Contents
Judgment of the General Court (Seventh Chamber, Extended Composition)13 November 2024note(Competition — Concentrations — German markets for TV services and telecommunications services — Decision declaring the concentration compatible with the internal market and the EEA Agreement — Commitments — Assessment of the horizontal, vertical and conglomerate effects of the transaction on competition — Competitive relationship between the parties to the concentration — Merger-specific change — Manifest error of assessment)In Case T‑58/20,NetCologne Gesellschaft für Telekommunikation mbH, established in Cologne (Germany), represented by M. Geppert, P. Schmitz and J. Schulze zur Wiesche, lawyers,vEuropean Commission, represented by G. Conte, A. Keidel and C. Vollrath, acting as Agents,supported byVodafone Group plc, established in Newbury (United Kingdom), represented by V. Vollmann, solicitor, C. Jeffs, A. Chadd and D. Seeliger, lawyers,THE GENERAL COURT (Seventh Chamber, Extended Composition),composed of M. van der Woude, President, R. da Silva Passos (Rapporteur), I. Reine, L. Truchot and M. Sampol Pucurull, Judges,Registrar: S. Jund, Administrator,having regard to the written part of the procedure,further to the hearing on 22 September 2023,gives the following
JudgmentOnly the paragraphs of the present judgment which the Court considers it appropriate to publish are reproduced here.
1By its action under Article 263 TFEU, the applicant, NetCologne Gesellschaft für Telekommunikation mbH, seeks the annulment of Commission Decision C(2019) 5187 final of 18 July 2019 declaring the concentration involving the acquisition by Vodafone Group plc of certain assets of Liberty Global plc to be compatible with the internal market and the EEA Agreement (Case COMP/M.8864 – Vodafone/Certain Liberty Global Assets) (‘the contested decision’).…
I.Procedure and forms of order sought
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47The applicant claims that the Court should:– annul the contested decision;– order the Commission to pay the costs.
48The Commission and Vodafone contend that the Court should:– dismiss the action;– order the applicant to pay the costs.
II.Law
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B.The first plea in law: manifest errors of assessment, breach of the obligation to state reasons and of the duty of diligence arising from the refusal to find a SIEC on the MDU market
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3.The first part: manifest errors of assessment by the Commission, in that it concluded that the merging parties were not direct competitors
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98In that regard, it must be pointed out that there is direct competition between undertakings when they compete for the same customers.
99In the present case, it is common ground that the merging parties’ cable networks do not overlap and that, in fact, when an MDU customer wishes to conclude a contract with a TV signal provider, it is, in principle, only able to choose between the merging party within whose cable footprint the building to be connected is located and one of its competitors, such as the applicant. Whether the MDU market was, prior to the transaction, national in scope or whether it was limited to the cable footprints of the merging parties changes nothing, since, in both cases, that observation holds true.
100It follows that the products marketed by the merging parties were, in practice, not in competition and, consequently, the Commission did not make a manifest error of assessment when it concluded that those parties were not direct competitors prior to the concentration.
101The arguments put forward by the applicant do not enable a finding to the contrary to be made.
102In the first place, it should be noted that, as the Commission confirmed before the Court, there were strong indications that the MDU market was, prior to the transaction, geographically limited to the cable footprint of each of the parties, but that, because of the existence of nationally active suppliers and customers and the fact that any price differences within the country were not linked to those footprints, it could not completely rule out the possibility that the MDU market could be national.
103Accordingly, the fact that the Commission envisaged that the market could be national in scope does not mean that it concluded that, on such a hypothetical market, the merging parties were in direct competition. It is only as a later step, in its examination of the effects of the transaction on the MDU market, that the Commission assessed whether, on a possible national market, the transaction would, in view of the parties’ activities, lead to a loss of direct competition between them. The fact that, in the contested decision, the Commission envisaged that the MDU market could already have been national in scope before the transaction does not therefore permit the inference that the merging parties were necessarily actual competitors on such a market, as the applicant submits. Lastly, it cannot be ruled out that two undertakings operate with other undertakings in the same geographic market, without those two undertakings seeking to win the same customers, in particular on account of the geographic limits of their cable networks.
104As regards the failure to state reasons alleged by the applicant, in that the Commission failed to examine the effects of the concentration on the MDU market, defined at national level, it should be noted that, in Section VIII.2.4.2.3 of the contested decision, namely in recitals 721 to 785 thereof, the Commission examined, in detail, whether the transaction would have the effect of eliminating an actual or potential competitive constraint between the merging parties. The findings made therein applied, whether the MDU market was national in scope or whether it was limited to the respective cable footprints of Vodafone and Unitymedia.
