Commission, February 4, 2016, No M.7637

I. THE PARTIES

(1) Telenet NV ('Telenet'), controlled by Liberty Global Broadband I Limited ('Liberty Global'), is a cable network operator in Belgium, specialising in the supply of fixed internet, fixed telephony services and cable television to customers throughout Flanders and parts of Brussels. Telenet also offers retail mobile telecommunications services as a mobile virtual network operator ('MVNO') in Belgium. Most of its mobile customers live in the footprint of Telenet's cable network, which covers Flanders and parts of Brussels.

(2) BASE Company NV ('BASE') is a subsidiary of the Dutch telecommunications group KPN. BASE is a mobile network operator ('MNO') offering mobile telecommunications services in Belgium. BASE also offers wholesale access to its network to MVNOs in Belgium. BASE owns 50 % of the shares in VikingCo NV ('Mobile Vikings'). Mobile Vikings is an MVNO which sells mobile services under the Mobile Vikings brand and uses BASE's mobile network. The other 50 % of Mobile Vikings is owned by VikingCo International NV.

II. THE OPERATION

(3) On 18 April 2015, a Sale and Purchase Agreement ('SPA') was concluded between KPN Mobile International B.V. and KPN Mobile N.V., as the sellers, and Telenet, as the purchaser, pursuant to which Telenet would acquire all issued and outstanding shares in the capital of BASE. Under the SPA, Telenet will acquire sole control over BASE.

(4) On 17 August 2015, the Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Telenet acquires, within the meaning of Article 3(1)(b) of the Merger Regulation, control of the whole of the undertaking BASE, by way of purchase of shares.

III. THE RELEVANT PRODUCT AND GEOGRAPHIC MARKETS

(5) The operation concerns services provided on the wholesale and retail level of the Belgian telecommunications sector.

(6) The Commission defined an overall product market for the retail provision of mobile telecommunications. The Commission defined such retail market for mobile telecommunications services as national in scope. However, in assessing the competitive impact of the operation, the Commission took account of the fact that Telenet competes almost exclusively in the geographic area that corresponds to its cable network footprint.

(7) With respect to retail TV services, the Commission defined the relevant product market as the overall retail market for TV services. As for the geographic scope, the Commission left open the question of whether the market was national, regional or corresponded to the footprint of Telenet's cable network.

(8) With respect to retail fixed internet access services, the Commission defined the market as the overall retail market for fixed internet access services, and left open the question of whether the geographic scope of this market should be national, regional, or limited to the footprint of Telenet's cable network.

(9) The Commission defined an overall product market for retail fixed telephony services, and left open the question of whether the geographic scope of this market should be national, regional or limited to the footprint of Telenet's cable network.

(10) The Commission also assessed whether a separate retail market should be identified in Belgium for so-called fixed-mobile multiple play services, that is to say a retail market where customers purchase mobile telecommunications services together with one or more fixed telecommunications service (TV, fixed internet, fixed telephony). The Commission concluded that such market does not currently exist in Belgium, among others because of the limited amount of mobile-fixed services purchased together by consumers. In any case, if such a retail market for multiple play services were to exist, the effects of the operation on such a market would have been taken into account in the Commission's competitive assessment of possible conglomerate effects.

(11) At the wholesale level, the Commission defined a market for access and call origination on mobile networks, which is national in scope.

(12) The Commission also identified separate markets for wholesale access to TV and internet services, and left open the question of whether these markets should be national in scope, or limited to Telenet's footprint.

(13) The Commission also identified and defined relevant markets for: wholesale call termination services on mobile networks, wholesale international roaming services, wholesale call termination services on fixed networks, wholesale domestic call transit services on fixed networks, wholesale services for termination and hosting of calls to non-geographic numbers, and wholesale access to leased lines. However, the Commission found that the operation did not raise competition concerns with respect to any of these markets.

IV. COMPETITIVE ASSESSMENT

1. Horizontal assessment: Effective competition would be significantly impeded on the retail market for mobile telecommunications

(14) At the retail level, BASE's and Telenet's activities overlap only with respect to the retail market for mobile telecommunications services. On this market, BASE operates as an MNO, which owns its mobile network. In 2014, it had a market share of [10-20] % by revenue and [20-30] % by subscribers.

