investigation suggests that similar
         preferential rights could not be granted by independent tower companies to a third-
         party customer, with a similarly adequate remuneration.
(19)     In addition, the fact that the Parties’ access to INWIT’s infrastructure will be subject
         to market terms is confirmed by the reports of independent experts, who – on the
         basis of the Italian stock market regulations – were called to evaluate the contractual
         relations between INWIT and the Parties. Notably, an official report – established on
         the basis of the evaluation of independent experts – indicates that the economic
         terms of the MSAs with TIM and Vodafone are in line with market values and would
         have likely been applied even if the Transaction was concluded with third parties.14
(20)     Therefore, it appears that the relationship between the JV and the Parties is truly
         commercial in character.
(21)     For a finding of operational autonomy, it is also relevant that INWIT still has
         available capacity to offer to third parties and foresees, in addition, to build new sites
         at the request of third parties.15
14   See the evaluation in “Documento informativo relativo ad operazione di maggiore rilevanza con parti
     correlate redatto ai sensi dell’art. 5 del Regolamento adottato da CONSOB con delibera n. 17221 del
     12 marzo 2010”
     (https://www.inwit.it/sites/default/files/INWIT%20Documento%20Informativo%20OPC%20DEF.pdf),
     where it is stated that: “Ai sensi dell’art. 14 del Regolamento OPC, la convenienza economica
     dell’Operazione è stata oggetto di particolare attenzione per il Comitato PC in considerazione della
     sottoposizione di Inwit a direzione e coordinamento di TIM. Al riguardo, il Comitato OPC ha ritenuto
     che le condizioni dell’Operazione siano congrue e ragionevoli per Inwit e che appare fondato affermare
     la sussistenza della convenienza economica dell’Operazione [inclusi gli MSA] in quanto, anche secondo
     quanto risulta dal Parere di Equita: (a) i termini economici costituiscono condizioni in linea con i valori
     di mercato, che sarebbero stati verosimilmente applicati anche qualora l’Operazione fosse stata
     conclusa con un soggetto diverso da una parte correlata” (page 37; emphasis added).
15   Commenting the results of the first three trimesters of 2019, INWIT’s CEO publicly declared that the JV
     will have the resources and capacity to promote the development of 5G and new wireless technologies in
     Italy, supporting the projects of all operators in the sector: “I dati dei nove mesi del 2019 confermano per
     INWIT una performance industriale che continua a garantire la crescita della società. INWIT è stata
     fortemente impegnata, e continua ad esserlo, nel perfezionamento dell’accordo di partnership di lungo
     periodo con Tim e Vodafone che porterà a breve alla nascita del primo operatore infrastrutturale in
     Italia. Una realtà che avrà le risorse e le capacità per sostenere lo sviluppo del 5G e delle nuove
     tecnologie wireless, sostenendo i progetti di tutti i soggetti che operano nel settore, e permettendo al
     Paese di confermare la leadership che si è conquistata questi ultimi anni nella telefonia mobile"
                                                              6
 ---pagebreak--- (22)    In this context, the Commission notes that the capacity reservation on INWIT’s
        infrastructure appears to be intended to protect the Parties, who need access to
        INWIT’s key infrastructure, and does not appear to be necessary to allow INWIT to
        operate on the market (where, as discussed below at Section 7.5.2, there is third
        parties’ demand for hospitality services on INWIT’s infrastructure). Indeed, before
        the Transaction INWIT is already operating autonomously on the market, offering a
        large (and growing) part of its infrastructure to third parties notwithstanding the
        capacity reservation already enjoyed by TIM.
(23)    It thus appears that, on balance, regardless of the amount of sales to the Parties,
        INWIT is geared to play an active role on the market and can be considered
        economically autonomous from an operational viewpoint.
3.2.3. Long-lasting nature
(24)    Finally, the Joint Venture is intended to operate on a lasting basis.16 INWIT has an
        indefinite duration and the combined business plans provided by the Parties cover
        the period up to […], in line with the duration of the MSAs for the provision of
        hospitality services, which have a term of […] years (with tacit renewal clause for an
        additional […] years). The Shareholders’ Agreement has a duration of […] years but
        provide for its possible renewal during a […] period before its expiration.
3.2.4. Conclusion on full-functionality
(25)    Therefore, the Commission concludes that the Transaction will lead to the creation
        of a joint venture performing on a lasting basis all the functions of an autonomous
        economic entity pursuant to Article 3(4) of the Merger Regulation and thus
        constitutes a concentration within the meaning of Article 3(1)(b) of the Merger
        Regulation.
3.3.    Scope of the concentration
(26)    Under the Framework Agreement, the Transaction is instrumental to the
        implementation of a series of other agreements between the Parties:17
        (a)       A Passive Sharing Agreement, concerning the sharing of sites and passive
                  mobile network equipment between the Parties. It provides for the extension
                  of the existing passive sharing arrangements between the Parties18 on a
                  nationwide basis for a term of […] years, with tacit renewal clause for an
                  additional […] years. Also INWIT will be party to this agreement, as
                  successor of TIM in some of the existing arrangements.
        (b)       An Active Sharing Agreement, concerning the sharing of active mobile
                  network equipment between the Parties. It provides for the implementation of
                  an active sharing of the Parties’ respective existing 2G and 4G networks, as
     (“https://www.inwit.it/it/content/esaminato-CdA-resoconto-intermedio-di-gestione-30-settembre-2019”;
     emphasis added).
16   Commission Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the
     control of concentrations between undertakings, paragraph 103.
17 […].
18 Since 2007, the Parties have a number of passive sharing arrangements, mainly in municipalities with a
    population of up to 35 000 inhabitants (and in certain cases up to 50 000 inhabitants). […].
                                                           7
 ---pagebreak---                  well as the joint roll-out of a 5G network, in municipalities with a population
                 of up to 100 000 inhabitants. The agreement will have the duration of […]
                 years, with tacit renewal clause for an additional […] years.
       (c)       A Backhauling Agreement, setting out the terms and conditions for the
                 supply of backhauling services by the Parties to each other via their existing
                 fiber connections.19 The agreement will have the duration of […] years, with
                 tacit renewal clause for an additional […] years.
(27)   According to the Parties, the Transaction and the various agreements mentioned
       above (together the “Operation”) all serve the rationale of accelerating 5G
       deployment by the Parties, while creating synergies in terms of CAPEX and OPEX
       investments.20
(28)   The Commission has received third party submissions claiming that the scope of the
       investigation in the present case under the Merger Regulation should not be limited
       to the Transaction, but it should extend to entire Operation.
(29)   In this respect, the Commission notes that agreements entered into by the parties to a
       concentration that do not form an integral part of a concentration (because they do
       not establish control within the meaning of Article 3(2) of the Merger Regulation
       and do not carry out the main object of the concentration), but still restrict the
       parties' freedom of action in the market, can be covered by the assessment in a
       decision declaring the concentration compatible with the common market.21 This is
       the case if they qualify as ancillary restraints.
(30)   For a contractual arrangement to be qualified as an ancillary restraint, it needs to
       satisfy the following two legal criteria:
       (a)       being directly related to the implementation of the concentration,
                 i.e. economically related to the main transaction and intended to allow a
                 smooth transition to the changed company structure after the concentration,
                 and
       (b)       being necessary to the implementation of the concentration, i.e. in the
                 absence of that agreement, the concentration could not be implemented or
                 could only be implemented under considerably more uncertain conditions, at
                 substantially higher cost, over an appreciably longer period or with
                 considerably greater difficulty.
(31)   Pursuant to paragraph 11 and following of the Commission Notice on restrictions
       directly related and necessary to concentrations, restrictions are not directly related
       and necessary to the implementation of the concentration simply because the parties
       regard them as such.22 As clarified by the Court, “[w]here it is not possible to
19 […].
20 See […].
21 Commission Notice on restrictions directly related and necessary to concentrations, OJ C 56, 5.3.2005,
   p. 24–31, paragraph 10.
22 This clear indication in the Notice differentiates the analysis of the necessity criterion for the analysis of
   ancillary restraint from the one used for the purpose of establishing whether a serious of transaction
   constitute a single concentration (see Commission decision of 27 June 2019 in Case M.8179 –
   Canon/Toshiba Medical Systems Corporation).
                                                           8
 ---pagebreak---         dissociate such a restriction from the main operation or activity without
        jeopardising its existence and aims, it is necessary to examine the compatibility
        [with EU competition rules] in conjunction with the compatibility of the main
        operation”. However, “the fact that that operation is simply more difficult to
        implement or even less profitable without the restriction concerned cannot be
        deemed to give that restriction the ‘objective necessity’ required in order for it to be
        classified as ancillary”.23 As it appears from the examples set out in the Commission
        Notice on restrictions directly related and necessary to concentrations as well as
        from the Commission practice,24 ancillary restraints normally consist in agreements
        in the favour of the joint venture or the target company (such as non-compete clause,
        supply agreements, etc.), which would enable it to operate in the market in a viable
        manner especially in a transitory period.
(32)    In this context, the Commission considers that it cannot be established that the
        Passive Sharing Agreement, the Active Sharing Agreement and the Backhauling
        Agreement constitute ancillary restraints. Indeed, they do not appear to be directly
        related to the implementation of the Transaction in the sense of paragraph (30)(a), as
        they regulate relationships between the Parties and the Transaction could be
        implemented even without them.
(33)    Further, it cannot be concluded that the necessity criterion set out in
        paragraph (30)(b) would be met with respect to the Passive Sharing Agreement, the
        Active Sharing Agreement and the Backhauling Agreement, as the Transaction could
        be implemented even in their absence without jeopardising its existence and aims.
        To the contrary, it appears that it is the Joint Venture that is instrumental to the
        implementation of the Passive Sharing Agreement and the Active Sharing
        Agreement: without the Joint Venture it may indeed be more costly or longer to
        create a common grid of the Parties through the those agreements.
3.4.    Conclusion
(34)    Therefore, the Transaction constitutes a concentration within the meaning of
        Articles 3(1)(b) and 3(4) of the Merger Regulation. The scope of the concentration
        whose effects will be assessed in this Decision will be limited to the agreements
        bringing out the Transaction, that is to say the Amended By-Laws and the
        Shareholders’ Agreement, together with the MSAs.25
4.      EU DIMENSION
(35)    The undertakings concerned have a combined aggregate worldwide turnover of more
        than EUR 5 000 million (Vodafone 50 254 million, TIM 18 934 million).26 Each of
        Vodafone and TIM has an EU-wide turnover in excess of EUR 250 million
        (Vodafone […] million, TIM 14 271 million), but they do not achieve more than
        two-thirds of their aggregate EU-wide turnover within one and the same Member
23  Judgment of 11 September 2014, MasterCard and Others v Commission, C‑382/12 P, EU:C:2014:2201,
    paragraphs 90-91.
24 E.g. Commission decision of 10 August 1992 in Case IV/M.206 – Rhône-Poulenc/SNIA, paragraph 8.3.
25 For the sake of clarity, antitrust rules, in particular Article 101 TFEU, will continue to apply to the Passive
    Sharing Agreement, the Active Sharing Agreement and the Backhauling Agreement, regardless of the
    outcome of the present assessment under the Merger Regulation.
26 Turnover calculated in accordance with Article 5 of the Merger Regulation.
                                                              9
 ---pagebreak---        State. The notified operation therefore has a Union dimension pursuant to
       Article 1(2) of the Merger Regulation.
5.     INDUSTRY OVERVIEW
5.1.   Passive network infrastructure
(36)   Wireless telecommunications networks are composed of a number of radio access
       network sites, essentially a mast with an antenna and a radio-frequency system,
       linked to a core network by backhaul connections.
(37)   There are essentially two types of radio access network sites: ground based towers
       and rooftop towers (together referred to as “macro-sites”). These sites have been
       originally built for captive use by network operators, but a market for hospitality
       services on macro-sites has been gradually opened.
(38)   Recently, to ensure reliable coverage in buildings or dense urban areas, macro-sites
       have been supplemented by the use small cells and distributed antenna systems
       (“DAS”; together, with small cells, “micro-sites”). Micro-sites are expected to be
       used more prominently in 5G mobile networks and a market for the supply of
       hospitality services on these sites has started to develop.
(39)   Each radio access network site covers a limited area and has a maximum capacity in
       terms of physical space on which equipment can be housed as well as in terms of
       electromagnetic fields (“EMF”) limits.
(40)   Due to the architectonic configuration of Italian cities, with several historical
       buildings, often space on sites is limited or the use for telecommunications purposes
       is restricted.
(41)   Further, the legislation on EMF limits in Italy is very stringent. It imposes the same
       EMF limits (i.e. 20 V/m or 6 V/m depending on the target measurement points stated
       by law) irrespective of types of uses of antennas. Accordingly, the same EMF limits
       apply for both broadcasters and telecom operators, as well as for both macro and
       micro-cells (though the low power and limited coverage of microsites allows for
       simplified EMF assessments). The Agenzia Regionale per la Protezione
       dell’Ambiente (“ARPA”) is the Italian regional body tasked with ensuring fulfilment
       of EMF obligations as well as giving prior authorisation for the installation of
       additional antennas on a site by an operator after the latter has provided ARPA with
       the relevant simulation and impact assessment, as prescribed by law. To obtain the
       prior authorisation from ARPA, current tenants on a site commonly collaborate with,
       and provide information on their equipment to, prospective tenants on the site,
       including in respect of the emissions and physical features (e.g. antenna height) of
       the equipment on the site, so as to enable the potential new tenants to prepare a
       proper simulation to be submitted to ARPA. The suppliers of hospitality services on
       the site are usually not involved in these discussions but have an interest in
       facilitating the process to increase their revenues.27 The challenges for operators to
       build new sites have been clearly described by the Italian Competition Authority in
       Segnalazione n. AS1551.
27  Agreed minutes of the conference call of 26 November 2019 with Wind Tre, paragraphs 3 to 11.
                                                      10
 ---pagebreak--- (42)     The supply of hospitality services on sites include the rental of the space on the
         passive infrastructure, for which the customers pay the supplier a hosting fee.
         Normally the provision of these services is regulated by framework contracts of long
         duration (between 628 and 15 years) and the possibility of automatic renewal at the
         first expiration. The framework agreements are then supplemented by specific
         hosting agreements for relevant sites so that such relationships are governed by both
         the terms of the relevant overarching framework agreement and the specific hosting
         agreements pertaining to the relevant sites in question.
(43)     A specific type of framework agreements are the “anchor tenant arrangements”.
         These are usually the result of the outsourcing of the management of previously
         captive sites to a third party. In this context, in order to keep some degree of control
         over the key network input constituted by the site, the customer usually reserves
         some preferential treatment or veto rights over the asset.
5.2.     Suppliers of hospitality services on passive network infrastructure
(44)     There is a range of providers of hospitality services.
(45)     Firstly, sites are owned and managed by MNOs, which use them primarily for their
         own network purposes but also provide access to third parties. In Italy, there are
         currently four MNOs managing, operating and, to a different extent, offering access
         to sites: TIM, Vodafone, Wind Tre S.p.A. (“Wind Tre”) and Iliad Italia S.p.A.
         (“Iliad”).
(46)     As mentioned earlier, TIM operates its 11 000 macro-sites through a separate
         company, INWIT. The same process of spin-off of the towers operations into a
         separate company has been recently undertaken by Wind Tre, with the creation of
         CK Hutchison Networks Italia S.p.A. (“CKHNI”), which manages around 9 000
         macro-sites. Vodafone also owns its mobile network that consists of approximately
         11 000 macro sites and related infrastructure.
(47)     Secondly, sites are owned and managed by independent wireless infrastructure
         providers, known as "independent TowerCos". In Italy there are three independent
         TowerCos: Cellnex Telecom, S.A. (“Cellnex”), Ei Tower S.p.A. (“Ei Tower”) and
         RaiWay S.p.A. (“RaiWay”).
(48)     Cellnex started providing hospitality services in Italy in 2015. On 26 March 2015,
         Cellnex closed the acquisition of 7 377 macro-sites (the “Galata business”) from the
         mobile operator WIND S.p.A. (“WIND”, today merged into Wind Tre29). WIND
         retained a 10% non-controlling shareholding over the Galata business. The sale
         agreement included a tower services agreement for these sites with WIND for period
         of 15 years, renewable for an additional period of 15 more years, and foresaw the
         deployment of additional sites that would have allowed WIND to accelerate the offer
         of new mobile broadband services.30
(49)     On 7 May 2019, Iliad (which operates a mobile network not only in Italy but also in
         France and Ireland) announced that it entered into a series of agreements with
28  […].
29  Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV.
30 See                             press                           release                     at
    https://www.cellnextelecom.com/content/uploads/2015/03/26032015 TorresWindclosing-EN1.pdf
                                                      11
 ---pagebreak---          Cellnex to form a strategic partnership with respect to Iliad's passive mobile telecom
         infrastructure in France and Italy.31 In total, Iliad agreed to transfer under the control
         of Cellnex 7 900 macro-sites (5 700 in France, 2 200 in Italy).32 As part of the
         contemplated transaction, Iliad entered into long-term service contracts with Cellnex.
         These agreements comprise the provision of hosting services over mobile telecom
         infrastructure as well as the construction of new sites through a build-to-suit program
         encompassing 6 400 macro-sites (4 500 in France and 1 900 in Italy) of which 3 500
         committed by Iliad (2 500 in France and 1 000 in Italy).
(50)     Ei Towers' activity consists of managing a portfolio of approximately 3 300
         infrastructures, of which 2 300 broadcasting sites and approximately 1 000 mobile
         macro-sites.33 Rai Way is a subsidiary of RAI, Italy's state-owned television and
         radio broadcaster, and manages over 2 300 macro-sites across Italy.34 Thus, Rai Way
         and Ei Towers mainly provide coverage and signal for TV and radio broadcasting
         through broadcasting towers.
5.3.     Demand-side of hospitality services on passive network infrastructure
(51)     Sites are key inputs for building two types of wireless telecommunications networks:
         mobile telecommunications networks and fixed-wireless access (“FWA”) networks.
(52)     As mentioned, in Italy there are currently four MNOs: TIM, Vodafone, Wind Tre
         and Iliad. They do not only manage and operate sites, but also use these sites for
         their supply of telecommunications services.
(53)     TIM is the formerly state-owned incumbent and was founded in August 1994
         through the merger of five companies: SIP, Iritel, Telespazio, Italcable and Sirm.
         Based on data published by the Italian telecoms regulator, as of September 2019
         TIM was the second largest provider of retail mobile telecommunications services by
         number of SIM cards (excluding machine to machine (“M2M”) subscriptions; it was
         the market leader if M2M subscriptions are included).35 TIM also provides mobile
         virtual network operators (“MVNOs”) with wholesale access to its mobile network.
         TIM’s mobile network is based on the 2G, 3G and 4G technologies, but it has
         launched 5G pilots in Rome, Turin and Naples. TIM is also active in the provision of
         fixed telephony and fixed internet services, both at retail and wholesale level, based
         on its copper and fiber networks (including recently FWA technology)36 and, based
         on data published by the Italian telecoms regulator, as of September 2019 it was the
         market leader in the supply of retail fixed internet services.
(54)     Vodafone was formed in 1994 with the name of Omnitel as the first alternative to
         the market leader TIM. In 2001, Omnitel was acquired by Vodafone Group and
         in 2003 it changed its name to Vodafone Italia. Based on data published by the
         Italian telecoms regulator, as of September 2019 Vodafone was the third largest
         provider of retail mobile telecommunications services by number of SIM cards
31  See press release at https://www.iliad fr/presse/2019/CP_070519_Tower_Eng.pdf
32  See […].
33  See https://www.eitowers.it/azienda/art/10/Profilo.shtml.
34  See http://www raiway.it/it IT/web/guest/tower-rental
35  AGCOM,         Communication       Markets      Monitoring   System,  no.   4/2019 available at
    https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
    76b41a197b7c?version=1.0
36  Parties’ reply to RFI 21, question 1.
                                                          12
 ---pagebreak---         (excluding M2M subscriptions; it was the second largest if M2M subscriptions are
        included).37 Vodafone also provides MVNOs with wholesale access to its mobile
        network. Vodafone’s mobile network is based on the 2G, 3G and 4G technologies,
        but it has launched 5G pilots in the Milan metropolitan area (including 28
        surrounding localities), Rome, Turin, Bologna and Naples. Vodafone also delivers
        fixed telecommunications services to consumers and businesses without using FWA
        technology yet and, based on data published by the Italian telecoms regulator, as of
        September 2019 it was the second largest supplier of retail fixed internet services.
(55)    Wind Tre was created in 2016 through a merger between two MNOs previously
        active in Italy, WIND and H3G S.p.A.38 Since 2018 it is controlled by CK Hutchison
        Holdings Limited.39 Based on data published by the Italian telecoms regulator, as of
        September 2019 Wind Tre was the market leader in the supply of retail mobile
        telecommunications services by number of SIM cards (excluding M2M
        subscriptions; it was the third largest player if M2M subscriptions are included).40
        Wind Tre also provides MVNOs with wholesale access to its mobile network. Wind
        Tre’s mobile network is currently based on the 2G, 3G and 4G technologies. Wind
        Tre also delivers fixed telecommunications services to consumers and businesses
        and, based on data published by the Italian telecoms regulator, as of September 2019
        it was the fourth largest supplier of retail fixed internet services.
(56)    Iliad entered the Italian market in 2016 as beneficiary of the remedies, whose
        implementation was condition for the clearance of the merger between Wind and
        H3G. These remedies consisted of a number of elements designed to allow the entry
        of a fourth MNO into the Italian market, that is in particular: (1) the transfer
        of spectrum and the option to acquire/co-locate on macro access sites; (2) an option
        to enter into a RAN sharing agreement; and (3) a national roaming agreement. Iliad
        launched its mobile commercial offer on 28 May 2018.
(57)    Since 25 July 2019, a fifth MNO is active in Italy, Fastweb S.p.A. (“Fastweb”).
        Fastweb, an indirect wholly owned subsidiary of Swisscom AG, is active in the
        Italian mobile market since 2007, originally as MVNO. Following the progressive
        acquisition of several blocks of high frequency spectrum, in June 2019 Fastweb
        signed a strategic co-investment with Wind Tre for a joint roll-out of a 5G network
        starting from 2020. The agreement will lead to the deployment of a shared 5G radio
        access and backhauling network in Italy, including Wind Tre and Fastweb macro and
        small cells, connected through dark fiber from Fastweb, to be deployed nationwide,
        with a targeted coverage of 90% of the population by 2026. Wind Tre will manage
        the 5G network, while both operators will remain independent in the commercial and
        operational use of the shared infrastructure. As part of the agreement, Wind Tre will
        provide Fastweb roaming services on Wind Tre’s existing network (4G and legacy
        technologies), while Fastweb will provide Wind Tre wholesale access to Fastweb’s
        fiber network. Indeed, Fastweb is also active in the supply of fixed internet services
        via its fiber network, as well as via FWA technology. The latter is the result of the
37 AGCOM,        Communication     Markets    Monitoring    System,    no.    4/2019     available at
   https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
   76b41a197b7c?version=1.0
38 See Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV.
39 See Commission decision of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre.
40 AGCOM,        Communication     Markets    Monitoring    System,    no.    4/2019     available at
   https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
   76b41a197b7c?version=1.0
                                                     13
 ---pagebreak---         acquisition of Fastweb of the FWA branch of Tiscali S.p.A. in July 2018. Based on
        data published by the Italian telecoms regulator, as of September 2019 Fastweb was
        the third largest supplier of retail fixed internet services, but it was the second
        largest, after TIM, in the in the segment for speeds between 10 and 30 Mbps and
        above 100 Mbps.
(58)    Other than Fastweb, there are two large suppliers of FWA services in Italy: Linkem
        S.p.A. (“Linkem”) and Eolo S.p.A. (“Eolo”).
(59)    Linkem is a provider of FWA services to residential and business customers that
        focuses mainly on metropolitan areas, but also in digital divide areas. Linkem has
        been awarded 3.4-3.6 GHz frequencies to provide its services until 2029 and
        currently uses LTE technology to provide last-mile connectivity to end-customers.
        This may differ from other FWA providers who use proprietary technologies.41 In
        December 2019 Linkem and Fastweb signed a strategic agreement for the
        simultaneous deployment of two separate 5G radio access networks (one leveraging
        Linkem’s spectrum and one leveraging Fastweb’s 26 GHz), and for the reciprocal
        provision of network slice services. Based on data published by the Italian telecoms
        regulator, as of September 2019 Linkem was the fifth largest supplier of retail fixed
        internet services (at distance from the fourth), but it was the second largest, after
        TIM, in the segment for speeds between 30 and 100 Mbps.
(60)    Eolo is provider of FWA services in rural areas and small urban centres (i.e. less
        than 10 000 inhabitants) with a specific focus on areas with low coverage of fixed
        access broadband. Eolo operates using both non-licenced frequencies (i.e. 5 GHz) to
        provide connectivity services at a 30 mbps speed (“EoloWave”) and licenced
        frequencies (i.e. 28 GHz) that provide connectivity services at 100 mbps
        (“EoloWave G”). Based on data published by the Italian telecoms regulator, as of
        September 2019 Eolo was the fourth largest supplier of retail fixed internet services
        in the segment for speeds between 30 and 100 Mbps.
(61)    Based on the results of the market investigation the Commission notes that,
        irrespective of the type of customers considered from the demand-side, the most
        important parameter of competition for the supply of hospitality services and driver
        of customer demand is the location of the specific site the customer is interested in.
        Indeed, also given the scarcity of sites, customers select the sites based on their radio
        network planning needs. For MNOs, price is the second driver of customer demand
        after site location, while for FWA suppliers price and location of the site have the
        same importance. In relation to MNOs, the same applies for both macro- and micro-
        sites.42
5.4.    Network sharing
(62)    MNOs can roll out their network by themselves, independently from other MNOs, or
        together with other MNOs through a network sharing agreement.
(63)    In a network sharing agreement, MNOs agree to share some of the network elements
        in order to reduce costs and improve coverage and capacity. The degree of
        integration within network sharing agreements varies depending on whether: (i) the
41  Agreed minutes of the conference call of 12 December 2019 with Linkem, paragraphs 2-3.
42  See replies to RFI Q3, question 18.
                                                       14
 ---pagebreak---         MNOs only share their site infrastructure ("passive sharing" or "site sharing");
        (ii) they also share the RAN equipment at the sites ("active sharing"); (iii) they also
        share their spectrum ("spectrum sharing"); or (iv) they also rely on the same core
        network ("full network sharing").
(64)    In particular, passive sharing involves sharing the basic infrastructure, such as masts,
        cabins and sometimes antennas and power supplies ("passive infrastructure"), as well
        as the cost of the site itself (rent and rates). Active sharing involves also sharing the
        RAN equipment ("active equipment"), meaning the base transceiver station and the
        controller nodes (for 2G and 3G), or the base transceiver station (for 4G) in addition
        to the passive infrastructure. Transmission (backhaul to the MNOs’ core networks)
        may also be shared under passive or active sharing agreements.
(65)    In Italy, all MNOs are engaged in some level of passive sharing or co-location of
        sites. In particular, since 2007, the Parties have a number of passive sharing
        arrangements, mainly in municipalities with a population of up to 35 000 inhabitants
        (and in certain cases up to 50 000 inhabitants). As explained, under the Passive
        Sharing Agreement the Parties plan to increase their passive sharing arrangements to
        up to 100% of Italy’s territory. Under the Active Sharing Agreement, they plan to
        engage in active sharing in cities with less than 100 000 inhabitants.
5.5.    Backhauling connections
(66)    Backhaul services are the connections between the antenna in an infrastructure and
        the switches in the core network and are used to ensure the proper functioning of a
        mobile network. Backhaul are generally wired connections based on either (i) fiber
        optic cables or (ii) copper cables. However, wireless backhaul can be used in areas
        where fixed backhaul is not available.
(67)    Backhaul providers are primarily fixed operators who are able to provide fiber optic
        or copper cables from their fixed network. Other than TIM and Fastweb, these are
        Open Fiber S.p.A. (“Open Fiber”) and Retelit Digital Services (“Retelit”).
(68)    Open Fiber is a wholesale-only supplier of fiber connectivity services that started its
        activity in 2017 after the acquisition of, and subsequent merger with, Metroweb.
        Open Fiber plans to reach 19 million premises with fiber by 2023. In "black and grey
        areas", the plan foresees to reach 9.5 million premises of which Open Fiber already
        reaches over 5.5 million premises. As winner of public tenders for fiber connectivity
        in "white areas", Open Fiber will also build a public fiber network reaching
        9.6 million premises. Almost 15% of the premises in those areas will be served
        through FWA networks.43
(69)    Retelit is a listed company on the Italian stock exchange market and it operates
        since 2000 a fiber network in Italy that today reaches approximately 12 500 km.
        Retelit operates under a business-to-business model addressing wholesale and
        business markets.44
43  Open Fiber’s reply to RFI Q4, question 1.
44  Retelit’s reply to RFI Q4, question 1.
                                                     15
 ---pagebreak--- 6.       MARKET DEFINITION
(70)     The Joint Venture will operate the network sites previously operated by the Parties
         and will offer hospitality services on this infrastructure to the Parties and third
         parties. Moreover, both Parties are active in Italy in the provision of mobile and
         fixed telecommunications services to consumers and businesses, for which access to
         sites is an important input. Finally, TIM and the Joint Venture will be both active in
         the supply of backhaul connectivity for sites. Therefore, the Transaction may have
         an impact on a series of telecommunications markets in Italy, which will be
         examined below.45
6.1.     Hospitality services
6.1.1. Product market definition
(71)     The Parties submit that the relevant product market is the market for the provision of
         hospitality services to telecommunication operators, including both macro- and
         micro-sites, distinct from the market for the provision of hospitality services to TV
         and radio broadcasting operators. The Parties also submit that supply of hospitality
         services to MNOs, FWA suppliers and other categories of telecommunications
         operators (in particular, IoT, but also OTMOs to the extent they are not MNOs or
         FWA suppliers)46 should be part of the overall market, but in any case the question
         could be left open, as the Transaction would not raise any competitive concern in
         that respect.
(72)     The Commission has previously identified a market for sites and site infrastructure
         for digital mobile radio-telecommunications equipment.47 The Commission
         concluded that the possibility for operators of TV and radio broadcasting sites to
         satisfy the needs of MNOs were limited. Indeed, although there was a tendency for
         MNOs to utilise broadcasting structures where they are suitable for the local
         requirements of the service, generally broadcasting transmission equipment is
         located on sites affording a much higher level of geographical coverage when
         compared to the coverage requirements of mobile systems. Consequently,
         broadcasting sites tend to be tall structures in elevated locations that transmit at high
         powers in order to achieve optimal population coverage using a limited number of
         sites. In view of capacity considerations, mobile radio networks are cellular in
45  The Transaction gives also rise to additional technically affected markets due to vertical relationships of
    the JV’s activities with the mobile network activities of the Parties and TIM’s limited FWA activities, i.e.
    the wholesale supply of mobile call termination services, the wholesale supply of international roaming
    services and the wholesale supply of fixed call termination services. Irrespective of the exact market
    definition, the effects of the Transaction in relation to the supply of these services are only follow-on
    effects of the vertical effects of the Transaction on the retail/wholesale mobile and fixed markets. Specific
    incentives to foreclosure competitors in these markets appear very unlikely and no complaint has been
    received regarding those markets in the pre-notification contacts and in the market investigation. Thus, the
    markets related to the supply of these services are not discussed further in this Decision.
46 “IoT” (Internet-of-things); refers to customers providing mobile connectivity services for the internet of
    things; “OTMO” (Other-than-Mobile-Operators) includes customers other than mobile operators
    including FWA suppliers, Public Administrations and Others.
47 Commission decision of 30 April 2003 in Case COMP/38.370 – O2 UK Limited / T-Mobile UK Limited
    ("UK Network Sharing Agreement"), recitals 45-51; Commission decision of 16 July 2003 in Case
    COMP/38.369 – T-Mobile Deutschland/O2 Germany: Network Sharing Rahmenvertrag, recitals 49-55.
                                                            16
 ---pagebreak---         nature, each site providing sufficient but limited coverage, reducing inter-cell
        interference and allowing the frequency allocations to be re-used in other areas.48
(73)    The vast majority of the participants to the market investigation49 confirmed that
        suppliers of mobile telecommunications services and suppliers of TV/Radio
        broadcasting services have different requirements for hospitality services.50
        Generally, towers originally designed to serve MNOs would be limited in their
        ability to offer hospitality services to radio and TV broadcasters. Moreover, TV and
        radio broadcasters need higher transmission power and need to be located outside of
        densely populated areas, while MNOs would require capillary distribution of
        antennas especially in densely populated areas.
(74)    With respect to a possible segmentation between different telecommunications
        operators (MNOs, FWA suppliers), the majority of the respondents to the market
        investigation submitted that requirements for hospitality services on macro-sites are
        the same for suppliers of mobile telecommunications services and providers of
        FWA, at least to a certain extent.51 In general, FWA equipment would be
        comparable to MNOs’ equipment, although sometimes smaller. Energy requirements
        could be met within the same infrastructure as MNOs. On the other hand, FWA
        services would target a customer base living in the less densely populated areas in
        Italy, where fixed fiber telecommunication services are not as capillary as in the
        more densely populated areas: in this context FWA suppliers needs a smaller number
        of sites for their operations (in the range of hundreds sites). On the contrary, MNOs
        would need capillary distribution in urban and rural areas and have a much greater
        need for sites (in the range of thousands sites).
(75)    Most respondents to the market investigation submitted also that there are other
        categories of customers that have similar requirements in terms of hospitality
        services as MNOs, such as in particular IoT providers (public utilities for their smart
        grids (controllers for meters, smart sensors), security services), but at the moment
        their demand would be marginal, in terms of space and value, compared to MNOs’
        demand.52
(76)    With respect to micro-sites, the vast majority of respondents to the market
        investigation submitted that MNOs using hospitality services on macro-sites would
        consider hospitality services on micro-sites as a complement and not as an
        alternative for their network. Micro-cells are used in combination with macro cells to
        improve coverage and capacity in very densely occupied areas (stadium, shopping
        malls) or to reach areas where normal infrastructure is insufficient (underground,
48 Commission decision of 16 July 2003 in Case COMP/38.369 – T-Mobile Deutschland/O2 Germany:
   Network Sharing Rahmenvertrag, recital 53.
49 Throughout this Decision, when the Commission refers to the (number of) respondents in relation to a
   given question of the market investigation, this excludes all respondents that have not provided an answer
   to that question or replied "I do not know", unless stated otherwise. For example, "a majority of
   respondents" means a majority of respondents having replied to a given question and not having ticked
   "I do not know".
50 Replies to RFI Q3 and RFI Q4, questions 3 and 3.1.
51 Replies to RFI Q3 and RFI Q4, questions 4 and 4.1.
52 Replies to RFI Q3 and RFI Q4, questions 5 and 5.1. The Parties submit that INWIT […] and Vodafone
   […] hosted on a combined total of […]. On this basis, the Parties submit that the total market size for a
   hypothetical market for the supply of hospitality services on macro-sites to IoT customers can be left
   open. See Form CO, paragraph 168.
                                                         17
 ---pagebreak---        high buildings). In other terms, while macro-sites are deployed to achieve
       homogeneous coverage, small cells deployment is instead used to address specific
       capacity needs within a limited area, often a public venue (outdoor or indoor) or a
       particularly crowded area. Due to the limited coverage range of a small cell, it will
       be not feasible, both technically and economically, to plan an extensive coverage
       only leveraging small cells, since a very high number of small cell sites would be
       needed to achieve the minimum coverage objective. From a structural point of view,
       micro-sites would not be suitable to host antenna equipment usually deployed on
       macro-sites, as antennas hosted on macro-sites are larger and require higher
       locations. Furthermore, those antennas are characterized by higher output power
       (and thus electromagnetic emissions) and therefore they cannot be placed on typical
       micro-cells locations, since these latter are generally at human height.53
(77)   As for the possibility for a tower company active in the provision of hospitality
       services on macro-sites to start offering hospitality services on micro-sites with
       limited investments and in a reasonable timeframe (and vice versa), the result of the
       market investigation was mixed.54 In any case, the vast majority of the respondents
       submitted that framework agreements, which are entered into between MNOs and
       tower operators to regulate access to a set of locations across the territory under
       license, generally do not cover both macro- and micro-sites.55
(78)   Based on the above, the Commission considers that, in line with its previous
       decisions, hospitality services to TV and radiobroadcasting operators are not part of
       the relevant market. Furthermore, the Commission considers that macro-sites and
       micro-sites are part of separate markets.
(79)   With respect to macro-sites, the result of the market investigation has not been
       conclusive as regards the possible distinction between hospitality services to MNOs
       and FWA suppliers. Therefore, the Commission leaves this question open and will
       analyse the impact of the Transaction considering both a general market for
       hospitality services on macro-sites to customers other than TV and radio
       broadcasters, and distinct markets for hospitality services on macro-sites to
       (i) MNOs and (ii) FWA suppliers.
(80)   As for the question whether the other categories of customers (excluding TV and
       radio broadcasters, i.e. in particular IoT providers) form part of a separate market,
       the Commission considers that this question can also be left open. Indeed, whilst the
       Commission does not find serious doubts as to the compatibility of the Transaction
       as a result of horizontal or vertical effects in relation to this customer group, this
       does not affect the conclusion that serious doubts arise in relation to the overall
       market for the supply of hospitality services to all customers other than TV and radio
       broadcasters. This is because the current demand by these customers is marginal
       compared to the demand by MNOs and FWA suppliers56 and thus does not affect the
       competitive analysis for the overall market for hospitality services to all customers
       other than TV and radio broadcasters.
53 Replies to RFI Q3 and RFI Q4, questions 6, 6.1, 7 and 7.1.
54 Replies to RFI Q3 and RFI Q4, questions 8, 8.1, 9 and 9.1.
55 Replies to RFI Q3 and RFI Q4, questions 10 and 10.1.
56 See footnote 52.
                                                       18
 ---pagebreak--- (81)     With respect to the market for hospitality services on micro-sites, the Commission
         notes, based on the market reconstruction57, that this type of sites would be primarily
         intended to satisfy MNOs’ demand up to 2027, with sales to this customer group
         representing more than 95% on each year covered by the market reconstruction, by
         both volume and value. Further, there is no evidence in the file that the effects of the
         Transaction in relation to the supply of hospitality services on micro-sites to
         customers other than MNOs would be different. In this context, the Commission
         considers that, for the purposes of this Decision, the relevant product market would
         be the overall supply of hospitality services on micro sites, without any further
         segmentation.
6.1.2. Geographic market definition
(82)     The Parties submit that the market for hospitality services is national in scope,
         because MNOs would purchase hospitality services from a TowerCo so that they can
         in turn provide services according to the terms of their license, which is typically for
         the territory of a given Member State. Therefore, MNOs would purchase services
         from operators that can provide solutions across the entire territory of a Member
         State. MNOs would not approach TowerCos for a single access purchase at a certain
         location and they will either rely on TowerCos to manage their networks in its
         entirety or to provide access to a set of locations across the territory under the
         license. To address these needs, TowerCos would provide a diversified portfolio of
         assets conveniently located across the country. These features would explain why
         there are no local TowerCos for MNOs.