105In the second place, as regards the complaints put forward by the applicant irrespective of the geographic definition of the MDU market, it must be stated that while there was no overlap between the merging parties’ cable networks, which the applicant does not call into question, it is true that, in the contested decision, the Commission found that there were nevertheless certain overlaps between their activities, since those operators purchased, in that situation, intermediary services for the transmission of TV signals from the other party or from another level 3 network operator in order to be able to reach the MDU customers concerned.
106It should be noted that the applicant does not call into question the figures, as such, disclosed by the Commission during the proceedings before the Court regarding the contracts concluded by the merging parties outside their cable footprints and the number of customers concerned, although it does dispute that those figures were negligible. In that regard, it must be stated that those figures show that those agreements represented (i) a very limited number of MDU customers in terms of households connected and (ii) a market share so negligible, since it was less than 1%, that it could not represent residual competition needing protection. Furthermore, such agreements outside their cable footprints were concluded only exceptionally by the merging parties, which the applicant does not dispute.
107Moreover, in view of the negligible market share resulting from the contracts concluded by the merging parties outside their cable footprint, it was unlikely that that transaction would lead to a strengthening of a dominant position, so that it is not possible to accept the applicant’s argument that the Commission ought to have found that there was a SIEC, having regard to the high market shares of the merging parties which the concentration would have further strengthened.
108In any event, it should be observed that, in accordance with Article 2(2) and (3) of Regulation No 139/2004, only those concentrations which would significantly impede effective competition in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, are to be declared incompatible with the internal market. It follows from the wording of those provisions that the essential criterion for the examination of the compatibility of a concentration with the internal market lies in the creation of a SIEC in the said market. The use of the adverb ‘in particular’ indicates that the creation or the strengthening of a dominant position constitutes one of the scenarios wherein such impediment can be found. Consequently, contrary to the applicant’s allegations, a concentration creating or strengthening a dominant position does not automatically give rise to a SIEC and there is no automatic link between the dominant position test and the SIEC test.
109As regards, next, the applicant’s allegation that the Commission failed to take account of several documents showing that Unitymedia intended to connect MDU customers in Vodafone’s cable footprint, it must be stated that such an assertion relates to the existence of potential competition, rather than to alleged existing direct competition, which makes it ineffective in the context of the first part of the present plea.
110Finally, as regards the applicant’s allegation that the Commission wrongly marginalised the direct competition between the merging parties, on account of the fact that there was no ‘active’ competition, it must be held that the Commission’s finding in recital 768 of the contested decision that the parties did not compete ‘actively’ had the sole purpose of explaining that it was only in response to unsolicited requests from MDU customers that the parties had, on very rare occasions, concluded contracts for the supply of the television signal on the other party’s footprint. In order to respond to such requests, the parties were then required to acquire intermediary services for the transmission of television signals from another operator. In so doing, the Commission in no way considered that, in the field of the control of concentrations, the elimination of ‘active’ competition was necessary in order to establish the existence of a SIEC.
111It follows from all of the foregoing that the applicant has not shown that the Commission, in a manifestly erroneous manner or in breach of its obligation to state reasons or its duty of diligence, concluded in the contested decision that the merging parties were not direct competitors prior to the concentration. The first part of the present plea must therefore be rejected.
4.The second part: manifest errors of assessment by the Commission, in that it considered that the merging parties were not potential competitors
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134As regards, in the first place, the applicant’s allegation that it is foreseeable that the tendency of housing associations to be served by only one supplier would increase, in view of the strong consolidation endured for several years by the housing sector in Germany, it must be stated that the existence of an intention is not sufficient to assess whether there is a potential competitive relationship between two undertakings.
135The assessment of whether there is potential competition seeks to ascertain whether, in the light of the structure of the market and the economic and legal context within which it functions, there are real concrete possibilities for the undertakings concerned to compete among themselves or for a new competitor to enter the relevant market and compete with established undertakings (see judgment of 4 July 2006, easyJet v Commission (T‑177/04, EU:T:2006:187, paragraph 116 and the case-law cited). It follows that such an assessment, based on the conditions for market entry by a potential new offeror, depends primarily on an examination of the supply side, and not of the demand side, with the result that the first complaint cannot succeed.