(15) Telenet also offers retail mobile telecommunications services, but does not have a mobile network. It operates as an MVNO, by relying on wholesale access to the mobile network of Mobistar, another MNO active in Belgium. Telenet started offering retail mobile telecommunications services in 2006 as a light MVNO, and became a full MVNO in 2012. In 2014, it had a market share of [5-10] % by revenue and [5-10] % by subscribers. Telenet's success as an MVNO was due to several specific factors, including the fact that, when it launched its activities as an MVNO, it already had an established market presence and brand in Belgium based on its activities as a provider of fixed TV and internet services.

(16) The Commission concluded that the operation would lead to a significant impediment to effective competition stemming from non-coordinated anti-competitive effects on the retail market for mobile telecommunications services in Belgium. The Belgian retail mobile market is a highly concentrated market with high barriers to entry. At the end of 2014, the three MNOs in Belgium and Telenet together accounted for [90-100] % of all revenue. BASE was the third largest MNO by revenue and the second largest MNO by subscribers at the end of 2014. Telenet was the largest MVNO in Belgium, both by revenue and subscribers. It was the fourth largest mobile operator in Belgium by revenue and subscribers. The operation would create an entity that would become the second largest mobile operator by subscribers, behind Proximus, and the third largest mobile operator by revenue, behind Proximus and Mobistar.

(17) The Commission found that BASE and Telenet have been particularly active and aggressive competitors in the retail mobile market, particularly in the private (non-business) segment of the market. Post-operation the merged entity would compete less aggressively, thus lessening competition on the retail market for mobile telecommunications.

(18) At the retail level, Telenet is also active in the markets for the provision of TV services, fixed internet access services and fixed telephony services. BASE is not active on these markets, as it stopped providing these fixed services in December 2014. Therefore, the Commission found that the operation did not raise horizontal competition concerns on these markets, and would not remove BASE as a (actual or potential) competitor to Telenet for retail TV services, fixed internet access services and fixed telephony services.

2. Vertical assessment: Effective competition would not be significantly impeded as a result of reduced wholesale access to BASE's mobile network or Telenet's cable network (input foreclosure)

(19) With respect to the wholesale market for access and call origination on mobile networks, the Commission analysed whether the merged entity would foreclose the MVNOs on the BASE network from access to its mobile network (input foreclosure). First, the Commission concluded that the operation would not change the merged entity's ability to engage in input foreclosure, as BASE could already deny access to MVNOs pre-operation. Second, the Commission found that the operation would alter the merged entity's incentive to engage in input foreclosure only to a limited extent. Finally, the Commission found that even if the merged entity were to engage in input foreclosure towards MVNOs, this conduct would have limited effects, as MVNOs (other than Telenet) do not play a sufficiently important role in the competitive process on the retail market for mobile telecommunications services. For these reasons, the Commission concluded that the operation would not lead to a significant impediment to effective competition as a result of input foreclosure of wholesale access and call origination on mobile networks in Belgium.

(20) With respect to the markets for wholesale access to TV and internet services, the Commission assessed whether the operation would change Telenet's ability and incentive to foreclose other telecommunications operators by hampering access to its cable network, which can be an input for the retail provision of fixed telecommunications services, such as fixed telephony, fixed internet, and TV services. The Commission noted that the Belgian telecommunications regulators imposed on Telenet an obligation to grant access to its cable network for the provision of retail TV services, and, in combination with retail TV services, retail internet access services. Given this regulatory regime, the Commission concluded that Telenet does not have the ability to foreclose access to its cable network for the purpose of providing TV services or fixed internet services in combination with TV services and this situation would not change with the operation. With respect to stand-alone internet services, the Commission noted that Telenet does have the ability and the incentive to foreclose access to its cable network, as there is no regulatory obligation upon Telenet to grant wholesale access to its network for standalone fixed internet services. However, this situation already existed pre-operation and would not be affected by the operation. As such, the Commission concluded that the operation would not lead to a significant impediment to effective competition as a result of input foreclosure of wholesale access to Telenet's cable network.

3. Conglomerate assessment: The operation would not lead to conglomerate effects due to the bundling of fixed and mobile services

(21) The Commission assessed whether the operation would lead to conglomerate effects. The operation combines an MNO and an operator with a fixed network and the Commission therefore assessed whether the merged entity could foreclose competitors by bundling fixed and mobile services.