(83)     The Commission has in its previous decisions considered that the market for
         hospitality services for mobile operators is national in scope, because it is driven by
         nationally licensed operators and the relevant planning rules are guided by national
         law58 and because all the site hosting activities are subject to a national regulatory
         environment.59 In addition, national competition authorities have considered in past
         decisions that the market for hospitality services is national in scope.60
(84)     The results of the market investigation generally confirm a national dimension of the
         market, at least with respect to macro-sites. The majority of the respondents
         submitted that they normally negotiate framework agreements to obtain/provide
         access to a set of locations across the territory under license (usually nation-wide)
         and for the management of the entire national network, in particular for macro-
         sites.61 Furthermore, the vast majority of the respondents submitted that the main
         suppliers of hospitality services are the same across Italy, although for micro-sites a
57  In this respect, see Section 7.2.2.
58  Case COMP/ 38.370 – O2 UK Limited / T-Mobile UK Limited ("UK Network Sharing Agreement"),
    30 April 2003, para. 52; Case COMP/38.369 – T-Mobile Deutschland/O2 Germany: Network Sharing
    Rahmenvertrag, 16 July 2003, para. 56.
59 Commission decision of 15 November 2002 in case M.2925 – Charterhouse/CDC/TDF, paragraph 27.
60 For Italy see the decision of the Italian Competition Authority No. 23117 in case C11205 – Elettronica
    Industriale/Digital Multimedia Technologies, 14 December 2011, paragraph 30. See also the French
    Competition Authority Decision No. 19-DCC-169, 30 August 2019, relative à la prise de contrôle exclusif
    de la société Iliad 7 par la société Cellnex France Groupe, paragraph 16.
61 Replies to RFI Q3 and RFI Q4, questions 14.1 and 14.2.
                                                          19
 ---pagebreak---         certain number of respondents did not provide a definite answer, as micro-sites
        market would still be nascent.62
(85)    However, one complainant submitted that in Italy providers of hospitality services
        would price access to their infrastructure at local level, with access to some sites
        being much more costly than others.63 This difference in pricing would show the
        local dynamics of the market, that will depend on:
        (a)     the number of sites available locally, the level of occupation of these sites
                and their owner;
        (b)     the actual possibility to erect new sites that could be extremely limited in
                certain area of historic interest;
        (c)     the limits placed by local authorities with regard to the power of the
                transmission equipment to be placed on the sites;
        (d)     the population reachable via the site concerned.
        Those persistent price differences would be incompatible with a national dimension
        of the market, would show that there are significant local barriers to entry and thus
        would lead to specific local competitive dynamics. The structure of supply would be
        very different depending on the local area concerned. The Italian Competition
        Authority would have confirmed the obstacles encountered by tower companies (or
        MNOs) wishing to extend their presence in certain areas.64
(86)    The Commission considers that those observations are not sufficient to put into
        question the results of the market investigation. First, pricing conditions are just one
        element among others to be considered in the assessment of the geographic
        dimension of the market. Other relevant elements to be taken into account are the
        basic demand characteristics, the significant suppliers’ presence, and the distribution
        of market shares. In this respect, as explained above at paragraph (84) agreements
        for hospitality services are generally negotiated at national level to obtain/provide
        access to a set of locations on the whole national territory and the main suppliers of
        hospitality services are the same across Italy.
(87)    With respect to the distribution of market shares, the same complainant has provided
        the Parties’ market shares at local level (municipalities), based on the number of
        sites managed (see below at section 7.2.1.2). Although the Commission has some
        reservations on the use of this metric to calculate the real market power of tower
        companies (notably as it would not distinguish between captive sales and sales to
        third parties, see further below in section 7.2.1.2), the data show that the Parties are
        generally consistently present on the national territory, with similar market shares.
(88)    Furthermore, with regard to the alleged price differences, from the analysis of the
        agreements in place between tower companies and telecom operators (included the
62 Replies to RFI Q3 and RFI Q4, questions 15.1 and 15.2.
63 Iliad’s submission of 17 January 2020, Iliad’s observations in case M.9674 – Vodafone Italia/TIM/Inwit
   JV.
64 Italian Competition authority, report No. AS1551 of 21 December 2018 – Ostacoli nell’installazione di
   impianti di telecomunicazione mobile e broadband wireless access e allo sviluppo delle reti di
   telecomunicazione in tecnologie 5G.
                                                       20
 ---pagebreak---         agreement between INWIT and the complainant) it results that the price differences
        are not directly linked to the geographical location of the sites (in terms of different
        places in Italy). Sites are generally priced per categories, with sites in urban areas
        generally more expensive than sites in rural areas and sites in big cities more
        expensive than sites in towns and smaller cities (other price categories are possible,
        as touristic places). In general, the pricing categories seem linked to the
        characteristics of the area served (in terms of coverage and population reachable, as
        the complainant itself acknowledges) and not to the specific geographic areas. That
        implies that sites in urban areas are generally more valuable than sites in rural areas.
        Although it cannot be excluded that in some specific locations there could be
        specific problems of site scarcity and/or of local authorization processes longer and
        more difficult than on average (and that this can have an influence on the specific
        pricing), the Commission considers that this element only cannot justify a market
        definition al local level, considering that all the other elements point to a national
        dimension of the market. In any case, the Commission in its analysis will consider a
        potential distinction between rural and urban areas – also in connection with the
        existing passive arrangements between the Parties – to take into account this possible
        difference in the competitive dynamics between rural areas and areas more densely
        populated, where barriers to entry could be somehow more relevant.
6.2.    Retail mobile telecommunications services (“retail mobile markets”)
(89)    Mobile telecommunications services to end customers consists of the sale of
        subscriptions enabling access to public mobile telecommunications networks. Such
        access allows end users to make voice national and international calls, send and
        receive messages and use mobile data.65
6.2.1. Product market definition
(90)    The Parties submit that, in line with previous Commission decisions, the relevant
        product market is the overall retail market for mobile telecommunications services.
        Furthermore, they consider that it is not necessary for the Commission to consider
        whether any potential segmentation may be appropriate, in the absence of any
        plausible vertical competition concerns on any basis.
(91)    The Commission has considered the retail mobile market in several past decisions,
        including with specific reference to the Italian market.66 In these decisions, the
        Commission has considered that there is an overall retail market for mobile
        telecommunications services constituting a separate market from retail fixed
        telecommunications services.67 The Commission did not further subdivide the
        overall retail mobile market based on the type of service (voice calls, SMS, MMS,
65  See, among others, Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy /
    Wind / JV, recital 118; Commission decision of 30 May 2018 in Case M.7000 – Liberty Global/Ziggo,
    paragraph 199.
66 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV; Commission
    decision of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre.
67 Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 160;
    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 206 and
    Commission decision of 2 July 2014 in case No M.7018 – Telefónica Deutschland/E-Plus, recital 64.
                                                       21
 ---pagebreak---         mobile internet data services), or network technology.68 The Commission considered
        possible distinctions in the overall retail market for mobile telecommunications
        services between pre-paid or post-paid services and concluded that these did not
        constitute separate product markets, but represent rather market segments within an
        overall retail market.69 In addition, the Commission did not identify separate markets
        for the provision of mobile telecommunications services to private customers and
        business customers. This was principally due to supply-side substitutability
        considerations relevant to the area of overlap between the parties involved in those
        cases.70 Finally, the Commission ultimately concluded that OTT services do not fall
        within the same relevant market as mobile telecommunications services, as OTT
        services rely on mobile telecommunications (data) services and fixed broadband
        services to function.71 In relation to M2M subscriptions, in recent decisions, the
        Commission has concluded that these belong to a separate market.72
(92)    There are no elements in the Commission's file in the present case that would justify
        a departure from the position in previous cases.
(93)    For the purposes of this Decision, the Commission therefore retains its previous
        product market definition and considers that there is an overall product market for
        the retail provision of mobile telecommunications services, excluding M2M
        subscriptions, and the product market for the retail provision of M2M subscriptions.
        Since suppliers in each of these markets use the same network is used for the their
        activities , the vertical analysis of the effects of the Transaction in relation to these
        retail services will be undertaken jointly and in the following any reference to the
        “retail mobile markets” should be intended to both the overall product market for the
68 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV,
   recitals 135-140; 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, paragraph 206; 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.
69 Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 202;
   Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV,
   recitals 146-149; 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, paragraph 206; 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.
70 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV,
   recitals 153-161; 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, paragraph 206; 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.
71 Commission decision of 27 November 2018 in case M.8792 – T-Mobile NL/Tele2 NL, recital 169;
   Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy/WIND/JV, recital 145,
   Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK, recital 265.
72 Commission decision of 27 November 2018 in case .8792 – T-Mobile NL/Tele2 NL, recitals 223 and 224;
   Commission decision of 15 July 2019 in case M.9370 – Telenor / DNA, paragraph 31.
                                                        22
 ---pagebreak---          retail provision of mobile telecommunications services, excluding M2M
         subscriptions, and the product market for the retail provision of M2M subscriptions.
6.2.2. Geographic market definition
(94)     The Parties submit that, in line with the Commission's previous decisions, the market
         for mobile telecommunications services to end customers is national in scope.
(95)     In line with previous decisions73 and taking into account that nothing in the
         Commission's file would justify a departure from the previous position, for the
         purposes of this Decision, the Commission considers that the geographic scope of
         the market for mobile telecommunications services is national in scope and
         corresponds to the territory of Italy.
6.3.     Wholesale access and call origination on mobile networks (“wholesale mobile
         market”)
(96)     MNOs provide wholesale access and call origination services which enable operators
         without their own network, namely MVNOs and Service Providers, to have access to
         one or more of the MNOs’ networks in order to provide mobile telecommunications
         services to end customers. “Full” or “thick” MVNOs maintain their own core
         infrastructure and use MNOs only for access to a radio network. By contrast, “light”
         or “thin” MVNOs do not have their own infrastructure and rely entirely on the
         infrastructure of an MNO.74
6.3.1. Product market definition
(97)     In line with previous Commission decisions, the Parties submit that there is an
         overall market for wholesale access and call origination services on mobile
         networks.
(98)     In previous cases, the Commission defined a wholesale market for access and call
         origination on public mobile networks.75 The services provided by MNOs to non-
         MNOs were considered as key elements required for non-MNOs to be able to
73  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 No 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 No M.5650 – T Mobile/Orange UK, paragraphs 25 and 26 and Commission
    decision of 28 May 2014 in case No M.6992 – Hutchison 3G UK/Telefónica Ireland, recital 164.
74 Light MVNOs may also use the services of a mobile virtual network enabler (“MVNEs“), an organisation
    that provides business infrastructure solutions to MVNOs such as billing, administration, operations
    support, mobile site subsystem support and other related services.
75 Commission decision of 3 August 2016 in case M.7978 – Vodafone / Liberty Global / Dutch JV,
    paragraph 187; Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK,
    recitals 295 to 300; Commission decision of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-
    Plus, recitals 77 to 79; Commission decision of 28 May 2014 in case M.6992 – Hutchison 3G
    UK/Telefónica Ireland, recital 156; Commission decision of 12 December 2012 in case M.6497 –
    Hutchison 3G Austria/Orange Austria, recitals 61 to 63; Commission decision of 1 March 2010 in case
    M.5650 – T-Mobile/Orange, paragraphs 27 to 30; Commission decision of 27 November 2007 in case
    M.4947 – Vodafone/Tele2 Italy/Tele2 Spain, paragraph 15.
                                                         23
 ---pagebreak---          provide retail mobile communication services. Since both services were considered
         to be generally supplied together, they were seen as being part of a single market.
(99)     Nothing in the Commission's file would justify a departure from the previous
         position.
(100) For the purposes of this Decision, the Commission therefore retains its previous
         product market definition and considers that there is a distinct wholesale market for
         access and call origination on public mobile telephone networks.
6.3.2. Geographic market definition
(101) In line with previous Commission decisions, the Parties submit that the relevant
         geographic scope of the market for wholesale access and call origination on mobile
         networks is national, that is to say, limited to the territory of Italy.
(102) In previous cases, the Commission considered the wholesale market for access and
         call origination to be national in scope due to regulatory barriers stemming from the
         fact that licenses granted to MNOs are generally national in scope.76
(103) In line with previous decisions and taking into account that nothing in the
         Commission's file would justify a departure from the previous position, for the
         purposes of this Decision, the Commission considers that the geographic scope of
         the wholesale market for access and call origination on public mobile networks is
         national in scope and corresponds to the territory of Italy.
6.4.     Retail fixed internet access services (“retail fixed markets”)
(104) Fixed internet access services at the retail level consist of the provision of
         subscriptions enabling customers to access the internet through a fixed
         telecommunications connection.
6.4.1. Product market definition
(105) The Parties note that the Italian telecoms regulator (AGCOM) has previously
         identified a single relevant market for retail broadband access services in Italy,
         including all the fixed network access technologies available on the market.
         AGCOM concluded that the relevant market for fixed access included services
         through copper, mixed copper-fibre, only optical fiber and fixed wireless
         technologies.77 However, the Parties consider that it is not necessary to conclude on
         product market definition, and in particular whether a further segmentation between
         broadband and ultra-broadband would be appropriate in the fixed internet market, in
         the absence of any competition concern.
(106) In previous decisions, the Commission considered but ultimately left open possible
         segmentations within the supply of retail fixed internet access services according to
76  Commission decision of 3 August 2016 in case M.7978 – Vodafone / Liberty Global / Dutch JV,
    paragraph 190; Commission decision of 11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK,
    recitals 305 and Commission decision of 12 December 2014 in case M.6497 – Hutchison 3G
    Austria/Orange Austria, recitals 74 to 77 with further references.
77 AGCOM          decision     No.       348/19/CONS         of     18 July   2019,   available    at
    https://www.agcom.it/documents/10179/15564025/Delibera+348-19-CONS/1fe1fd57-1b27-4755-bfd6-
    89455e12ce09?version=1.0.
                                                          24
 ---pagebreak---         (i) product type, distinguishing between narrowband, broadband and dedicated
        access and (ii) distribution mode, distinguishing between xDSL, fiber, cable, and
        mobile broadband.78 Conversely, the Commission noted that the retail market for
        fixed internet access services should not be segmented according to download
        speed.79 The Commission also considered distinguishing between residential and
        small business customers, on the one hand, and larger business and public
        authorities, on the other hand, but ultimately left the question open.80
(107) In a recent case, the Commission considered that the relevant product market was the
        overall retail market for the provision of fixed internet access services, including all
        product types, distribution modes and speeds/bandwidths, to residential and small
        business customers, excluding only the supply of fixed internet services provided
        through mobile network infrastructure.81
(108) For the purpose of this Decision, the Commission notes that retail fixed services are
        relevant to the extent a vertical link arises with the supply of hospitality services on
        macro-sites. From a technological point of view, such link exists only in relation to
        FWA networks. In this respect, the Commission notes that TIM has recently
        launched retail fixed services based on FWA technology (to both business and
        residential customers) and Vodafone […]. In this context, a hypothetical market for
        the supply of retail fixed services via FWA technology only could be envisaged.
        Such hypothetical market would be vertically affected by the Transaction and the
        effects of a potential foreclosure strategy in such market could be more pronounced
        than in an overall market.82
(109) Further, the Commission notes that, from a network stand-point, the needs of a FWA
        supplier are likely to be the same, regardless of whether the services are offered to
        residential and small business customers or to large business customers.
(110) Thus, for the purpose of this Decision, the Commission considers that the relevant
        product market is either the overall retail market for the provision of fixed Internet
        access services, including all customer groups, product types, distribution modes and
        speeds/bandwidths, excluding only the supply of fixed internet services provided
        through mobile network infrastructure83, or a hypothetical narrower market where
        services are only supplied based on FWA technology. As the operators in these
78 See Commission decision of 29 June 2010 in Case M.5532 – Carphone Warehouse/Tiscali UK,
   paragraphs 7-21; Case M.6990 Vodafone/Kabel Deutschland, paragraphs 192-194. Commission decision
   of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph 38.
79 See Commission decision of 29 June 2010 in Case M.5532 – Carphone Warehouse/Tiscali UK,
   paragraphs 7-21; Case M.6990 – Vodafone/Kabel Deutschland, paragraphs 192-194. Commission
   decision of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, paragraph 38.
80 See Commission decision of 19 May 2015 in case M.7421 – Orange/Jazztel, recital 42; Commission
   decision of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, paragraph 165; Commission decision of
   7 October 2016 in case M.8131 – Tele2 Sverige/TDC Sverige, paragraph 32.
81 Commission decision of 18 July 2019 in Case M.8864 - Vodafone/ Certain Liberty Global Assets,
   recital 56.
82 FWA retail fixed services still account for a small percentage of the overall market; see matket shares of
   Eolo and Linkem (the largest FWA players) in Section 7.2.5.
83 Since fixed internet services provided through mobile network infrastructure are provided by MNOs or at
   best by customers of MNOs on the wholesale mobile market, the effects of the Transaction on this
   potential segment are the same as on the retail and wholesale mobile market. Thus the effects of the
   Transaction on the supply of fixed internet services through mobile network infrastructure will not be
   further discussed in this Decision.
                                                        25
 ---pagebreak---          markets which would be affected by the Transaction are the same, the vertical
         analysis of the effects of the Transaction in relation to these retail services will be
         undertaken jointly and in the following any reference to the “retail fixed markets”
         should be intended to cover both the overall retail market for the provision of fixed
         internet access services and the hypothetical narrower market where services are
         only supplied based on FWA technology.
6.4.2. Geographic market definition
(111) The Parties submit that the relevant geographic scope is national.
(112) In previous decisions, the Commission concluded that the retail market for the
         provision of fixed internet services was national in scope.84 In Liberty Global/BASE
         Belgium the Commission considered whether the geographic scope of the market
         should be defined on a regional basis or by reference to the footprint of the operators'
         networks, but ultimately left the question open.85 In Vodafone/Certain Liberty
         Global Assets, the Commission considered that the relevant geographic market for
         the retail provision of fixed internet services was national in scope.86
(113) There are no elements in the Commission's file in the present case that would justify
         a departure from the position in previous cases.
(114) The Commission therefore concludes that, for the purpose of the present Decision,
         the relevant geographic market for the retail provision of fixed internet services is
         national in scope and correspond to the territory of Italy.
6.5.     Wholesale fixed internet access services (“wholesale fixed markets”)
(115) Wholesale access to internet services includes different types of access that allow
         internet service providers to provide services to end consumers. It comprises
         physical access at a fixed location, non-physical or virtual network access, at a fixed
         location; and resale of the fixed incumbent's internet offering.
6.5.1. Product market definition
(116) The Parties do not take a view on the exact definition of the market for wholesale
         fixed access.
(117) In previous decisions87, the Commission defined a separate market for wholesale
         broadband access and left open the question of whether it should be sub-divided per
         type of access (LLU, bitstream or resale of the incumbent's offering).
84  See Commission decision of 29 June 2010 in Case M.5532 – Carphone Warehouse/Tiscali UK,
    paragraph 47; Case M.5730 – Telefónica/Hansenet, paragraph 28; Case M.6990 – Vodafone/Kabel
    Deutschland, paragraph 197. Commission decision of 3 August 2016 in case M.7978 – Vodafone/Liberty
    Global/Dutch JV, paragraph 40.
85 Commission decision of 4 February 2016 in case M.7637 – Liberty Global/BASE Belgium, recitals 62-64.
86 Commission decision of 18 July 2019 in Case M.8864 - Vodafone/ Certain Liberty Global Assets,
    recital 61.
87 Commission decision of 20 September 2013 in Case M.6990 - Vodafone/Kabel Deutschland,
    paragraph 161; Commission decision of 29 June 2009 in Case M.5532 - Carphone Warehouse/Tiscali UK,
    paragraphs 28- 34.
                                                      26
 ---pagebreak--- (118) For the purpose of this Decision, the Commission notes that wholesale fixed services
         are relevant to the extent a vertical link arises with the supply of hospitality services
         on macro-sites. From a technological point of view, such link exists only in relation
         to FWA networks. In this respect, the Commission notes that TIM has recently
         launches FWA wholesale fixed services, whilst […]. In this context, an hypothetical
         market for the supply of wholesale fixed services via FWA technology only could be
         envisaged. Such hypothetical market would be vertically affected by the Transaction
         and the effects of a potential foreclosure strategy in such market could be more
         pronounced than in an overall market.88
(119) Thus, for the purposes of this Decision, the Commission considers that the relevant
         product market is either the overall wholesale supply of fixed access, encompassing
         all technologies, or a hypothetical narrower market where services are only supplied
         based on FWA technology. As the operators in these markets which would be
         affected by the Transaction are the same, the vertical analysis of the effects of the
         Transaction in relation to these wholesale services will be undertaken jointly and in
         the following any reference to the “wholesale fixed markets” should be intended to
         cover both the overall wholesale supply of fixed access, encompassing all
         technologies, or the hypothetical narrower market where services are only supplied
         based on FWA technology.
6.5.2. Geographic market definition
(120) The Parties do not take a view on the geographic market definition for wholesale
         Internet access services.
(121) In Carphone Warehouse/Tiscali UK, while there were indications supporting a
         national scope of the market, the Commission ultimately left open the exact
         geographic market definition.89 In Liberty Global/BASE Belgium, the Commission
         considered whether the geographic scope of wholesale access to Internet services
         should be national or limited to the network footprint of each operator, but ultimately
         left the product market definition open.90
(122) For the purpose 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 with respect to wholesale Internet access services under any
         alternative geographic market definition.
6.6.     Wholesale supply of fixed backhaul services
(123) Backhaul services are the connections between the antennae in an infrastructure and
         the switches in the core network and are used to ensure the proper functioning of a
         mobile network. Backhaul networks can be comprised of wireless backhaul
         (i.e. microwaves) or fixed backhaul. MNOs have typically operated their own
         microwave backhaul while fixed backhaul has been provided by fixed network
         operators such as TIM, Open Fiber and Fastweb in Italy. Fixed backhaul services are
88  As TIM has only recently launched these services, its market share is likely to be more limited compared
    to its competitors.
89 Commission decision of 29 June 2009 in Case M.5532 – Carphone Warehouse/Tiscali UK,
    paragraphs 48-54.
90 Commission decision of 4 February 2016 in Case M.7637 – Liberty Global/BASE Belgium, recital 172.
                                                        27
 ---pagebreak---         provided on either (i) fiber optic cables or (ii) copper cables. However, wireless
        backhaul can be used in areas where fixed backhaul is not available.
6.6.1. Product market definition
(124) The Parties submit that wholesale fixed backhaul forms part of a wider set of fixed
        telecommunication services, which enable telecommunications providers to connect
        their own networks to end user sites for the supply of business connectivity services
        (“wholesale leased lines”). The wholesale market for leased lines could be
        segmented by trunk and terminating segments as well as between active
        infrastructure (traditional managed leased lines and Ethernet services with
        guaranteed bandwidth) and passive infrastructure (dark fiber). Wholesale fixed
        backhaul would not correspond to any particular segment of wholesale fixed leased
        lines but rather would comprise different segments of leased lines depending on the
        particular needs of the relevant telecommunications customer. In any case, the
        Parties submit the exact product market definition can be left open, as the
        Transaction would not give rise to any competition concern on any possible basis in
        this respect.
(125) In previous cases, the Commission has left open the product market definition for
        backhaul services.91
(126) The vast majority of the respondents to the market investigation submitted that the
        different transmission means (i.e. wireless, fiber and copper lines) do not satisfy the
        same backhauling needs (e.g. in terms of capacity and other relevant parameters).92
        The different transmission would address different backhauling needs in relation to
        capacity, stability, time-to-deploy and costs. However, fiber would offer the highest
        reliability in terms of capacity, throughput, latency, etc. and would be the only
        option for future 5G backhauling. For example, Iliad notes that fixed copper
        backhaul is not in use anymore and that wireless backhaul does not provide the same
        performance. Fastweb further confirms that copper is a legacy technology and that
        wireless and fixed fiber backhauling are two separate services.
(127) As regard the question whether passive and active infrastructure services satisfy the
        same backhauling needs (e.g. in terms of capacity and other relevant parameters), the
        result of the market investigation has been inconclusive: some respondents pointed
        to a significant substitutability between the two services, others submitted that dark
        fiber would allow much higher capacity and lower latency with respect to leased
        lines and Ethernet services.93
(128) Finally, most respondents submitted that suppliers of backhauling connections from
        the sites to the aggregation point are the same as the suppliers of backhauling
        connections from the aggregation point to the core network.94
(129) In the present case, the question of the exact product market definition for wholesale
        services for fixed backhaul can be left open, as the Transaction does not raise
        competition concerns under any possible product market definition. In any case, the
91  Case M.6990 – Vodafone/Kabel Deutschland, paragraph 148; Case M.6584 – Vodafone/Cable & Wireless,
    paragraph 30; Case M.7758 – Hutchison 3G Italy / Wind / JV, 1 September 2016, recitals 206-211.
92 Replies to RFI Q3 and RFI Q4, questions 11 and 11.1.
93 Replies to RFI Q3 and RFI Q4, questions 12 and 12.1.
94 Replies to RFI Q3 and RFI Q4, question 13.
                                                      28
 ---pagebreak---         competitive analysis will focus on fixed fiber backhauling services, irrespective of a
        segmentation by active or passive infrastructure services, considering that (i) future
        roll-out would mainly involve fiber connections due to 5G capacity requirements,
        (ii) MNOs typically self-supply wireless backhaul services.
6.6.2. Geographic market definition
(130) The Parties submit that the geographic market definition for wholesale services for
        backhaul services is at least national in scope. However, they submit that the exact
        geographic market definition can be left open, as the Transaction would not give rise
        to any competition concern on any possible basis.
(131) In a previous case, the Commission has left the exact geographic scope of the
        possible market for wholesale services for fixed backhaul open.95
(132) Respondents to the market investigation submitted that in general the main suppliers
        of backhauling services are the same across Italy and offer their services on a
        national basis. However, some respondents submitted that there are also local
        suppliers (in particular public infrastructure suppliers).96
(133) For the purposes of this Decision and in line with the result of the market
        investigation, the Commission considers that the geographic scope of the market for
        wholesale services for fixed backhaul is national in scope and corresponds to the
        territory of Italy. A national scope appears to be the most appropriate to assess the
        Transaction in light of the concerns expressed by some market participants, linked to
        possible detrimental effects of the Transaction on potential competition at national
        level.
7.      COMPETITIVE ASSESSMENT
7.1.    Introduction
(134) The Transaction gives rise to a number of horizontally affected markets in the supply
        of hospitality services on macro-sites to customers other than TV and radio
        broadcasters (possibly split by customer type into MNOs and FWA suppliers) in
        Italy.
(135) Furthermore, both Parties will remain independently active in a series of
        telecommunications markets in Italy that are downstream from the hospitality
        service market, notably: (i) the retail mobile markets, (ii) the wholesale mobile
        market, (iii) the retail fixed markets, and (iv) the wholesale fixed markets. In this
        respect, the Transaction gives rise to vertically affected markets.
(136) In addition, customers of hospitality services also purchase fixed backhaul services.
        TIM and the Joint Venture are active in the market for wholesale supply of fixed
        backhaul services. Thus, the Transaction also gives rise to potential conglomerate
        effects.
95  Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV, recital 211.
96  Replies to RFI Q3 and RFI Q4, questions 16 and 16.1.
                                                       29
 ---pagebreak--- (137) Finally, a risk of cooperative effects from the Transaction arises in relation to (i) the
        retail mobile markets and (ii) the wholesale mobile market (see footnote 225).
(138) Each of these potential effects is discussed in turn in the following sections. After
        setting out the market shares in the relevant markets, the Commission will first
        assess the potential non-coordinated effects stemming from the Transaction
        (horizontal, vertical and then conglomerate effects). Then the Commission will
        assess the potential coordinated effects stemming from the Transaction (horizontal
        and vertical effects). Finally, the Commission will assess the potential cooperative
        effects of the Transaction.
7.2.    Market shares
(139) According to the Horizontal Merger Guidelines and the Non-Horizontal Merger
        Guidelines,97 in the assessment of the effects of a merger, market shares constitute a
        useful first indication of the structure of the markets at stake and of the competitive
        importance of the relevant market players.
7.2.1. Hospitality services on macro-sites
7.2.1.1. Sales market shares
          Parties’ submission
          (a)    Hospitality services on macro-sites to MNOs
(140) Based on the data provided by Parties in the Form CO, the market shares by value
        and volume for the hypothetical market for the supply of hospitality services on
        macro-sites to MNOs, at national level and excluding captive sales in 2018, are
        illustrated in Table 1.
97  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,
    paragraph 14; 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, paragraph 24.
                                                      30
 ---pagebreak---          Table 1 - Market shares for the supply of hospitality services on macro-sites to MNOs
                                        (non-captive sales, 2018)
              Suppliers                 Volume (tenancies)                       Value (Euro)
                                       000            Market share        Million        Market share
        TIM/INWIT                      […]               [20-30]%           […]            [10-20]%
            Of which sales to
                                       […]               [10-20]%           […]            [10-20]%
                   Vodafone
        Vodafone                       […]               [20-30]%           […]            [10-20]%
            Of which sales to
                                       […]               [10-20]%           […]             [5-10]%
                        TIM
        Combined                       […]               [40-50]%           […]            [30-40]%
            Of which sales to
                                       […]               [30-40]%           […]            [20-30]%
          TIM and Vodafone
        Cellnex                        […]               [30-40]%           […]            [40-50]%
        Wind Tre                       […]                [5-10]%           […]              [0-5]%
        Ei Towers                      […]                 [0-5]%           […]            [10-20]%
        Iliad                          […]                 [0-5]%           […]              [0-5]%
        Others                         […]                [5-10]%           […]             [5-10]%
        Source: Commission computation based on the data provided by the Parties in the Form CO.
(141) Based on the above Table, the Parties’ combined market share would be [40-50]%
        by volume and [30-40]% by value. The Joint Venture would thus be, post-
        Transaction, number one supplier by volume, followed by Cellnex (at [5-10]
        percentage points distance). Conversely, by value, Cellnex would be the market
        leader with [40-50]% market share, followed at a distance of almost [20-30]
        percentage points by the Joint Venture. No other suppliers would have a market
        share above 10%, by either volume or value, with the exception of Ei Towers by
        value ([10-20]% market share).
          (b)    Hospitality services on macro-sites to FWA suppliers
(142) Based on the data provided by Parties in the Form CO, the market shares by value
        and volume for the hypothetical market for the supply of hospitality services on
        macro-sites to FWA suppliers, at national level in 2018, are illustrated in Table 2.
  Table 2 - Market shares for the supply of hospitality services on macro-sites to FWA suppliers (2018)
              Suppliers                 Volume (tenancies)                       Value (Euro)
                                       000            Market share        Million        Market share
        TIM/INWIT                      […]               [20-30]%           […]            [10-20]%
        Vodafone                       […]                [5-10]%           […]              [0-5]%
        Combined                       […]               [20-30]%           […]            [10-20]%
        Cellnex                        […]               [20-30]%           […]            [70-80]%
        Wind Tre                       […]               [10-20]%           […]             [5-10]%
        Others                         […]               [40-50]%           […]                […]
        Source: Commission computation based on the data provided by the Parties in the Form CO.
(143) Based on the above Table, the Parties’ combined market share would be [20-30]%
        by volume and [10-20]% by value. The Joint Venture would thus be, post-
        Transaction, number one supplier by volume, followed by Cellnex (at [0-5]
        percentage points distance). Conversely, by value, Cellnex would be the clear market
        leader with [70-80]% market share, followed at a distance of more than [60-70]
        percentage points by the Joint Venture. The Parties provided only data on Wind Tre
        as individual alternative supplier, which would have a market share of [10-20]% by
        volume and [5-10]% by value. For other suppliers, the Parties only provided an
        aggregated market share by volume, equal to [40-50]%. Importantly, the Parties
                                                        31
 ---pagebreak---       were not able to provide disaggregated data on sales by Cellnex and Wind Tre to
      FWA suppliers and others customers. Thus, the above figures are likely to
      underestimate the Parties’ position in relation to the sales to FWA suppliers.
        (c) Hospitality services on macro-sites to customers other than TV and radio
        broadcasters, MNOs and FWA customers
(144) Based on the dataset provided by the Parties it is not possible to estimate market
      shares for the hypothetical market for the supply of hospitality services on macro-
      sites to customers other than TV and radio broadcasters, MNOs and FWA
      customers, such as providers of IoT services.
        (d) Hospitality services on macro-sites to customers other than TV and radio
        broadcasters
(145) Based on the data provided by Parties in the Form CO, the market shares by value
      and volume for the hypothetical overall market for the supply of hospitality services
      on macro-sites to customers other than TV and radio broadcasters, at national level
      and excluding captive sales in 2018, are illustrated in Table 3.
         Table 3 - Market shares for the overall supply of hospitality services on macro-sites
                                       (non-captive sales, 2018)
            Suppliers                  Volume (tenancies)                      Value (Euro)
                                      000           Market share         Million       Market share
      TIM/INWIT                       […]              [20-30]%            […]           [10-20]%
          Of which sales to
                                      […]              [10-20]%            […]            [5-10]%
                  Vodafone
      Vodafone                        […]              [20-30]%            […]           [10-20]%
          Of which sales to
                                      […]              [10-20]%            […]            [5-10]%
                      TIM
      Combined                        […]              [40-50]%            […]           [30-40]%
          Of which sales to
                                      […]              [20-30]%            […]           [10-20]%
        TIM and Vodafone
      Cellnex                        […]4              [30-40]%            […]           [50-60]%
      Wind Tre                        […]               [5-10]%            […]             [0-5]%
      Ei Towers                       […]                [0-5]%            […]            [5-10]%
      Iliad                           […]                [0-5]%            […]             [0-5]%
      Others                          […]               [5-10]%            […]            [5-10]%
      Source: Commission computation based on the data provided by the Parties in the Form CO.
(146) Based on the above Table, the Parties’ combined market share would be [40-50]%
      by volume and [30-40]% by value. The Joint Venture would thus be, post-
      Transaction, number one supplier by volume, followed by Cellnex (at more than
      [10-20] percentage points distance). Conversely, by value, Cellnex would be the
      market leader with [50-60]% market share, followed at a distance of more than
      [20-30] percentage points by the Joint Venture. No other suppliers would have a
      market share above 10%, by either volume or value.
        Commission’s market reconstruction
(147) The Commission has conducted a market reconstruction exercise collecting data
      from the Parties and their main competitors on actual sales, and estimates on the
      future sales, of hospitality services on macro-sites, in revenues and volume (as
      number of tenancies), over the period 2017 to 2027. The purpose of this exercise was
      to assess the exact extent of the overlap between the Parties' activities as well as their
                                                     32
 ---pagebreak---       relative importance compared to their competitors at national level and, in relation to
      sales by volume, at sub-national level. In this respect, the Commission has collected
      data distinguishing between areas where the Parties are already implementing
      passive sharing arrangements (thus areas with less than 35 000 inhabitants) and areas
      where this is not the case (thus areas with more than 35 000 inhabitants). This is
      because, where passive sharing is already implemented, the Parties are already
      giving priority to each other for hospitality services on the macro-sites, as reflected
      by the fact that […]. Considering the physical and electromagnetic limitations, this
      means that the competitive dynamics for the Parties’ merchant activities vary
      depending on whether passive sharing is already implemented or not: in the former
      case the level of freedom to sell to third parties, and the likelihood that space for
      third parties (in particular MNOs) would be available, is indeed lower.
(148) Estimates on future sales have been provided by the information providers based on
      the assumption that the site Joint Venture between TIM and Vodafone would have
      not been created. [...] The Parties have provided estimates on future sales also on the
      basis of the assumption that the Passive and Active Sharing Agreements are
      implemented. In this respect, the Commission notes that, at the time of the adoption
      of this Decision, the Parties have […].
(149) The market shares computed on the basis of the resulting dataset are thus
      underestimating the market position of the Parties:
      (a)     […].
      (b)     According to the Parties, the implementation of the Passive Sharing
              Agreement would result into a reduction by […] of the number of their
              tenancies on third parties' sites for each of the Parties in areas with more than
              35 000 inhabitants. Assuming a worst-case scenario where not all of these
              tenancies would be occupied by third party customers, the position of
              competing providers of hospitality services is thus likely to be overestimated
              in the Commission's dataset.
      (c)     According to the Parties, the extension of the passive sharing arrangements
              would result into an increase of ca. […] of the number of the tenancies of
              each Party on the sites of the other Party in areas with more than 35 000
              inhabitants. Assuming these additional tenancies are to the detriment of each
              of the Parties' sales to third parties, the Parties' non-captive market shares are
              thus likely to be underestimated in the Commission's dataset compared to
              what they would be in a counterfactual where the passive sharing is not
              extended.
        (a)   Hospitality services on macro-sites to MNOs
(150) On the basis of the Commission’s market reconstruction, the following tables present
      the Parties' and their competitors market shares in the supply of hospitality services
      on macro-sites to MNOs at national level as well as, in terms of tenancies,
      disaggregated shares considering separately the areas where the Parties where
      already passively sharing (areas with less than 35 000 inhabitants) and those where
      the passive sharing will be extended (areas with more than 35 000 inhabitants). Data
      for sales to MNOs are computed both including and excluding captive sales (where
      captive sales do not include sales of the Parties to each other).
                                                   33
 ---pagebreak--- Table 4 - Market shares by revenues for the supply of hospitality services on macro-sites to MNOs
                                         (national level)
      Suppliers    2017    2018   2019     2020   2021    2022     2023    2024  2025     2026  2027
                                         Including captive sales
    TIM/INWIT       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
          VF        […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
     Combined       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Cellnex      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Fastweb      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
         Iliad      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Wind 3       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
     EI Towers      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
      Rai Way       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
                                         Excluding captive sales
    TIM/INWIT       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
          VF        […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
     Combined       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Cellnex      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Fastweb      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
         Iliad      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Wind 3       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
     EI Towers      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
      Rai Way       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
Table 5 - Market shares by volume for the supply of hospitality services on macro-sites to MNOs
                                         (national level)
      Suppliers    2017    2018   2019     2020   2021    2022     2023    2024  2025     2026  2027
                                         Including captive sales
    TIM/INWIT       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
          VF        […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
     Combined       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Cellnex      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Fastweb      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
         Iliad      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
       Wind 3       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
     EI Towers      […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
      Rai Way       […]     […]    […]      […]    […]     […]      […]     […]   […]      […]   […]
                                                   34
 ---pagebreak---      Suppliers     2017   2018   2019    2020    2021   2022     2023    2024   2025     2026 2027
                                        Excluding captive sales
   TIM/INWIT        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
         VF         […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
    Combined        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Cellnex       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Fastweb       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
        Iliad       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Wind 3        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
    EI Towers       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
     Rai Way        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
Table 6 - Market shares by volume for the supply of hospitality services on macro-sites to MNOs
                          (areas with more than 35 000 inhabitants)
     Suppliers     2017   2018   2019    2020    2021   2022     2023    2024   2025     2026 2027
                                        Including captive sales
   TIM/INWIT        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
         VF         […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
    Combined        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Cellnex       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Fastweb       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
        Iliad       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Wind 3        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
    EI Towers       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
     Rai Way        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
                                        Excluding captive sales
   TIM/INWIT        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
         VF         […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
    Combined        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Cellnex       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Fastweb       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
        Iliad       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
      Wind 3        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
    EI Towers       […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
     Rai Way        […]    […]    […]     […]     […]    […]      […]     […]    […]      […]  […]
                                                  35
 ---pagebreak---    Table 7 - Market shares by volume for the supply of hospitality services on macro-sites to MNOs
                               (areas with less than 35 000 inhabitants)
         Suppliers    2017    2018    2019    2020    2021    2022    2023    2024   2025    2026  2027
                                            Including captive sales
       TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
             VF        […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
        Combined       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Cellnex      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Fastweb      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
            Iliad      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Wind 3       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
        EI Towers      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
         Rai Way       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
                                            Excluding captive sales
       TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
             VF        […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
        Combined       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Cellnex      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Fastweb      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
            Iliad      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Wind 3       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
        EI Towers      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
         Rai Way       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
(151) In order to assess the effective extent to which the Parties will compete in the supply
       of hospitality services on macro-sites to third parties in the post-Transaction scenario
       and in view of the implementation of the Passive Sharing Agreement, the
       Commission has also computed market shares for the sales of hospitality services on
       macro-sites to MNOs excluding not only captive sales, but also the Parties’ sales to
       each other. These shares are presented in the following tables.