136In any event, the applicant itself states that the housing sector in Germany has been the subject of intense consolidation for a number of years. That consolidation which has already been ongoing for a number of years has not, however, led to a significant increase in the merging parties’ market share outside their respective footprints resulting from the conclusion of contracts with large MDU customers wishing to be served by only one operator, since it is apparent from table 16 of the contested decision that both Vodafone and Unitymedia held a market share of [0 to 5%] in the other party’s footprint.
137As regards, in the second place, the results of the market investigation which the Commission allegedly failed to take into account, it must be pointed out that the Commission is entitled to take those results into account, but that those results cannot be decisive in assessing whether there is potential competition.
138In any event, while the opinions of competitors may constitute an important source of information on the foreseeable impact of a concentration on the market, they cannot bind the Commission when it makes its own assessment of the impact of a concentration on that market (see, to that effect, judgments of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraphs 290 and 291, and of 5 October 2020, HeidelbergCement and Schwenk Zement v Commission, T‑380/17, EU:T:2020:471, paragraph 673 (not published)), with the result that that second complaint cannot be upheld.
139In any event, it is apparent from recitals 727, 728, 752 and 753 of the contested decision that the Commission did indeed take account of the opinions of competing operators, since it follows from those recitals that it undertook a thorough examination of whether there was potential competition between the parties to the concentration, on account, inter alia, of the observations made by those operators. Consequently, contrary to the allegations of the applicant, the Commission has in no way denied the probative force of the results of the market investigation and it undertook a critical examination of the merging parties’ allegations in the light of those results.
140As regards, in the third place, the fact that Vodafone already owned certain infrastructure in Unitymedia’s cable footprint, it must be stated that the Commission took that into account in its analysis of whether there was potential competition between the merging parties. In fact, it is apparent from recital 740 of the contested decision that the projections made by Vodafone and verified by the Commission did indeed take account of that operator’s existing infrastructure and the deployment of 5G, which did not, however, make cable overbuild sufficiently profitable, with the result that the third complaint cannot succeed.
141As regards, in the fourth place, the fact that Vodafone’s previous non-overbuild of Unitymedia’s cable network is not proof of the absence of potential competition between them, contrary to the applicant’s allegations, that factor is indeed relevant for the purpose of assessing the likelihood of Vodafone entering Unitymedia’s cable footprint. The fact that that operator never undertook such overbuild in the past, combined with the fact that it had no intention to do so, supports the Commission’s conclusion that an expansion by Vodafone into Unitymedia’s cable footprint would have been unlikely in the absence of the transaction, with the result that the fourth complaint cannot be upheld. In any event, as is apparent from paragraphs 115 and 116 above, it must also be stated that, in the contested decision, the Commission did not rely on that evidence alone (see recitals 731 to 746 of the contested decision).
142As regards, in the fifth place, the applicant’s allegation that the Commission relied, in order to establish that cable overbuild was unprofitable, on factors which are relevant for any type of network expansion, including an expansion within the footprint of the operator concerned, it must be stated that, in recital 737 of the contested decision, the Commission found that cable overbuild was not attractive overall to Vodafone, ‘[particularly when compared to adding] new homes within its existing cable footprint [which] … requires less infrastructure to be built … and offers higher revenue opportunities given the absence of an incumbent cable operator’. It follows that the Commission found that cable overbuild outside its footprint was less profitable than an expansion of the cable network within its own territory, which the applicant does not dispute, as such.
143In addition, it must be held that, in a passage from recital 736 of the contested decision disclosed by the Commission pursuant to the order of 30 March 2023, the Commission stated that it had ascertained that, over the previous five years, Vodafone’s expansion of its network had been negligible within its respective cable footprint or close to it. That finding, which the applicant did not call into question in its observations of 2 June 2023, confirms the Commission’s conclusion that an expansion by Vodafone within Unitymedia’s cable footprint was unlikely absent the transaction. If Vodafone’s expansion of its cable network in its respective cable footprint prior to the transaction had been only negligible, it was unlikely that it would overbuild within Unitymedia’s cable footprint, since it was less profitable to do so. The applicant’s fifth complaint must, consequently, be rejected.
144As regards, in the sixth place, Vodafone’s investment criteria and the applicant’s allegation that the Commission erred in relying primarily on those criteria without having sufficiently verified them, it must be noted that, in order to determine whether an undertaking is a potential competitor in a market, the Commission is required to determine whether, in the absence of the concentration at issue, there would have been real concrete possibilities for it to enter that market and to compete with established undertakings. Such a demonstration must not be based on a mere hypothesis, but must be supported by evidence or an analysis of the structures of the relevant market. Accordingly, an undertaking cannot be described as a potential competitor if its entry into a market is not an economically viable strategy (see, by analogy, judgment of 29 June 2012, E.ON Ruhrgas and E.ON v Commission, T‑360/09, EU:T:2012:332, paragraph 86 and the case-law cited).