(22) The Commission noted that pre-operation Telenet already offers all four components of retail fixed-mobile multiple play packages (TV, fixed internet, fixed telephony and mobile telecommunications services). Telenet can therefore already sell fixed-mobile bundles to consumers. The Commission also noted that the operation does not change Telenet's position in any of the fixed markets, since BASE is not active in any of these markets. The operation does, however, increase the mobile customer base of the merged entity, since it will combine the BASE and Telenet customers. In turn, this could possibly facilitate fixed-mobile bundling in two ways. First, it may make it easier for Telenet to sell fixed-mobile bundles to BASE subscribers who do not yet purchase fixed services from Telenet. Second, it may make it easier for Telenet to sell fixed-mobile bundles to BASE subscribers who already purchase fixed services from Telenet.

(23) With respect to the first of these two potential types of conduct which could be facilitated by the operation (foreclosure by selling fixed-mobile bundles to BASE's mobile subscribers who do not yet purchase fixed services from Telenet), the Commission noted the following. First, it is unlikely that the operation would give the merged entity the ability to engage in foreclosure through bundling. A significant part of all BASE customers live outside of the Telenet footprint and it is unlikely that the merged entity would offer fixed-mobile services outside of its footprint. Moreover, the number of BASE customers to whom Telenet does not already sell its fixed services is limited and many BASE customers are pre-paid customers, who would first have to be converted into post-paid subscribers before being offered fixed-mobile bundles. This is an additional hurdle to the cross-selling of fixed-mobile bundles. In addition, the merged entity will not hold a dominant position in the mobile retail market and it is therefore doubtful that the merged entity would have sufficient market power to foreclose competitors through bundling. Finally, the merged entity's competitors could deploy counter-strategies, such as offering fixed-mobile bundles themselves or offering mobile services at attractive prices to prevent customers from purchasing fixed-mobile bundles from the merged entity.

(24) Second, the Commission considered that it was uncertain whether Telenet would have the incentive to engage in cross-selling of its fixed services to BASE mobile customers, as it would likely have to offer these services at a discount, which would come at a cost for Telenet.

(25) Finally, the Commission found that such conduct was unlikely to have a negative impact on prices and choice, since it is unlikely that competitors would exit the market or lose the ability to compete effectively. The volume of sales that could be foreclosed through bundling as a result of the operation is limited. Moreover, a large majority of all mobile services in Belgium is still purchased as a stand-alone service, not in a bundle. The other MNOs in the Belgian market are Proximus and Mobistar and they could also engage in bundling. Proximus is by far the largest telecoms operator in the Belgian retail market and engages in fixed-mobile bundling itself. Mobistar is, even after the operation, the second largest mobile operator by revenue, after Proximus. It could offer fixed services based on wholesale access to Telenet's cable network and has already announced that it will do so. Telenet is under a regulatory obligation to provide access to its network in order for alternative operators to offer TV services and, in combination with TV services, fixed internet services.

(26) With respect to the second type of conduct (foreclosure by selling fixed-mobile bundles to BASE's mobile subscribers who also purchase fixed services from Telenet), the Commission noted the following. First, the operation would not significantly increase Telenet's ability to foreclose competitors by offering a single bill or a bundle to the BASE subscribers that already purchase Telenet services. As indicated in paragraph (22), that advantage is indeed limited by a number of elements, notably the fact that a significant part of BASE subscribers lives outside of Telenet's footprint and are pre-paid subscribers. Moreover, Telenet would, even after the operation, not have a dominant position in the retail mobile market and the merged entity's rivals could engage in counter-strategies in response to bundling. Second, it was uncertain whether Telenet would have the incentive to engage in such a conduct, considering the speculative nature of the long-term gains of a foreclosure strategy. Finally, as explained in paragraph (24), such a conduct would not likely have a negative impact upon prices or lead to foreclosure of competitors which, in particular, could offer bundles themselves or price their mobile services more cheaply to prevent customers from purchasing the merger entity's bundles.

4. Conclusion regarding the competitive assessment

(27) The Commission concluded that the operation would lead to a significant impediment to effective competition stemming from non-coordinated anti-competitive effects on the retail market for mobile telecommunications services in Belgium. The Commission found that the operation would not lead to a significant impediment to effective competition with respect to vertical and conglomerate effects on the retail or wholesale fixed and mobile telecommunications markets.

V. COMMITMENTS

(28) In order to address the competition concerns identified by the Commission on the retail market for mobile telecommunications services, Liberty Global submitted commitments.