   Table 8 - Market shares by revenues for the supply of hospitality services on macro-sites to MNOs
                                            (national level)
         Suppliers    2017    2018    2019    2020    2021    2022    2023    2024   2025    2026  2027
                         Excluding captive sales and sales of the Parties to each other
       TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
             VF        […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
        Combined       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Cellnex      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Fastweb      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
            Iliad      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
          Wind 3       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
        EI Towers      […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
         Rai Way       […]     […]     […]     […]     […]     […]     […]     […]    […]     […]   […]
                                                       36
 ---pagebreak---    Table 9 - Market shares by volume for the supply of hospitality services on macro-sites to MNOs
                   (Excluding captive sales and sales of the Parties to each other)
        Suppliers     2017   2018   2019    2020    2021     2022   2023    2024    2025    2026 2027
                                               National level
      TIM/INWIT        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
            VF         […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
       Combined        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Cellnex       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Fastweb       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
           Iliad       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Wind 3        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
       EI Towers       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
        Rai Way        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
                                  Areas with more than 35 000 inhabitants
      TIM/INWIT        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
            VF         […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
       Combined        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Cellnex       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Fastweb       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
           Iliad       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Wind 3        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
       EI Towers       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
        Rai Way        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
        Suppliers     2017   2018   2019    2020    2021     2022   2023    2024    2025    2026 2027
                                  Areas with less than 35 000 inhabitants
      TIM/INWIT        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
            VF         […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
       Combined        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Cellnex       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Fastweb       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
           Iliad       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
         Wind 3        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
       EI Towers       […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
        Rai Way        […]    […]    […]     […]     […]      […]     […]    […]     […]     […]  […]
(152) A third party has submitted that the Commission should carefully consider whether
      Wind Tre sales to Iliad and Cellnex' sales to, respectively, Wind Tre and Iliad are
      really part of the non-captive market, due to the origin of such sales (that is, a
      commitment to the Commission in a previous merger case or a sale of sites
      simultaneous to the conclusion of service agreements with some degree of
      preferential treatment with the seller which remain anchor tenant). The Commission
      has thus estimated market shares also excluding these sales from the merchant
      market. In this context, the Commission has calculated market shares both including
      and excluding the sales of the Parties to each other. The reason for excluding cross-
      sales of the Parties in this context is to give due account to the impact of Passive
                                                     37
 ---pagebreak---      Sharing Agreement and thus to consider the origin of such sales also for the cross-
     Party sales, in line with what suggested by the complainant for Wind Tre sales to
     Iliad and Cellnex' sales to, respectively, Wind Tre and Iliad. These shares are
     presented in the following tables.
Table 10 - Market shares by revenues for the supply of hospitality services on macro-sites to MNOs
                                          (national level)
       Suppliers    2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2027
                            Excluding captive sales and assimilated to captive
     TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
          VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
            Excluding captive sales, assimilated to captive and sales of the Parties to each other
     TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
          VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
Table 11 - Market shares by volume for the supply of hospitality services on macro-sites to MNOs
                                          (national level)
       Suppliers    2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2027
                            Excluding captive sales and assimilated to captive
     TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
          VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
                                                     38
 ---pagebreak---       Suppliers    2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2027
           Excluding captive sales, assimilated to captive and sales of the Parties to each other
    TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
     Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
     EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
Table 12 - Market shares by volume for the supply of hospitality services on macro-sites to MNOs
                           (areas with more than 35 000 inhabitants)
      Suppliers    2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2027
                           Excluding captive sales and assimilated to captive
    TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
     Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
     EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Suppliers    2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2027
           Excluding captive sales, assimilated to captive and sales of the Parties to each other
    TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
     Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
       Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
     EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
      Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
                                                    39
 ---pagebreak---    Table 13 - Market shares by volume for the supply of hospitality services on macro-sites to MNOs
                               (areas with less than 35 000 inhabitants)
         Suppliers    2017    2018    2019    2020    2021    2022    2023    2024    2025    2026   2027
                              Excluding captive sales and assimilated to captive
       TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
            VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
          Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
           Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
          Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
              Excluding captive sales, assimilated to captive and sales of the Parties to each other
       TIM/INWIT       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
            VF         […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        Combined       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
          Cellnex      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         Fastweb       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
           Iliad       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
          Wind 3       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
        EI Towers      […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
         Rai Way       […]     […]     […]     […]     […]     […]     […]     […]      […]    […]    […]
(153) Based on the market reconstruction, the Commission notes that affected markets
       would arise in relation to the supply of hospitality services to MNOs under any
       possible market reconstruction, with the exclusion of the market reconstruction that
       excludes captive sales and sales of the Parties to each other at national level and in
       the areas with more than 35 000 inhabitants. In the same market reconstruction
       which excludes captive sales and sales of the Parties to each other in areas with less
       than 35 000 inhabitants, the Parties’ combined market shares would be below the
       25% threshold set out at paragraph 18 of the Horizontal Merger Guidelines at which
       a concentration may be presumed to be compatible with the internal market. With
       the exception of a few years, in all other market reconstructions, the Parties’
       combined market shares are above 40% and in several years also above the 50%
       threshold set out at paragraph 17 of the Horizontal Merger Guidelines at which a
       dominant market position maybe considered to exist.
         (b)     Hospitality services on macro-sites to FWA suppliers
(154) On the basis of the market reconstruction, the following tables present the Parties'
       and their competitors market shares in the supply of hospitality services to FWA
       suppliers at national level as well as, in terms of tenancies, disaggregated shares
       considering separately the areas where the Parties where already passively sharing
       (areas with less than 35 000 inhabitants) and those where the passive sharing will be
                                                       40
 ---pagebreak---        extended (areas with more than […]∗ inhabitants). The Parties’ data on their future
       sales to FWA suppliers also includes sales to all other customers other than TV and
       radio broadcasters and MNOs. However, as the Parties’ to these customers are
       negligible98, it is unlikely that the Parties’ shares are overestimated.
     Table 14 - Market shares by revenues for the supply of hospitality services on macro-sites to
                                    FWA suppliers (national level)
         Suppliers    2017    2018   2019    2020   2021    2022    2023    2024    2025   2026    2027
       TIM/INWIT       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
            VF         […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
        Combined       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
          Cellnex      […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
         Fastweb       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
           Iliad       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
          Wind 3       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
        EI Towers      […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
         Rai Way       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
      Table 15 - Market shares by volume for the supply of hospitality services on macro-sites to
                                           FWA suppliers
         Suppliers    2017    2018   2019    2020   2021    2022    2023    2024    2025   2026    2027
                                                National level
       TIM/INWIT       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
            VF         […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
        Combined       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
          Cellnex      […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
         Fastweb       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
           Iliad       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
          Wind 3       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
        EI Towers      […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
         Rai Way       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
         Suppliers    2017    2018   2019    2020   2021    2022    2023    2024    2025   2026    2027
                                   Areas with more than 35 000 inhabitants
       TIM/INWIT       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
            VF         […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
        Combined       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
          Cellnex      […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
         Fastweb       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
           Iliad       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
          Wind 3       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
        EI Towers      […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
         Rai Way       […]     […]    […]     […]    […]     […]     […]     […]     […]    […]     […]
∗  Should read: “35 000”.
98 See footnote 52.
                                                     41
 ---pagebreak---        Suppliers     2017   2018   2019   2020     2021   2022   2023    2024 2025 2026 2027
                                 Areas with less than 35 000 inhabitants
      TIM/INWIT       […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
           VF         […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
       Combined       […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
         Cellnex      […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
        Fastweb       […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
          Iliad       […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
         Wind 3       […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
       EI Towers      […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
        Rai Way       […]    […]    […]    […]      […]    […]    […]     […]  […]  […]  […]
(155) Based on the market reconstruction, the Commission notes that affected markets
      would arise in relation to the supply of hospitality services to FWA suppliers under
      all considered geographic delineations. With the exception of a few years, the
      Parties’ combined market shares are above 40% and in some years also above the
      50% threshold which, as indicated in paragraph 17 of the Horizontal Merger
      Guidelines, may in themselves be evidence of the existence of a dominant position.
        (c) Hospitality services on macro-sites to customers other than TV and radio
        broadcasters, MNOs and FWA customers
(156) As explained at paragraph (154), the Parties’ data on their future sales to FWA
      suppliers also includes sales to all other customers other than TV and radio
      broadcasters and MNOs. Thus, they have not been able to provide data on this
      residual category of customers. However, they submitted that currently INWIT […]
      and Vodafone […] hosted on a combined total of […]. Further, in the Form CO they
      provided aggregated sales for the years 2016 to 2018 to the residual category of
      customers. Based on these figures, in 2018 Fastweb had […] tenancies belonging to
      this category, and TIM/INWIT […], both at national level.99 In the same year and at
      national level, the Commission notes that, according to the market reconstruction,
      […]. The Commission notes that on this basis affected markets would arise also in
      relation to the supply of hospitality services to customers other than TV and radio
      broadcasters, MNOs and FWA suppliers, as the Parties could be estimated to have
      around […] of the market.
        (d) Hospitality services on macro-sites to customers other than TV and radio
        broadcasters
(157) As regards the overall market for the supply of hospitality services to customers
      other than TV and radio broadcasters, based on the market reconstruction, the
      Commission notes sales to MNOs (including captive sales) represent by value almost
      the totality of such overall market, as illustrated in the below table.
99 Form CO, Tables 3 and 5.
                                                    42
 ---pagebreak---   Table 16 – Relative importance of customers within the overall market for the supply of hospitality
          services to customers other than TV and radio broadcasters (including captive sales)
                         2017  2018    2019   2020    2021    2022    2023  2024   2025    2026    2027
                                              Revenues (national)
           MNOs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
           FWAs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
                                               Volume (national)
           MNOs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
           FWAs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
                               Volume (areas with more than 35 000 inhabitants)
           MNOs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
           FWAs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
                                Volume (areas with less than 35 000 inhabitants)
           MNOs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
           FWAs           […]   […]     […]    […]     […]     […]     […]   […]    […]     […]     […]
(158) Based on the above the Commission notes that, in the market reconstruction, the
        shares of the Parties in the overall market are in line with those in relation to the
        supply of hospitality services on macro-sites to MNOs. Further, the Commission
        notes that there is a discrepancy of volume and value figures in relation to the
        relative importance of customer groups in the business of suppliers of hospitality
        services. However, value figures are likely to provide a better indication of the
        power that suppliers have vis-à-vis their customers, as well as of the importance of a
        customer group in the overall economy of the business strategy of suppliers. In this
        context, the Commission considers that the effects of the Transaction are likely to be
        the same in the overall market and in the hypothetical market for the supply of
        hospitality services to MNOs.
7.2.1.2. Alternative market share metrics
(159) A third party has submitted that another relevant metric to assess market power in
        the supply of hospitality services is the number of sites managed by an operator. It
        has also submitted market shares based on this metric at local level (municipality).
        According to the figures provided by this third party the situation would be as the
        one represented in the below table.
     Table 17 – HHI delta and combined market shares post-Transaction per municipality clusters
                                                   […]
                                    Source: Third party’s submission.
(160) Thus, based on the third party’ submission, in 3 400 cities the Parties’ combined
        market shares would be above 50% and in 1 400 […]∗ the Parties’ combined market
        shares would be above 60%. More in detail, based on the third party submission the
        situation in the Italian cities with more than 50 000 inhabitants where the Joint
        Venture will have a market share above 50% and the HHI will be over 3000 post-
        Transaction would be the one illustrated in the following table.
∗   Should read: “cities”.
                                                       43
 ---pagebreak---           Table 18 – HHI delta and combined market shares post-Transaction per municipalities
                                                     […]
                                      Source: Third party’s submission.
(161) In the Form CO the Parties submitted that the number of sites would not be a
          suitable capacity metric essentially because installed capacity can easily vary
          depending on customers’ demand.
(162) The Commission agrees with the Parties in relation to the unsuitability of number of
          sites as a relevant market share metric. Indeed, capacity shares based on the number
          of sites reflect the capacity potentially available in the market based on the offers
          made by the TowerCos to customers (which usually list the full set of sites managed
          by an operator at least on the side of INWIT and TIM). However, the actual presence
          of free capacity on a site can be verified only after technical testing by the potential
          customer of the free physical and electromagnetic space on the site. This is
          demonstrated by Iliad’s statement that […].100 By the same token, […].101
(163) In this context, looking at number of sites as a proxy of capacity may not be
          representative of the effective capacity on the market and likely overestimate the
          ability of the Parties to host third parties. This is because of the existing veto rights
          that each Party retains on its sites and the fact that the Parties are already hosted on a
          number of each other sites.
(164) Nonetheless, the Commission notes that the conclusions that can be drawn in terms
          of market power of the Parties from the shares by capacity (which apply to all
          possible product market delineations in terms of customers as these customers are
          hosted on the very same sites) are not very different from the conclusions that can be
          drawn from the shares in terms of sales. This is particularly evident if considering
          the results of the market reconstruction at national level, as well as sub-local
          distinguishing between areas where passive sharing already existed between the
          Parties and where it will be extended.
                              Table 19 – Capacity shares by number of sites
    Suppliers       2017    2018    2019      2020    2021    2022   2023    2024    2025 2026 2027
                                                   National
  TIM/INWIT          […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
        VF           […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
    Combined         […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
     Cellnex         […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
     Fastweb         […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
       Iliad         […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
     Wind 3          […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
    EI Towers        […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
     Rai Way         […]     […]     […]       […]     […]     […]    […]     […]     […]  […]  […]
100  Agreed minutes of the conference call of 28 November 2019 with Iliad, paragraph 7.
101  Agreed minutes of the conference call of […], paragraph 4.
                                                         44
 ---pagebreak---    Suppliers       2017     2018    2019    2020    2021    2022    2023    2024     2025 2026 2027
                                 Areas with more than 35 000 inhabitants
  TIM/INWIT         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
       VF           […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
   Combined         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Cellnex         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Fastweb         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
      Iliad         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Wind 3          […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
   EI Towers        […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Rai Way         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
                                 Areas with less than 35 000 inhabitants
  TIM/INWIT         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
       VF           […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
   Combined         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Cellnex         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Fastweb         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
      Iliad         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Wind 3          […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
   EI Towers        […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
    Rai Way         […]      […]      […]    […]     […]     […]     […]     […]      […]  […]  […]
(165) In this context, the Commission notes the following. In the market reconstruction,
         the Commission has not collected data on sales at local level (in Italy there are
         around 5 220 cities where either or both the Parties have a site). This is because of
         the difficulties in identifying an appropriate geographic level at which to conduct the
         exercise, as substitutability between sites is a function of the spectrum portfolio of
         the customer. Nonetheless, the third party complainant submitting that the
         geographic scope of the market should be local provided market shares at
         municipality level based on number of sites. As shares based on this same metric at
         national level do not seem to depart from the shares based on sales at national level
         as reconstructed by the Commission, the Commission considers that there is no
         reason to believe that the combined market shares of the Parties would be different
         even if a narrower geographic scope of the market were to be considered.
7.2.2. Hospitality services on micro-sites
(166) Based on the data provided by Parties in the Form CO, the market shares by volume
         for the overall market for the supply of hospitality services on micro-sites at national
         level and excluding captive sales in 2018, are illustrated in the table below.
                              Table 20 – Supply of hospitality services on micro sites
                              Mobile Operators                  2018
                              Vodafone                         [0-5]%
                              INWIT                           [5-10]%
                              Rest of the market             [90-100]%
                                            Source: Form CO, Table 7.
                                                       45
 ---pagebreak--- (167) Based on the above Table, the Parties’ combined market share would be [5-10]% by
      volume and Cellnex would be the market leader with [90-100]% market share.
(168) In order to assess the reliability of the data provided by the Parties, the Commission
      has conducted a market reconstruction exercise collecting data from the Parties and
      their main competitors on actual sales, and estimates on the future sales, of
      hospitality services on micro-sites, in revenues and volume (as number of tenancies),
      over the period 2017 to 2027.
(169) Estimates on future sales have been provided by the information providers based on
      the assumption that the site Joint Venture between TIM and Vodafone would have
      not been created. The Parties have provided estimates on future sales also on the
      basis of the assumption that the Passive and Active Sharing Agreements are
      implemented. In this respect, the Commission notes that, at the time of the adoption
      of this Decision, the Parties have […].
(170) Whilst it will roll-out micro-cells, […] has not provided any data on sales. However,
      it cannot be excluded that it will sell access to its micro-sites. Further, the data used
      for the market reconstruction do not include the DAS sales of […] in the instances
      where it is the owner of the DAS and MNOs pay a recurring fee to have their
      frequency repeated by the DAS. As well as in the instances where the DAS is sold to
      a customer (e.g. IKEA). Finally, several respondents to the market investigation
      indicated that, with the massive rollout of 5G networks, new entrant specialized in
      micro-sites deployment, not accounted for in the market reconstruction, could
      emerge. Thus, the market shares computed on the basis of the resulting dataset are
      likely overestimating the market position of the Parties.
(171) On this basis, the following tables present the Parties' and their competitors market
      shares in the supply of hospitality services on micro-sites at national level by
      revenues and by volume in terms of tenancies. Data for sales to MNOs are computed
      both including and excluding captive sales (where captive sales do not include sales
      of the Parties to each other).
      Table 21 - Market shares by revenues for the supply of hospitality services on micro-sites
        Suppliers   2017    2018    2019   2020     2021   2022    2023    2024    2025   2026   2027
                                         Including captive sales
      TIM/INWIT      […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
        Vodafone     […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
       Combined      […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
         Cellnex     […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
        Fastweb      […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
          Iliad      […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
         Wind 3      […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
       EI Towers     […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
        Rai Way      […]     […]     […]    […]      […]    […]     […]     […]     […]    […]    […]
                                                     46
 ---pagebreak---        Suppliers    2017   2018    2019   2020    2021    2022    2023    2024    2025   2026  2027
                                        Excluding captive sales
      TIM/INWIT      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       Vodafone      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       Combined      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Cellnex      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Fastweb      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
          Iliad      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Wind 3       […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       EI Towers     […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Rai Way      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
      Table 22 - Market shares by volume for the supply of hospitality services on micro-sites
       Suppliers    2017   2018    2019   2020    2021    2022    2023    2024    2025   2026  2027
                                        Including captive sales
      TIM/INWIT      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       Vodafone      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       Combined      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Cellnex      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Fastweb      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
          Iliad      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Wind 3       […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       EI Towers     […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Rai Way      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
                                        Excluding captive sales
      TIM/INWIT      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       Vodafone      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       Combined      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Cellnex      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Fastweb      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
          Iliad      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Wind 3       […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
       EI Towers     […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
        Rai Way      […]    […]     […]    […]     […]     […]     […]     […]     […]    […]   […]
(172) In order to assess the effective extent to which the Parties will compete in the supply
      of hospitality services on micro-sites to third parties in the post-Transaction scenario
      and in view of the implementation of the Passive Sharing Agreement, the
      Commission has also computed market shares for the sales of hospitality services on
      micro-sites excluding not only captive sales, but also the Parties’ sales to each other.
      These shares are presented in the following table.
                                                   47
 ---pagebreak---               Table 23 - Market shares for the supply of hospitality services on micro-sites
                     (excluding captive sales and sales of the Parties to each other)
        Suppliers      2017   2018    2019     2020   2021     2022    2023    2024   2025   2026 2027
                                                    Revenues
       TIM/INWIT        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
        Vodafone        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
        Combined        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Cellnex        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Fastweb        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
           Iliad        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Wind 3         […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
        EI Towers       […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Rai Way        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
                                                    Volume
       TIM/INWIT        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
        Vodafone        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
        Combined        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Cellnex        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Fastweb        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
           Iliad        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Wind 3         […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
        EI Towers       […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
         Rai Way        […]    […]     […]      […]    […]      […]     […]     […]    […]    […]  […]
(173) Based on the market reconstruction, the Commission notes that affected markets
       would arise in relation to the supply of hospitality services on micro-sites only at the
       earliest in year 2022, unless captive sales are included. Post-Transaction, the market
       reconstruction also show an intense head-to-head competition between the Parties
       and Cellnex, especially when excluding not only captive sales but also the sales of
       the Parties to each other.
7.2.3. Retail mobile markets
(174) In the Form CO, the Parties provided their shares and the ones of their competitors
       (in value and volume) in an hypothetical market including both the retail mobile
       markets in Italy, which are presented in the following table.
                                                       48
 ---pagebreak---                           Table 24 – Retail mobile services, including M2M, in Italy
       Mobile Operators                                    Share by value (%)
                                        2016                       2017                   2018
       Vodafone                        30.9%                      31.3%                  30.5%
       TIM                             32.1%                      33.1%                  34.5%
       Wind Tre                        33.3%                      31.8%                  29.8%
       Iliad                             0%                         0%                    0.8%
       MVNOs       (including           3.7%                       3.8%                   4.4%
       Fastweb)
                                                          Share by volume (%)
                                        2016                       2017                   2018
       Vodafone                        29.4%                      30.2%                  29.2%
       TIM                             30.2%                      30.7%                  30.7%
       Wind Tre                        33.1%                      31.2%                  29.2%
       Iliad                             0%                         0%                    2.7%
       MVNOs       (including           7.4%                        8%                    8.1%
       Fastweb)
       Source: Form CO, based on Italian Telecommunications Authority annual reports (percentages).
(175) Whilst market shares by value are not available, based on volume data published by
       AGCOM for the year September 2018 to September 2019, the Commission has
       estimated the market shares of the Parties and their competitors in the overall market
       for the retail provision of mobile telecommunications services, excluding M2M
       subscriptions, and in the market for the retail provision of M2M subscriptions, which
       are presented in the following table.
          Table 25 – Retail mobile markets in Italy – share by volume (September 2018 to September
                                                     2019)
                                            Retail mobile services            M2M subscriptions
                                                excluding M2M
                  Vodafone                           25.1%                            39%
                    TIM                              27.4%                            41%
                  Wind Tre                           30.7%                            19%
                    Iliad                             5.6%                             0%
                Poste Mobile                          5.3%                             0%
        MVNOs (including Fastweb)                     5.9%                             0%
       Source: AGCOM Communication Markets Monitoring System, no. 4/2019 available at
       https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
       76b41a197b7c?version=1.0 and Commission’s calculation based on that data.
7.2.4. Wholesale mobile market
(176) Both TIM and Vodafone are active in Italy in the market for wholesale access and
       call origination on mobile networks:
       (a)      TIM provides wholesale mobile network access to a number of MVNOs such
                as Coop Voce, Tiscali Mobile, Welcome Italia;
       (b)      Vodafone provides wholesale mobile network access to a number of
                MVNOs: PostePay Spa, Daily Telecom Srl, Lycamobile Srl, Optima Italia
                Spa, Compagnia Italia Mobile Srl, Rabona Srl, Noitel Italia Srl, Nexus
                Telecom Srl and Europe Energy Spa.
                                                       49
 ---pagebreak--- (177) Based on the data provided by Parties in the Form CO, the market shares of the
        Parties and of their competitor in the wholesale mobile market in Italy are in the
        following tables (in value and volume):
                                    Table 26 – Wholesale mobile in Italy – value
         Operators                                Value (in EUR millions and %)
                         2016 (M)      2016 (%)       2017 (M)       2017 (%)     2018 (M)       2018 (%)
          Vodafone          […]        [50-60]%          […]         [30-40]%        […]         [20-30]%
             TIM            […]        [10-20]%          […]         [30-40]%        […]         [40-50]%
         Wind Tre           […]        [20-30]%          […]         [20-30]%        […]         [30-40]%
            Total           […]          100%            […]            100%         […]           100%
        Source: Parties’ estimates
                                   Table 27 – Wholesale mobile in Italy – volume
         Operators                            Volume (in subscribers millions and %)
                         2016 (M)      2016 (%)       2017 (M)       2017 (%)     2018 (M)       2018 (%)
          Vodafone          […]        [20-30]%          […]         [20-30]%        […]         [10-20]%
             TIM            […]        [10-20]%          […]         [30-40]%        […]         [30-40]%
         Wind Tre           […]        [50-60]%          […]         [40-50]%        […]         [40-50]%
            Total           […]          100%            […]            100%         […]           100%
        Source: Parties’ estimates
7.2.5. Retail fixed markets
(178) Both Parties are active in Italy in the supply of retail fixed Internet services to end
        customers. Vodafone provides fixed broadband services to its customers as well as
        packages including fixed Internet access and mobile or TV services. TIM also
        provides Internet access to final customers, offering packages including voice, TV
        and smart home services, including via FWA technology since 2019.
7.2.5.1. Overall retail supply of fixed Internet access services
(179) Based on the data provided by Parties,102 the market shares of the Parties and of their
        competitors in the overall retail market for fixed Internet access services in Italy are
        in the following table (in value):
                       Table 28 – Retail fixed Internet in Italy – value (consumers spending)
        Operator                                              Share by value (%)
                                             2016                      2017                   2018
        TIM                                 39.7%                     36.6%                 38.2%
        Vodafone                            8.6%                      9.8%                  12.0%
        Fastweb                             26.3%                     28.0%                 26.2%
        Wind Tre                            12.7%                     12.2%                 11.2%
        Tiscali                             2.8%                      0.5%                    2.3%
        Eolo                                 N/A                       N/A                    2.0%
        Linkem                               N/A                      2.9%                    2.0%
        BT Italia                           0.8%                       N/A                    N/A
        Others                              9.1%                      9.9%                    6.2%
        Source: AGCOM annual reports.
102 Parties’ reply to RFI 19.
                                                         50
 ---pagebreak--- 7.2.5.2. Retail supply of fixed Internet access services based on FWA technology
(180) The Parties did not provide market shares for their competitors in the retail supply of
        fixed Internet access services based on FWA technology, but estimate that TIM’s
        market share by the end of September 2019 was approximately [0-5]%.103
7.2.6. Wholesale fixed markets
7.2.6.1. Overall wholesale supply of fixed access, encompassing all technologies
(181) The Parties have not provided market shares at national level for the overall market
        for wholesale fixed services. They submitted that market data for the Italian
        wholesale fixed market could be retrieved in the official publications of AGCOM.
(182) Notably, in its decision No. 348/19/CONS, AGCOM provided market shares for:
        (a)       the market for wholesale local access provided at fixed location (WLA),104
                  defining such a market as the demand and supply of wholesale local access
                  services at fixed location, by means of copper, fiber and FWA technologies.
                  Services included in the relevant market are, amongst others: local loop
                  unbundling (LLU), sub-loop unbundling (SLU), Virtual unbundling local
                  access (VULA)); and
        (b)       the market for wholesale central access provided at fixed location for mass-
                  market products (WCA),105 defining such a market as the demand and supply
                  for wholesale central access services provided at fixed location, by means of
                  copper, optical fiber and FWA technologies.
(183) Based on the data provided by Parties,106 the market shares of the Parties and of their
        competitors in the two mentioned wholesale markets in Italy are in the following
        table (in volume):
                     Table 29 – Wholesale fixed access, encompassing all technologies (volume)
        Operator                                            Share by volume (%)
                                            2016                    2017                     2018
        Wholesale local access provided at fixed location
        TIM                               92.56%                  90.24%                   89.28%
        Others                             7.44%                   9.76%                   10.72%
        Wholesale central access provided at fixed location for mass market products
        TIM                               55.08%                  54.51%                   51.54%
        Fastweb                           11.36%                  11.97%                   12.45%
        Wind                              14.91%                  13.36%                   13.67%
        Vodafone                          10.30%                  10.90%                   12.57%
        Tiscali                            2.04%                   2.16%                    2.25%
        Others                             6.32%                   7.10%                    7.52%
        Source: AGCOM.
103 Parties’ reply to RFI 21, question 2.
104 Market 3 of Commission Recommendation 2014/710/EU 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, in OJ L 295, 11.10.2014,
    p. 79–84.
105 Market 3b of Commission Recommendation 2014/710/EU.
106 Parties’ reply to RFI 19.
                                                        51
 ---pagebreak--- 7.2.6.2. Wholesale supply of fixed access based on FWA
(184) Based on the data provided by Parties,107 the market share by value of TIM and its
        competitors (on an aggregated basis) in 2019 and estimates for 2020 are the
        following:
                        Table 30 – Wholesale fixed access based on FWA technology (value)
        Operator                                                 Share by value (%)
                                                        2019                              2020
        TIM                                            [0-5]%                            [0-5]%
        Fastweb                                       [20-30]%                          [20-30]%
        Others (including Eolo and                    [70-80]%                          [70-80]%
        Linkem)
7.2.7. Fixed backhauling services
(185) Vodafone does not supply backhaul services to third parties. It operates its own fixed
        and wireless backhaul services and sources backhaul services from third parties.
        Vodafone uses a range of fixed and wireless backhaul to connect its radio access
        network to its own core network.
(186) TIM offers to third parties both active backhauling services and passive backhauling
        services such as dark fiber. TIM’s dark fiber backhaul service is comprised of the
        supply and maintenance of a fiber connection of a pair of “unlit” optical fiber lines
        (i.e. without the supply of equipment) to connect an MNO’s radio access network to
        its core network. The MNO's point of presence can be located on an INWIT/TIM
        site or on a third party site.
(187) INWIT in 2017 started to offer backhaul services to TIM and in 2018 entered the
        market for providing fixed backhauling services to third parties and through the
        provision of dark fiber (i.e. only the passive infrastructure not the active service).
(188) Based on the data provided by Parties in the Form CO, the market shares of TIM and
        of its competitors in the wholesale market for fixed backhaul services in Italy
        (copper and fiber) are in the following table (in value):
                               Table 31 – wholesale backhaul services in Italy – value
        Operators                             Market share by revenues (Euro million)
                            2016            %           2017           %             2018          %
        INWIT108            […]           [0-5]%        […]         [0-5]%           […]         [0-5]%
        TIM                 […]          [20-30]%       […]        [30-40]%          […]        [30-40]%
        Fastweb             […]          [20-30]%       […]        [20-30]%          […]        [20-30]%
        Others              […]          [40-50]%       […]        [40-50]%          […]        [40-50]%
        Total               […]            100%         […]          100%            […]          100%
         Source: TIM Internal Estimates
(189) The Parties have also provided TIM’s market shares in the market for leased lines
        (and related sub-segments), that are consistent with the market shares in the
        backhauling services:
107 Parties’ reply to RFI 22, question 2.
108 Parties’ response to RFI 2, Table 3.
                                                        52
 ---pagebreak---                                       Table 32 – Leased Lines in Italy – value
        Operators                           Market share by revenues (Euro million)
                            2016          %            2017            %          2018     %
        Leased Lines
        TIM                 […]        [30-40]%         […]        [30-40]%        […] [30-40]%
        Total               […]          100%           […]          100%          […]    100
                       (i)    Dedicated capacity
        TIM                 […]        [30-40]%         […]        [30-40]%        […] [40-50]%
        Total               […]          100%           […]          100%          […]   100%
                              (a) Dedicated capacity – Copper and leased lines
        TIM                 […]        [60-70]%         […]        [60-70]%        […] [60-70]%
        Total               […]          100%           […]          100%          […]   100%
                              (b) Dedicated capacity – Fiber
        TIM                 […]        [20-30]%         […]        -20-30]%        […] [30-40]%
        Total               […]          100%           […]          100%          […]   100%
                       (ii)   Leased Lines – Infrastructure – Ducts and Dark Fiber
        TIM                 […]        [20-30]%         […]        [20-30]%        […] [30-40]%
        Total               […]          100%           […]          100%          […]   100%
        Source: TIM internal estimates
(190) Other relevant leased lines operators in Italy are Fastweb, Open Fiber and Retelit.
7.2.8. Affected markets
(191) Based on the above, the Transaction gives rise to the following horizontally affected
        markets:
        (a)      The supply of hospitality services on macro-sites to MNOs;
        (b)      The supply of hospitality services on macro-sites to FWA suppliers;
        (c)      The supply of hospitality services on macro-sites to customers other than TV
                 and radio broadcasters, MNOs and FWA customers;
        (d)      The supply of hospitality services on macro-sites to customers other than TV
                 and radio broadcasters;
        (e)      The supply of hospitality services on micro-sites.
(192) The Transaction gives rise to vertically affected markets in relation to the links
        between the following markets:109
        (a)      The upstream market for the supply of hospitality services on macro-sites to
                 MNOs (and/or the upstream market for the supply of hospitality services on
                 macro-sites to customers other than TV and radio broadcasters) and the
                 downstream retail mobile markets;110
        (b)      The upstream market for the supply of hospitality services on macro-sites to
                 MNOs (and/or the upstream market for the supply of hospitality services on
                 macro-sites to customers other than TV and radio broadcasters) and the
                 downstream wholesale mobile market;
109 See also footnote 45.
110 See also footnote 152.
                                                        53
 ---pagebreak---          (c)      The upstream market for the supply of hospitality services on macro-sites to
                  FWA suppliers (and/or the upstream market for the supply of hospitality
                  services on macro-sites to customers other than TV and radio broadcasters)
                  and the downstream retail fixed markets;
         (d)      The upstream market for the supply of hospitality services on macro-sites to
                  FWA suppliers (and/or the upstream market for the supply of hospitality
                  services on macro-sites to customers other than TV and radio broadcasters)
                  and the downstream wholesale fixed markets;
         (e)      The upstream market for the supply of hospitality services on micro-sites and
                  the downstream retail mobile markets;111
         (f)      The upstream market for the supply of hospitality services on micro-sites and
                  the downstream wholesale mobile markets.112
(193) Finally, the Transaction may have a significant impact within the meaning of
         Section 6.4 of Annex I to the Implementing Regulation113 in relation to the supply of
         fixed fiber backhaul services (irrespective of a segmentation between active and
         passive infrastructure), which is neighbouring to:
         (a)      The supply of hospitality services on macro-sites to MNOs;
         (b)      The supply of hospitality services on macro-sites to FWA suppliers;
         (c)      The supply of hospitality services on macro-sites to customers other than TV
                  and radio broadcasters, MNOs and FWA customers;
         (d)      The supply of hospitality services on macro-sites to customers other than TV
                  and radio broadcasters;
         (e)      The supply of hospitality services on micro-sites.
7.3.     Non-coordinated effects
7.3.1. Introduction
7.3.1.1. Horizontal effects
(194) A merger giving rise to significant impediment of effective competition may do so as
         a result of the creation or strengthening of a dominant position in the relevant
         markets. Moreover, mergers in oligopolistic markets involving the elimination of
         important constraints that the parties previously exerted on each other, together with
         a reduction of competitive pressure on the remaining competitors, may also result in
111 In this respect, see footnote 160.
112 In this respect, see footnote 160.
113 Consolidated version of the Commission Regulation (EC) No 802/2004 of 21 April 2004 implementing
    Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings and its
    annexes (Form CO, Short Form CO, Form RS and Form RM) (OJ L 133, 30.04.2004, p. 1-39), as
    amended by Commission Regulation (EC) No 1033/2008 (OJ L 279, 22.10.2008, p.3-12) and by
    Commission Implementing Regulation (EU) No 1269/2013 of 5 December 2013 (OJ L 336, 14.12.2013,
    p. 1-36).
                                                     54
 ---pagebreak---         a significant impediment to effective competition, even in the absence of
        dominance.114
(195) In fact, the Horizontal Merger Guidelines describe horizontal non-coordinated
        effects as follows: “A merger may significantly impede effective competition in a
        market by removing important competitive constraints on one or more sellers who
        consequently have increased market power. The most direct effect of the merger will
        be the loss of competition between the merging firms. For example, if prior to the
        merger one of the merging firms had raised its price, it would have lost some sales
        to the other merging firm. The merger removes this particular constraint. Non-
        merging firms in the same market can also benefit from the reduction of competitive
        pressure that results from the merger, since the merging firms’ price increase may
        switch some demand to the rival firms, which, in turn, may find it profitable to
        increase their prices. The reduction in these competitive constraints could lead to
        significant price increases in the relevant market.”115
(196) 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.116 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.117
(197) In addition, 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, the entry of new competitors on the market, and
        efficiencies.
7.3.1.2. Vertical effects
(198) Vertical mergers are generally less likely to significantly impede effective
        competition than horizontal mergers. However, there are circumstances in which
        non-horizontal mergers may significantly impede effective competition. This is
        essentially because a non-horizontal merger may change the ability and incentive to
        compete of the merging companies and their competitors in ways that cause harm to
        consumers.118
(199) One way in which vertical mergers may significantly impede effective competition is
        through non-coordinated effects, which may principally arise when mergers give rise
        to foreclosure. A merger is said to result in foreclosure where actual or potential
        rivals' access to supplies or markets is hampered or eliminated as a result of the
114 Horizontal Merger Guidelines, paragraph 25.
115 Horizontal Merger Guidelines, paragraph 24.
116 Horizontal Merger Guidelines, paragraphs 27 and following.
117 Horizontal Merger Guidelines, paragraph 26.
118 Non-horizontal Merger Guidelines, Section II.
                                                        55
 ---pagebreak---         merger, thereby reducing these companies' ability and/or incentive to compete.119
        Such foreclosure may discourage entry or expansion of rivals or encourage their exit.
        Such foreclosure is regarded as anti-competitive where the merging companies —
        and, possibly, some of its competitors as well — are as a result able to profitably
        increase the price charged to consumers.120
(200) Two forms of foreclosure can be distinguished. The first is where the merger is
        likely to raise the costs of downstream rivals by restricting their access to an
        important input (input foreclosure). The second is where the merger is likely to result
        in foreclosure of upstream rivals by restricting their access to a sufficiently large
        customer base (customer foreclosure). The former is the type of foreclosure that is
        relevant for the assessment of the Transaction.
7.3.1.3. Conglomerate effects
(201) The Non-Horizontal Guidelines indicate that competition concerns can arise in
        circumstances where a merger involves companies that are active in closely related
        markets. While in the majority of circumstances conglomerate mergers will not lead
        to any competition problems, in certain circumstances they can lead to
        anticompetitive effects. One such example is when the combination of products in
        related markets would give the merged entity the ability and incentive to leverage a
        strong market position in one of the markets to the other market by means of tying or
        bundling. Where tying or bundling is likely to lead to a reduction in actual or
        potential rivals’ ability or incentive to compete it may reduce competitive pressure
        on the merged entity, allowing it to increase prices.
7.3.2. Horizontal non-coordinated effects in the supply of hospitality services on macro-
        sites to MNOs
7.3.2.1. Parties’ view
(202) The Parties submit that the Transaction would not raise any competition concerns,
        for the following reasons.
(203) First, the TowerCo business historically developed as a by-product of each MNO
        building its own network for captive use. TIM, Vodafone and the other MNOs have
        generally self-sourced to a large extent their needs, with third-party hospitality
        services to complement each MNO’s network. Therefore, post-Transaction the
        market structure for third-party tenancies would not change significantly.
(204) Second, TIM and Vodafone entered into a passive sharing agreement already in 2007
        and since then Vodafone has been […]. Thus, the Transaction would bring under the
        same roof sites that were already to a large extent shared between the Parties and
        conversely were not an important competitive source of tower space for other
        MNOs.
(205) Third, the two other MNOs active in Italy, Wind Tre and Iliad already have a set of
        cooperation agreements in force.
119 Non-horizontal Merger Guidelines, paragraph 29.
120 Non-Horizontal Merger Guidelines, paragraph 29.
                                                    56
 ---pagebreak--- (206) Fourth, there would be sufficient availability of sites/tenancies, as acknowledged by
         the Commission in previous cases.121 In particular, the independent TowerCo
         Cellnex will remain the leading provider of third-party tenancies in Italy and
         TowerCos will be able to develop new sites to the extent there is a demand for that.
(207) Fifth, TV and radio TowerCos could easily use their existing sites to accommodate
         demand from MNOs if needed.
7.3.2.2. Commission’s assessment
(208) In relation to potential horizontal non-coordinated effects in the supply of hospitality
         services on macro-sites to MNOs, the Commission notes the following.
(209) First, as illustrated in Section 7.2.1, based on the Commission’s market
         reconstruction, whatever the metric considered, the Parties’ combined shares, both
         historical and projected up to 2027, are very large and virtually always above 40%.
         This is true regardless of the geographic level considered.
(210) Second, as regards closeness of competition, the evidence in the Commission’s file
         is mixed. On the one hand, the Parties plan to […] and to build a common grid
         leveraging their combined portfolio.122 This is in fact the purpose of the Passive
         Sharing Agreement. In the same vein, albeit the third party complainant submitting
         that the relevant market should be locally defined provided market shares at
         municipality level, this geographic dimension may be larger than the effective area
         where site substitutability occurs. Looking at narrower data on site location based on
         postal codes, it appears that an actual overlap between the Parties’ sites would arise
         only in […] postal codes where both the Parties’ sites are present.123
(211) On the other hand, postal codes may also be a too narrow dimension and the actual
         analysis of closeness between sites should be done depending on the spectrum
         portfolio of the customer that is seeking access. In this context, for players with
         different spectrum portfolios than those of the Parties, the Parties’ sites may
         constitute more alternatives than complements to each other, especially given the
         limited availability of sites in urban areas. In this respect, the Commission notes that
         MNOs responding to the market investigation indicated that the Parties are very
         close competitors (if not the closest competitors) due to the size and quality of their
         site portfolio.124
(212) Third, it is unclear to what extent the Parties so far exerted an important competitive
         constraint on each other in the supply of hospitality services to MNOs. Indeed,
         before the Transaction TIM has continued to be the main customer of INWIT
         representing still ca. […]% of its revenues in the latest published financial report
         (third quarter of 2019)125, even if INWIT’s business plan before the Transaction
         foresaw an increase of the revenues realised with third parties (in line with TIM’
         objective to monetise the financial potential of its sites by increasing the number of
         tenants). The […] customer of INWIT has been Vodafone, with sales driven from
121 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV.
122 See Parties’ reply to RFI 19, question 6.e.
123 See Annex 1u to the Active Sharing Agreement.
124 See replies to RFI Q3, questions 19 and 20.
125 See     INWIT’s presentation to the investors of 5 November 2019, available                at
    https://www.inwit.it/sites/default/files/INWIT-9M%2719%20Financial%20Results.pdf
                                                       57
 ---pagebreak---         the strategic decision of TIM and Vodafone to engage in passive sharing before the
        creation of INWIT.126
(213) As regards Vodafone, so far it has managed its tower operations as part of its mobile
        business and […].127 In this respect, as also noted by Ei Towers128, Vodafone has
        operated only marginally as TowerCo, neither has exerted a strong competitive
        pressure on the market. Whilst in an hypothetical counterfactual Vodafone may have
        spun off its tower operations in an independent company (as it is doing for its
        European business)129, there is no indication that the strategy of primarily serving
        itself would have changed, as it has been the case for INWIT so far.
(214) The fact that the Parties would likely continue to primarily serve themselves and
        each other even if they were not to combine their tower business is supported by the
        fact that they would in any event engage in an increase of their passive sharing
        arrangements under the Passive Sharing Agreement.
(215) In addition, as explained in Section 5.3., for MNOs, the location of the site is the
        primary driver of demand. However, for the Parties, the location of their sites has not
        been driven by their willingness to satisfy, and compete for, merchant demand, but
        rather to fulfil the requirements of their mobile network. There is no indication that
        this is likely to change in the future. In fact, the Commission notes that other MNOs
        in the market engaged in strategic partnership with independent TowerCos rather
        than with the Parties for their site deployment. Indeed, both Wind Tre and Iliad have
        sold part of their passive assets to Cellnex and entered into an anchor tenant
        agreement with this operator, including the supply of new “built-to-suit” sites.130
(216) Further, the fact that the Parties are unlikely to have exerted an important
        competitive constraint on each other in the supply of hospitality services to MNOs,
        as well as that they are unlikely to exert such constraint in the counterfactual, is
        supported by the view of Wind Tre, according to which “it should be generally noted
        in the context of describing competition among the providers of hospitality services
        that site portfolios do not necessarily per se overlap, and given the physical and
        electromagnetic emissions limitations on sites and relatively-long term contractual
        commitments for installed equipment, even where there is comparable overall
        footprint and even where there is a direct, alternative site location from another
        tower company, such alternative sites may often not be actually available to host the
        needs of a prospective MNO customer”.131 Likewise, Ei Towers stated that the
        competitive pressure exerted on INWIT by the MNOs, Vodafone, Wind Tre and
        Iliad, is of less relevance compared to the one exerted by Cellnex and Ei Towers.132
(217) Fourth, the supply of hospitality services to MNOs is characterised by long-term
        contracts. In particular, other than the agreements with Cellnex described in
126 See INWIT’s stand alone business plan, see Annex 4 to the Form CO.
127 See Vodafone’s stand alone business plan, see Annex 4 to the Form CO.
128 See Ei Towers’ reply to RFI Q4, question 19.
129 See Vodafone’s press release of 26 July 2019, available at https://www.vodafone.com/news-and-
    media/vodafone-group-releases/news/create-europe-largest-tower-company-unlocking-value-for-
    shareholders
130 See above Section 5.3.
131 Wind Tre’s reply to RFI Q3, question 19.
132 Ei Towers’ reply to RFI Q4, question 18.
                                                       58
 ---pagebreak---          Section 5.3, Wind Tre has agreements in place with […] as well as with the Parties
         themselves: […].
(218) Likewise, Iliad, other than the agreements with Cellnex described in Section 5.3, it
         has a long term contract with […] and with […]. […].
(219) With respect to Fastweb, […]. However, the Commission notes that, […]. In fact, as
         explained in Section 5.3., in the Wind Tre/Fastweb partnership it will be for Wind
         Tre to manage the mobile network. Thus, it is unclear to what extent Fastweb will be
         an active customer of hospitality services for a mobile network, to the extent it
         would rely on the partnership with Wind Tre to roll-out its 5G mobile network.
(220) The long duration of the framework contracts is likely to offer adequate protection
         vis-à-vis any worsening of terms and conditions for hospitality services deriving
         from a potential reduction of the competitive pressure in the market due to the
         Transaction (albeit, as explained above, it is unclear to what extent the Parties
         exerted such pressure on each other, in the first place). In this respect, the
         Commission also notes that most market participants have not expressed concern in
         relation to the early termination of the contracts by the Parties133 and that, in any
         event, the Parties committed not to terminate their contracts with third parties by
         exercising their early termination rights.134
(221) Moreover, the Commission notes that, due to the implementation of the Passive
         Sharing Agreement, the Parties plan to […]. Based on the Parties’ estimates, […].
         Whilst there is no commitment from the Parties to do so, the Commission notes that
         should this actually occur it would constitute another mitigating factor of any
         potential reduction of the competitive pressure in the market due to the Transaction.
         Indeed, especially TowerCos are likely to intensify competition between themselves
         […].
(222) Finally, as explained by Cellnex,135 the Commission notes that pursuant to
         Article 3(2) of the Broadband Cost Reduction Directive, implemented in Italy by the
         legislative decree n. 33 of 15 February 2016,136 “any network operator has the
         obligation to meet all reasonable requests for access to its physical infrastructure
         under fair and reasonable terms and conditions, including price”.137
(223) In this context, despite the high barriers to entry, the Commission considers it
         unlikely that the Transaction would negatively affect MNOs as a result of a
         worsening of the terms and conditions offered to them.
(224) Likewise, to the extent that new sites can be built, it is unlikely that the Transaction
         would negatively affect MNOs. Indeed, as mentioned, construction of new sites by
133 See Replies to Market Test questionnaire, question 11.
134 A commitment in this respect has also been included in the Final Commitments.
135 Replies to Market Test questionnaire, question 9.
136 Decreto legislativo n. 33 del 15 febbraio 2016, relativo all’attuazione della direttiva 2014/61/UE del
    Parlamento europeo e del Consiglio, del 15 maggio 2014, recante misure volte a ridurre i costi
    dell’istallazione di rete di comunicazione elettronica ad alta velocità,, Italian OJ “Serie Generale” n.57 of
    09.03.2016.
137 Directive 2014/61/EU of the European Parliament and of the Council of 15 May 2014 on measures to
    reduce the cost of deploying high-speed electronic communications networks, OJ L 155, 23.5.2014,
    p. 1-14.
                                                           59
 ---pagebreak---         the Parties has been primarily driven by their mobile network needs and other MNO
        operators have strategic partnerships with Cellnex for build-to-suit sites. Moreover,
        in relation to the construction of new sites, buyer power, in the form of self-supply,
        is likely to mitigate any potential effect of the Transaction.
(225) Nonetheless, especially in urban areas, the possibilities to build new sites are
        negligible, and TowerCos’ inventories are the only alternative. As discussed in
        Section 7.3.6. below, due to the potential decrease in space, and thus capacity, to be
        offered to third parties in the market by the Joint Venture, as result of the MSAs and
        the preferential rights foreseen therein, MNOs may see reduced capacity available to
        them in the market.138
(226) In this context, the Commission notes that Wind Tre and Fastweb are unlikely to be
        negatively affected as a result of horizontal unilateral effects deriving from this
        reduction in capacity, despite the latter having expressed concerns in the market
        investigation.139 This is because, as further discussed in Section 7.3.6. below, based
        on the projections on network roll-out submitted by Wind Tre in the market
        reconstruction, it plans […]. Further, as explained at paragraph (219), Fastweb is
        unlikely to constitute an active customer of hospitality services for a mobile network,
        to the extent it would rely on the partnership with Wind Tre to roll-out its 5G mobile
        network.
(227) Further, there is no indication in the file that entry of a new MNO in Italy (other than
        Fastweb) is likely.
(228) However, the Commission notes that Iliad is still in the process of developing its
        mobile network independently. Due to the difficulties of building new sites in Italy,
        especially in urban areas, in order to be able to roll-out a competitive network, Iliad
        might need to rely on the Parties’ sites. In fact, as discussed in Section 7.3.6. below,
        based on the projections on network roll-out submitted by Iliad in the market
        reconstruction, it plans to rely on […]. Assuming that Iliad’s projections of reliance
        on the Parties’ sites are based on a previous verification of the inability of other
        suppliers to satisfy its network planning needs in a given area with their site stock,
        for areas where no new sites can be built, the reduction of the capacity in the market
        resulting from the Transaction, in combination with the MSAs, is not likely to be
        compensated by the competing TowerCos or self-supply.
(229) For these reasons, (i) Iliad being one of the only two MNO active customers in the
        possible market for the supply of hospitality services to MNOs, other than the
        Parties, and (ii) to the extent Fastweb were not to rely on the partnership with Wind
        Tre to roll-out its 5G mobile network and/or a new MNO were to enter in Italy, the
        Commission cannot exclude that the Transaction gives rise to serious doubts as to its
        compatibility with the internal market in relation to the supply of hospitality services
        to MNOs on macro-sites as a result of horizontal non-coordinated effects.
138 […].
139 See Fastweb’s reply to RFI Q3.
                                                    60
 ---pagebreak--- 7.3.3. Horizontal non-coordinated effects in the supply of hospitality services on macro-
        sites to FWA suppliers
7.3.3.1. Parties’ view
(230) The Parties submit that the Transaction would not raise any competition concerns in
        relation to the supply of hospitality services on macro-sites to FWA suppliers, but
        have not provided any specific argument in this respect other than those reported in
        Section 7.3.2.1.
7.3.3.2. Commission’s assessment
(231) In relation to potential horizontal non-coordinated effects in the supply of hospitality
        services on macro-sites to FWA suppliers, the Commission notes the following.
(232) First, as illustrated in Section 7.2.1, based on the Commission’s market
        reconstruction, whatever the metric considered, the Parties’ combined shares, both
        historical and projected up to 2027, are very large and virtually always above 40%.
        This is true regardless of the geographic level considered.
(233) Second, as regards closeness of competition, the evidence in the Commission’s file
        is mixed. Indeed, whilst FWA suppliers responding to the market investigation
        indicated that the Parties are very close competitors (if not the closest competitors)
        due to the size and quality of their site portfolio,140 the actual substitutability
        between the Parties’ sites may vary depending on the spectrum portfolio and the
        technology used by the FWA customer. For example, should technologies requiring
        direct visual transmission (i.e. LoS – Line of Sight) be used, the presence of
        obstacles impeding direct visual between the transmitting antenna and the receiving
        antenna, such as buildings between two sites, prevent those sites from being
        substitutes.141
(234) Third, it is unclear to what extent the Parties did exert an important competitive
        constraint on each other in the supply of hospitality services to FWA suppliers. As
        explained at paragraphs (212)-(214), the Parties’ site operations have been primarily
        driven by the need to satisfy their mobile network needs. Thus, whilst, as explained
        in Section 5.3., the primary driver of FWA suppliers’ demand is the location of the
        sites (together with price), for the Parties, the location of their sites has not been
        driven by their willingness to satisfy, and compete for, merchant demand.
(235) Fourth, the supply of hospitality services to FWA suppliers is characterised to a large
        extent by long-term contracts. For example, […]. Further, […]. Likewise, […] […]
        […].
(236) The long duration of the framework contracts is likely to offer adequate protection
        vis-à-vis any worsening of terms and conditions for hospitality services deriving
        from a potential reduction of the competitive pressure in the market due to the
        Transaction (albeit, as explained above, it is unclear to what extent the Parties
        exerted such pressure to each other, in the first place). In this respect, the
        Commission also notes that most market participants have not expressed concern in
140 See replies to RFI Q3, questions 19 and 20.
141 Agreed minutes of the conference call of 4 December 2019 with Eolo, paragraph 6.
                                                       61
 ---pagebreak---         relation to the early termination of the contracts by the Parties142 and that, in any
        event, the Parties committed not to terminate their contracts with third parties by
        exercising their early termination rights.143
(237) Moreover, the Commission notes that, due to the implementation of the Passive
        Sharing Agreement, the Parties plan to […]. As explained at paragraph (221), based
        on the Parties’ estimates, […]. Whilst there is no commitment from the Parties to do
        so, the Commission notes that should this actually occur it would constitute another
        mitigating factor of any potential reduction of the competitive pressure in the market
        due to the Transaction. Indeed, especially TowerCos are likely to intensify
        competition between themselves […].
(238) Finally, as explained by Cellnex144 as well as in paragraph (222), the Commission
        notes that pursuant to Article 3(2) of the Broadband Cost Reduction Directive,
        implemented in Italy by the legislative decree n. 33 of 15 February 2016, “any
        network operator has the obligation to meet all reasonable requests for access to its
        physical infrastructure under fair and reasonable terms and conditions, including
        price”.
(239) In this context, despite the high barriers to entry, the Commission considers it
        unlikely that the Transaction would negatively affect FWA suppliers as a result of a
        worsening of the terms and conditions offered to them.
(240) Likewise, to the extent that new sites can be built, it is unlikely that the Transaction
        would negatively affect FWA suppliers. Indeed, as mentioned, construction of new
        sites by the Parties has been primarily driven by their mobile network needs and not
        by the intention to satisfy merchant demand.
(241) Finally, as further discussed in Section 7.3.8. below, the Commission considers that
        it is unclear whether, due to the potential decrease in space, and thus capacity, to be
        offered to third parties in the market by the Joint Venture, as result of the MSAs and
        the preferential rights foreseen therein, FWA suppliers may see reduced capacity
        available to them in the market.145
(242) Indeed, even if the Parties were to roll-out two 5G networks on all of the sites that
        will be managed by the Joint Venture, it seems that there would still remain space on
        those sites for some FWA network operators. Indeed, depending on the FWA
        technology used, the physical and electromagnetic space occupied by FWA networks
        is generally more limited than the one of a mobile network. In this respect, Eolo
        explained that, while no site is likely to be able to host more than two 5G antennas,
        its antennas would still be able to be hosted given their neutral impact on EMF
        limits.146 In addition, based on the market reconstruction, the Commission notes that
        currently FWA suppliers are active the most in the rural areas below 35 000
        inhabitants where the Parties are already installing […] mobile network antennas,
        and still space have been rented to FWA players.
142 See Replies to Market Test questionnaire, question 11.
143 A commitment in this respect has also been included in the Final Commitments.
144 Replies to Market Test questionnaire, question 9.
145 […].
146 Agreed minutes of the conference call of 4 December 2019 with Eolo, paragraph 10.
                                                         62
 ---pagebreak--- (243) However, the Commission notes that, for example, the largest FWA provider,
        Linkem, leverages the same mobile technology as mobile operators and plans to
        upgrade its LTE 4G network to 5G.147 Thus, its future demand for sites may more
        frequently enter into conflict with the one of the Parties in the context of their
        passive sharing to which the MSAs are instrumental. […].148
(244) Further, as explained above, the implementation of the Passive Sharing Agreement is
        likely to […]. As illustrated above, the capacity that could be freed up on third
        parties’ sites would amount to more than the current number of tenancies by the
        main FWA players in the areas with more than 35 000 inhabitants and to a
        considerable portion of the national demand in 2019. This is because the
        requirements of FWA suppliers in relation to sites differ from those of MNOs, not
        only in terms of space needed, but also in terms of number of sites, which is much
        lower.
(245) Nonetheless, on the one hand, there is no commitment from the Parties to actually
        withdraw from third party sites and, on the other hand, as the overall number of sites
        over which the Parties will engage in passive sharing will increase, there would still
        a reduction of the capacity available on the market.
(246) In this context, it cannot be concluded whether the capacity that would remain in the
        market would be sufficient to satisfy the demand of FWA suppliers.
(247) For these reasons, the Commission cannot exclude that the Transaction will give rise
        to serious doubts as to its compatibility with the internal market in relation to the
        supply of hospitality services to FWA suppliers as a result of horizontal non-
        coordinated effects.
7.3.4. Horizontal non-coordinated effects in the supply of hospitality services on macro-
        sites to customers other than TV and radio broadcasters, MNOs and FWA suppliers
7.3.4.1. Parties’ view
(248) The Parties submit that the Transaction would not raise any competition concerns in
        relation to the supply of hospitality services on macro-sites to customers other than
        TV and radio broadcasters, MNOs and FWA suppliers, but have not provided any
        specific argument in this respect other than those reported in Section 7.3.2.1.
7.3.4.2. Commission’s assessment
(249) In relation to potential horizontal non-coordinated effects in the supply of hospitality
        services on macro-sites to customers other than TV and radio broadcasters, MNOs
        and FWA suppliers, the Commission notes the following.
(250) First, as illustrated in Section 7.2.1, based on the Commission’s market
        reconstruction, the Parties’ combined shares in the supply of services to this residual
        category of customers are likely to be large and above the 25%, the threshold below
        which market shares may provide an indication that a concentration is not liable to
        impede effective competition, as indicated in paragraph 18 of the Horizontal Merger
        Guidelines.
147 See above Section 5.3.
148 Agreed minutes of the conference call of […], paragraph 4.
                                                        63
 ---pagebreak--- (251) Second, as regards closeness of competition, the results of the market investigation
         have been inconclusive. Only one customer belonging to this customer group replied
         to the market investigation and considered INWIT, Vodafone, Cellnex and Wind Tre
         all at the same level of closeness of competition.149
(252) Third, it is unclear to what extent the Parties did exert an important competitive
         constraint on each other in the supply of hospitality services to customers other than
         TV and radio broadcasters, MNOs and FWA suppliers. As explained at
         paragraphs (212)-(214), the Parties’ site operations have been primarily driven by
         the need to satisfy their mobile network needs. Thus, whilst, based on the only
         responding customer to the market investigation, the primary driver of customer
         demand is the location of the sites,150 for the Parties, the location of their sites has
         not been driven by their willingness to satisfy, and compete for, merchant demand.
(253) Finally, the Commission notes that this residual customer group is highly
         heterogeneous and includes private and public surveillance networks, environmental
         monitoring systems, operators of IoT networks, etc. The demand of these customers
         is very limited, both in terms of number of sites and in terms of physical and
         electromagnetic space required. For this reason, the Commission understands that for
         this customer group framework contracts are uncommon.
(254) Nonetheless, in the market investigation no merger specific concern has been raised
         in relation to the effects of the Transaction with respect to hospitality services vis-à-
         vis this customer group.
(255) Further, it is unlikely that, due to their very limited space requirements, this
         customer group would see a reduction of the capacity available to them as result of
         the MSAs and the preferential rights foreseen therein.151
(256) For these reasons, 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
         supply of hospitality services to customers other than TV and radio broadcasters,
         MNOs and FWA suppliers as a result of horizontal non-coordinated effects.152
149 See replies to RFI Q3, questions 19 and 20.
150 See replies to RFI Q3, question 18.
151 […].
152 A third party submitted in the market investigation that, “on the long term, IoT and mobile services will be
    complementary” but it nonetheless suggested that MNOs try to prevent the expansion of IoT networks. It
    stated that “at the current stage of development still limited awareness on the demand side represents a
    good ground for competitive aggressiveness by MNOs, that overemphasize potential weaknesses of non
    the cellular technology (actually largely compensated by cost efficiency and operational benefits for
    prospect clients). A further reason of difficulty is represented by the fact that the frequencies required,
    unlicensed across whole Europe, in Italy are owned by the Ministry of Defence who does not release them
    on a permanent basis for free use (as it should, according to ITU rules)” (see agreed minutes of the
    conference call of 29 November 2019 with Ei Towers, paragraph 25).
    The Commission has not found any evidence that IoT connectivity and M2M services belong to the same
    market (in fact the same third parties does not claim substitutability), thus a vertical link between IoT
    connectivity and the Parties’ activity in the supply of hospitality services on macro-sites does not
    technically arise.
    Nonetheless, for the same reasons outlined in Section 7.3.6, the Commission does not consider that
    vertical input foreclosure effects to the detriment of customers other than TV and radio broadcasters,
    MNOs and FWA suppliers would arise with respect of the supply of hospitality services on macro-sites.
    Thus, such effects will not be further discussed in this Decision.
                                                            64
 ---pagebreak--- 7.3.5. Horizontal non-coordinated effects in the supply of hospitality services on macro-
        sites to customers other than TV and radio broadcasters
7.3.5.1. Parties’ view
(257) The Parties submit that the Transaction would not raise any competition concerns in
        relation to the supply of hospitality services on macro-sites to customers other than
        TV and radio broadcasters, but have not provided any specific argument in this
        respect other than those reported in Section 7.3.2.1.
7.3.5.2. Commission’s assessment
(258) As explained at paragraph (158), the Commission considers that the effects of the
        Transaction are likely to be the same in the overall market and in the possible market
        for the supply of hospitality services to MNOs. This is because of the significant
        relative importance that this customer group has in the overall market.
(259) For the reasons set out in Section 7.3.1., which are in any event reinforced by the
        Commission findings in relation to the supply of hospitality services to FWA
        suppliers set out in Section 7.3.2, the Commission cannot exclude that the
        Transaction will give rise to serious doubts as to its compatibility with the internal
        market in relation to the overall supply of hospitality services as a result of
        horizontal non-coordinated effects.
7.3.6. Horizontal non-coordinated effects in the supply of hospitality services on micro-
        sites
7.3.6.1. Parties’ view
(260) The Parties submit that the Transaction would not raise any competition concerns in
        relation to the supply of hospitality services on micro-sites, but have not provided
        any specific argument in this respect other than those reported in Section 7.3.2.1.
7.3.6.2. Commission’s assessment
(261) In relation to potential horizontal non-coordinated effects in the supply of hospitality
        services on micro-sites, the Commission notes the following.
(262) First, the Commission notes that the market for the supply of hospitality services on
        micro-sites is still under development. This is clearly shown by the market
        reconstruction: as illustrated in the Table below, the annual growth rate of the total
        market size is very high.
     Table 33 - Year over Year increase of total market size for hospitality services on micro-sites
                        2018    2019 2020    2021   2022     2023    2024     2025    2026   2027
       Growth rate       […]     […]  […]     […]    […]      […]     […]      […]     […]    […]
(263) This observation has been confirmed by respondents to the market investigation.
        Open Fiber explained that “[m]icro-sites market is taking up and volumes will
        increase in the next future”.153
153 Replies to RFI Q4, question 9.
                                                     65
 ---pagebreak--- (264) The Commission also notes that so far the main supplier of hospitality services on
         micro-sites has been Cellnex. Indeed the supply of INWIT has been mainly focused
         on captive sales to TIM, […], as clearly shown in the Tables in Section 7.2.2. above.
         Vodafone, in turn, […]. The absence of any active involvement by Vodafone in the
         market has been confirmed by […] who is not aware of Vodafone being significantly
         present in the micro-cells market.154
(265) In this context, no conclusion can be made as to the degree of closeness of
         competition between the Parties’ offerings.
(266) Further, as explained in Section 5.3., for MNOs, the location of the site is the
         primary driver of demand. However, considering the primary captive focus of the
         Parties’ activities in the supply of hospitality services on micro-sites, the location of
         their sites will unlikely be driven by their willingness to satisfy, and compete for,
         merchant demand, but rather to fulfil the requirements of their mobile network. In
         this context, it is unclear to what extent the Parties will exert a competitive constraint
         on each other in the supply of merchant hospitality services on micro-sites.
(267) Second, the Commission notes, on the basis of the market reconstruction, that post-
         Transaction head-to-head competition between the Joint Venture and Cellnex is
         likely to remain.
(268) Respondents to the market investigation have explained that micro-cells deployment
         in Italy is still marginal. In this vein, Fastweb stated that “the micro-sites market is
         still marginal and fragmented among small players mainly focused on specific
         areas.”155 In this context, it cannot be concluded that the Parties enjoy any
         incumbency advantage in relation to location of their micro-cells as for macro-cells.
(269) In fact, respondents to the market investigation have explained that the market for
         hospitality services on micro-sites is today characterized by competition for the
         market rather than competition in the market.156 Moreover, with the massive rollout
         of 5G networks, respondents to the market investigation have an expectation that
         several new players will enter the market. Wind Tre explained that the “key variable
         for a provider of micro-sites is ownership or access to fiber ducts / fiber optic
         backhauling. There are various entities that have this (e.g., fiber companies and
         utilities), both at local and nationwide level”.157 Building micro-cells appears also to
         be easier than building macro-sites, while subject to the same electromagnetic limits.
         In this respect, Open Fiber explained that the development of micro-sites is less
         time-consuming and less expensive than macro-sites and 12 months is a coherent
         period to build a micro-site.158
(270) Finally, the Commission notes that customers of hospitality services on micro-sites
         did not raise concerns in the market investigation.159 In fact, based on the market
         reconstruction, the Commission notes that over 95% of the sales of hospitality
         services on micro-sites goes to MNOs, which either already have a partnership with
154 Replies to RFI Q3, question 20.3.
155 Replies to RFI Q3, question 15.
156 Replies to RFI Q3, question 24.3.
157 Replies to RFI Q3, question 19.4.
158 Replies to RFI Q4, question 8.
159 Replies to RFI Q3, question 35.2.
                                                     66
 ---pagebreak---          Cellnex for the supply of such services or in-house capabilities to satisfy their micro-
         sites needs.
(271) For these reasons, 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
         supply of hospitality services on micro-sites as a result of horizontal non-coordinated
         effects.160
7.3.7. Vertical non-coordinated effects to the detriment of suppliers of retail mobile
         services (input foreclosure)
7.3.7.1. Parties’ view
(272) The Parties submit that there are no plausible prospects that the Joint Venture would
         engage in an input foreclosure strategy to the detriment of suppliers of retail mobile
         services.
(273) First, the Parties submit that the rationalisation that will occur in the passive
         infrastructure to avoid overlaps between Vodafone’s and TIM’s sites will increase
         tower capacity.161 Accordingly, third parties will have access to those sites that have
         been freed by either Vodafone or TIM following the rationalisation process.
(274) Second, the Parties submit that the Joint Venture will not have sufficient market
         power for any input foreclosure strategy to be successful. The Parties stress their low
         market power in the market for towers or any segment of such market. Barriers to
         entry on the market appear to be low, as evidenced by Cellnex’ recent entry on the
         market.162
(275) Third, the Parties note that no third party relies extensively on the passive
         infrastructure of Vodafone or TIM pre-Transaction. Accordingly, Vodafone and
         TIM have only hosted third parties on […] % and […] % of their sites respectively.
         Moreover, MNOs already have access to proprietary passive infrastructures or have
         entered into agreements with tower companies such as Cellnex to have access to
         passive infrastructures. The Parties also consider that eviction of currently hosted
         third parties may induce such third parties to engage in retaliatory measures, which
         would ultimately reduce the Joint Venture’s likelihood of engaging in any form of
         input foreclosure.163
7.3.7.2. Commission’s assessment
(276) As explained in Section 5, macro-sites constitute an essential input for the roll-out of
         mobile networks. Thus, the supply of hospitality services to MNOs is vertically
         related to the retail mobile markets and the Commission assesses in this Section the
         likelihood of vertical non-coordinated effects to the detriment of competing suppliers
         of retail mobile telecommunications services.
160 For the same reasons, despite micro-cells will be important in the deployment of 5G mobile networks, the
    Commission does not consider that vertical input foreclosure effects to the detriment of competing MNO
    would arise with respect of the supply of hospitality services on micro-sites. Thus, such effects will not be
    further discussed in this Decision.
161 Form CO, paragraph 394.
162 Form CO, paragraphs 395-396.
163 Form CO, paragraph 397.
                                                           67
 ---pagebreak--- (277) In relation to the Parties' ability to foreclose, the Commission notes the following.
(278) First, as illustrated in Section 7.2.1, based on the Commission’s market
        reconstruction, whatever is the metric considered (with the exception of the instances
        where sales to the Parties are also excluded), the Joint Venture will hold a market
        share above the 30% threshold, below which, according to paragraph 25 of the Non-
        Horizontal Merger Guidelines, competition concerns are unlikely to be found. This is
        true regardless of the geographic level considered.
(279) Second, the Commission has conducted a market reconstruction, collecting data on
        the network roll out plans of the Parties’ MNO competitors, to assess to what extent
        they plan to densify their network and to rely on the Parties’ sites for this purpose.
        The results of this exercise are illustrated in the following table, showing: (i) the
        number of the Parties’ sites over which Fastweb, Wind Tre and Iliad plan to roll out
        their network up till 2027; (ii) the percentage that these sites represent out of the total
        number of sites of Fastweb’s, Wind Tre’s and Iliad’s respective networks; and
        (iii) the increase year over year of the number of these sites.
                         Table 34 - Competing MNOs’ reliance on the Parties’ sites
Number of sites of INWIT and Vodafone on which the customer relies
Customer      2017     2018   2019     2020    2021   2022     2023     2024       2025 2026  2027
Urban areas (more than 35 000 inhabitants)
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Wind 3
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Fastweb
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Iliad
Rural areas (less than 35 000 inhabitants)
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Wind 3
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Fastweb
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Iliad
Percentage of sites of INWIT and Vodafone on which the customer relies
Customer      2017     2018   2019     2020    2021   2022     2023     2024       2025 2026  2027
Urban areas (more than 35 000 inhabitants)
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Wind 3
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Fastweb
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Iliad
Rural areas (less than 35 000 inhabitants)
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Wind 3
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Fastweb
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Iliad
YoY increase of the number of sites of INWIT and Vodafone on which the customer relies
Customer      2017     2018   2019     2020    2021   2022     2023     2024       2025 2026  2027
Urban areas (more than 35 000 inhabitants)
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Wind 3
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Fastweb
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Iliad
Rural areas (less than 35 000 inhabitants)
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Wind 3
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Fastweb
               […]      […]    […]     […]     […]    […]      […]      […]        […]  […]    […]
Iliad
                                                     68
 ---pagebreak--- (280) On the basis of the above, the Commission notes the following:
         (a)       Wind Tre […].
         (b)       Fastweb […]. In fact, as explained in Section 5.3., in the Wind Tre/Fastweb
                   partnership it will be Wind Tre to manage the mobile network. Thus, it is
                   unclear to what extent Fastweb will be an active customer of hospitality
                   services for a mobile network, to the extent it would rely on the partnership
                   with Wind Tre to roll-out its 5G mobile network.
         (c)       Iliad instead, by 2027, plans to build up to […] of its network in areas
                   populated by more than 35 000 inhabitants on INWIT/Vodafone sites, […] in
                   areas populated by less than 35 000 inhabitants. In absolute numbers, the
                   additional INWIT/Vodafone sites on which Iliad plans to build its network
                   (compared to the situation as of 31 December 2019) are […] in areas with
                   more than 35 000 inhabitants and […] in areas with less than 35 000
                   inhabitants.
(281) There is no indication in the file that entry of a new MNO in Italy (other than
         Fastweb) is likely.
(282) In this context, the Commission considers that the Parties would have the ability to
         foreclose access to an important input to Iliad.164
(283) As explained in Section 5, pre-Transaction the Parties already engaged in a passive
         sharing arrangement. In that context, whilst they did not control each other sites
         within the meaning of Article 3 of the Merger Regulation, they were already able to
         affect third party’s ability to access also the sites they did not control by affecting the
         electromagnetic and physical space available on the site.
(284) Further, already pre-Transaction, Iliad experienced a high failure rate when
         requesting access to sites to INWIT.165 In particular, Iliad explained that […].166 This
         is confirmed by the Parties’ submission, according to which in 2019 INWIT denied
         access to Iliad […] times out of the […] requests of access made by the latter,
         i.e. […]% of the times.167
(285) The Commission has thus assessed the merger specific change in the Parties’ ability
         to foreclose Iliad.
164 Nonetheless, whilst there is no evidence in the file that this is likely, to the extent Fastweb were not to rely
    on the partnership with Wind Tre to roll-out its 5G mobile network, it is likely that the Parties would be
    able to access to an important input to Fastweb. The same would be the case should a new MNO enter in
    Italy. In both these instances, the analysis made with respect to the foreclosure to Iliad would apply.
    Indeed, any new MNO entrant, including Fastweb to the extent it would not rely on the partnership with
    Wind Tre to roll-out its 5G mobile network, would likely have the same needs in terms of access to the
    Parties’ sites as Iliad.
165 Iliad […] where previously Wind Tre was hosted and where Iliad has succeeded to Wind Tre as a result of
    the commitments in case M.7758 – Hutchison 3G Italy / Wind / JV and in case M.9041 – Hutchison 3G
    Italy / Wind Tre..
166 Agreed minutes of the conference call of 28 November 2019 with Iliad, paragraph 7.
167 Parties’ reply to RFI 19, question 3.
                                                            69
 ---pagebreak--- (286) In this respect, based on the data submitted by the Parties,168 the Commission notes
         that, pre-Transaction, a significant difference existed in the number of sites shared
         by the Parties depending on the location of the sites, and precisely on whether the
         sites were located in areas with less or more than 35 000 inhabitants. More in detail,
         pre-Transaction the Parties already shared over […] % of their combined sites in
         areas with less than 35 000 inhabitants, but only […] % of their combined sites in
         areas with more than 35 000 inhabitants.
(287) Further the Commission notes that, post-Transaction, the Parties plan to increase the
         number of sites they share, and thus reduce the capacity available to third parties
         (and in particular Iliad), in an asymmetric manner depending on the location. Indeed,
         in areas with less than 35 000 inhabitants, the Parties plan to increase the number of
         sites they will share by […] %, from around […] to […], whilst having preferential
         rights under the MSAs on over […] sites in these areas. Conversely, in areas with
         more than 35 000 inhabitants, the Parties plan to increase the number of sites they
         will share by almost […] %, from around […] to over […], corresponding to the
         total number of sites over which they would have preferential rights under the MSAs
         in these areas.169 Thus, they are more likely to use the rights afforded to them by the
         MSAs and this may prevent the Joint Venture from selling hospitality services to
         Iliad in areas with more than 35 000 inhabitants, thereby increasing the failure rate of
         the access requests of Iliad to the Joint Venture.
(288) The Commission also notes that, as a result of the commitments which allowed the
         entry of Iliad,170 the latter benefits from an option to enter into a RAN sharing
         arrangement with Wind Tre, which […]. Further, in the market investigation, Iliad
         explained that “in relation to macro-cells there is a strong distinction between sites
         in rural / less densely populated areas and large cities / densely populated areas. In
         the first, the localization of the site will be relevant but generally there will be a
         possibility to put in competition several players […]. In large cities / densely
         populated areas, it is often the case that actually available sites are scarce, thus
         leading to a situation where the MNO needing a site will above all consider the
         location / availability of the site and will be less concerned about other variables
         due to limited competition / choice”.171 Finally, in the market investigation, Iliad also
         submitted […].
(289) In this context, the Commission considers that a merger-specific change in ability to
         foreclose Iliad exists and is limited to the areas with more than 35 000 inhabitants.
(290) In relation to the Parties' incentives to foreclose, the Commission notes that the
         strategic rationale of the Transaction is for the Parties to better manage their site
         assets with a view to deploy faster a 5G network and thus being able to better
         compete on the retail mobile markets. In the retail mobile markets, Iliad has been
         created as new fourth MNO to eliminate the anticompetitive effects stemming from
         the creation of Wind Tre, which would have entailed a reduction of the competitive
168 Parties’ reply to RFI 19, question 6(e).
169 Parties’ reply to RFI 19, question 6(e). […] in the reply to RFI 19.
170 See Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV;
    Commission decision of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre.
171 Iliad’s reply to RFI Q3, question 18.
                                                           70
 ---pagebreak---          pressure to the benefit also of Vodafone and TIM.172 Based on the latest figures
         released by AGCOM, the Italian telecom regulator, it can be observed that Iliad is
         delivering on this mission and the Parties, along with Wind Tre, are keeping on
         losing market shares, to the benefit of Iliad and MVNOs, as illustrated by the below
         Figure which compares market shares in September 2019 with those in
         September 2018 (see arrows below the horizontal line).173
(291) In this context, the Commission considers that the Parties have both a symmetric
         incentive in foreclosing Iliad’s roll-out. Indeed, the Parties’ gains in the downstream
         retail mobile markets as a result of the foreclosure of an aggressive competitor like
         Iliad would likely largely outweigh what they would lose upstream by not offering
         hospitality services to Iliad.
(292) As regards the effects of a possible foreclosure strategy, as outlined above, Iliad
         plans, by 2027, to build up to […] of its network in areas populated by more than
         35 000 inhabitants on INWIT/Vodafone sites. This represents a considerable
         percentage of the site needs of Iliad. Further, due to its more limited spectrum
         portfolio compared to its MNO competitors,174 Iliad is likely to need a greater
         densification of the network to ensure adequate capacity to cater for the demand of
         the Italian retail mobile customers, which has grown considerably over the years
         since its entry.175 Considering the difficulties of building new sites in Italy in urban
         areas, it is unlikely that the reduction of the capacity in the market resulting from the
         Transaction, in combination with the MSAs, would be compensated by the
         competing TowerCos or self-supply.
172 See Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV;
    Commission decision of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre.
173 AGCOM,         Communication     Markets   Monitoring   System,     no.     4/2019    available at
    https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
    76b41a197b7c?version=1.0
174 See https://www.agcom.it/documents/10179/9304077/Studio-Ricerca+25-01-2018/ed5ed802-c105-4aad-
    82c7-3877fb32b70d?version=1.0
175 As to network densification as a tool to avoid capacity constraints, see Commission decision of
    11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK, Annex C. As to the evolution of data
    usage in Italy, see AGCOM, Communication Markets Monitoring System.