1. Description of the commitments

(29) The final commitments submitted by Liberty Global consisted of two elements. First, Telenet would divest two of BASE's customer bases, amounting to around [...] active subscribers, to one and the same purchaser. Second, Telenet would enter into an MVNO agreement with the purchaser of the customer bases, enabling the remedy taker to operate on the retail market for mobile telecommunications services as an MVNO on the BASE network. The final commitments included an upfront buyer clause (Telenet could not close the operation until it had concluded an agreement for the divestment of the customer bases) and required that the Commission approve the MVNO agreement as compliant with the requirements set in the final commitments.

(30) Liberty Global proposed Medialaan to the Commission as a fix-it-first remedy taker. Liberty Global also provided to the Commission copies of (i) the agreement with Medialaan for the sale of the BASE customer bases; and (ii) the MVNO agreement with Medialaan.

(31) Under the final commitments, Telenet would transfer to Medialaan the ownership of the customers of the 'JIM Mobile' brand, and its 50 % stake in the light MVNO Mobile Vikings. 'JIM Mobile' is a brand already owned by Medialaan, but the 'JIM Mobile' customers belong to BASE. Mobile Vikings is a light MVNO operating on the BASE network, in which BASE has a 50 % share. In parallel to the acquisition of BASE's share in Mobile Vikings, Medialaan separately acquired the other 50 % share in Mobile Vikings. The combined effect of the final commitments and Medialaan's separate acquisition is thus that Medialaan will directly or indirectly own 100 % of Mobile Vikings.

(32) The final commitments provided that the MVNO agreement would have the following features: (i) Medialaan would become a full MVNO within a set time period, with Telenet's assistance; (ii) the MVNO agreement would have a duration of 5 years from the full MVNO launch; (iii) under the MVNO agreement, the MVNO would operate under a 'pay-as-you-go' model, but would have the option to acquire capacity from BASE for data (the 'pay-as-you-go' model would continue for voice and SMS); (iv) under the capacity option, Medialaan could acquire, at a fixed annual price, 20 % of the capacity on the BASE network, with the possibility to acquire further additional capacity (5 % plus another 5 %); (v) in case of exercise of the capacity option, the MVNO agreement would be extended for 5 years from the first year of implementation of the capacity option; (vi) the MVNO agreement would have an exclusivity period of a fixed time period starting from the date of the divestment of the customer bases, during which Medialaan could not rely on another MNO host; (vii) under the capacity option, should Medialaan exceed the capacity purchased from BASE, it would be entitled after the exclusivity period to rely on another MNO for the necessary excess capacity (as an alternative to purchasing additional capacity from BASE).

2. Assessment of the commitments submitted and of the remedy taker

(33) The Commission considered that the final commitments removed the Commission's horizontal concerns with respect to the retail market for mobile telecommunications services.

(34) The Commission considered that the divestment of the two customer bases ('JIM Mobile' customers and Mobile Vikings) to Medialaan would create a mobile operator with the necessary scale and scope to compete aggressively on the retail market for mobile telecommunications and recreate to the greatest extent possible the competitive pressure exercised by Telenet pre-operation.

(35) With respect to the MVNO agreement, the Commission considered that the 'pay-as-you-go' model [...], and would thus enable Medialaan to operate under favourable economic terms. With respect to the capacity option, the Commission considered that this option would enable Medialaan to further grow and compete effectively.

(36) As part of its assessment, the Commission also analysed Medialaan as the proposed remedy taker. The Commission concluded that Medialaan would be a suitable buyer, would be independent of Telenet, and would have the financial resources, expertise and incentives to compete effectively on the retail market for mobile telecommunications. In particular, the Commission considered that the transfer of the 'JIM Mobile' and Mobile Vikings customers to Medialaan and the transition of Medialaan to full MVNO could be achieved within the timeframe provided in the final commitments and would enable Medialaan to become an effective competitor. The Commission also concluded that Medialaan's acquisition of 'JIM Mobile' customers and Mobile Vikings would not raise prima facie competition concerns.

(37) The Commission also reviewed the MVNO agreement between Telenet and Medialaan, and concluded that its terms complied with the requirements of the final commitments.

(38) The Commission therefore concluded that the final commitments would remove the horizontal concerns it had identified with respect to the retail market for mobile telecommunications. It approved Medialaan as a suitable remedy taker and declared the MVNO agreement consistent with the final commitments.

VI. CONCLUSION

(39) For the reasons mentioned above, the decision concludes that, subject to compliance with the commitments given by the notifying party, the proposed concentration will not significantly impede effective competition in the Internal Market or in a substantial part of it.

(40) Consequently the concentration should be declared compatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement.

NOTE

(1) OJ L 24, 29.1.2004, p. 1.