                                                     71
 ---pagebreak--- (293) The foreclosure strategy is thus likely to significantly reduce Iliad’s ability to deliver
        quality services to retail mobile customers in Italy and thus Iliad’s ability to compete
        in the retail mobile markets. A potential foreclosure of Iliad’s network rollout
        possibilities is in turn likely to have significant anticompetitive effects in the retail
        mobile markets: as explained in Section 5, Iliad has indeed been created as new
        fourth MNO to eliminate the anticompetitive effects stemming from the creation of
        Wind Tre and, as outlined above, is exerting an important competitive constraint on
        retail mobile markets, in particular in the supply of retail mobile services, excluding
        M2M, which account for over 70% of mobile retail subscriptions.176
(294) For these reasons, the Commission considers that the Transaction gives rise to
        serious doubts as to its compatibility with the internal market as a result of vertical
        non-coordinated effects to the detriment of Iliad (or any new MNO entrant with the
        same needs in terms of access to the Parties’ sites as Iliad177) as supplier of retail
        mobile services.
7.3.8. Vertical non-coordinated effects to the detriment of suppliers of wholesale mobile
        services (input foreclosure)
7.3.8.1. Parties’ view
(295) The Parties submit that there are no plausible prospects that the Joint Venture would
        engage in an input foreclosure strategy to the detriment of suppliers of wholesale
        mobile services for the same reasons outlined in Section 7.3.7.1.
7.3.8.2. Commission’s assessment
(296) As explained in Section 5, macro-sites constitute an essential input for the roll-out of
        mobile networks. Thus, the supply of hospitality services to MNOs is vertically
        related to the wholesale mobile market and the Commission assesses in this Section
        the likelihood of vertical non-coordinated effects to the detriment of competing
        suppliers of wholesale access and call origination on mobile networks.
(297) In this respect, the Commission notes that the same considerations made in Section
        7.3.7 in relation to the ability and the incentives of the Parties to foreclose suppliers
        of retail mobile services also apply in relation to suppliers of wholesale mobile
        services. This is because the same network is used by MNOs to provide both
        wholesale and retail mobile services.
(298) In terms of effects, the Commission notes that, while based on the market share data
        provided by the Parties, Iliad would have not won any contract for an MVNO
        customer, the wholesale mobile demand is extremely lumpy and tenders are
        infrequent.
(299) Nonetheless, any potential foreclosure of Iliad’s network rollout possibilities is likely
        to have significant anticompetitive effects in the wholesale mobile market by
176 The foreclosure effects on the retail mobile markets are likely to be worsen by the foreclosure on the
    wholesale mobile market, assessed in Section 7.3.8.
177 See footnote 164.
                                                        72
 ---pagebreak---         reducing the number of alternative MNOs, in line with the predictions made by the
        Commission when assessing the creation of Wind Tre.178
(300) For these reasons, the Commission considers that the Transaction gives rise to
        serious doubts as to its compatibility with the internal market as a result of vertical
        non-coordinated effects to the detriment of Iliad (or any new MNO entrant with the
        same needs in terms of access to the Parties’ sites as Iliad179) as supplier of
        wholesale mobile services.
7.3.9. Vertical non-coordinated effects to the detriment of suppliers of retail fixed services
        (input foreclosure)
7.3.9.1. Parties’ view
(301) The Parties have not submitted their views in relation to the possibility that the Joint
        Venture would engage in an input foreclosure strategy to the detriment of suppliers
        of retail fixed services.
7.3.9.2. Commission’s assessment
(302) As explained in Section 5, macro-sites constitute an essential input for the roll-out of
        FWA networks used for the delivery of retail fixed telecommunications services.
        Thus, the supply of hospitality services to FWA suppliers is vertically related to the
        retail fixed markets and the Commission assesses in this Section the likelihood of
        vertical non-coordinated effects to the detriment of competing suppliers of retail
        fixed telecommunications services.
(303) In relation to the Parties' ability to foreclose, the Commission notes the following.
(304) First, as illustrated in Section 7.2.1, based on the Commission’s market
        reconstruction, whatever is the metric considered, the Joint Venture will hold a
        market share above the 30% threshold, below which, according to paragraph 25 of
        the Non-Horizontal Merger Guidelines, competition concerns are unlikely to be
        found. This is true regardless of the geographic level considered.
(305) Second, the Commission has conducted a market reconstruction, collecting data on
        the network roll out plans of the main FWA suppliers, to assess to what extent they
        plan to densify their network and to rely on the Parties’ sites for this purpose. The
        results of this exercise are illustrated in the following table, showing: (i) the number
        of the Parties’ sites over which Fastweb, Eolo and Linkem plan to roll out their
        network up till 2027; (ii) the percentage that these sites represent out of the total
        number of sites of Fastweb’s, Eolo’s and Linkem’s respective networks; and (iii) the
        increase year over year of the number of these sites.
178 Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV; Commission
    decision of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre.
179 See footnote 164.
                                                       73
 ---pagebreak---                     Table 35 - Competing FWA suppliers’ reliance on the Parties’ sites
                  Number of sites of INWIT and Vodafone on which the customer relies
 Customer        2017     2018    2019     2020 2021     2022    2023    2024     2025  2026 2027
 Urban areas (more than 35 000 inhabitants)
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Fastweb
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Eolo
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Linkem
 Rural areas (less than 35 000 inhabitants)
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Fastweb
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Eolo
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Linkem
 Percentage of sites of INWIT and Vodafone on which the customer relies
 Customer        2017     2018    2019     2020 2021     2022    2023    2024     2025  2026 2027
 Urban areas (more than 35 000 inhabitants)
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Fastweb
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Eolo
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Linkem
 Rural areas (less than 35 000 inhabitants)
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Fastweb
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Eolo
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Linkem
 YoY increase of the number of sites of INWIT and Vodafone on which the customer relies
 Customer        2017     2018    2019     2020 2021     2022    2023    2024     2025  2026 2027
 Urban areas (more than 35 000 inhabitants)
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Fastweb
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Eolo
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Linkem
 Rural areas (less than 35 000 inhabitants)
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Fastweb
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Eolo
                   […]     […]     […]      […]  […]      […]     […]     […]       […]  […]  […]
 Linkem
(306) On the basis of the above, the Commission notes the following:
        (a)      as explained in Section 5.3., Fastweb has entered into a cooperation with
                 Linkem for the reciprocal provision of network slice services and […]. Thus,
                 it is unclear to what extent Fastweb will be an active customer of hospitality
                 services on macro-sites for an FWA network. However, at this stage this
                 possibility cannot be excluded, given its obligation to give reciprocal access
                 to Linkem.
        (b)      Eolo, by 2027, plans to build up to […] of its network in areas populated by
                 more than 35 000 inhabitants on INWIT/Vodafone sites, […] in areas
                 populated by less than 35 000 inhabitants. In absolute numbers, the additional
                 INWIT/Vodafone sites on which Eolo plans to build its network (compared
                                                     74
 ---pagebreak---                  to the situation as of 31 December 2019) are […] in areas with more than
                 35 000 inhabitants and […] in areas with less than 35 000 inhabitants.
        (c)      Linkem, by 2027, plans to build up to […] of its network in areas populated
                 by more than 35 000 inhabitants on INWIT/Vodafone sites, […] in areas
                 populated by less than 35 000 inhabitants. In absolute numbers, the additional
                 INWIT/Vodafone sites on which Eolo plans to build its network (compared
                 to the situation as of 31 December 2019) are […] in areas with more than
                 35 000 inhabitants and […] in areas with less than 35 000 inhabitants.
(307) In this context, the Commission considers that the Parties would have the ability to
        foreclose access to an important input to FWA suppliers.
(308) As explained in Section 5, pre-Transaction the Parties already engaged in a passive
        sharing arrangement. In that context, whilst they did not control each other sites
        within the meaning of Article 3 of the Merger Regulation, they were already able to
        affect third party’s ability to be technically able to access also the sites they did not
        control by affecting the electromagnetic and physical space available on the site.
(309) Further, already pre-Transaction, FWA players experienced a high failure rate when
        requesting access to sites to the Parties’ sites. For example, Linkem explained that
        […]. Further, according to the data submitted by the Parties, in the past three years
        they already denied access to their sites in response to over […] % of the requests
        they received by the main FWA suppliers, […].
                     Table 36 - Number of access requests and denials by the Parties
Vodafone               FY 2018                       FY 2019                         FY 2020
            Requests    Denials    Failure Requests    Denials   Failure   Requests   Denials Failure
                                     rate                         rate                         rate
Areas with more than 35 000 inhabitants
Fastweb     […]         […]        […]         […]     […]      […]        […]        […]     […]
Eolo        […]         […]        […]         […]     […]      […]        […]        […]     […]
Linkem      […]         […]        […]         […]     […]      […]        […]        […]     […]
Overall     […]         […]        […]         […]     […]      […]        […]        […]     […]
Areas with less than 35 000 inhabitants
Fastweb     […]         […]        […]         […]     […]      […]        […]        […]     […]
Eolo        […]         […]        […]         […]     […]      […]        […]        […]     […]
Linkem      […]         […]        […]         […]     […]      […]        […]        […]     […]
Overall     […]         […]        […]         […]     […]      […]        […]        […]     […]
INWIT /                  2017                           2018                           2019
TIM         Requests Denials Failure Requests          Denials   Failure   Requests   Denials Failure
                                     rate                         rate                         rate
Areas with more than 35 000 inhabitants
Fastweb     […]         […]        […]         […]     […]      […]        […]        […]     […]
Eolo        […]         […]        […]         […]     […]      […]        […]        […]     […]
Linkem      […]         […]        […]         […]     […]      […]        […]        […]     […]
Overall     […]         […]        […]         […]     […]      […]        […]        […]     […]
Areas with less than 35 000 inhabitants
Fastweb     […]         […]        […]         […]     […]      […]        […]        […]     […]
Eolo        […]         […]        […]         […]     […]      […]        […]        […]     […]
Linkem      […]         […]        […]         […]     […]      […]        […]        […]     […]
Overall     […]         […]        […]         […]     […]      […]        […]        […]     […]
Note: For Vodafone the reference is to fiscal years.
(310) The Commission has thus assessed the merger specific change in the Parties’ ability
        to foreclose FWA suppliers.
                                                      75
 ---pagebreak--- (311) In this respect, based on the data submitted by the Parties,180 the Commission notes
         that, pre-Transaction, a significant difference existed in the number of sites shared
         by the Parties depending on the location of the sites, and precisely on whether the
         sites were located in areas with less or more than 35 000 inhabitants. More in detail,
         pre-Transaction the Parties already shared over […] % of their combined sites in
         areas with less than 35 000 inhabitants, but only […] % of their combined sites in
         areas with more than 35 000 inhabitants.
(312) Further the Commission notes that, post-Transaction, the Parties plan to increase the
         number of sites they share, and thus reduce the capacity available to third parties
         (and in particular Iliad), in an asymmetric manner depending on the location. Indeed,
         in areas with less than 35 000 inhabitants, the Parties plan to increase the number of
         sites they will share by […] %, from around […] to […], whilst having preferential
         rights under the MSAs on over […] sites in these areas. Conversely, in areas with
         more than 35 000 inhabitants, the Parties plan to increase the number of sites they
         will share by almost […] %, from around […] to over […], corresponding to the total
         number of sites over which they would have preferential rights under the MSAs in
         these areas.181 Thus, they are more likely to use the rights afforded to them by the
         MSAs and this may prevent the Joint Venture from selling hospitality services to
         FWA suppliers in areas with more than 35 000 inhabitants, thereby increasing the
         failure rate of the access requests of FWA suppliers to the Joint Venture.
(313) In this context, the Commission considers that a merger-specific change in ability to
         foreclose FWA suppliers exists but it is limited to the areas with more than 35 000
         inhabitants.
(314) In relation to the Parties' incentives to foreclose, the Commission considers that this
         cannot be excluded. Indeed, based on AGCOM’s data, the number of fixed access
         lines based on FWA technologies in September 2019 have been increasing compared
         to September 2018,182 as illustrated in the following Figure.
180 Parties’ reply to RFI 19, question 6(e).
181 Parties’ reply to RFI 19, question 6(e). […] in the reply to RFI 19.
182 AGCOM,         Communication       Markets     Monitoring      System, no. 4/2019 available at
    https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
    76b41a197b7c?version=1.0
                                                           76
 ---pagebreak---   Figure 1 - Distribution of fixed access lines by infrastructure and trend compared to September 2018
                                                     [%]
(315) Specifically in relation to fixed broadband connections, AGCOM found that, whilst
         TIM’s share is decreasing and Vodafone’s increases, Fastweb (mainly its services
         offered via fiber), Linkem and other operators offering services based on FWA
         technologies have increased their market share.183
(316) The growth of shares by FWA suppliers (in particular Linkem and Eolo), in
         particular with respect to TIM, is more pronounced when considering higher
183 AGCOM,        Communication       Markets     Monitoring     System,    no.  4/2019     available  at
    https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
    76b41a197b7c?version=1.0
                                                          77
 ---pagebreak---          connections for the suppliers of higher internet speeds, above 30 Mbps, as illustrated
         by the below Figure.184
(317) In this context, the Commission considers that the Parties have both an incentive in
         foreclosing FWA suppliers’ roll-out. This is the case in areas with more than 35 000
         inhabitants, where the Parties are more likely to have already, or plan to roll-out,
         fixed infrastructure for the supply of fixed internet services. Indeed, the significant
         investments needed to roll-out fixed infrastructure are likely to have been (or to be)
         made in more populated areas. This is even the more the case in a potential market
         for the supply of retail fixed services via FWA technologies only, where TIM has
         recently entered and Vodafone is […]. Indeed, the Parties’ gains in the downstream
184 AGCOM,       Communication     Markets   Monitoring    System,    no.   4/2019    available at
    https://www.agcom.it/documents/10179/4386532/Allegato+23-1-2020/7b245499-7f9f-45af-80c0-
    76b41a197b7c?version=1.0
                                                    78
 ---pagebreak---         retail fixed markets as a result of the foreclosure of aggressive FWA competitors like
        Linkem would likely largely outweigh what they would lose upstream by not
        offering hospitality services to FWA suppliers.
(318) As regards the effects of a possible foreclosure strategy, as outlined above, FWA
        suppliers are increasing their market shares, which indicate an increasing interest by
        Italian consumers for fixed internet services based on FWA technology.
(319) Further, as explained at paragraph (306), the main FWA providers, Linkem and
        Eolo, plan to expand their network based to a considerable extent on the Parties’
        sites. Considering the difficulties of building new sites in Italy in urban areas, it is
        unlikely that the reduction of the capacity in the market resulting from the
        Transaction, in combination with the MSAs, would be compensated by the
        competing TowerCos or self-supply.
(320) A foreclose strategy by the Parties is thus likely to reduce FWA players’ ability to
        expand their network. In this context, the Commission cannot exclude that the
        Transaction will have significant effects in the downstream market for fixed retail
        services, in particular in terms of reduction of choice.185 Indeed, FWA suppliers offer
        consumers in Italy an alternative technology which high performance in terms of
        speed, in particular in the areas where fiber has not yet been rolled out.
(321) For these reasons, the Commission cannot exclude that the Transaction gives rise to
        serious doubts as to its compatibility with the internal market as a result of vertical
        non-coordinated effects to the detriment of FWA suppliers of retail fixed services.
7.3.10. Vertical non-coordinated effects to the detriment of suppliers of wholesale fixed
        services (input foreclosure)
7.3.10.1. Parties’ view
(322) The Parties have not submitted their views in relation to the possibility that the Joint
        Venture would engage in an input foreclosure strategy to the detriment of suppliers
        of wholesale fixed services.
7.3.10.2. Commission’s assessment
(323) As explained in Section 5, macro-sites constitute an essential input for the roll-out of
        FWA networks used for the delivery of wholesale fixed telecommunications
        services. Thus, the supply of hospitality services to FWA suppliers is vertically
        related to the wholesale fixed market and the Commission assesses in this Section
        the likelihood of vertical non-coordinated effects to the detriment of competing
        suppliers of wholes fixed telecommunications services.
(324) In this respect, the Commission notes that the same considerations made in
        Section 7.3.9 in relation to the ability of the Parties to foreclose suppliers of retail
        fixed services also apply in relation to suppliers of wholesale fixed services. This is
        because the same network is used by FWA providers to provide both wholesale and
        retail fixed services.
185 The foreclosure effects on the retail fixed markets are likely to be worsen by the foreclosure on the
    wholesale fixed markets, assessed in Section 7.3.10.
                                                         79
 ---pagebreak--- (325) As regards the incentives to foreclose, these cannot be excluded. Indeed, both Parties
        may have an incentive to foreclose a competitor at wholesale level which would
        enable competition at retail level, where TIM is active and Vodafone is […]. Further,
        TIM is active as provider of wholesale fixed services based on FWA technology,
        which appears in itself an attractive market as demonstrated by the fact that there
        exist players which are active only in the supply of wholesale fixed services via
        FWA technologies without being active at retail level. In particular, Open Fiber has
        explained that it plans to offer wholesale fixed services using FWA technologies in
        relation to almost 15% of the premises it will connect (i.e. 19 million).186 In such
        context, the Parties’ gains in the downstream wholesale fixed markets as a result of
        the foreclosure of competitors would likely outweigh what they would lose upstream
        by not offering hospitality services to FWA suppliers.
(326) In terms of effects, the Commission notes that, while based on the market share data
        provided by the Parties, it cannot be concluded that FWA suppliers have played an
        important role in the overall supply of wholesale fixed services, the wholesale fixed
        demand is extremely lumpy and tenders are infrequent. Further, if one were to
        consider only the possible market for the supply of wholesale fixed services based on
        FWA technology, the effects of the transaction would be greater as the market is
        likely to expand187 and the competing providers would see reduce their expansion
        possibilities.
(327) Any potential foreclosure of FWA suppliers’ network rollout possibilities is likely to
        have anticompetitive effects in the wholesale mobile market by reducing the number
        of alternative providers, in particular if the supply based on FWA technology is
        considered.
(328) For these reasons, the Commission cannot exclude that the Transaction gives rise to
        serious doubts as to its compatibility with the internal market as a result of vertical
        non-coordinated effects to the detriment of FWA suppliers of wholesale fixed
        services.
7.3.11. Vertical non-coordinated effects to the detriment of suppliers of hospitality services
        on macro-sites (customer foreclosure)
7.3.11.1. Parties’ view
(329) The Parties have not submitted their views in relation to the possibility that the Joint
        Venture would engage in a customer foreclosure strategy to the detriment of
        suppliers of hospitality services on macro-sites.
7.3.11.2. Commission’s assessment
(330) In the market investigation, the Commission has received complaints in relation to
        the potential anticompetitive effects of the Transaction to the detriment of suppliers
        of hospitality services on macro-sites, in particular independent TowerCos not
        vertically integrated in the operation of communications networks, as a result of
        customer foreclosure. According to the complainants, the Transaction, in
        combination with the MSAs and the status of preferred supplier therein foreseen for
186 Open Fiber’s reply to RFI Q4, question 1.
187 This is demonstrated by TIM’s recent entry in the market and by the fact that, as mentioned, Open Fiber
    plan to offer wholesale fixed services based on FWA network.
                                                        80
 ---pagebreak---       the Joint Venture with respect to TIM and Vodafone as customers of hospitality
      services on macro-sites, would prevent TIM and Vodafone from contracting with
      alternative suppliers of hospitality services on macro-sites. As TIM and Vodafone
      are two of the largest suppliers of retail (and wholesale) mobile services, competitors
      of the Joint Venture would thus be foreclosed from access to a sufficient customer
      base and their ability and incentives to compete post-Transaction would be reduced.
(331) In this respect, the Commission notes that indeed it is likely that the Parties have the
      ability and the incentive to insource their demand of macro-sites. In fact, as
      explained at paragraph (149), according to the Parties’ estimates, the extension of the
      passive sharing arrangements would result into a […] on third parties' sites for each
      of the Parties in areas with more than 35 000 inhabitants. It can be considered that
      post-Transaction, […]. Further, due to the preferred supplier clause included in the
      MSA, it is likely that the Parties will be less active in looking for hospitality services
      from third party suppliers.
(332) Nonetheless, the Commission does not consider that a withdrawal of the Parties’
      networks from third party sites would have a foreclosure effect on suppliers of
      hospitality services on macro-sites, which would have a significant detrimental effect
      on consumers in the downstream market, be it the supply of mobile or fixed services
      at retail or wholesale level, pursuant to paragraph 59 of the Non-Horizontal Merger
      Guidelines.
(333) First, the Parties are already vertically integrated and source the majority of their
      hospitality services in-house or from each other as a result of the passive sharing
      arrangement already in place. There is no indication that this is likely to change in
      the future, in particular in relation to the construction of new sites. In fact, as
      explained above, due to the Passive Sharing Agreement the Parties would in any
      event increase their sales to each other and reduce their tenancies on third parties’
      sites.
(334) Second, the Commission has conducted a market reconstruction, collecting data on
      TowerCos’ actual sales, and estimates on the future sales, of hospitality services on
      macro-sites, in revenues and volume (as number of tenancies), per customer over the
      period 2017 to 2027. In this respect, the Commission has collected data
      distinguishing between rural areas where the Parties are already implementing
      passive sharing arrangements (thus areas with less than 35 000 inhabitants) and areas
      where this is not the case (thus areas with more than 35 000 inhabitants). This is
      because, where passive sharing is already implemented, the Parties are already
      giving priority to each other for hospitality services on the macro-sites.
(335) Estimates on future sales have been provided by the information providers based on
      the assumption that the site Joint Venture between TIM and Vodafone would have
      not been created. […].
(336) On this basis, the following table presents Cellnex’, Ei Towers’ and Rai Way’s as
      well as Wind Tre’s expected reliance on TIM and Vodafone as customers of
      hospitality services on the macro-sites, showing: (i) the percentage of the total sales
      by volume and value of each TowerCo achieved with sales to TIM and Vodafone;
      (ii) the absolute number of tenancies of each TowerCo achieved with sales to TIM
      and Vodafone; and (iii) the increase year over year of the sales by volume and value
      of each TowerCo with TIM and Vodafone.
                                                  81
 ---pagebreak---                            Table 37- TowerCos’ reliance on sales to the Parties
Percentage of sales to TIM and Vodafone out of total sales by value at national level
TowerCo         2017     2018    2019      2020  2021     2022     2023     2024    2025  2026  2027
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Wind Tre
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Cellnex
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ei Towers
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ray Way
YoY increase of sales to TIM and Vodafone out of total sales by value at national level
TowerCo         2017     2018    2019      2020  2021     2022     2023     2024    2025  2026  2027
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Wind Tre
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Cellnex
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ei Towers
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ray Way
Sales to TIM and Vodafone by volume (tenancies)
TowerCo         2017     2018    2019      2020  2021     2022     2023     2024    2025  2026  2027
Urban areas (more than 35 000 inhabitants)
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Wind Tre
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Cellnex
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ei Towers
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ray Way
Rural areas (less than 35 000 inhabitants)
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Wind Tre
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Cellnex
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ei Towers
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ray Way
Percentage of sales to TIM and Vodafone out of total sales by volume (tenancies)
TowerCo         2017     2018    2019      2020  2021     2022     2023     2024    2025  2026  2027
Urban areas (more than 35 000 inhabitants)
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Wind Tre
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Cellnex
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ei Towers
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ray Way
Percentage of sales to TIM and Vodafone out of total sales by volume (tenancies)
TowerCo         2017     2018    2019      2020  2021     2022     2023     2024    2025  2026  2027
Rural areas (less than 35 000 inhabitants)
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Wind Tre
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Cellnex
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ei Towers
                   […]     […]     […]       […]   […]      […]      […]      […]     […]   […]   […]
Ray Way
                                                      82
 ---pagebreak--- YoY increase of sales to TIM and Vodafone out of total sales by volume (tenancies)
TowerCo         2017     2018    2019      2020    2021    2022    2023   2024      2025   2026 2027
Urban areas (more than 35 000 inhabitants)
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Wind Tre
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Cellnex
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Ei Towers
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Ray Way
Rural areas (less than 35 000 inhabitants)
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Wind Tre
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Cellnex
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Ei Towers
                 […]     […]      […]      […]     […]     […]     […]     […]      […]    […]  […]
Ray Way
(337) On the basis of the above, the Commission notes the following:
        (a)      Whilst in terms of tenancies, the sales to the Parties account for a share of
                 each of the TowerCos’ total sales above […], with the exception of […], the
                 year over year increase of such sales is never above […] as from 2020 and in
                 certain cases is even […]. Moreover, when considering the absolute increase
                 of the number of tenancies to be achieved with sales to the Parties by 2027
                 compared to sales at 31 December 2019, the increase would be very limited
                 or negative, with the exception of […]. In more detail, the change in 2027
                 compared to 2019 would be: for Wind Tre […] at national level; for Cellnex
                 […] at national level; for Ei Towers […] at national level; for Rai Way […]
                 at national level.
        (b)      In terms of revenues, the sales to the Parties account for a share of Wind Tre
                 and Cellnex below […] and so is the year over year increase as from 2020.
                 The share in relation to Ei Tower is […] but the year over year increase as
                 from 2020 is […]. Rai Way […] and the year over year increase is […].
(338) With regard to Ei Towers and Rai Way, based on the results of the market
        reconstruction, the Commission further notes that they are considered to be
        particularly focused on the TV and radio customers. In fact, Rai Way is vertically
        integrated in the supply of broadcasting services. In addition, for each Ei Tower and
        Rai Way, […]. In fact, Ei Towers explained that […] and that it is particularly
        interested in Iliad’s entry on the market and its initiative to build up its own active
        infrastructure.188 In this context, the Commission considers it unlikely that either Ei
        Towers or Rai Way would be negatively affected by a potential strategy aimed at
        customer foreclosure. Moreover, given their limited market share as outlined in
        Section 7.2.1., the Commission considers it unlikely that a potential customer
        foreclosure strategy against Ei Towers or Rai Way would have a negative impact on
        the customers in the downstream market. To the contrary, it is likely that the space
        freed up by the Parties on Ei Towers’ or Rai Way’s sites would become available to
        other customers, MNOs, FWA suppliers or other customers.
188 Agreed minutes of the conference call of 29 November 2019 with Ei Towers, paragraph 9.
                                                       83
 ---pagebreak--- (339) With regard to Wind Tre, based on the results of the market reconstruction, the
        Commission further notes that […]. In addition, Wind Tre has raised no customer
        foreclosure concern. In this context, the Commission considers it unlikely that Wind
        Tre would be negatively affected by a potential customer foreclosure strategy.
        Moreover, given its limited market share as outlined in Section 7.2.1., the
        Commission considers it unlikely that a potential customer foreclosure strategy
        against Wind Tre would have a negative impact on the customers in the downstream
        market. To the contrary, it is likely that the space freed up by the Parties on Wind
        Tre’s sites would become available to other customers, MNOs, FWA suppliers or
        other customers.
(340) Finally, with regard to Cellnex, the Commission recalls that it has in place strategic
        partnerships with Wind Tre and Iliad, as a result of the asset sale it undertook with
        each of these customers in, respectively 2015 and 2019, as explained in Section 5.2.
        Further, based on the results of the market reconstruction, the Commission notes
        that, […]. In this context, the Commission considers that, whilst, as outlined in
        Section 7.2.1., Cellnex has a significant market share and it would be the main
        competitors of the Joint Venture, it unlikely that Cellnex would be negatively
        affected by a potential customer foreclosure. Likewise, it is unlikely that a potential
        customer foreclosure strategy against Cellnex would have a negative impact on the
        customers in the downstream market. To the contrary, it is likely that the space freed
        up by the Parties on Cellnex’ sites would become available to other customers,
        MNOs, FWA suppliers or other customers (albeit, as explained above, such space
        may not fully compensate the reduction of capacity which may give rise to input
        input foreclosure to the detriment of MNOs and FWA suppliers).
(341) For these reasons, the Commission considers that the Transaction does not give rise
        to serious doubts as to its compatibility with the internal market as a result of vertical
        non-coordinated effects to the detriment of suppliers of hospitality services on
        macro-sites.
7.3.12. Vertical non-coordinated effects to the detriment of suppliers of hospitality services
        on micro-sites (customer foreclosure)
7.3.12.1. Parties’ view
(342) The Parties have not submitted their views in relation to the possibility that the Joint
        Venture would engage in a customer foreclosure strategy to the detriment of
        suppliers of hospitality services on micro-sites.
7.3.12.2. Commission’s assessment
(343) In the market investigation, the Commission has received a complaint in relation to
        the potential anticompetitive effects of the Transaction to the detriment of suppliers
        of hospitality services on micro-sites, in particular independent TowerCos not
        vertically integrated in the operation of mobile networks, as a result of customer
        foreclosure. According to the complainant, the Transaction, in combination with the
        MSAs and the status of preferred supplier therein foreseen for the Joint Venture with
        respect to TIM and Vodafone as customers of hospitality services on micro-sites,
        would prevent TIM and Vodafone from contracting with alternative suppliers of
        hospitality services on micro-sites. As TIM and Vodafone are two of the largest
        suppliers of retail (and wholesale) mobile services, competitors of the Joint Venture
                                                   84
 ---pagebreak---         would thus be foreclosed from access to a sufficient customer base and their ability
        and incentives to compete post-Transaction would be reduced.
(344) In this respect, the Commission does not consider that, even if the Parties have the
        ability and the incentive to insource their demand of micro-sites, this would have a
        foreclosure effect on suppliers of hospitality services on micro-sites, which would
        have a significant detrimental effect on consumers in the downstream market, be it
        the supply of mobile or fixed services at retail or wholesale level, pursuant to
        paragraph 59 of the Non-Horizontal Merger Guidelines.
(345) First, the Commission notes that, as explained in Section 7.3.6, the market for the
        supply of hospitality services on micro-sites is still under development and aim at
        primarily satisfying the demand of MNOs. MNOs have in turn in-house capabilities
        to build micro-sites. This is in particular the case of the Parties pre-Transaction, as
        illustrated by the market share figures including captive sales presented in
        Section 7.2.2. Indeed, if captive sales are considered, sales by MNOs would account
        to over […] in 2020 and over […]% of the market in 2027.
(346) Second, based on the market reconstruction, the Commission notes that, for suppliers
        of hospitality services, sales of hospitality services on micro-cells represent a small
        percentage of the total sales of hospitality services ([…]). In particular, for neither of
        the independent TowerCos, […].
(347) For these reasons, the Commission considers that the Transaction does not give rise
        to serious doubts as to its compatibility with the internal market as a result of vertical
        non-coordinated effects to the detriment of suppliers of hospitality services on
        micro-sites.
7.3.13. Conglomerate non-coordinated effects in relation to TIM’s and INWIT’s activities in
        the supply of fixed fiber backhaul services and INWIT’s activities in the supply of
        hospitality services
7.3.13.1. Parties’ view
(348) The Parties consider that the Transaction would not give rise to any negative
        competitive effect on the market for the provision of hospitality services and
        backhauling services. In particular, the Parties consider that there is no risk of
        foreclosing competing providers of fixed fiber backhaul services by either
        (i) bundling or tying INWIT’s hospitality services with TIM’s fixed fiber backhaul
        service, or (ii) preventing them from accessing Vodafone as a customer for fixed
        backhaul services.
(349) First, the Parties consider that they will lack the ability to foreclose since, first,
        Vodafone does not represent a substantial share of demand in the market and,
        second, INWIT will not have market power in the market for the supply of
        hospitality services on either micro or macro sites.
(350) Second, the Parties consider that they will not have the incentive to foreclose since
        any attempt to enter in such a strategy would be unprofitable or not attractive to
        customers. Moreover, the Parties consider that Vodafone would likely not have the
        incentive to engage in bundling or tying strategy since the increased revenue from
        the supply of fixed fiber backhaul services would mainly benefit TIM.
                                                   85
 ---pagebreak--- (351) Lastly, the Parties consider that any hypothetical foreclosure strategy would not have
        a negative effect on effective competition. In particular, even if the Parties would
        engage in such strategy, rivals would not be disincentivised from investing in their
        fiber networks since revenues from fixed fiber backhaul services, in particular fiber,
        are only marginal compared to the overall revenue that rivals generate from
        providing fiber services to end customers.
7.3.13.2. Commission’s assessment
(352) As described in Section 5, wireless telecommunications networks are composed of a
        number of radio access network sites, essentially a mast with an antenna and a radio-
        frequency system, linked to a core network by backhaul networks. Backhaul
        networks can be comprised of wireless backhaul (i.e. microwaves) or fixed backhaul.
        MNOs typically operates their own microwave backhaul while fixed backhaul has
        been provided by fixed network operators such as TIM, Open Fiber and Fastweb in
        Italy. The upcoming 5G rollout has further impacted the way backhaul services are
        provided in the markets with the Parties and respondents to the market investigation
        highlight the need for fiber fixed backhaul connections to macro and micro sites to
        guarantee the achievement of 5G performance and the decreasing relevance of
        copper fixed backhauling189.
(353) In order to provide their services to end customers, MNOs and providers of fixed
        broadband services through FWA acquire both (i) hospitality services on macro and
        micro sites, and (ii) fixed fiber backhaul services.
(354) With reference to hospitality services, Vodafone and INWIT are active in the supply
        of hospitality services on macro and micro-sites.
(355) With reference to fixed fiber backhaul services, TIM is active in the market for the
        supply of (active and passive) fixed backhaul services and INWIT is active in the
        supply of (passive) backhaul services. Vodafone […].
(356) On the demand side of the market, TIM and Vodafone are both customers in the
        market for the supply of hospitality services. On the market for the supply of fixed
        fiber backhaul services, only Vodafone is active as a customer […].190
(357) The Commission has also received a third party complaint indicating that the
        Transaction could reduce competition in the fixed fiber backhaul service market in
        Italy. The complainant indicates that, post-Transaction, INWIT may tie or bundle
        hospitality services with fixed fiber backhaul services (offered by TIM) and to divert
        Vodafone’s demand for fixed fiber backhaul services to TIM. As a consequence, the
        majority of the demand from hospitality service market could be foreclosed to
        competing providers of fixed fiber backhaul services.191
189 Replies to RFI Q4, question 29.
190 TIM’s reply to RFI 20, question 3. […].
191 […]’s letter to the Commission of 7 February 2020.
                                                       86
 ---pagebreak--- (358) The Commission has therefore assessed the risk of foreclosure of competing
         suppliers of fixed fiber backhaul services by implementing the above presented
         foreclosing strategies.192
(359) Therefore, in the following sections, the Commission analyses whether the Parties
         would have the ability and incentive to foreclose rival suppliers of fixed fiber
         backhaul services. The Commission then assesses whether the foreclosure strategy
         would likely result in a negative impact on prices and choice in each relevant market
         and potential sub-segment.
           Ability to foreclose competing providers of fixed fiber backhaul services
(360) Respondents to the market investigation consider that INWIT and the Parties will
         have the ability to foreclose competing providers of backhaul services. In particular,
         INWIT could prevent its customers of hospitality services from purchasing fixed
         backhaul connections from third parties.193 Respondents indicate that the Parties and
         INWIT would have the technical ability to tie or bundle such services and that the
         Transaction increases the number of sites on populated areas where INWIT will be
         present. Moreover, Retelit indicates that Vodafone would start sourcing fixed fiber
         backhaul services from TIM therefore reinforcing TIM’s position in such market to
         the detriment of its competitors.
(361) The Commission considers that the Parties would not likely have the ability to
         foreclose competing providers of fixed fiber backhaul services by either (i) bundling
         or tying INWIT’s hospitality services with TIM’s fixed fiber backhaul service, or
         (ii) denying access to Vodafone as customer in the market for the following reasons.
(362) First, with respect to INWIT’s market position in the market for the supply of
         hospitality services and all possible sub-segments, the Commission refer to Sections
         7.3.2 to 7.3.6 where it analysed the merger specific change of the Joint Venture in its
         ability to compete in such market and all possible sub-segments. In particular, the
         Transaction would not likely lead to an increase of market power in the market for
         the supply of hospitality services on micro sites (see Section 7.3.6), on macro sites to
         customers other than TV and radio broadcasters, MNOs and FWA suppliers (see
         Section 7.3.4) and on macro sites to MNOs and FWA suppliers in the areas below
         35 000 inhabitants (see Section 7.3.2 and 7.3.3).
(363) Second, there is no trend - neither from the supply nor from the demand site - to tie
         or bundle fixed fiber backhaul and hospitality services when offering or demanding
         such services to third parties in the market. Hospitality services and backhauling
         services are sourced largely by the same pool of customers. Indeed, customers such
         as MNOs or FWAs providers when acquiring access to a macro or micro site they
         also require fixed backhaul services in order to link their active equipment on the site
         with their core network as shown in Figure 2.
192 The Commission has not received in the course of its market investigations any complaints on the
    potential foreclosure of competing providers of hospitality services by leveraging TIM’s position in the
    market for the supply of fixed backhaul services. Nevertheless, the Commission note that, first, there
    would be no change in ability since […]. Second, even if already active in both markets pre-Transaction,
    TIM has not implemented any foreclosing strategy in the past. Third, any strategy would not likely have
    an impact on effective competition since competing providers of hospitality services would have the
    ability to source fixed backhaul services from TIM’s competitors such as Open Fiber and Fastweb.
193 Replies to RFI Q3, question 31; RFI Q4, question 30.
                                                         87
 ---pagebreak---                            Figure 2: architecture of fixed and mobile networks
(364) Before the Transaction, customers such as MNOs or FWA suppliers generally
        sourced hospitality and fixed fiber backhaul services separately. Moreover, no
        bundling or tying of such services was implemented by companies able to supply
        both services such as TIM and Vodafone. Indeed, TIM, while active on both the
        supply of hospitality servicers and backhaul services, […].194 Likewise, even if it is
        technically capable to provide both backhauling and hospitality services, Vodafone
        only offers hospitality services to third parties, […].
(365) The above trend is confirmed by respondents to the market investigation active on
        both the supply and the demand side of the market. From the supply side, Retelit
        indicates that tower companies normally do not offer fixed fiber backhaul services
        together with hospitality services. Open Fiber indicates that backhauling services are
        not bundled with hospitality services.195 From the demand side, […].196 Wind Tre
        procures fiber to sites through its own fiber network or through its partnership with
        fiber operators. It also indicated that generally no fiber backhaul service is provided
        by TowerCos. Similarly, Fastweb indicated that it mainly source fixed fiber backhaul
        services internally. For MNOs sites, Fastweb plans to source backhauling services
        captively, from WindTre and Open Fiber depending on infrastructure availability.
        For FWA sites, Fastweb plans to source backhauling services internally.
(366) Third, INWIT and Vodafone already have in place agreements with third parties for
        the provision of hospitality services. On such sites, INWIT and Vodafone will
        continue to provide their services and customers would continue to source fixed fiber
194 Form CO, paragraph 49.
195 Replies to RFI Q4, question 28.
196 Replies to RFI Q3, question 30.
                                                        88
 ---pagebreak---          backhaul services from their preferred suppliers.197 Therefore, any impact of such
         strategy would be limited to new access to sites offered by the JV post-Transaction.
(367) Fourth, Vodafone is not an important customer on the demand side of the market for
         the supply of fixed fiber backhaul services. First, Vodafone similarly to other
         vertically integrated operators in the market (TIM, WindTre and Fastweb) relies on
         self-supply for fixed fiber backhaul services. In 2019, […] % of Vodafone’s fixed
         fiber backhauling costs in 2019 were attributable to Vodafone’s own backhaul.198
         Vodafone is also relying more intensively on internal supply for new fixed backhaul
         connections. In fact, over […] % of Vodafone’s new backhaul connections were self-
         supplied in 2019, which increased from approximately […] % in 2018. Second,
         Vodafone does not represent a significant proportion of revenue for third party
         providers of fixed backhaul services. TIM estimates that in the period of 2019-2022,
         Vodafone would account for […] % of TIM’s fixed fiber backhaul revenues and only
         […] % of TIM’s leased lines capacity revenue.199 In the same period, Retelit expects
         that […].200 Fastweb […].201 Open Fiber […].202Third, the above conclusions would
         not change looking to historic data. Vodafone spent for the provision of fixed
         backhaul services from third parties (excluding TIM and Vodafone) respectively
         EUR […] in 2017 and EUR […]203 in 2018 corresponding to respectively […] %
         and […] % of third party’s revenues in the market.
           Incentive to foreclose competing providers of fixed fiber backhaul services
(368) Respondents to the market investigation consider that INWIT and the Parties will
         have the incentive to foreclose competing providers of fixed fiber backhaul services
         by either (i) bundling or tying INWIT’s hospitality services to TIM’s fixed fiber
         backhaul service, or (ii) denying access to Vodafone as customer of backhauling
         services.204 More in detail:
         (a)      Fastweb considers that, post-Transaction, INWIT will have an increased
                  incentive to leverage its site portfolio to provide also backhauling services to
                  all hosted customers.
         (b)      Retelit considers that Vodafone would have a greater incentive to divert its
                  demand from competing providers of fixed fiber backhaul services and
                  source its needs of fixed fiber backhaul services needs from INWIT.
         (c)      Iliad considers that the Transaction accelerates the pace and intensity of
                  INWIT’s entry in the market for the supply of fixed fiber backhaul services
                  and that, post-Transaction, INWIT will have naturally an incentive to
                  maximize its return on its investment providing the backhaul services
                  together with the hosting services.
197 Parties’ reply to RFI 22, question 2. […].
198 Form CO, table 25.
199 Commission’s calculation based on TIM’s reply to RFI 9.
200 Commission’s calculation based on Retelit’s reply to RFI 15.
201 Commission’s calculation based on Fastweb’s reply to RFI 9.
202 Open Fiber’s reply to RFI 14.
203 Vodafone’s reply to RFI 7.
204 Replies to RFI Q3, question 32; RFI Q4, question 31.
                                                         89
 ---pagebreak--- (369) Nevertheless, the Commission considers that the Parties would not likely have the
        incentive to foreclose competing providers of fixed fiber backhaul services by
        bundling or tying INWIT’s hospitality services with TIM’s fixed fiber backhaul
        service for the following reasons.
(370) First, the Commission notes that neither of the Parties engaged pre-Transaction in
        any tying and bundling strategy even if technically capable of implementing such
        strategy. In particular, as of December 2019, TIM provided approximately […]
        backhaul connections for over […] INWIT sites where third party MNOs were
        present. Therefore, it seems that TIM did not consider such strategy profitable pre-
        Transaction and that third party providers of fixed fiber backhaul services were able
        pre-Transaction to host third party MNOs on INWIT sites.
(371) Second, Vodafone would likely not have the incentive to engage in any foreclosure
        strategy. A tying or bundling strategy would exclusively benefit TIM and its
        revenues and profits in the market for the supply of fixed fiber backhaul services.
        Vodafone would not benefit from any increased revenue/profit to TIM because of
        any arrangement benefiting, directly or indirectly TIM. To this end, the Commission
        further notes that also INWIT’s minority shareholders would try to oppose any such
        strategy.
(372) Third, the potential costs of JV’s revenue loss from the supply of hospitality services
        seem higher than any potential gain from TIM’s additional revenue from the supply
        of fixed fiber backhaul services. In 2018, Vodafone and INWIT generated more that
        EUR […] from the supply of hospitality services to third parties. To recoup the
        potential loss of such revenues, TIM should increase its sales in the market for the
        supply of fixed fiber backhaul services by over […] % from EUR […] revenues.
(373) The Commission further considers that the Transaction would not materially change
        the Parties’ incentive to source fixed fiber backhaul services from third party
        providers post-Transaction.
(374) First, […] and its incentive would not materially change post-Transaction.
(375) Second, as indicated in paragraph (367) above, […] and the Transaction does not
        change its incentive to implement such strategy in the next years.
(376) Third, the Commission has assessed whether, the Backhauling Agreement205, entered
        between the Parties at the same time of the signing of the Shareholders’ Agreement,
        could lead to any merger specific change in the Parties’ incentive to source fixed
        backhaul services. […] . On access to existing fixed fiber backhaul connections, the
        Commission notes that, first, the Backhauling Agreement provides […], the
        Commission considers that such provisions further strengthen each of the Parties
        standalone incentive to rely mainly on captive sale for the provision of fixed fiber
        backhaul services as described in paragraphs (356) and (367) above.
205 See above Section 3.3.
                                                 90
 ---pagebreak---            Impact on price and choice in the market for the supply of fixed fiber backhaul
           services
(377) Respondents to the market investigation consider that a potential foreclosure strategy
         implemented by the Parties and INWIT would have a significant detrimental effect
         on alternative suppliers of fixed backhaul services.206 In particular, Fastweb indicates
         that the Transaction would lead to a reduction of 25% of the contestable market for
         the supply of fixed backhaul services. Retelit notes that, absent the Transaction,
         Vodafone would have sourced fixed backhaul services also from TIM’s competitors
         and that such additional demand will be lost over the next years.
(378) Regardless of whether the Parties have either the ability or the incentive to foreclose
         competing provider of fixed backhaul services, the Commission assessed whether
         any of the practices presented above would likely have a significant detrimental
         impact on effective competition. The Commission considers that it is unlikely that
         any foreclosure of competing providers of fixed backhaul services will have a
         significant detrimental effect on effective competition for the supply of fixed
         backhaul services, for the following reasons.
(379) First, the Transaction will not lead to a significant reduction of sales for competing
         providers of fixed fiber backhaul services. In the first place, any tying or bundling
         strategies would not affect the sites where third party tenants are already hosted by
         INWIT or Vodafone. On such sites, third parties would continue to source their
         services from competing providers of fixed fiber backhaul services if they were
         doing so pre-Transaction. In the second place, Vodafone […]. Moreover, as
         indicated above in paragraph (367), Vodafone is not an important customers for
         competing providers of fixed backhaul services since it would account, at best for
         […] of third party’s providers expected revenues from the supply of fixed fiber
         backhaul services. Therefore, the Transaction does not change materially the revenue
         that competing providers of fixed fiber backhaul services would have generated from
         supplying their services to Vodafone absent the Transaction. .
(380) Second, the Commission considers that any foreclosure strategy would not affect
         existing competitors on the market for the supply of fixed fiber backhaul services,
         such as Fastweb and Open Fiber, and would not deter entry or expansion of the
         Parties’ competitors in fixed fiber backhaul services or potential competitors. This is
         because revenue from fixed fiber backhaul services is not an important driver for
         future investments in the roll-out of fiber networks in Italy. TIM generated in 2018
         approximately EUR […]from the supply of such services corresponding to […]% of
         TIM’s revenues from the supply of fixed-line services. Similarly, Fastweb’s […].207
         With reference to Open Fiber, the Commission considers unlikely that any loss of
         revenue from the supply of fixed fiber backhaul services would impact their future
         investments in the roll-out of fiber networks in Italy. Open Fiber […].208 It is
         unlikely that any potential loss of part of such revenue would impact its fiber rollout
         plans in Italy to invest EUR 3.7 billion in Italy to reach approximately 9.5 million
         households in over 250 cities in Italy209 and to develop the ultra-broadband network
         in the “white areas” of the Italian government’s broadband plan. Moreover, the
206 Replies to RFI Q3, question 33; RFI Q4, question 32.
207 Commission’s calculation based on Fastweb’s reply to RFI 9.
208 Commission’s calculation based on Open Fiber’s reply to RFI 14.
209 Commission decision of 15 December 2016 in case M.8234 – Enel / CDP Equity / Cassa Depositi E
    Prestiti / Enel Open Fiber / Metroweb Italia, paragraph 27.
                                                         91
 ---pagebreak---         Commission considers that competing providers of fixed fiber backhaul services
        would remain active in the market since, as indicated in paragraph (379), the
        Transaction does not change materially the revenue that they would have likely
        generated from supplying fixed fiber backhaul services absent the Transaction.
          Conclusion
(381) Based on the above, the Commission considers that the Transaction does not give
        rise to serious doubts as to its compatibility with the internal market as a result of
        conglomerate non-coordinated effects to the detriment of competing providers of
        fixed fiber backhaul services.
7.4.    Coordinated effects
7.4.1. Introduction
(382) A merger in a concentrated market may significantly impede effective competition
        due to horizontal coordinated effects where, through the creation or the
        strengthening of a collective dominant position, it increases the likelihood that firms
        are able to coordinate their behaviour and raise prices, even without entering into an
        agreement or resorting to a concerted practice within the meaning of Article 101
        TFEU. A merger may also make coordination easier, more stable or more effective
        for firms that were already coordinating before the merger, either by making the
        coordination more robust or by permitting firms to coordinate on even higher
        prices.210
(383) To assess whether a merger gives rise to horizontal coordinated effects, the
        Commission should examine, first, whether it would be possible to reach terms of
        coordination and, second, whether the coordination would be likely to be
        sustainable.211
(384) As regards the possibility of reaching terms of coordination, coordination is more
        likely to emerge in markets where it is relatively simple to reach a common
        understanding on the terms of coordination.212 Coordination may take various forms,
        including keeping prices above the competitive level, or dividing the market, for
        instance by customer characteristics or by allocating contracts in bidding markets.213
(385) As regards the sustainability of coordination, three conditions are necessary for
        coordination to be sustainable.214 First, the coordinating firms must be able to
        monitor to a sufficient degree whether the terms of coordination are being adhered
        to.215 Second, discipline requires that there is a credible deterrent mechanism that
        can be activated if deviation is detected.216 Third, the reactions of outsiders, such as
        current and future competitors not participating in the coordination, as well as
210 Horizontal Merger Guidelines, paragraph 39.
211 Horizontal Merger Guidelines, paragraph 42.
212 Horizontal Merger Guidelines, paragraph 41.
213 Horizontal Merger Guidelines, paragraph 40.
214 Horizontal Merger Guidelines, paragraph 42.
215 Horizontal Merger Guidelines, paragraph 42.
216 Horizontal Merger Guidelines, paragraph 42.
                                                  92
 ---pagebreak---          customers, should not be able to jeopardise the results expected from the
         coordination.217
(386) Moreover, in examining the possibility and sustainability of coordination, the
         Commission should specifically consider the changes that the Transaction brings
         about.218 The reduction in the number of firms in a market may in itself be a factor
         that facilitates coordination.
(387) The Non-Horizontal Merger Guidelines set out a similar framework in relation to
         vertical coordinated effects.219
7.4.2. Horizontal coordinated effects in the supply of hospitality services on macro- and
         micro-sites
7.4.2.1. Parties’ view
(388) The Parties submit that there is no plausible risk of horizontal coordinated effects in
         the market for the provision of hospitality services in Italy, in all its configurations.
(389) First, the market would be already insufficiently symmetric for coordinated effects:
         Wind Tre is partially integrated but with a proportion of its passive infrastructure
         held by Cellnex: Iliad is a partially integrated market player; Cellnex is growing as a
         significant “pure” passive infrastructure player, managing a portfolio of towers in
         Italy and several other countries, with significant hosting arrangements with MNOS
         and smaller scale agreements with others; and finally Rai Way and EI Towers will
         likewise remain “pure” passive infrastructure players offering hosting to third
         parties.
(390) Second, the Transaction will increase asymmetry by creating a new type of TowerCo
         that operates a business plan that is different to any of the other TowerCos in Italy.
(391) Third, the non-public nature of contractual arrangements on the market would not be
         suited to firms reaching terms of coordination: TowerCos’ contractual relationships
         would be a mix of framework agreements, anchor tenant arrangements, “built-to-
         suit” arrangements and/or other more ad hoc agreements. Even within each category
         of agreement, there could be significant differences.
(392) Fourth, the market is undergoing significant change with the advent of 5G, implying
         significant investments and a reconfiguration and expansion of existing
         infrastructure networks. The market structure would not be fully settled, and thus not
         conducive to coordination. Barriers to entry would lower as the market is expected to
         grow significantly in the next 5 – 8 years with the roll out of infrastructure for 5G
         networks.
(393) Fifth, there is no evidence of past collusion on the market for access to passive
         infrastructure.
217 Horizontal Merger Guidelines, paragraph 42.
218 Horizontal Merger Guidelines, paragraph 42.
219 Non-Horizontal Merger Guidelines, paragraphs 79 and following.
                                                      93
 ---pagebreak--- (394) Sixth, firms would not have the ability to monitor deviation nor have any mechanism
         to punish deviation, considering the limited transparency in the market and the long-
         term agreements in place.
(395) Finally, new entrants and customers would be well placed to undermine the terms of
         any coordination. MNOs will have the option to self-supply by entering / expanding
         upstream to deter any such coordination. Equally, entrants such as Cellnex have
         expanded in recent years and would be capable of disrupting any coordination on the
         market. A range of other Tower companies would be able to offer hosting
         opportunities in important locations such as along highways and railways, and thus
         would be well positioned to disrupt any attempts of price or any other
         anticompetitive coordination between the established service providers.
7.4.2.2. Commission’s assessment
(396) As set out in the case law220 and the Horizontal Merger Guidelines,221 to find
         coordinated effects evidence is needed that the horizontal merger changes the nature
         of competition in such a way that firms that previously were not coordinating their
         behaviour are now significantly more likely to coordinate and raise prices or
         otherwise harm effective competition. A merger may also make coordination easier,
         more stable or more effective for firms that were coordinating prior to the merger.222
(397) As a preliminary remark, the Commission notes that the analysis below is relevant
         for all possible configurations of the markets for hospitality services in Italy, for both
         macro and micro-sites, irrespective of any possible segmentation by type of
         customers. Where relevant, reference will be done to specific segments.
(398) The Commission notes that only few respondents to the market investigation pointed
         to the risk of coordinated effects. A respondent submitted that there could be a risk
         of coordinated effects in the market for hospitality services on macro-sites,
         considering the transparency of the economic conditions proposed for hosting
         services (each tower company providing services to the MNOs controlling the other
         competing tower company). The only independent tower company would not be
         sufficient to eliminate the risk of coordinated effects and the entry of new players
         would be difficult.223
(399) In this respect, on the basis of the market investigation and of the analysis of the
         internal documents, the Commission has not found any element pointing to
         coordination already ongoing between the main market players – or some of them –
         in the markets for hospitality services (both macro and micro-sites). This appears to
         suggest that the market conditions are currently not likely to be conducive to
         coordination.
220 Case C-413/06 P, Bertelsmann AG and Sony Corporation of America v Independent Music Publishers and
    Labels Association (Impala) [2008] ECRI-4951, and in particular paragraphs 122-123 regarding the
    conditions for tacit coordination; Case T-342/99, Airtours v Commission [2002] ECR II-2585, and in
    particular paragraphs 58 and 82 regarding the fact that “[i]f there is no significant change in the level of
    competition obtaining previously, the merger should be approved because it does not restrict
    competition”.
221 Horizontal Merger Guidelines, paragraphs 22, 39 and following.
222 Horizontal Merger Guidelines, paragraph 22(b).
223 Iliad’s reply to RFI Q3, question 25.3.
                                                         94
 ---pagebreak--- (400) Furthermore, the Transaction appears to increase the current asymmetry in the
        markets for hospitality services in Italy. Irrespective of the metric used and of the
        different customers’ categories (MNOs, FWA suppliers, others), after the
        Transaction the difference in market share between INWIT and the only other
        vertically integrated operator (Wind Tre) will increase substantially (see
        Section 7.2). INWIT will hold a market share (at least) more than double of that of
        Wind Tre. The only operator of a comparable size would be Cellnex (to a certain
        extent depending on the market considered; see market shares provided in
        Sections 7.2.1 and 7.2.2), that however is not vertically integrated and has a
        completely different business model. Indeed, whilst the Joint Venture will be still
        controlled by the Parties, and thus be vertically integrated in the wholesale and retail
        fixed/mobile markets, this is not the case for Cellnex, which is an independent
        TowerCo. Moreover, other independent TowerCos are and will remain active in the
        markets for hospitality services, with different market shares and different business
        models (Ei Towers, Raiway).
(401) The Commission considers that changes in demand and supply are an element to be
        taken into consideration in the assessment of any possible coordinated effects. In
        particular, in the coming years there is likely to be a significant growth in demand of
        hospitality services due to the upcoming launch of 5G mobile services. That will
        probably introduce further instability in the market. Therefore, demand conditions do
        not look sufficiently stable to make coordination likely. This is particularly true with
        respect to micro-sites, as the market for the supply of hospitality services on these
        sites has just started to develop.
(402) Furthermore, although a certain degree of transparency in the market cannot be
        excluded (in particular due to the cross supply of hospitality services by vertically
        integrated operators), the presence of independent tower companies and of different
        categories of agreements seems to limit this transparency. There is also no evidence
        to suggest that the Transaction would significantly alter the existing degree of
        transparency on the hospitality services markets, and therefore the Commission
        considers that any possible impact of the Transaction on transparency will not
        materially change the existing ability of firms to monitor deviations.
(403) The Commission concludes that the Transaction does not raise serious doubts as to
        its compatibility with the internal market in relation to horizontal coordinated effects
        in the markets for hospitality services on macro and micro-sites in Italy.
7.4.3. Vertical coordinated effects in relation to the supply of hospitality services on
        macro- and micro-sites to the detriment of suppliers of retail and wholesale mobile
        services (input foreclosure)
7.4.3.1. Parties’ view
(404) The Parties submit that there is no plausible risk of vertical coordinated effects given
        that the Joint Venture will not meaningfully change the structure of the market. On
        the contrary, the Parties stress that the Joint Venture will have the effect of
        decreasing symmetry in the market. This is mainly due to Vodafone and TIM’s
        different structure from other MNOs due to partial unbundling of their passive
        infrastructure as well as the mixed environment in which the Joint Venture will
        operate, made of vertically integrated MNOs as well as independent TowerCos.
                                                   95
 ---pagebreak--- 7.4.3.2. Commission’s assessment
(405) The Commission has assessed whether the Transaction would change the nature of
        competition in the market in such a way that the Parties and Wind Tre would be
        significantly more likely to coordinate their behaviour in relation to the supply of
        hospitality services and thus foreclose Iliad as supplier of retail and wholesale
        mobile services.
(406) In this respect, the Commission considers that it is unlikely that the Transaction
        would make coordination between the Parties and Wind Tre more likely be it in
        relation to the supply of hospitality services on macro- or micro-sites.
(407) First, the same considerations outlined in Section 7.4.2. above apply.
(408) Second, the level of symmetry between the Parties and Wind Tre in relation to the
        supply of hospitality services would not increase as a result of the Transaction, but
        rather decrease.
(409) Third, other that the increase of the number of sites controlled by the Parties, the
        Transaction does not change the level of vertical integration of the Parties and Wind
        Tre.
(410) Fourth, several colocation contracts between Wind Tre and Iliad in relation to the
        supply of hospitality services on macro-sites are mandated by the commitments
        accepted by the Commission in Cases M.7758 and M.9041.224
(411) Finally, the Commission notes that no specific complaint in relation to vertical
        coordinated effects to the detriment of Iliad has been made in the market
        investigation.
(412) The Commission concludes that the Transaction does not raise serious doubts as to
        its compatibility with the internal market in relation to vertical coordinated effects to
        the detriment of suppliers of retail and wholesale mobile services.
7.4.4. Vertical coordinated effects in relation to the supply of hospitality services on
        macro-sites to the detriment of suppliers of retail and wholesale fixed services (input
        foreclosure)
7.4.4.1. Parties’ view
(413) The Parties have not submitted their views in relation to potential vertical
        coordinated effects in relation to the supply of hospitality services on macro-sites to
        the detriment of suppliers of retail and wholesale fixed services.
7.4.4.2. Commission’s assessment
(414) The Commission has assessed whether the Transaction would change the nature of
        competition in the market in such a way that the Parties and Wind Tre would be
        significantly more likely to coordinate their behaviour in relation to the supply of
224     Commission decision of 1 September 2016 in case M.7758 – Hutchison 3G Italy / Wind / JV;
Commission decision of 30 August 2018 in case M.9041 – Hutchison 3G Italy / Wind Tre.
                                                     96
 ---pagebreak---        hospitality services and thus foreclose FWA suppliers of retail and wholesale fixed
       services.
(415) In this respect, the Commission considers that it is unlikely that the Transaction
       would make coordination between the Parties and Wind Tre more likely in relation
       to the supply of hospitality services on macro-sites.
(416) First, the same considerations outlined in Section 7.4.2. above apply.
(417) Second, the level of symmetry between the Parties and Wind Tre in relation to the
       supply of hospitality services would not increase as a result of the Transaction, but
       rather decrease.
(418) Third, other that the increase of the number of sites controlled by the Parties, the
       Transaction does not change the level of vertical integration of the Parties and Wind
       Tre.
(419) Finally, the Commission notes that no specific complaint in relation to vertical
       coordinated effects to the detriment of FWA providers has been made in the market
       investigation.
(420) The Commission concludes that the Transaction does not raise serious doubts as to
       its compatibility with the internal market in relation to vertical coordinated effects to
       the detriment of suppliers of retail and wholesale fixed services.
7.5.   Cooperative effects
7.5.1. Introduction
(421) Under Article 2(4) of the Merger Regulation, to the extent that the creation of a joint
       venture constituting a concentration pursuant to Article 3 has as its object or effect
       the coordination of the competitive behaviour of undertakings that remain
       independent, such coordination shall be appraised in accordance with the criteria of
       Article 101(1) and (3) of the Treaty, with a view to establishing whether or not the
       operation is compatible with the common market.
(422) Under Article 2(5) of the Merger Regulation, in making this appraisal, the
       Commission shall take into account in particular: (i) whether two or more parent
       companies retain, to a significant extent, activities in the same market as the joint
       venture or in a market which is downstream or upstream from that of the joint
       venture or in a neighbouring market closely related to this market; and (ii) whether
       the coordination which is the direct consequence of the creation of the joint venture
       affords the undertakings concerned the possibility of eliminating competition in
       respect of a substantial part of the products or services in question.
(423) A restriction of competition under Article 101(1) TFEU is established when the
       coordination of the parent companies’ competitive behaviour is likely and
       appreciable and results from the creation of the joint venture, be it as its object or its
       effect.
(424) INWIT will consolidate the Parties’ mobile passive infrastructure and will provide
       the Parties with access to their combined passive infrastructure for hosting their
       radio access networks, under the terms of the MSAs. As both Parties are and will
       remain independently active in the downstream markets of (i) retail and
                                                  97
 ---pagebreak---         (ii) wholesale mobile services in Italy, the Commission has assessed the potential
        cooperative effects in those downstream markets.225
7.5.2. Retail mobile markets in Italy
7.5.2.1. Parties’ view
(425) The Parties submit that the Transaction cannot give rise to any risk of collusive
        effects in relation to Vodafone’s and TIM’s downstream mobile businesses.
(426) First, the Transaction will only marginally increase the degree of cooperation in
        relation to passive infrastructure which would be in place between the Parties absent
        the Transaction. Vodafone and TIM already engage in extensive sharing of their
        passive infrastructure in approximately half of the country, which will expand to
        cover all of Italy under the Passive Sharing Agreement (irrespective of the
        Transaction). Moreover, the Active Sharing Agreement and the Backhaul Agreement
        will expand the scope of network sharing to include, inter alia, partial sharing of
        their respective radio access network equipment as well as their backhauling
        arrangements. The creation of the Joint Venture will not result in a material change
        in relation to the degree of passive sharing between the Parties or in the degree of
        cooperation between the Parties.
(427) Second, in any case the Parties’ passive sharing would not be capable of leading to
        spill-over effects in relation to retail mobile services, because:
        (a)       INWIT will not have significant market power for the supply of passive
                  infrastructure, considering MNOs ability to switch to self-supply and that its
                  primary function will continue to be to act as the preferred supplier to its
                  parents;
        (b)       the Transaction will equally not lead to a direct limitation of competition
                  between the Parties, as (i) INWIT will be able to supply third parties on
                  market terms as it sees fit; (ii) passive infrastructure is a relatively small
                  component of network infrastructure and does not affect the key facets of
                  competition between the Parties in the downstream markets for retail mobile
                  services; and (iii) there is no risk of the Joint Venture’s pricing leading to a
                  price increase in the downstream markets for retail mobile services;
        (c)       passive infrastructure will not constitute a large proportion of the Parties’
                  variable costs incurred in the provision of retail mobile services. Also
                  considering total costs, overall passive sharing costs will only make up a
                  small ([…]%) proportion of both Parties’ overall costs.
(428) Third, the downstream markets for retail mobile services is not susceptible to
        restrictive spill-over effects, given the very competitive structure of the retail mobile
225 Some respondents to the market investigation submitted that the Transaction could have cooperative
    effects in other markets, notably backhauling services/leased lines, fixed telecommunications markets
    (Cellnex’s and Irideos’ reply to RFI Q4, question 33.3.1; Tiscali’s reply to RFI Q5, question 3.3.1). In this
    respect, the Commission notes that the activity of Vodafone in the market for leased lines and backhauling
    services is limited, […]. As for fixed services in general, hospitality services of the kind offered by
    INWIT do not represent a relevant input for the provision of any fixed services provided by the Parties,
    […]. Therefore, the Commission will not consider those markets as candidate markets for cooperative
    effects within the meaning of article 2(4) of the Merger Regulation.
                                                          98
 ---pagebreak---         markets in Italy, in particular following the entry of the new MNO operator in Italy,
        Iliad, and the evolution of Fastweb from MVNO to a fifth MNO.
(429) Fourth, the Joint Venture will create significant efficiencies through (i) the release of
        equity to the Parties by enabling them to reduce their shareholding over their passive
        infrastructure to generate capital for investment in their 5G networks; (ii) INWIT
        being better placed to monetise Vodafone’s passive infrastructure by increasing third
        party tenancies; and (iii) enabling INWIT to save on variable costs vis-a-vis the
        counterfactual of the Parties continuing to operate independent tower businesses.
        Further efficiencies will result from the wider network sharing agreements between
        the Parties.
7.5.2.2. Commission’s assessment
(430) A number of respondents to the market investigation submitted that the Transaction
        could lead to some form of coordination between TIM and Vodafone in the markets
        for retail mobile communications.226
(431) One respondent submitted that the Joint Venture, managing a single radio network
        for the two main MNOs, will lead to a levelling of retail service quality among
        operators, and this will likely have a negative impact on competition. The Joint
        Venture will include the two best national networks – for coverage, capacity,
        technology, performance – and will segment the market in two categories of
        operators, with very limited differentiation of quality inside each category.227
        Another respondent submitted that TIM and Vodafone were found in the past to
        adopt coordinated behaviour and that the Transaction will enhance their symmetry
        (in terms of costs, network development strategies) on the market and their ability to
        cooperate and coordinate their market behaviour. The planned active network
        sharing agreement, if implemented, will further enhance the Parties’ ability to
        coordinate their commercial and technology strategies.228
(432) Another respondent submitted that the Transaction may result in an increased risk of
        co-ordination of the competitive behaviour of the parties in the markets for retail
        mobile services in Italy as the Joint Venture will create structural links between the
        parties, a sharing of significant profits at the level of the Joint Venture and an
        extensive commonality of costs and technology (especially with regard to new
        technology, new sites and backhauling services). According to the respondent, the
        Italian retail mobile markets would display several structural characteristics, which
        would make co-ordination between INWIT's parent companies likely:
        (a)      First, the market is highly concentrated with TIM, Vodafone and Wind Tre
                 accounting for a share of sales of approximately 90%. These operators would
                 have somehow symmetrical market shares and the remaining competitors all
                 have market shares, which do not exceed 10%.
        (b)      More importantly, the parent companies of INWIT would be close
                 competitors, competing for premium customers on the basis of "superior"
                 networks and technology. In light of the closeness of competition between
226 Replies to RFI Q3, question 34.1; RFI Q4, question 33.1; RFI Q5, question 3.1.
227 Coop Italia’s reply to RFI Q5, question 3.1.1.
228 Fastweb’s reply to RFI Q3, question 34.1.1.
                                                        99
 ---pagebreak---                   the Parties, any co-ordination between the Parties would cause the
                  elimination of competition in respect of a substantial part of the market.
         (c)      Any co-ordination between the Parties would furthermore be appreciable.
                  Both Parties will jointly hold a share of sales greater than 60% and will be
                  the largest competitors with Wind Tre accounting for around 30% but
                  lagging significantly in terms of profitability.229
(433) Another participant submitted that a serious concern could arise with respect to the
         risk of the exchange of competitively sensitive information, as TIM and Vodafone
         would continue to compete with one another outside of INWIT. Therefore, it should
         be ensured that INWIT could not be used as a conduit for the coordination of
         Vodafone’s and TIM’s activities in Italy and/or in other countries.230
(434) In this respect, the Commission first notes that the activities of the Joint Venture are
         expected to be relatively limited in terms of value, compared to the Parties'
         respective activities in the retail mobile markets in Italy. According to internal data
         and estimates provided by the Parties, costs for hospitality services would make up
         less than […]% and […]% of Vodafone’s and TIM’s overall costs for providing
         retail mobile services respectively. Commonality of costs increases the risk of a
         collusive outcome only if those costs constitute a large proportion of the variable
         costs concerned.231 Whilst a more detailed review of the Parties’ internal documents
         would be needed to assess whether the costs for hospitality services are treated (to
         some extent) as variable costs (directly affecting their pricing behaviour) or as fixed
         costs, from a general point of view the former option seems to be unlikely
         considering the nature of the services at stake.232 Given the limited percentage
         represented by the costs for hospitality services compared to the overall costs for
         providing retail mobile services, the Transaction in itself appears unlikely to create a
         sufficiently strong incentive for the Parties to coordinate their competitive behaviour
         in the markets concerned.
(435) Secondly, as already mentioned at Section 5.4, since 2007 the Parties have a number
         of passive sharing arrangements in Italy, mainly in municipalities with a population
         of up to 35 000 inhabitants (and in certain cases up to 50 000 inhabitants). Moreover,
         the Parties plan to increase their passive sharing arrangements up to 100% of Italy to
         establish a fully combined grid of mobile passive infrastructure/sites, via a specific
         agreement […]233 (see previous section 7.2.1.1). Finally, they also plan to engage in
         active sharing in cities with less than 100 000 inhabitants. Therefore, the Transaction
         in itself will add little to the cooperation already in place between the Parties and to
         the future one envisaged by the cooperation agreements to be implemented in the
         next months, irrespective of the Transaction.
(436) As for the alleged risk of exchanging competitive sensitive information within
         INWIT, the limited importance of the Joint Venture’s activity with respect to the
         commercial activities of the Parties in the downstream retail mobile markets seems
229 Iliad’s submission of 17 January 2020, Iliad’s observations in case M.9674 – Vodafone Italia/TIM/Inwit
    JV.
230 Cellnex’s submission of 29 January 2020, Cellnex Position Paper.
231 Commission’s Guidelines on the applicability of Article 101 of the Treaty on the Functioning of the
    European Union to horizontal co-operation agreements, in OJ C 11, 14.1.2011, p. 1–72, paras. 178-180.
232 […].
233 See article 20 of the Passive Sharing Agreement.
                                                        100
 ---pagebreak---          to limit the relevance of any information related to one party that will be available to
         the other party thanks to the common participation in INWIT. As for any further
         exchange of sensitive information – not directly connected to INWIT’s activity –
         that the Parties could plan to undertake within INWIT, the Transaction does not
         appear to change the current situation, taking into account that the Parties already
         have several opportunities to meet, considering that they cooperate extensively via
         the passive agreements in force and will continue to do so under the new network
         agreements under discussion and presented in Section 3.3 above.
(437) As for the characteristics of the Italian retail mobile markets, which would make co-
         ordination between the Parties likely, although past episodes of collusion took place
         in this market, the recent entries of a new aggressive operator (Iliad) and of a fifth
         MNO (Fastweb) seems to indicate that collusion could be less stable. The
         Transaction does not appear to change this ongoing evolution of the retail mobile
         markets. Further, the Final Commitments will ensure that the competitive constraints
         played by new entrants in process of rolling out autonomously their networks would
         not be harmed by the Transaction and thus will preserve their ability to prevent or
         destabilise collusion.
(438) Therefore, the Commission concludes that the Transaction does not raise serious
         doubts as to its compatibility with the internal market in relation to cooperative
         effects in the retail mobile markets in Italy.
7.5.3. Wholesale mobile market in Italy
7.5.3.1. Parties’ view
(439) The Parties submit that the Transaction cannot give rise to any risk of collusive
         effects in relation to Vodafone’s and TIM’s downstream activities in the wholesale
         mobile market for the same reasons outlined in Section 7.5.2.1.
7.5.3.2. Commission’s assessment
(440) A number of respondents to the market investigation submitted that the Transaction
         could also lead to some form of coordination between TIM and Vodafone in the
         market for wholesale mobile communications.234 A respondent submitted that TIM
         and Vodafone could coordinate their strategy on pricing of the call origination
         wholesale market, as this market in Italy is not subject to ex-ante regulation.235 Two
         respondents to the market investigation maintained that the same observations
         submitted with respect to possible negative effects on the retail mobile markets are
         valid for the wholesale mobile market as well, as the situation of the two markets
         would be quite similar: limited number of market players, symmetric nature of their
         market position and shared characteristics of the MNOs party to the Transaction.236
(441) In this respect the Commission considers that the same observations made for the
         retail mobile markets can be extended to the wholesale mobile market:
         (a)      the activities of the Joint Venture are expected to be relatively limited in
                  terms of value, compared to the Parties' respective activities in the wholesale
234 Replies to RFI Q3, question 34.2; RFI Q4, question 33.2; RFI Q5, question 3.2.
235 Irideos’ reply to RFI Q4, question 33.2.1.
236 Iliad’s and Fastweb’s reply to RFI Q3, question 34.2.1.
                                                         101
 ---pagebreak---                  mobile market in Italy. According to internal data and estimates provided by
                 the Parties, costs for hospitality services would make up less than […]% and
                 […]% of Vodafone’s and TIM’s overall costs for providing wholesale mobile
                 services respectively. Whilst a more detailed review of the Parties’ internal
                 documents would be needed to assess whether the costs for hospitality
                 services are treated as (to some extent) variable costs (directly affecting their
                 pricing behaviour) or fixed costs, from a general point of view the former
                 option seems to be unlikely considering the nature of the services at stake.
                 Given the limited percentage represented by the costs for hospitality services
                 compared to the overall costs for providing wholesale mobile services, the
                 Transaction in itself appears unlikely to create a sufficiently strong incentive
                 for the Parties to coordinate their competitive behaviour in the market
                 concerned;
        (b)      the Transaction in itself will add little to the cooperation already in place
                 between the Parties and to the future one envisaged by the cooperation
                 agreements to be implemented in the next months and illustrated in
                 Section 3.3.
(442) The Commission further notes that, although the Italian wholesale mobile market
        display some structural characteristics that would make co-ordination possible, as a
        matter of fact past difficulties for MVNOs in obtaining a wholesale access in Italy
        appears more connected to the fact that MNOs are vertically integrated and operate
        at both retail and wholesale level, and the resulting risk of them losing some of their
        retail subscribers to the MVNOs they host (so called "risk of cannibalization"). Thus,
        only if the MNOs and the MVNOs target different customer segments in the retail
        market, the risk of cannibalisation is lower, and MNOs may be more inclined to
        provide wholesale access to the MVNO. Considering that both Parties are already
        vertically integrated, there is no indication that the Transaction would have any
        impact on the extent of this risk of cannibalization and therefore on the incentive of
        the Parties to cooperate in denying wholesale access.
(443) Therefore, the Commission concludes that the Transaction does not raise serious
        doubts as to its compatibility with the internal market in relation to cooperative
        effects in the market for wholesale mobile services in Italy.
7.6.    Conclusion
(444) On the basis of the above, the Commission considers that the Transaction gives rise
        to serious doubts as to its compatibility with the internal market as a result of vertical
        non-coordinated effects to the detriment of Iliad (or any new MNO entrant with the
        same needs in terms of access to the Parties’ sites as Iliad237) as supplier of retail and
        wholesale mobile services.
(445) Furthermore, the Commission cannot exclude that the Transaction gives rise to
        serious doubts as to its compatibility with the internal market as a result of:
        (a)      Horizontal non-coordinated effects in relation to the supply of hospitality
                 services on macro-sites to MNOs;
237 See footnote 164.
                                                     102
 ---pagebreak---        (b)     Horizontal non-coordinated effects in relation to the supply of hospitality
               services on macro-sites to FWA suppliers;
       (c)     Horizontal non-coordinated effects in relation to the supply of hospitality
               services on macro-sites to customers other than TV and radio broadcasters;
       (d)     Vertical non-coordinated effects to the detriment of FWA operators as
               suppliers of retail and wholesale fixed services.
8.     COMMITMENTS
8.1.   Introduction
(446) With a view to removing the serious doubts arising from the Transaction described
       in Section 7, on 14 February 2020 the Parties submitted commitments pursuant to
       Article 6(2) of the Merger Regulation (the “Initial Commitments”).
(447) The Commission launched a market test of the Initial Commitments on
       17 February 2020, seeking responses from MNOs, FWA suppliers and other
       customers, as well as TowerCos and providers of fixed backhauling services. The
       Commission also received comments from national competition authorities and in
       particular from the Italian competition authority, AGCM.
(448) The Commission informed the Parties of the results of the market test on
       27 February 2020.
(449) Following the feedback received from market participants in the market test, the
       Parties submitted revised commitments on 3 March 2020 (the “Final
       Commitments”), which are annexed to this Decision and form an integral part
       thereof.
8.2.   Description of the proposed commitments
8.2.1. The Initial Commitments
(450) The central element of the Initial Commitments is the undertaking by the Parties to,
       over a period of 8 years, make available Free Space on a minimum number of 4 000
       Available Sites on the Joint Venture’s network to host third party MNOs and FWA
       providers in municipalities with more than 35 000 inhabitants based on Reasonable
       Requests. Such sites shall be evenly distributed across the main regions in Italy.
       Requests for access will be processed on a “first come, first served” basis, with an
       exception for “New Entrant MNO” (defined as an MNO that has entered the Italian
       market in the last 4 years or that will enter in the period of duration of the Initial
       Commitments), which shall benefit from a one month exclusive period to make a
       request for access.
(451) Hospitality services on each of the Joint Venture’s sites will be offered by the Joint
       Venture for a term of between […] years from the date of the relevant agreement and
       renewable for another […]years (unless a different duration is agreed with the
       relevant third party). Such hospitality services will further be offered on fair,
       Reasonable and Non-Discriminatory Terms which include standard contractual
       terms and conditions that are not worse than those applied by the Parties prior to the
       Transaction.
                                                 103
 ---pagebreak--- (452) In addition, the Initial Commitments guarantee that third parties are made aware of
       the available capacity in a timely fashion. The Joint Venture will, within 6 months of
       closing, publish on its website (or other channels as per market practice and
       regularly update on a three-monthly basis) details of all anticipated sites on which
       space is expected to be available and for which third parties may request access from
       the Joint Venture.
(453) Additional safeguards in favour of third parties requesting access will include the
       obligation on the Joint Venture to:
       (a)     respond to third party requests on a non-discriminatory basis and thus on a
               first come, first served principle, provided requests contain the minimum
               required information and are in line with the prevailing market standard for
               hosting services;
       (b)     respond to requests for hospitality services pursuant to a defined process and
               within a maximum time-frame; and
       (c)     only decline to provide the requested hospitality services for specific and
               identified technical reasons (e.g. electromagnetic frequency changes) or force
               majeure.
(454) The Parties have also committed to ensure that all existing third party hosting
       contracts in place with Vodafone or INWIT shall not be terminated pursuant to any
       early termination right that may exist under such contracts. Such third parties shall
       also be offered the opportunity to extend their existing hosting contracts up to the
       duration of these Initial Commitments.
(455) The Parties will appoint a monitoring trustee, to be approved by the Commission, to
       ensure their compliance with the Initial Commitments. The monitoring trustee will
       report periodically to the Commission.
(456) Furthermore, the Initial Commitments also provide for a fast track expert dispute
       resolution procedure as means of resolving possible disputes regarding a decision not
       to provide hospitality services on technical grounds. This procedure provides for
       such disputes to be referred to an independent expert approved by the monitoring
       trustee whose determination shall be binding on the Joint Venture and the Parties.
       Standard mediation and arbitration processes will apply to any other disputes in
       relation to the Initial Commitments.
(457) The Initial Commitments will expire eight years from first publication of available
       sites.
8.2.2. Results of the market test
(458) In the market test, several respondents reiterated the concerns they put forward in the
       market investigation, which the Commission has dismissed in Section 7, in particular
       in relation to cooperative effects in the wholesale mobile market, the conglomerate
       effects to the detriment of fixed backhauling service providers and customer
       foreclosure effects to the detriment of suppliers of hospitality services. In such
       context, the majority of respondents stated that the Initial Commitments were not
                                                  104
 ---pagebreak---         suitable to remove the competition concerns they considered as arising from the
        Transaction.238
(459) The respondents that focused on the suitability of the Initial Commitments to
        effectively remove the Commission's serious doubts resulting from the horizontal
        overlaps and the vertical links between the Parties outlined in Section 7 of this
        Decision expressed mixed views, with two respondents considering the Initial
        Commitments suitable, and other two requiring several improvements along the lines
        summarised below.239 The same view was expressed by AGCM, which considers the
        remedy conceptually suitable to solve the Commission's serious doubts (in line with
        similar remedies it accepted in Italy for the provision of hospitality services on
        macro-sites to TV and radio broadcasters in Italy240), subject to improvements also
        summarised below.241
(460) As regards the specific provisions of the Initial Commitments, the results of the
        market test have been the following.
(461) Whilst the majority of the respondents to the market test considered that the
        provisions of the Initial Commitments (including its Schedules) are sufficiently clear
        and capable of being implemented,242 the same majority considered that several
        definitions included in the Initial Commitments were not appropriate.243 In
        particular, respondents to the market test indicated that the following definitions
        needed to be improved:
        (a)     “Reasonable and Non-Discriminatory Terms”: according to some
                respondents, such terms should refer to terms and conditions that are not
                worse than those applied by INWIT to Vodafone and TIM, whilst another
                respondent considered this benchmark not appropriate as the Parties may
                accept terms and conditions which are specific to the economics of their
                transactions with INWIT (to which they have sold their sites) and also of
                their controlling shareholder status. Respondents suggested that the elements
                of the agreements that allow for non-discriminatory and reasonable contracts
                should be specified, especially if there are no previous agreements between
                the parties, and, if contracts are already in place, these should remain
                applicable. Considering the possibility that the different conditions and terms
                are applied between the Parties and INWIT prior to the Transaction, a
                respondent suggested that the definition of Reasonable and Non-
                Discriminatory Terms should refer to the “best available” terms and
                conditions applied prior to the Transaction, whilst another respondent
                suggested that the temporal reference should be to the conditions “[…]
                applied prior to the announcement of the Concentration”, in order to avoid
238 Replies to Market Test questionnaire, question 21.
239 Replies to Market Test questionnaire, question 21.
240 AGCM’s decision n. 23117 of 14 December 2011, case C11205 – Elettronica Industriale/Digital
    Multimedia Technologies; and AGCM’s decision n. 27984 of 12 November 2019, case C12245 – F2I
    SGR/Persidera.
241 AGCM’s letter of 25 February 2020.
242 Replies to Market Test questionnaire, question 20.
243 Replies to Market Test questionnaire, question 4.
                                                       105
 ---pagebreak---                 any negative impact from intentional changes implemented by the Parties in
                anticipation of the application of the Initial Commitments.244
        (b)     “Free Space”: according to respondents it should be better qualified in terms
                of minimum requirements to ensure that it corresponds to enough capacity in
                terms of electromagnetic emissions limits to allow one or more party to
                install and operate their equipment with all the relevant spectrum and
                technologies available at the moment and prospectively for the duration of
                the Initial Commitments.245
        (c)     “Reasonable Request”: according to respondents, this term should be
                applied in a proportionate way taking into account the costs and effectiveness
                of the technologies to be used by the requestor. To this effect, a reference to
                reasonable market best practice should be inserted in the definition.246
        (d)     "Available Sites": according to a respondent, to avoid a dilution of the scope
                of the Initial Commitments, the definition should include only those sites that
                INWIT owns.247
        (e)     A respondent248 and a competition authority indicated that the Initial
                Commitments lack a definition of the “hosting services” to be provided.
(462) As regards the identification of the sites over which access should be provided, the
        majority of respondents considered that these should not be limited to sites in
        municipalities in Italy with more than 35 000 inhabitants.249 However, this is mainly
        because, according to these respondents, the scope of the serious doubts arising from
        the Transaction should go beyond these areas and be nationwide. Likewise, the
        majority of respondents, as well as AGCM, did not consider the provision of the
        Initial Commitments (paragraph 4) concerning the distribution of the sites
        appropriate to ensure that access to hospitality services is in principle available on all
        areas in Italy.250 According to respondents, population density, lack of alternatives
        and thus difficulties of deployment in the site location should be considered as
        criteria for the selection of the sites. Further, to ensure no selection bias, and thus
        that these criteria are properly applied, the number of sites to be made available
        could be increased. Alternatively, it is suggested that the number of sites to be made
        available should replicate the geographical distribution characterizing all the sites in
        INWIT availability.251
(463) As regards the number of sites covered by the Initial Commitments and/or the
        timetable for their release, the majority of the respondents, as well as AGCM,
        consider them not to be adequate to ensure that access to hospitality services in Italy
        would not be restricted following the Transaction.252 In particular, all respondents
        and AGCM stressed that the release should be faster and occur in the next 2 to
244 Replies to Market Test questionnaire, questions 4 and 9.
245 Replies to Market Test questionnaire, question 4.
246 Replies to Market Test questionnaire, question 4.
247 Replies to Market Test questionnaire, question 4.
248 Replies to Market Test questionnaire, question 4.
249 Replies to Market Test questionnaire, question 5.
250 Replies to Market Test questionnaire, question 7.
251 Replies to Market Test questionnaire, questions 5 and 7.
252 Replies to Market Test questionnaire, question 6.
                                                        106
 ---pagebreak---         3 years, which is the expected timeframe for the roll-out of 5G networks in
        municipalities with more than 35 000 inhabitants. A respondent notes that, out of the
        4 000 sites to be made available, at least the 75% should be released in the first
        3 years.
(464) The majority of respondents to the market test expressed the view that the
        effectiveness of the Initial Commitments and the number of sites offered to third
        parties would be limited as a result of the application of the provision in
        paragraph 10 of the Initial Commitments.253 According to this provision, in the
        absence of requests by Third Parties 12 months from publication on the
        Transparency Register, the Joint Venture shall have the right to (i) remove sites on
        which no tenants are present from the Transparency Register (ii) make a different
        use of those sites (including, without limitation, offering the Free Space to
        prospective customers other than Third Parties). In this respect, several respondents
        explained that an operator’s deployment plans go far beyond the 12-month foreseen
        by the Initial Commitment. In this context, an assessment as to whether a site is
        needed or not could be done only in a context in which third parties will have
        visibility on a large share of the sites available, rather than a limited share of the
        same (with the risk in this last case that third parties will be forced to book sites they
        would not have done otherwise and vice-versa). Thus, lack of interest on a site over a
        12-month period would not be lack of interest in absolute terms and the situation
        could change once other sites are made available. At the same time, a respondent
        added that if a site is removed from the list it should not count towards the number of
        sites set out in Schedule A if it were to be the case that the site has limited appeal
        because of its location. In this context, a site that has not received interest from third
        parties for 12 months should be replaced, at least once, with an “equivalent” site.
(465) As regards the procedure foreseen in the Initial Commitments, the majority of the
        respondents considers the publication of information regarding available capacity in
        the Transparency Registry adequate and proportionate, to the extent that it is put in
        place in a manner that does not increase the risk of collusion (for example via a log-
        in process).254 Nonetheless, respondents also indicated that the update should be
        more frequent than on a 3-month basis and/or the publication of the full list of sites
        should occur within 2 years from closing with indication of the date when the sites
        will be available. Suggestions were also made as to the content of schedule D of the
        Initial Commitments, which contains a template for the Transparency Registry. In
        this respect, it was in particular indicated that the registry should include an
        indication of the available physical and electromagnetic space, the site's height at
        ground level and the date on which the site is likely to be available for use.
(466) As regards the other elements of the procedure, the majority of the respondents did
        not consider that they would be sufficient to ensure unrestricted and timely access
        for third parties to the hospitality services on the Available Sites, as they would not
        be in line with market practice.255 This is in particular due to the length of the
        procedure, which would be too long, the lack of possibility to visit the sites before
        making a request to the Joint Venture as per market practice and the limited number
        of requests that the Joint Venture would process over the guaranteed timeframe as
        per Schedule C of the Initial Commitments. Respondents also stressed how the
253 Replies to Market Test questionnaire, question 8.
254 Replies to Market Test questionnaire, question 12.
255 Replies to Market Test questionnaire, questions 13 and 15.
                                                        107
 ---pagebreak---         procedure would not cater for the FWA suppliers’ needs: for example, the spectrum
        bands used by them would not be included in the templates to request access.
(467) In addition, respondents noted that the compensation mechanism foreseen at
        paragraph 19 of the Initial Commitments (whereby “INWIT shall be entitled to
        charge a fee where INWIT makes the third party a Firm Hospitality Offer and the
        Third Party opts not to proceed with the hosting agreement without a justified
        reason”) is too onerous for third parties and it is not justified given that the Initial
        Commitments have been submitted to address the competitive concerns raised by the
        Transaction.
(468) Finally, a respondent stated that the procedure should prevent companies requiring
        access to “book” spaces for a long time without transforming “booked spaces” in
        “ordered spaces”.
(469) As regards the priority rule for New Entrant MNOs, most of the respondents
        consider that this provision is not adequate to safeguard New Entrant MNOs.256
        Whilst FWA providers and Wind Tre consider this provision discriminatory with
        respect to them, others stated that a distinction should be made between New Entrant
        MNOs that have no plan to autonomously roll-out a national network and those
        which have this plan, to avoid that the former opportunistically use the sites to the
        detriment of the latter. As regards the possibility to exclude from the priority rule
        New Entrant MNOs that significantly rely on an existing network through sharing
        partnership with other MNOs, the majority of respondents consider that this is
        appropriate.257
(470) As regards the duration of the contracts for hospitality services on the Available
        Sites, the majority of market participants considers it appropriate.258
(471) As regards the provision whereby INWIT/Vodafone will not exercise any early
        termination right and will also offer third parties the opportunity to extend their
        existing contracts, on market conditions terms, up to the duration of the Initial
        Commitments, the majority of respondents do not consider that this could be
        adequate to prevent INWIT from exercising increased market power in the provision
        of hospitality services in Italy on the sites that INWIT and Vodafone are currently
        locating to third parties.259 Nonetheless, also in this instance respondents have
        justified their reply in relation to the additional concerns that the Transaction would
        raise in their view, dismissed by the Commission in Section 7. Importantly, several
        players have not expressed concerns in relation to the early termination, but with
        denial of access of specific requests under a framework agreement in force. Further,
        a respondent stated that the continuity of existing hosting contracts is only a part of
        the necessary provision needed to prevent INWIT from exercising increased market
        power.
(472) As regards the provisions regarding the Fast Track Dispute Resolution Mechanism
        (Section E of the Initial Commitments), the majority of respondents considers them
256 Replies to Market Test questionnaire, question 14.1.
257 Replies to Market Test questionnaire, question 14.2.
258 Replies to Market Test questionnaire, question 10.
259 Replies to Market Test questionnaire, question 11.
                                                         108
 ---pagebreak---         sufficient to ensure the proper functioning of the Initial Commitments.260 Likewise,
        the majority of the respondents to the market test considers that the provisions of the
        Initial Commitments regarding monitoring are sufficient to ensure that the Initial
        Commitments are complied with.261
(473) Conversely, the majority of respondents does not consider that the provisions of the
        Initial Commitments regarding arbitration are sufficient to ensure that the Initial
        Commitments are complied with.262 This is because it would not be clear what the
        role of the Arbitrator is, and to what extent the provision may be interpreted as
        precluding Third Parties' rights to bring proceedings before national courts, as well
        as because the higher costs of arbitration compared to judicial proceedings.
(474) Finally, as regards the duration of the Initial Commitments, the majority of the
        respondents considers that it is not sufficient.263 The views in relation to the proper
        duration are however mixed. According to a respondent, the duration should be
        shortened and the site release be quicker, whilst others indicate that the duration
        should be longer, up to 10 years.
8.2.3. The Final Commitments
(475) The Final Commitments present the following changes compared to the Initial
        Commitments:
        (a)     Clearer definitions in relation to:
                     (i) Available Sites: it is specified that newly built sites shall make up a
                          maximum of […]% of the total number of sites the Parties shall cause
                          INWIT to make available over the first four years of duration of the
                          Final Commitments starting from the publication of the Transparency
                          Register, and a maximum of […]% of the total number of sites the
                          Parties shall cause INWIT to make available over the total period of
                          the Final Commitments.
                     (ii) The services to be provided or "Hosting Services", which include the
                          rent of space on the Available Sites and all related services, as per
                          market practice, to enable one or more Third Parties to install,
                          operate, maintain and use their equipment for the provision of mobile
                          and FWA services. With all the relevant spectrum and technologies
                          available at the point at which the site becomes an Available Site and
                          is added to the Transparency Register.
                     (iii)New Entrant MNO: it is clarified that the beneficiary of the
                          exclusivity period is an MNO that is in the active process of rolling
                          out autonomously its own spectrum coverage, through its own radio
                          sites and equipment, in municipalities with more than 35 000
                          inhabitants.
260 Replies to Market Test questionnaire, question 16.
261 Replies to Market Test questionnaire, question 17.
262 Replies to Market Test questionnaire, question 18.
263 Replies to Market Test questionnaire, question 19.
                                                       109
 ---pagebreak---               (iv) Reasonable and Non-Discriminatory Terms: it is clarified that, to the
                   extent that framework agreements are already in place between the
                   Third Parties and the Parties/INWIT prior to the announcement of the
                   Transaction, the terms of such framework agreements shall remain in
                   place and shall be regarded as corresponding to Reasonable and Non-
                   Discriminatory Terms, insofar as they cover the same or equivalent
                   relevant services as those being requested.
              (v) Reasonable Request: it is specified that such request shall ensure that
                   the use of power is consistent with the relevant emitted frequencies,
                   uses up-to-date equipment and all reasonable electromagnetic
                   frequency efficiency options which optimise the use of
                   electromagnetic and physical space as per best market practice.
(b)      A commitment that at least […]% of the Available Sites would be located in
         […] municipalities listed in Schedule C of the Final Commitments. This
         percentage applies both over the 8 year period of duration of the Final
         Commitments and over the first four years.
(c)      A revised Schedule A for the release of the Available Sites, whereby […]%
         of the sites will be made available over the first three years and […]% over
         the first four years, as illustrated in the below table:
                                  Table 38 – Schedule A
  Year 1       Year 2       Year 3     Year 4       Year 5     Year 6     Year 7    Year 8
   […]          […]          […]        […]          […]        […]        […]       […]
(d)      It is clarified that the Parties' right to (i) remove sites on which no tenants are
         present from the Transparency Register would apply only to sites on which
         there are no longer tenants and in the absence of Reasonable Requests within
         […] months from the publication on the Transparency Registry (ii) make a
         different use of other sites in the absence of Reasonable Requests within […]
         months from the publication on the Transparency Registry. In both cases, the
         Parties' exercise of the right is subject to agreement of the monitoring trustee.
(e)      As regards the procedure to make the sites available:
              (i) It is clarified that the access to the Transparency Registry would be
                   done on the basis or a user ID and a password provided by INWIT
                   within 5 working days from the request as a result of a process where
                   the requester is qualified as New Entrant MNO or other Third Party.
                   The status of New Entrant MNO/Third Party can be reviewed as
                   appropriate during the duration of the Final Commitments.
              (ii) The Available Sites will be published on the Transparency Registry
                   as soon as it is sufficiently clear to INWIT that the relevant site will
                   become an Available Site, with monitoring of the Parties' network
                   planning to ensure compliance, irrespective of the date when the sites
                   will become available. The Transparency Registry will be updated on
                   a […] basis and it will also indicate the date on which the Available
                   Site is expected to be ready for use for Hosting Services. Additional
                   information on the sites are included in the template Transparency
                                               110
 ---pagebreak---               Registry, to add an indication of the available physical space and the
              site's height at ground level.
         (iii)The template to submit a request in Schedule D has been amended to
              allow the use of different spectrum bands and configurations.
         (iv) The processing of requests has been shortened with the Parties
              committing that the Joint Venture will review […] requests per month
              in […] working days and enabling the possibility of a site visit as per
              market practice.
         (v) A clarification that any denial for EMF changes should have origin in
              causes outside of the Parties' control.
         (vi) A clarification that, in cases of abuses by Third Parties, the Joint
              Venture could make use of remedies foreseen by the applicable laws,
              including Italian contract law, with the agreement of the monitoring
              trustee.
         (vii)         A clarification that, where a Third Party (including New
              Entrant MNOs) does not make effective use of the relevant Available
              Site within 12 months from the date it received an offer from the Joint
              Venture or the date of availability/release of site according to the
              Transparency Registry (the latter if the date of the offer is before the
              date of availability/release of site) without justified reason to be
              assessed by the monitoring trustee, the Parties shall cause the Joint
              Venture to terminate the hosting contract for the relevant site and
              such site shall be re-included in the Transparency Registry and be
              made available to other Third Parties.
(f) A clarification that the exclusivity period for the New Entrant MNO applies
    only if the sites are used by the latter for the purposes of coverage and
    deployment of a stand-alone network, without any possibility to use it to
    implement any RAN sharing agreement with an MNO, in force or to be
    concluded within 4 years following the date of publication of the relevant
    sites in the Transparency Register, or otherwise to transmit frequencies of an
    MNO within 4 years following the date of publication of the relevant sites in
    the Transparency Register. Should such restrictions be infringed or
    circumvented by the relevant New Entrant MNO, the Parties shall cause the
    Joint Venture to terminate the hosting contract for the relevant site and such
    site shall be re-included in the Transparency Registry and be made available
    to other Third Parties. The relevant New Entrant MNO shall be prevented
    from access to the relevant site with respect to which it infringed the use
    restrictions for a period of 2 years.
(g) A clarification that the new contracts to be offered by the Joint Venture relate
    only to the case where no existing hosting or framework contract existed at
    the date of this Decision.
(h) A clarification that the option offered to third parties (including but not
    limited to Third Parties) for the extension of existing contracts covers also
    framework contracts, whatever their geographic scope.
                                         111
 ---pagebreak--- 8.3.    Commission’s assessment
8.3.1. Introduction
(476) When a concentration raises serious doubts as to its compatibility with the internal
        market, the parties may undertake to modify the concentration so as to remove the
        grounds for the serious doubts identified by the Commission and thereby gain
        clearance of their merger in Phase I.264
(477) It is for the parties to the concentration to put forward commitments.265 The
        Commission only has power to accept commitments that are deemed capable of
        rendering the concentration compatible with the internal market.266 In Phase I,
        commitments can only be accepted where the competition problem is readily
        identifiable and can easily be remedied. The remedies therefore need to solve the
        competition problem identified in a clear-cut manner, so that it is not necessary to
        enter into an in-depth investigation and that the commitments are sufficient to clearly
        rule out serious doubts within the meaning of Article 6(1)(c) of the Merger
        Regulation. Where the assessment confirms that the proposed commitments remove
        the grounds for serious doubts on this basis, the Commission clears the merger in
        Phase I.267
(478) As concerns the form of acceptable commitments, the Merger Regulation leaves
        discretion to the Commission as long as the commitments meet the requisite
        standard.268
(479) While divestiture commitments are generally the best way to eliminate competition
        concerns resulting from horizontal overlaps, other structural commitments, such as
        access remedies, or other non-divestiture remedies may be suitable to resolve
        concerns if they are equivalent to divestitures in their effects.269
(480) In the ultimate assessment of proposed commitments, the Commission considers all
        relevant factors including inter alia the type, scale and scope of the proposed
        commitments, judged by reference to the structure and particular characteristics of
        the market concerned, including the position of the parties and other participants on
        the market.270 The commitments must be capable of being implemented effectively
        within a short period.271
8.3.2. Assessment of the Final Commitments
(481) The Commission considers that the Final Commitments are sufficient to remove the
        serious doubts regarding the compatibility of the Transaction with the internal
        market outlined in Section 7.
264 Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under
    Commission Regulation (EC) No 802/2004 (the “Remedies Notice”), OJ C 267, 22.10.2008, p.1,
    paragraph 5.
265 Remedies Notice, paragraph 6.
266 Remedies Notice, paragraph 9.
267 Remedies Notice, paragraph 81.
268 Case T-177/04 easyJet v Commission [2006] ECR II-1913, paragraph 197.
269 Remedies Notice, paragraph 19.
270 Remedies Notice, paragraph 12.
271 Remedies Notice, paragraph 9.
                                                     112
 ---pagebreak--- (482) More in detail, the Commission considers that the commitment to make available
        4 000 available sites to MNOs and FWA suppliers during a period of 8 years, as per
        the revised Schedule A and with a cap to the new sites to be included in such
        commitment, addresses the Commission’s serious doubts in relation to the horizontal
        effects in the supply of hospitality services on macro-sites set out in Sections 7.3.2,
        7.3.3. and 7.3.5. as well as the input foreclosure concerns related to access to the
        same sites for MNOs and FWA suppliers set out in Sections 7.3.7 to 7.3.10 for the
        following reasons.
(483) First, based on the Commission’s market reconstruction presented in
        paragraphs (279)-(280) and (305)-(306), the main customers of the Parties which
        would need access to the Parties’ sites for expanding their network declared a need
        of around […] tenancies up until 2027. As more than one tenant can be hosted on a
        site and assuming all sites to be made available by the Parties will be vacated and
        could host two customers272, these tenancies would translate in a minimum of around
        […] sites, […]. This number would be largely covered by the existing sites that the
        Parties commit to make available, that is at least […]. There is no indication that new
        MNO (other than Fastweb) or large FWA only-players would enter in Italy, but even
        if it were to be the case, the Final Commitments would be able to satisfy demand of
        such new entrant, in the same way as pre-Transaction.
(484) Importantly, the Commission notes that:
        (a)       Currently Vodafone owns […] sites in the municipalities with more than
                  35 000 inhabitants of which around […] already pre-Transaction in co-
                  location or sharing with TIM. In turn TIM owns […] sites in the
                  municipalities with more than 35 000 inhabitants of which around
                  […]already pre-Transaction in co-location or sharing with Vodafone.273 In
                  such context, the fact that the Parties guarantee free space for one or more
                  customers over 4 000 sites corresponds to more than the overlap of site
                  brought by either Vodafone or TIM, where both the Parties are not currently
                  hosted and thus the Transaction, due to the preferential rights stemming from
                  the MSAs, could bring about a reduction of the capacity to be made available
                  to Third Parties.
        (b)       Further, to ensure the quality of the sites to be made available to third parties,
                  the Final Commitments include a guarantee that at least […]% of the sites,
                  i.e. at least […] will be located in […] municipalities listed in Schedule C.
                  Based on the market investigation and in particular […]’s submission, the
                  […] cities included in Schedule C are the most densely populated
                  municipalities with more than 35 000 inhabitants and/or those with more
                  difficulties for rolling out sites due to historical reasons. In the Parties’
                  portfolio and network plans for their common grid, […]% of the sites in areas
                  with more than 35 000 inhabitants are located in the municipalities included
                  in Schedule C. In this respect the Commission notes that the Final
                  Commitments guarantee that at least […]% of the sites would be located in
272 See above paragraph (242).
273 Parties' reply to RFI 19, question 6.e.
                                                     113
 ---pagebreak---                    these municipalities, which corresponds to almost […] of the […] sites
                   needed by […].274
         (c)       In addition, to prevent circumvention by the Parties, by terminating existing
                   hosting or framework contracts with customers in the areas covered by the
                   Final Commitments, the Parties committed that the Joint Venture shall not
                   exercise any early termination right and neither shall Vodafone prior to the
                   transfer of the sites to the Joint Venture. Moreover, the Final Commitments
                   afford third parties a further protection by offering them an option to extend
                   the duration of all existing hosting or framework contracts, which are due to
                   expire during the implementation of the Final Commitments, at least up to
                   the duration of these Commitments (unless a different duration is agreed with
                   the third party). This commitment applies to framework contracts whatever is
                   their geographic scope (i.e. also national) and more generally to contracts
                   which relate to sites in both municipalities in Italy with more than 35 000
                   inhabitants and municipalities in Italy with less than 35 000 inhabitants.275
(485) Second, based on the revised Schedule A, the Commission considers that the release
         of the sites would be appropriate. Indeed, […]% of the total sites to be made
         available (i.e. […]) will be made available over the first three years and […]% of the
         total sites (i.e. […]) over the first four years. If benchmarking the number of sites to
         be released every year with the actual incremental needs of the Parties’ main
         competitors on the basis of the market reconstruction presented in
         paragraphs (279)-(280) and (305)-(306), the situation would be the following.
                        Table 39 – Schedule A compared to site needs of competitors
                           Year       Year      Year      Year       Year     Year     Year     Year    Total
                             1         2          3         4          5        6        7        8
         Sites to be        […]       […]       […]        […]       […]      […]      […]      […]     […]
          releases
       Competitors’         […]       […]       […]        […]       […]      […]      […]      […]     […]
        sites needs
            % of            […]       […]       […]        […]       […]      […]      […]      […]     […]
       competitors’
      needs covered
     by released sites
274 The Commission considers that the size of the Final Commitments in terms of sites to which access is to
    be given is not affected by the revised provisions of paragraph 10 of the Final Commitments, whereby
    “for Available Sites on which tenants are no longer present, in the absence of requests by Third Parties
    within […] months from publication, INWIT shall have the right to remove them from the Transparency
    Register (for sale or other purposes), subject to the agreement of the Monitoring Trustee. For all other
    Available Sites, in the absence of requests by Third Parties […] months from publication INWIT shall be
    entitled to offer the Free Space to prospective customers other than Third Parties, subject to the
    agreement of the Monitoring Trustee.” Indeed, the period of time the sites should remain on the
    Transparency Registry, coupled with the commitment of the Parties to cause INWIT to publish on the
    Transparency Registry as many sites as possible as soon as it is sufficiently clear that they will become
    available, and the oversight of the monitoring trustee provide sufficient guarantee that the number of these
    sites will be limited and/or the Parties will not be able to circumvent the Final Commitments.
275 This commitment applies also to third parties, other than MNOs and FWA suppliers, the latter being the
    only beneficiaries of the access commitment.
                                                            114
 ---pagebreak--- (486) Based on the above table, the Commission notes that for the first four years, the sites
         to be released under the Final Commitments will cover almost […] the needs of their
         main competitors.276
(487) Likewise, the Commission considers that the temporal scope of the Final
         Commitments is adequate. Indeed, it is sufficiently long to ensure that macro-site
         capacity will remain in the market in the crucial years for the deployment of 5G and
         expansions of FWA networks.
(488) Third, the Commission considers that the exclusivity period granted to the New
         Entrant MNOs is appropriate to ensure that competitors of the Parties in greater need
         of access to their sites would be protected against a reduction of the capacity in the
         market resulting from the Transaction, in combination with the MSAs. Indeed,
         MNOs need to deploy a greater number of sites than FWA suppliers, as illustrated by
         the market reconstruction presented in paragraphs (279)-(280) and (305)-(306).
         Further, they need more space on the sites, compared to FWA suppliers.
(489) The amendments made in the Final Commitments as to the definition of New MNO
         Entrant as well as the limitation to the eligibility of a New MNO Entrant for the
         exclusivity (in cases where the sites are used to implement any RAN sharing
         agreement with an MNO other than a New MNO Entrant, in force or to be concluded
         within 4 years following the date of publication of the relevant sites in the
         Transparency Register, or otherwise to transmit frequencies of an MNO other than a
         New MNO Entrant within 4 years following the date of publication of the relevant
         sites in the Transparency Register) appear to be appropriate to limit the applicability
         of the exclusivity to the instances where it is really needed as well as to avoid abuses
         by competing MNO to the detriment of new entrants.
(490) Fourth, the Commission considers that the definitions foreseen in the Final
         Commitments as well as the procedure for making the sites available to third parties
         are sufficiently clear for the latter to be effectively implemented.
(491) Indeed, several definitions have been improved so to clarify the services to be
         offered by the Joint Venture, as well as the requirements for requests being made by
         third parties to qualify as Reasonable Requests. The Commission considers that no
         burden is imposed on third parties so to make for them more difficult to obtain
         access compared to what is usual market practice. In particular, the requirement to
         use up-to-date equipment and all reasonable electromagnetic frequency efficiency
         options which optimise the use of electromagnetic and physical space appears indeed
         to correspond to correspond to market practice. For example, Wind Tre explained
         that “[s]ome agreements between towercos and customers include clauses requiring
         tenants to actively cooperate to ensure that space on a given site is efficiently used.
         These agreements are negotiated for each individual hosting agreement, balancing
         the incentives of towercos to increase co-tenancy ratios, with MNO concerns of
         ensuring no adverse impact on their equipment and coverage. Lack of cooperation
276 As the size of the pool of sites to be made available under the Final Commitments has been tailored to
    match the actual needs of tenancies on the Parties’ sites by customers in a pre-Transaction scenario, with
    an additional number of sites to cater for potential new entrants’ demand, and the release of such sites will
    be done over a period of 8 years, the Commission does not consider that the Final Commitments will give
    rise to any issue of customer foreclosure for competing providers of hospitality services on macro-sites.
                                                           115
 ---pagebreak---          by current tenants may de facto result in an additional obstacle for new customers to
         access a site.”277
(492) Further, the Commission finds also appropriate the revised definition of Reasonable
         and Non-Discriminatory Terms. Indeed, as all main customers have already in place
         contracts (including framework contracts) with either or both the Parties, a clear
         reference point is provided for the assessment of such Terms.278
(493) As regards the revised access procedure as outlined in paragraph (475)(e), the
         Commission consider that it has been aligned to market practice279 and revised so to
         cater also to the needs of FWA suppliers. Importantly, the publication on the
         Transparency Registry has been disconnected (and thus anticipated) from the actual
         date of release of the site, what gives third parties greater visibility on capacity
         availability for network planning purposes. Further, the duration of the request
         review has been shortened and it has been clarified that the EMF responsibility is
         only on the third parties requesting access.280 Further, it has been clarified that the
         possibility for the Parties to use of remedies (including compensation) in cases of
         abuses by third parties requesting access would be subject to applicable laws and to
         trustee oversight. Similarly, against potential third party abuses, a provision has been
         added, in response to market test feedback, to ensure that, if a third party does not
         make effective use of a site within 12 months, as described at
         paragraph (475)(e)(vii), the site is re-included in the Transparency Registry and be
         made available to other third parties.
(494) Finally, the Commission considers that the procedures for monitoring and dispute
         resolution are clear and in line with Commission’s precedents.
(495) In light of the above, the Commission considers the Final Commitments entered into
         by the Parties are sufficient to eliminate the serious doubts as to the compatibility of
         the Transaction with the internal market outlined in Section 7. The commitments in
277 Agreed minutes of the conference call of 26 November 2019 with Wind Tre, paragraph 10.
278 As outlined by Iliad in the market test, the Commission notes that if the term of reference for third parties’
    Reasonable and Non-Discriminatory Terms for access were to be the commercial conditions in the MSAs,
    these would be more onerous than market terms for non-anchor tenants. In this respect, see above
    paragraph (16).
    To the extent hosting or framework contracts do not exist, paragraph 6 of the Final Commitments foresee
    that the new contracts would have a duration of between […]years from the date of the relevant agreement
    and renewable for another […] years (unless a different duration is agreed with the relevant third party).
    Based on a review of […] as well as the replies to RFI Q3, question 17, and the results of the market test,
    the Commission considers that such duration corresponds to market practice.
279 See in particular responses of Ei Towers’ and Wind Tre’s to Market Test questionnaire, question 13.
280 For this reason the Parties cannot provide on the Transparency Registry an indication of the estimated
    electromagnetic space available on the site to be made available. Nonetheless, for a site to be considered
    an Available Site within the meaning of the Final Commitments, it shall contain Free Space, that is to say
    sufficient space “in terms of physical and electromagnetic space to provide, from a technical perspective,
    a Reasonable Request for Hosting Services to one or more Third Parties”, where Hosting Services are
    “the rent of space on the Available Sites and all related services, as per market practice, to enable Third
    Parties to install, operate, maintain and use their equipment for the provision of wireless and wireline
    (e.g. FWAs) communication services, with all the relevant spectrum and technologies available at the
    point at which the site becomes an Available Site and is added to the Transparency Register”. In such
    context, for the Parties to comply with the Final Commitments, free electromagnetic space should exist on
    the sites to be made available, albeit the Parties may not be able to exactly quantify it. A denial on an
    Available Site for changes to the available electromagnetic space could occur only as a result of changes
    which are outside the control of the Parties or due to force majeure.
                                                           116
 ---pagebreak---       sections A to D and H of the annex to this Decision constitute conditions attached to
      this Decision, as only through full compliance therewith can the structural changes in
      the relevant markets be achieved. The other commitments set out in the annex to this
      Decision constitute obligations, as they concern the implementing steps which are
      necessary to achieve the modifications sought in a manner compatible with the
      internal market.
9.    CONCLUSION
(496) For the above reasons, the Commission has decided not to oppose the notified
      operation as modified by the commitments and to declare it compatible with the
      internal market and with the functioning of the EEA Agreement, subject to full
      compliance with the conditions in sections A to D and H of the Final Commitments
      annexed to this Decision and with the obligations contained in the other sections of
      the Final Commitments. This Decision is adopted in application of Article 6(1)(b) in
      conjunction with Article 6(2) of the Merger Regulation and Article 57 of the EEA
      Agreement.
                                                    For the Commission
                                                    (Signed)
                                                    Margrethe VESTAGER
                                                    Executive Vice-President
                                               117
 ---pagebreak---                      Dated 3 March 2020
                   Vodafone Group Plc
                              and
                   Telecom Italia S.p.A.
CASE NO. COMP/M.9674 - VODAFONE ITALIA / TIM / INWIT JV
            Commitments to the European Commission
                                1
 ---pagebreak---          CASE NO. COMP/M.9674 - VODAFONE ITALIA / TIM / INWIT JV
                       Commitments to the European Commission
Pursuant to Article 6(2) of Council Regulation (EC) No. 139/2004 (the “Merger Regulation”),
Vodafone Group Plc (“Vodafone Group”) and Telecom Italia S.p.A. (“Telecom Italia”) hereby
enter into the following commitments (the “Commitments”) vis-à-vis the European Commission
(the “Commission”) with a view to rendering the creation of the joint venture which will combine
Vodafone Italia S.p.A.’s (“Vodafone Italia”) passive mobile telecommunications infrastructure with
Infrastrutture Wireless Italiane S.p.A. (“INWIT”) (the “Concentration”) compatible with the internal
market and the functioning of the EEA Agreement.
This text shall be interpreted in the light of the Commission’s decision pursuant to Article 6(1)(b) of
the Merger Regulation to declare the Concentration compatible with the internal market and the
functioning of the EEA Agreement (the “Decision”), in the general framework of European Union
law, in particular in the light of the Merger Regulation, and by reference to the Commission Notice
on remedies acceptable under Council Regulation (EC) No 139/2004 and under the Commission
Regulation (EC) No 802/2004 (the “Remedies Notice”).
Section A.        Definitions
1.     For the purpose of the Commitments, the following terms shall have the following meaning:
       Affiliated Undertakings: undertakings controlled by the Parties and/or by the ultimate
       parents of the Parties, including INWIT, whereby the notion of control shall be interpreted
       pursuant to Article 3 of the Merger Regulation and in the light of the Commission
       Consolidated Jurisdictional Notice under Council Regulation (EC) No 139/2004 on the
       control of concentrations between undertakings (the “Consolidated Jurisdictional Notice”).
       Arbitration Institution: means the International Chamber of Commerce as set out in
       paragraph 38.
       Arbitral Tribunal: means the three-person arbitral tribunal or, as the case may be, sole
       arbitrator as set out in paragraph 43.
       Available Sites: means all sites of INWIT, following Closing, which have Free Space in
       municipalities with more than 35,000 inhabitants (including both existing and new sites).
       Newly built sites shall make up a maximum of […]% of the total number of sites the Parties
       shall cause INWIT to make available pursuant to paragraph 3 below, over the first four years
       of duration of the Commitments starting from the publication of the Transparency Register,
       and a maximum of […]% of the total number of sites the Parties shall cause INWIT to make
       available pursuant to paragraph 3 below over the total period of the Commitments. A list of
       existing sites in municipalities with more than 35,000 inhabitants is provided at Schedule B.
       Closing: means the completion of the Concentration whereby the Parties create the notified
       joint venture.
       Confidential Information: any business secrets, know-how, commercial information, or any
       other information of a proprietary nature that is not in the public domain.
       Conflict of Interest: any conflict of interest that impairs the Monitoring Trustee's objectivity
       and independence in discharging its duties under the Commitments.
       Effective Date: the date of adoption of the Decision.
                                                       2
 ---pagebreak--- Fast Track Expert Dispute Resolution Mechanism: has the meaning given in paragraph
23.
Firm Hospitality Offer: means an offer by INWIT to provide hospitality services on the
terms set out in the offer as set out in paragraph 18.
Free Space: means available space on sites that, as at the date on which an Available Site
is added to the Transparency Register, is sufficient in terms of physical and electromagnetic
space to provide, from a technical perspective, a Reasonable Request for Hosting Services
to one or more Third Parties.
FWA: a provider of fixed wireless access services in Italy.
Hosting Services: the rent of space on the Available Sites and all related services, as per
market practice, to enable Third Parties to install, operate, maintain and use their equipment
for the provision of wireless and wireline (e.g. FWAs) communication services, with all the
relevant spectrum and technologies available at the point at which the site becomes an
Available Site and is added to the Transparency Register. Related services include but are
not limited to works & studies activities necessary to enable the installation, power supply
and other ancillary services of facility management (including, but not limited to cleaning
services, maintenance of green areas, control and maintenance of the state of integrity of
the infrastructures and equipment, such as electrical equipment, energy systems,
generators, signalling systems, heating and air conditioning equipment; beacon lights on
towers).
Incumbent MNO: any MNO other than the New Entrant MNOs.
Indemnified Party: means the Monitoring Trustee and its employees and agents as set out
in paragraph 69.
MNO: a mobile network operator that provides wireless voice and data communication
services in Italy.
Monitoring Trustee: one or more natural or legal person(s), who is/are approved by the
Commission and appointed by Vodafone Group and Telecom Italia, and who has/have the
duty to monitor the Parties’ compliance with the conditions and obligations attached to the
Decision.
New Entrant MNO: means any MNO that has been authorised to operate a mobile network
in Italy in the last 4 years, or that will be authorised to operate a mobile network in Italy in
the period of the duration of the Commitments, which is in the active process of rolling out
autonomously its own spectrum coverage, through its own radio sites and equipment, in
municipalities with more than 35,000 inhabitants.
Parties: Vodafone Group and Telecom Italia and their Affiliated Undertakings.
Reasonable and Non-Discriminatory Terms: means the provision of Hosting Services on
fair, reasonable and non-discriminatory terms and conditions (“FRAND”) which, for the
avoidance of doubt, shall include standard contractual terms and conditions as commonly
interpreted in the telecommunications industry. For the avoidance of any doubt, to the extent
that framework agreements are already in place between the Third Parties and the
Parties/INWIT prior to the announcement of the Concentration, the terms of such framework
agreements shall remain in place and shall be regarded as corresponding to Reasonable
and Non-Discriminatory Terms, insofar as they cover the same or equivalent relevant
services as those being requested.
                                                 3
 ---pagebreak---      Reasonable Request: means, from a technical perspective, a request for Hosting Services
     by a Third Party which, in particular, shall ensure that the use of power is consistent with the
     relevant emitted frequencies, uses up-to-date equipment and all reasonable electromagnetic
     frequency efficiency options which optimise the use of electromagnetic and physical space
     as per best market practice.
     Requesting Party: means a Third Party that requests access to an Available Site as set out
     in paragraph 13.
     Third Party: means any MNO or FWA other than the Parties and their Affiliated
     Undertakings which submits a Reasonable Request.
     Transparency Register: means the register of Available Sites expected to be available as
     set out in paragraph 8.
Section B.       Commitments to offer access to space
2.   The Commitments apply only to sites in municipalities in Italy with more than 35,000
     inhabitants.
     I.         Commitment to offer Available Sites
3.   The Parties shall cause INWIT to make available to Third Parties at least the number of
     Available Sites set out in Schedule A and in accordance with the timetable set out therein.
     Schedule A sets a minimum number of Available Sites to be made available per year (the
     first year starts on the first day of the month following the publication of the Transparency
     Register). The Parties may vary, by up to 10% of the total number, the Available Sites set for
     a particular year, provided that they meet the cumulative threshold number over the period
     set out in Schedule A.
4.   The Parties shall cause INWIT to ensure that the Available Sites will be distributed across
     municipalities with more than 35,000 inhabitants. At least […]% of the Available Sites which
     must be made available pursuant to paragraph 3 (as set out in Schedule A), shall be located
     in municipalities listed in Schedule C. Such percentage applies over the aggregate period of
     the Commitments (i.e. 8 years) and over the aggregate of the municipalities listed in
     Schedule C. In particular, during the first four-year period (starting from publication of the
     Transparency Register), at least […]% of such Available Sites (i.e. at least […]) which must
     be made available pursuant to paragraph 3 (as set out in Schedule A) shall be located in the
     municipalities listed in Schedule C. Such percentage applies over the aggregate of the first
     four-year period and over the aggregate of the municipalities listed in Schedule C.
5.   The Parties shall cause INWIT to offer Hosting Services for the Available Sites to Third
     Parties subject to the provisions set out in Section D below and on Reasonable and Non-
     Discriminatory Terms.
6.   To the extent a hosting or framework contract between the Parties or INWIT and the Third
     Party does not exist at the Effective Date and subject to paragraph 7 below, the Parties shall
     cause INWIT to offer Hosting Services for between […] years starting from the execution of
     the relevant agreement between INWIT and the Third Party, renewable for another […]
     years, unless a different duration is agreed with the Third Party (for the avoidance of doubt,
     the agreed terms may be shortened but they shall not be shorter than […] years for the
     initial term and […] years for the renewed term).
                                                     4
 ---pagebreak---      II.       Commitment as regards existing hosting contracts
7.   The Parties shall ensure that, as regards all existing hosting contracts (including framework
     contracts whatever their geographic scope) in place as of the date of these Commitments
     between Vodafone Italia and / or INWIT with third parties (including but not limited with Third
     Parties), INWIT shall not exercise any early termination right and neither shall Vodafone
     prior to the transfer of the sites to INWIT. The Parties shall also offer all such third parties
     the option to extend the duration of all existing hosting contracts (including framework
     contracts whatever their geographic scope), which are due to expire during the
     implementation of the Commitments, at least up to the duration of these Commitments
     (unless a different duration is agreed with the third party). For the avoidance of any doubt,
     this paragraph applies also to contracts which relate to sites in both municipalities in Italy
     with more than 35,000 inhabitants and municipalities in Italy with less than 35,000
     inhabitants.
Section C: Publication of information regarding available capacity
8.   Within 6 months of Closing, the Parties shall cause INWIT to publish on its website (or such
     other channels as per current market practice) a register of Available Sites (the
     “Transparency Register”). The Transparency Register will also indicate the date on which
     the Available Site is expected to be ready for use for Hosting Services (the “Ready for
     Service Date”), subject to the Relevant Third Party obtaining all necessary permits (for the
     avoidance of doubt, the Ready for Service Date is also not subject to, and is independent
     from, the actions needed by the relevant Third Party to make use of the relevant site). The
     Parties commit that: (a) they will cause INWIT to publish Available Sites on the
     Transparency Register as soon as it is sufficiently clear to INWIT that the relevant site will
     become an Available Site; and (b) on the Ready for Service Date, the Available Sites will be
     ready to host one or more Third Parties subject to any events or actions beyond the control
     of the Parties or INWIT.
9.   All Available Sites published on the Transparency Register shall count towards the number
     of sites which the Parties have committed to make available under paragraph 3 (for the
     avoidance of doubt, this shall include sites where such sites are subsequently delisted in
     accordance with paragraph 10 below).
10.  For the avoidance of doubt, after publication on the Transparency Register, Available Sites
     might become unavailable due to actions or events of third parties beyond the Parties’ and
     INWIT’s control, namely changes to the electromagnetic space and/or force majeure. In
     addition, for Available Sites on which tenants are no longer present, in the absence of
     requests by Third Parties within […] months from publication, INWIT shall have the right to
     remove them from the Transparency Register (for sale or other purposes), subject to the
     agreement of the Monitoring Trustee. For all other Available Sites, in the absence of
     requests by Third Parties […] months from publication INWIT shall be entitled to offer the
     Free Space to prospective customers other than Third Parties, subject to the agreement of
     the Monitoring Trustee.
11.  Information to be published in the Transparency Register in relation to each Available Site
     shall include, on a site by site basis, the relevant site code, the owner of the site, the GPS
     coordinates, the site characteristics (including available physical space for installation
     (based on INWIT’s best estimates possible at the time of publication) and the infrastructure
     height, as per the form set out in Schedule F). The Parties shall cause INWIT to update on a
                                                     5
 ---pagebreak---      […] basis the information published in the Transparency Register. Access to the
     Transparency Register shall be managed in accordance with Schedule G.
12.  At the request of a Third Party, the Parties shall cause INWIT to provide any such additional
     information and documentation reasonably necessary for such Third Party to make a
     request for hospitality services, with the same level of detail that the Parties and/or INWIT
     provided Third Parties with prior to the Concentration and in line with best market practice.
Section D: Procedure for obtaining access to Available Sites
13.  The Parties shall cause INWIT to adopt a procedure whereby it will respond to Third Parties
     who make a request (the “Requesting Party”) for access to Available Sites on a non-
     discriminatory basis and thus on a first come first served basis subject to paragraph 14
     below.
14.  The Parties shall cause INWIT to ensure that, as of the date of publication in the
     Transparency Register of an Available Site, a New Entrant MNO will benefit from a one-
     month exclusive period to make a request for Available Sites. The Available Sites accessed
     by a New Entrant MNO benefiting from the one-month exclusive period (the “Priority Sites”)
     shall be effectively used by the relevant New Entrant MNO within 12 months from the date
     of the Firm Hospitality Offer pursuant to paragraph 18 or the date of availability/release of
     site according to the Transparency Registry (the latter if the date of the Firm Hospitality
     Offer is before the date of availability/release of site) and be employed only for the purposes
     of coverage and deployment of the relevant New Entrant MNO's stand-alone network.
15.  For the avoidance of doubt a New Entrant MNO shall not use the Priority Sites to implement
     any RAN sharing agreement with an Incumbent MNO, in force or to be concluded within 4
     years following the date of publication of the Priority Sites in the Transparency Register, or
     otherwise to transmit frequencies of an Incumbent MNO within 4 years following the date of
     publication of the Priority Sites in the Transparency Register. Such restrictions on the use of
     the Priority Sites will cease to exist after 4 years following the date of publication of the
     Priority Sites in the Transparency Register. Should such restrictions be infringed or
     circumvented by the relevant New Entrant MNO, the Parties shall cause INWIT to terminate
     the hosting contract for the relevant Priority Site and such Priority Site shall be re-included in
     the Transparency Registry and be made available to other Third Parties. The relevant New
     Entrant MNO shall be prevented from access to the Priority Site with respect to which it
     infringed the use restrictions for a period of 2 years.
16.  Any request by a Requesting Party for Hosting Services on an Available Site submitted to
     INWIT must contain as a minimum information relating to required configuration in terms of
     physical and electromagnetic space required. The request must be submitted using the
     template provided for as Schedule D. This template may be updated, from time to time, to
     adapt to best market practice with the approval of the Monitoring Trustee.
17.  The Parties shall ensure that INWIT will communicate to the Requesting Party within […]
     days from receipt of the request with a copy to the Monitoring Trustee, when a request in
     relation to an Available Site does not satisfy the conditions set out Schedule D.
18.  Following receipt of a request, the Parties shall cause INWIT to follow the procedure set out
     in Schedule E and either (i) agree to provide the Hosting Services on the terms set out in
     the offer which shall be on Reasonable and Non-Discriminatory Terms (“Firm Hospitality
     Offer”) to be accepted within a reasonable period, in line with market practice and INWIT’s /
                                                      6
 ---pagebreak---      the Parties’ framework contracts with the relevant Third Party in force prior to announcement
     of the Concentration (if applicable) or (ii) formally decline to provide Hosting Services for
     specific and identified technical reasons (with in this instance a copy of any such denial to
     be sent to the Monitoring Trustee).
19.  As it is the case for all prospective tenants on towers, following receipt of a Firm Hospitality
     Offer, Third Parties shall remain in charge of any administrative step necessary to obtain the
     relevant permissions by the competent public administration, including for those instances
     where a joint request by INWIT and the Third Party is to be submitted (e.g. infrastructural
     adjustments to be implemented on the site). The Parties shall cause INWIT to cooperate in
     good faith with the Third Party for the purposes of obtaining all relevant permissions. For the
     avoidance of doubt, Third Parties shall retain responsibility for obtaining the necessary
     permits.
20.  The Parties shall cause INWIT to set up, for the duration of the Commitments, a repository
     that guarantees that all the requests made to it and the related offer or refusal can be
     retrieved and traced by the appropriate persons (including the Monitoring Trustee), taking
     into account appropriate confidentiality requirements.
21.  The Parties reserve the right to adopt any appropriate procedural rules deemed necessary
     to ensure that the proper and efficient functioning of INWIT is not jeopardised by (the timing,
     size, frequency of) requests for Hosting Services and/or abuses of the procedure by Third
     Parties (including where appropriate, and in compliance with the applicable laws, including
     Italian contract law, the right to compensation, indemnification and / or temporary
     suspension where a Third Party engages in abuse of the procedure) in agreement with the
     Monitoring Trustee. For the avoidance of doubt, the timing, size, frequency of requests
     made by potential customers other than Third Parties shall not be a factor justifying the
     adoption of any procedural rule affecting the timeliness of processing requests by Third
     Parties.
22.  Where a Third Party (including New Entrant MNOs), which has accepted the Firm
     Hospitality Offer, does not make effective use of the relevant Available Site (including
     Priority Sites) within 12 months from the date of the Firm Hospitality Offer or the date of
     availability/release of site according to the Transparency Registry (the latter if the date of the
     Firm Hospitality Offer is before the date of availability/release of site) without justified reason
     to be assessed by the Monitoring Trustee, the Parties shall cause INWIT to terminate the
     hosting contract for the relevant Available Site and such site shall be re-included in the
     Transparency Registry and be made available to other Third Parties. A provision to this
     effect shall be included in hosting contracts for Hosting Services with Third Parties.
Section E.       Fast Track Expert Dispute Resolution
23.  In the event that there is a dispute between INWIT and the Requesting Party as to any
     matter arising from paragraph 18 in Section D (Procedure for obtaining access to Available
     Sites) in relation to an Available Site, the Requesting Party shall have recourse to the
     following fast track dispute resolution mechanism (the “Fast Track Expert Dispute
     Resolution Mechanism”).
     I.         Pre-dispute escalation
24.  If the Requesting Party wishes to avail itself of the Fast Track Expert Dispute Resolution
     Mechanism, it shall send a written request to that effect to the Parties and INWIT, with a
                                                      7
 ---pagebreak---     copy to the Monitoring Trustee. In the request, the Requesting Party shall set out in detail
    the reasons leading it to believe that the determination declining access is not correct. The
    Parties and INWIT shall provide a response, by no later than 15 working days following the
    receipt of the request, with copies to the Monitoring Trustee.
25. If the Parties and the Requesting Party have failed to resolve their differences under within
    20 working days following the receipt of the request, the dispute resolution procedure below
    shall apply.
    II.        Fast Track Expert Dispute Resolution Mechanism
26. At the latest a month after Closing, the Parties and INWIT shall propose a list of names for
    the Monitoring Trustee and the Commission to consider as potential experts to adjudicate in
    disputes (the “Experts”). The Experts shall be independent, suitably qualified, and have
    sufficient relevant experience in mobile telecommunication networks.
27. Where paragraph 23 applies, the Monitoring Trustee shall appoint one of the Experts to
    adjudicate on the dispute within 5 working days of expiry of the period set out therein.
28. The process shall be conducted in private and shall be confidential. The language of the
    process shall be in English or Italian.
29. The Expert shall act on the following basis:
    (a)      the Expert shall act fairly and impartially;
    (b)      each party shall submit to the Expert its brief and its submission in relation to the
             matter in dispute within 10 working days of the Expert's appointment;
    (c)      Each party shall assist and provide such documentation as the Expert reasonably
             requires to consider the matters referred to it;
    (d)      the Expert’s determination shall be given within a maximum period of 20 working
             days of the Expert’s appointment;
    (e)      the Expert's determination in relation to any matter pursuant to paragraph 23 shall
             (save for manifest error or fraud) be final and binding on the Parties and the
             Requesting Party, and the Parties shall cause INWIT to comply;
    (f)      any challenge to the Expert’s determination in accordance with the clause above
             shall be made according to Section F below;
    (g)      each party shall carry out the actions required to comply with the obligations set out
             in the Expert’s determination in relation to any matter pursuant to paragraph 23
             within any time-limits specified by the Expert; and
    (h)      the Requesting Party shall pay the Expert’s costs if the Expert’s determination
             upholds INWIT’s decision. The Parties shall cause INWIT to pay the Expert’s costs if
             the Expert’s determination overturns INWIT’s decision. The Expert shall otherwise
             determine how and by whom the costs of the determination are to be paid.
    III.       Involvement of the Commission
30. The Commission shall be allowed and enabled to participate in all stages of the procedure
    by:
    (a)      receiving all written submissions (including documents and reports, etc.) made each
             party to the procedure;
                                                      8
 ---pagebreak---      (b)     receiving all documents exchanged by the Expert with the parties to the procedure;
     (c)     filing any written submissions; and
     (d)     being present at the hearing(s) and being allowed to ask questions to the parties.
31.  The Expert shall forward, or shall order the parties to forward, the documents mentioned in
     the previous paragraph to the Commission without delay.
32.  The Monitoring Trustee shall receive copies of:
     (a)     all submissions made by the parties to the procedure in relation to the matters they
             wish to have resolved by the Expert, on the day when these have been submitted to
             the Expert;
     (b)     all other documentation provided by the parties, on the day when these have been
             submitted to the Expert; and
     (c)     the determination made by the Expert, on the day when the determination has been
             provided to the parties.
Section F.       Arbitration
33.  The Parties shall abide by the terms of the dispute resolution procedure as described below,
     and consent to submit any dispute with any Third Party relating to compliance by the Parties
     with the requirements of the Commitments above vis-à-vis such Third Party to the dispute
     resolution procedure set out herein, subject to the terms set out below.
34.  The dispute resolution procedure detailed in this Section shall apply to disputes between the
     Parties and any Third Party as to any matter arising in relation to Sections B, C and D of
     these Commitments.
     I. Mediation
35.  In the event that a Third Party claims that the Parties are failing to comply with Sections B,
     C or D of the Commitments vis-à-vis that Third Party, the Third Party shall utilise the
     mediation process.
36.  If so, the Third Party shall send a written request to the Parties, with a copy to the
     Monitoring Trustee, setting out in detail the reasons leading that party to believe that the
     Parties are failing to comply with the requirements of these Commitments. The Parties shall
     use their commercially reasonable efforts to resolve all differences of opinion with the Third
     Party about the application of the Commitments and to settle all disputes that may arise
     through cooperation and consultation within a reasonable period of time not exceeding 15
     working days after receipt of the request.
37.  The Monitoring Trustee shall present its own proposal for resolving the dispute within 8
     working days specifying in writing the action, if any, to be taken by the Parties in order to
     ensure compliance with the Commitments vis-a-vis the Third Party, and be prepared, if
     requested, to facilitate the settlement of the dispute. To the extent that the dispute is settled
     and the Parties comply with such settlement, the Parties shall be deemed not to have
     breached the Commitments.
                                                     9
 ---pagebreak---     II.        Arbitration
38. Should the Parties fail to resolve their dispute with the Third Party in the mediation phase
    described above, the Third Party may, within 20 working days of such failure, serve a
    request for arbitration, to the International Chamber of Commerce (the “Arbitration
    Institution”), with a copy of such request to the Parties and the Monitoring Trustee.
39. The request for arbitration shall provide, in addition to what is set out in the applicable
    arbitration rules of the Arbitration Institution, in detail the dispute, difference or claim and
    shall contain, inter alia, all issues of both fact and law, including any suggestions as to the
    procedure, and all documents relied upon shall be attached. The request for arbitration shall
    also contain a detailed description of the action to be undertaken by the Parties and the
    Monitoring Trustee’s proposal, including a comment as to its appropriateness.
40. The Parties shall, within 10 working days from receipt of the request for arbitration, submit
    their answer, which shall provide, in addition to what is set out in the applicable arbitration
    rules, detailed reasons for their conduct and set out, inter alia, all issues of both fact and
    law, including any suggestions as to the procedure, and all documents relied upon. The
    answer shall, if appropriate, contain a detailed description of the action which the Parties
    propose to undertake vis-a- vis the Third Party (without such proposal being construed as
    any admission of breach of the Commitments) and the Monitoring Trustee’s proposal (if not
    already submitted), including a comment as to its appropriateness.
41. Any dispute, controversy or claim related to the subject matter of the request for arbitration
    shall be finally settled by arbitration in accordance with the applicable arbitration rules of the
    Arbitration Institution. The seat of arbitration shall be Rome and the arbitration shall be
    conducted in English or Italian, at the choice of the Third Party.
42. The Third Party and the Parties shall each nominate one arbitrator in the request for
    arbitration and the answer, respectively. The two arbitrators nominated shall, within 5
    working days of the nomination of the latter, nominate the chairperson, making such
    nomination known to the parties to the arbitration and the Arbitration Institution which shall
    forthwith confirm the appointment of the 3 arbitrators. Should the parties to the arbitration
    wish to have the dispute decided by a sole arbitrator, they may agree on a sole arbitrator
    and communicate this to Arbitration Institution which shall confirm the appointment. Absent
    such joint appointment, the three-person panel default option shall be followed. Should the
    Parties fail to nominate an arbitrator, or if the 2 arbitrators fail to agree on the chairperson or
    should the parties to the arbitration fail to agree on a sole arbitrator (if they have chosen to
    do so), the default appointment(s) shall be made by the Arbitration Institution.
43. The three-person panel or, as the case may be, the sole arbitrator, are herein referred to as
    the arbitral tribunal (the “Arbitral Tribunal”). The procedure shall be a fast track procedure.
    For this purpose, the Arbitral Tribunal shall shorten all applicable procedural time-limits
    under the applicable arbitration rules of the Arbitration Institution as far as admissible and
    appropriate in the circumstances. The parties to the arbitration shall consent to the use of e-
    mail for the exchange of documents.
44. The Arbitral Tribunal shall, as soon as practical after the confirmation of the Arbitral Tribunal,
    hold an organisational conference to discuss any procedural issues with the parties to the
    arbitration. Terms of reference shall be drawn up and signed by the parties to the arbitration
    and the Arbitration Tribunal at the organisational meeting or thereafter and a procedural
    time-table shall be established by the Arbitral Tribunal. An oral hearing shall, as a rule, be
    established within two months of the confirmation of the Arbitral Tribunal.
                                                      10
 ---pagebreak--- 45. In order to enable the Arbitral Tribunal to reach a decision, it shall be entitled to request any
    relevant information from the parties to the arbitration, to appoint experts and to examine
    them at the hearing, and to establish the facts by all appropriate means. The Arbitral
    Tribunal is also entitled to ask for assistance by the Monitoring Trustee in all stages of the
    procedure if the parties to the arbitration agree.
46. The Arbitral Tribunal shall not disclose Confidential Information and apply the standards
    attributable to confidential information under the Merger Regulation. The Arbitral Tribunal
    may take the measures necessary for protecting Confidential Information in particular by
    restricting access to Confidential Information to the Arbitral Tribunal, the Monitoring Trustee,
    and outside counsel and experts of the opposing party.
47. The burden of proof in any dispute under the applicable arbitration rules shall be borne as
    follows: (i) the Third Party who has requested the arbitration must produce evidence of a
    prima facie case and (ii) if the Third Party produces evidence of a prima facie case, the
    Arbitral Tribunal must find in favour of the Third Party unless the Parties can produce
    evidence to the contrary. If the Parties produce such evidence and the arbitration is not
    decided in favour of the Third Parties on the basis of prima facie evidence, then the issues
    in dispute in the arbitration will be decided on the basis of the evidence presented by the
    parties on the balance of probabilities.
    III.       Involvement of the Commission
48. The Commission shall be allowed and enabled to participate in all stages of the procedure
    by:
    (a)      receiving all written submissions (including documents and reports, etc.) made by
             the parties to the arbitration;
    (b)      receiving all orders, interim and final awards and other documents exchanged by the
             Arbitral Tribunal with the parties to the arbitration (including terms of reference and
             procedural timetable);
    (c)      having the opportunity to file amicus curiae briefs; and
    (d)      being present at the hearings and being allowed to ask questions to the parties to
             the arbitration, witnesses and experts.
49. The Arbitral Tribunal shall forward, or shall order the parties to the arbitration to forward, the
    documents mentioned in the previous paragraph to the Commission without delay.
50. In the event of disagreement between the parties to the arbitration regarding the
    interpretation of the Commitments, the Arbitral Tribunal may seek the Commission's
    interpretation of the Commitments before finding in favour of any party to the arbitration and
    shall be bound by the interpretation.
    IV.        Decisions of the Arbitral Tribunal
51. The Arbitral Tribunal shall decide the dispute on the basis of the Commitments and the
    Decision. Issues not covered by the Commitments and the Decision shall be decided (in the
    order as stated) by reference to the Merger Regulation, European Union law and general
    principles of law common to the legal orders of the Member States without a requirement to
    apply a particular national system. The Arbitral Tribunal (in case of a three-person panel)
    shall take all decisions by majority vote.
                                                     11
 ---pagebreak--- 52.  Upon request of the Third Party having made the request for arbitration, the Arbitral Tribunal
     may make a preliminary ruling on the dispute. The preliminary ruling shall be rendered
     within 1 month after the confirmation of the Arbitral Tribunal, shall be applicable immediately
     and, as a rule, remain in force until a final decision is rendered.
53.  The Arbitral Tribunal shall, in the preliminary ruling as well as in the final award, specify the
     action, if any, to be taken by the Parties in order to comply with the Commitments vis-à-vis
     the Third Party. The final award shall be final and binding on the parties to the arbitration
     and shall resolve the dispute and determine any and all claims, motions or requests
     submitted to the Arbitral Tribunal. The arbitral award shall also determine the reimbursement
     of the costs of the successful party and the allocation of the arbitration costs. In case of
     granting a preliminary ruling or if otherwise appropriate, the Arbitral Tribunal shall specify
     that terms and conditions determined in the final award apply retroactively.
54.  The final award shall, as a rule, be rendered within 6 months after the confirmation of the
     Arbitral Tribunal. The time-frame shall, in any case, be extended by the time the
     Commission takes to submit an interpretation of the Commitments if asked by the Arbitral
     Tribunal.
55.  The parties to the arbitration shall prepare a non-confidential version of the final award,
     without business secrets. The Commission may publish the non-confidential version of the
     award. The parties to the arbitration, the Arbitral Tribunal, all other persons participating in
     the proceedings and all further persons involved, i.e. in the administration of the arbitral
     proceedings, shall maintain confidentiality towards all persons regarding the conduct of
     arbitral proceedings. All proceedings will be held in private and remain confidential.
56.  Nothing in the arbitration procedure shall affect the power to the Commission to take
     decisions in relation to the Commitments in accordance with its powers under the Merger
     Regulation.
Section G:      Monitoring Trustee
     I.       Appointment procedure
57.  The Parties shall appoint a Monitoring Trustee to carry out the functions specified in these
     Commitments for a Monitoring Trustee. The Parties commit not to close the Concentration
     before the appointment of the Monitoring Trustee. They shall make a proposal to this effect
     pursuant paragraph 60 below.
58.  The Monitoring Trustee shall:
     (e)      at the time of appointment, be independent of Vodafone Group and Telecom Italia
              and their Affiliated Undertakings;
     (f)      possess the necessary qualifications to carry out its mandate, for example have
              sufficient relevant experience as an investment banker or consultant or auditor; and
     (g)      neither have nor become exposed to a Conflict of Interest.
59.  The Monitoring Trustee shall be remunerated by the Parties in a way that does not impede
     the independent and effective fulfilment of its mandate.
                                                      12
 ---pagebreak---     Proposal by the Parties
60. No later than two weeks after the Effective Date, the Parties shall submit the name or
    names of one or more natural or legal persons whom the Parties propose to appoint as the
    Monitoring Trustee to the Commission for approval. The proposal shall contain sufficient
    information for the Commission to verify that the person or persons proposed as Monitoring
    Trustee fulfil the requirements set out in paragraph 58 and shall include:
    (a)       the full terms of the proposed mandate, which shall include all provisions necessary
              to enable the Monitoring Trustee to fulfil its duties under these Commitments;
    (b)       the outline of a work plan which describes how the Monitoring Trustee intends to
              carry out its assigned tasks.
    Approval or rejection by the Commission
61. The Commission shall have the discretion to approve or reject the proposed Monitoring
    Trustee(s) and to approve the proposed mandate subject to any modifications it deems
    necessary for the Monitoring Trustee to fulfil its obligations. If only one name is approved,
    the Parties shall appoint or cause to be appointed the person or persons concerned as
    Monitoring Trustee, in accordance with the mandate approved by the Commission. If more
    than one name is approved, the Parties shall be free to choose the Monitoring Trustee to be
    appointed from among the names approved. The Monitoring Trustee shall be appointed
    within one week of the Commission’s approval, in accordance with the mandate approved
    by the Commission.
    New proposal by the Parties
62. If all the proposed Monitoring Trustees are rejected, the Parties shall submit the names of at
    least two more natural or legal persons within one week of being informed of the rejection, in
    accordance with paragraphs 57 and 61 of these Commitments.
    Monitoring Trustee Nominated by the Commission
63. If all further proposed Monitoring Trustees are rejected by the Commission, the Commission
    shall nominate a Monitoring Trustee, whom the Parties shall appoint, or cause to be
    appointed, in accordance with a trustee mandate approved by the Commission.
    II.       Functions of the Monitoring Trustee
64. The Monitoring Trustee shall assume its specified duties and obligations in order to ensure
    compliance with the Commitments. The Commission may, on its own initiative or at the
    request of the Monitoring Trustee or the Parties, give any orders or instructions to the
    Monitoring Trustee in order to ensure compliance with the conditions and obligations
    attached to the Decision.
                                                    13
 ---pagebreak---     Duties and obligations of the Monitoring Trustee
65. The Monitoring Trustee shall:
    (i)       propose in its first report to the Commission a detailed work plan describing how it
              intends to monitor compliance with the obligations and conditions attached to the
              Decision;
    (ii)      monitor the implementation of and compliance by the Parties with the conditions and
              obligations attached to the Decision;
    (iii)     propose to the Parties such measures as the Monitoring Trustee considers
              necessary to ensure the Parties’ compliance with the conditions and obligations
              attached to the Decision;
    (iv)      act as a contact point for any requests by third parties, in particular Third Parties, in
              relation to the Commitments;
    (v)       provide to the Commission, sending the Parties a non-confidential copy at the same
              time, a written report in relation to the Commitments, within 15 days after the end of
              every month, from the appointment of the Monitoring Trustee until the first
              publication of Available Sites on the Transparency Registry, and thereafter within 15
              days after the end of a 6 month period until expiry of the Commitments;
    (vi)      promptly report in writing to the Commission, sending the Parties a non-confidential
              copy at the same time, if it concludes on reasonable grounds that the Parties are
              failing to comply with these Commitments;
    (vii)     assume the functions assigned to the Monitoring Trustee in relation to the Fast Track
              Expert Dispute Resolution Mechanism;
    (viii)    monitor the implementation of the provisions in paragraph 8 above in in relation to
              the obligation to publish sites on the Transparency Register as soon as it is
              sufficiently clear that they will become Available Sites.
    (ix)      monitor the implementation of the provisions in paragraphs 14 and 15 above in
              relation to the rights and obligations of New MNO Entrants;
    (x)       assume the other functions assigned to the Monitoring Trustee under the conditions
              and obligations attached to the Decision.
66. The documents provided for above shall be prepared in English (or in Italian with an English
    translation, if the Parties so prefer).
    III.      Duties and obligations of the Parties
67. The Parties shall provide and shall cause its advisors to provide the Monitoring Trustee with
    all such co-operation, assistance and information as the Monitoring Trustee may reasonably
    require to perform its tasks. The Monitoring Trustee shall have full and complete access to
    the Transparency Registry, repository pursuant to paragraph 20 above and any of the
    Parties’ (including INWIT’s) books, records, documents, management or other personnel,
    facilities, sites and technical information necessary for fulfilling its duties under the
    Commitments and the Parties shall provide the Monitoring Trustee upon request with copies
    of any document. In relation to paragraph 65(viii) specifically, the Parties shall provide
    quarterly updates to the Monitoring Trustee on their respective progress in terms of their
    own network planning. The Parties shall make available to the Monitoring Trustee one or
                                                       14
 ---pagebreak---     more offices on their premises and shall be available for meetings in order to provide the
    Monitoring Trustee with all information necessary for the performance of its tasks.
68. The Parties shall provide the Monitoring Trustee with all administrative support that it may
    reasonably request.
69. The Parties shall indemnify the Monitoring Trustee and its employees and agents (each an
    “Indemnified Party”) and hold each Indemnified Party harmless against, and hereby agree
    that an Indemnified Party shall have no liability to the Parties for, any liabilities arising out of
    the performance of the Monitoring Trustee’s duties under the Commitments, except to the
    extent that such liabilities result from the wilful default, recklessness, gross negligence or
    bad faith of the Monitoring Trustee, its employees, agents or advisors.
70. At the expense of the Parties, the Monitoring Trustee may appoint advisors (in particular for
    technical advice), subject to the Parties approval (this approval not to be unreasonably
    withheld or delayed) if the Monitoring Trustee considers the appointment of such advisors
    necessary or appropriate for the performance of its duties and obligations under the
    Mandate, provided that any fees and other expenses incurred by the Monitoring Trustee are
    reasonable. Should the Parties refuse to approve the advisors proposed by the Monitoring
    Trustee the Commission may approve the appointment of such advisors instead, after
    having heard the Parties. Only the Monitoring Trustee shall be entitled to issue instructions
    to the advisors. Paragraph 69 of these Commitments shall apply mutatis mutandis.
71. The Parties agree that the Commission may share Confidential Information proprietary to
    the Parties with the Monitoring Trustee. The Monitoring Trustee shall not disclose such
    information and the principles contained in Article 17 (1) and (2) of the Merger Regulation
    apply mutatis mutandis.
72. The Parties agree that the contact details of the Monitoring Trustee are published on the
    website of the Commission's Directorate-General for Competition and they shall inform
    interested third parties of the identity and the tasks of the Monitoring Trustee.
73. For a period of 10 years from the date of adoption of the Decision the Commission may
    request all information from the Parties that is reasonably necessary to monitor the effective
    implementation of these Commitments.
    IV.     Replacement, discharge and reappointment of the Monitoring Trustee
74. If the Monitoring Trustee ceases to perform its functions under the Commitments or for any
    other good cause, including the exposure of the Monitoring Trustee to a Conflict of Interest:
    (a)     the Commission may, after hearing the Monitoring Trustee and the Parties, require
            the Parties to replace the Monitoring Trustee; or
    (b)     the Parties may, with the prior approval of the Commission, replace the Monitoring
            Trustee.
75. If the Monitoring Trustee is removed according to paragraph 74 of these Commitments, the
    Monitoring Trustee may be required to continue in its function until a new Monitoring Trustee
    is in place to whom the Monitoring Trustee has effected a full hand over of all relevant
    information. The new Monitoring Trustee shall be appointed in accordance with the
    procedure referred to in paragraphs 57 to 63 of these Commitments.
76. Unless removed according to paragraph 74 of these Commitments, the Monitoring Trustee
    shall cease to act as Monitoring Trustee only after the Commission has discharged it from
                                                     15
 ---pagebreak---      its duties after all the Commitments with which the Monitoring Trustee has been entrusted
     have been implemented. However, the Commission may at any time require the
     reappointment of the Monitoring Trustee if it subsequently appears that the relevant
     remedies might not have been fully and properly implemented.
Section H.      Duration
77.  The Commitments will expire 8 years from the first publication of the Transparency Register,
     unless in response to a request by Parties in accordance with the Review Clause, the
     Commission decides to waive, modify or substitute these Commitments on grounds that the
     conditions of competition would no longer justify the undiminished continuation of these
     Commitments.
Section I.      Review Clause
78.  The Commission may extend the time periods foreseen in the Commitments in response to
     a request from the Parties or, in appropriate cases, on its own initiative. Where the Parties
     request an extension of a time period, they shall submit a reasoned request to the
     Commission no later than one month before the expiry of that period, showing good cause.
     This request shall be accompanied by a report from the Monitoring Trustee, who shall, at the
     same time send a non-confidential copy of the report to the Parties.
79.  The Commission may further, in response to a reasoned request from the Parties showing
     good cause waive, modify or substitute, in exceptional circumstances, one or more of the
     undertakings in these Commitments. This request shall be accompanied by a report from
     the Monitoring Trustee, who shall, at the same time send a non-confidential copy of the
     report to the Parties. The request shall not have the effect of suspending the application of
     the undertaking and, in particular, of suspending the expiry of any time period in which the
     undertaking has to be complied with.
Section J.      Entry into force
80.  The Commitments shall take effect upon the date of adoption of the Decision.
               duly authorised for and on behalf of
                                                                           ___________________
                                                                               Vodafone Group Plc
                                                                           ___________________
                                                                              Telecom Italia S.p.A.
                                                    16
 ---pagebreak---                              SCHEDULE A
NUMBER OF AVAILABLE SITES PURSUANT TO PARAGRAPH 3 OF THE COMMITMENTS
                                 […]
                                     17
 ---pagebreak--- SCHEDULE B
     LIST OF VODAFONE ITALIA’S AND INWIT’S EXISTING SITES IN MUNICIPALITIES WITH MORE THAN 35,000 INHABITANTS
[…].
                                                            18
 ---pagebreak---      SCHEDULE C
LIST OF SPECIFIC CITIES
          […]
              19
 ---pagebreak---    SCHEDULE D
REQUEST TEMPLATE
       […]
           20
 ---pagebreak---                   SCHEDULE E
PROCEDURE FOR REQUESTING ACCESS TO AVAILABLE SITES
                       […]
                           21
 ---pagebreak---             SCHEDULE F
    FORM AND CONTENT OF SITE LIST
[…]
                  22
 ---pagebreak---             SCHEDULE G
                                                                          PROCESS FOR OBTAINING ACCESS TO THE TRANSPARENCY REGISTER
                                                                                                                                                                        T0 (e.g. beginning of each
                                                          Process for obtaining access to Transparency Register                                                                                                 T0 to "T0 + 30 days"             "T0 + 30 days" onwards
                                                                                                                                                                                   month)
                                                                    Request not suitable                                                                                      ↓                                     ↓                                 ↓
        Third Party requests access to                              according to INWIT
         the Transparency Register                                    and MT (only if
          ("TR") to INWIT (cc the
         Monitoring Trustee “MT”)
                                                                       under disputes)
                                                                                               →                 En
                                                                                                                                                                    INWIT publishes on the
                                                                                                                                                                   TR each relevant new site
                                                                                                                                                                   (i e new Available Sites),
                                                                                                                                                                    identifying them as such
                         ↘                                ↗                                                                                                         and indicating that New
                                                                                                                                                                   Entrant MNOs have one-
                                  INWIT verifies suitability of the                                                                                                month exclusivity for any
                                      request according to the                                                                                                         new Available Sites
                                      Commitments (MT shall                                                                                                       published at the beginning
                                     adjudicate on any dispute)                                                                                                          of each month
                                                          ↘
                                                                                                                                                                                                        Pursuant to Schedule D,
                                                                    Request suitable as                                                                                                                INWIT shall process: (a)
                                                                    New Entrant MNO                                                                                                                     requests relating to sites
                                                                    or other Third Party                                                                                                                  added in the ongoing             INWIT shall also process
                                                                                                                                                                                                          month made by New                   requests (pursuant to
                                                                                                                                                                                                        Entrant MNOs only and            Schedule D) relating to sites
                                                                                                                                                                                                         (b) requests relating to           added in ongoing month
                                                                                    ↘                                                                                                                  previously added sites by         made by other Third Parties
                                                                                                                                                                                                             any Third Party             (as well as previously added
                                                                                             Third Party signs NDA and                                                                                                                                sites)
                                                                                            terms and conditions related
                                                                                               to TR access This is a
                                                                                           mandatory condition to have
                                                                                                  access to the TR
                                                                                                                                                                                                                                             New Entrant MNO that
                                                                                                                                                                                                                                           requests access to the TR
                                                                                                                                                                                                                                          after the expiry of "T0+30
                                                                                                                     ↘         INWIT produces Userid and                                                                                    days" can make requests
                                                                                                                                  Password Third Party                                                                                     (pursuant to Schedule D)
                                                                                                                                   receives Userid and                                                                                  with no exclusivity on a first
                                                                                                                                Password from INWIT and                                                                                   come first served basis for
                                                                                                                                     can enter the TR                                                                                          the relevant month
INWIT shall respond to a request for access to the TR within 3 working days The timing of the MT response (after a potential Third Party disputes INWIT’s response to a request for access to the TR) shall be determined by the MT according to its best practices
INWIT shall produce a Userid and Password in 2 working days following confirmation of a New Entrant MNO’s or other Third Party’s suitability for obtaining access Userid and Password will be subject to security rules For security reasons, Third Parties shall change
passwords every 3 months The status of New Entrant MNO/Third Party can be reviewed as appropriate during the period of the Commitments
Third Parties will have access to all Available Sites Third Parties other than New Entrant MNOs can also make requests (pursuant to Schedule D) relating to new sites during the New Entrant MNO exclusivity period (T0 to “T0+30 days”) but such requests will only be
processed after the expiry of the New Entrant MNO exclusivity period
In determining the ranking of New Entrant MNOs’ and other Third Parties’ requests to new sites, INWIT will take into account the date of the request made pursuant to Schedule D