145Moreover, the economic viability of a market entry strategy does not amount simply to such a strategy being profitable. If that were the case, a mere theoretical ability to enter a market could be regarded as sufficient to establish that potential competition exists. Therefore, the Commission may take account of the commercial or economic interest in entering a market on the part of the undertaking whose status as a potential competitor is under analysis (see, to that effect, judgments of 21 September 2005, EDP v Commission, T‑87/05, EU:T:2005:333, paragraphs 177, 185, 187, 188, 191 and 195, and of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 123) and, consequently, may rely on its investment criteria. Accordingly, the Commission cannot classify an undertaking as a potential competitor on the basis of general, abstract considerations without taking into account the commercial interests of that undertaking, its short-term and medium-term development strategy and the profitability criteria which it has set for itself for that purpose.
146In that regard, it should be observed that the Commission must rely on a body of evidence in order to assess whether potential competition exists. When conducting that exercise, it cannot disregard the investment strategies of the undertakings concerned. That is so, in particular, for large international groups such as Vodafone, which must be able to decide between investment projects relating to a number of national markets on the basis of the best rates of return. Furthermore, it must be stated that the information provided by the applicant is not sufficient to support the conclusion that the Commission was in possession of evidence that the figures submitted by the party which notified the concentration were incorrect.
147In addition, it should be pointed out that various measures to discourage and punish the communication of inaccurate or misleading information are provided for in the legislation applicable to the control of concentrations. Parties which notify a concentration are, under Article 4(1) and Article 6(2) of Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1, and corrigendum OJ 2004 L 172, p. 9), subject to an express obligation to make a full and honest disclosure to the Commission of the facts and circumstances which are relevant for the decision on compatibility, since penalties in respect of that obligation are laid down in Article 14 of Regulation No 139/2004. Furthermore, the Commission may also, on the basis of Article 6(3)(a) and Article 8(6)(a) of Regulation No 139/2004, revoke the decision on compatibility if that decision is based on incorrect information for which one of the undertakings is responsible or where it has been brought about by deceit (judgment of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 185).
148Lastly, it should be noted (i) that it is apparent in particular from recital 742 of and footnote 553 to the contested decision that the Commission verified the merging parties’ projections, in which they examined the profitability, in the light of their investment criteria, of a number of infrastructure deployment projects, and concluded that the results of those projections were sufficiently robust, and (ii) that the Commission did not rely solely on the merging parties’ investment criteria in order to conclude that they were not potential competitors, but took account, inter alia, of the fact that, in practice, neither Vodafone nor Unitymedia had ever overbuilt the other party’s cable infrastructure and that the parties’ expansions within their own cable footprint had been negligible, even though such an internal expansion was more profitable.
149As regards the allegation that the Commission itself found that Deutsche Telekom was willing to expand its network, with the consequence, according to the applicant, that Vodafone ought also to have been capable of doing so, it should be noted that, in the contested decision, the Commission explained why those strategies were not applicable to the merging parties.
150As regards, more specifically, the case of Deutsche Telekom, as is apparent from recital 744(c) of the contested decision and from that operator’s response, which is cited therein, its situation is very different from that of the parties to the concentration, in particular on the ground that Deutsche Telekom already had a very extensive fibre optic network and that it used that network to provide broadband access services via digital subscriber line technology (Digital Subscriber Line, DSL). Consequently, in order to expand its offer to MDU customers to new areas, Deutsche Telekom could rely on its own fibre optic lines or its existing ducts and generally needed to build only short parts of the level 3 network.
151The applicant’s sixth complaint must, consequently, be rejected.
152As regards, in the seventh place, the cooperation between Vodafone and Deutsche Glasfaser, the applicant itself states, in the application, that the network which would be deployed in that context would enable fibre optic to be provided to undertakings and therefore does not cover the MDU market.
153The ‘Gigabit’ investment plan produced by the applicant merely confirms the foregoing, since it is apparent from that plan that the project is intended, first, to roll out a fibre optic network in order to provide very rapid internet to undertakings (100000 undertakings in approximately 2000 areas of economic activity, for an amount between EUR 1.4 billion and EUR 1.6 billion) and to rural households in cooperation with municipalities and through subsidies from those municipalities (1 million rural households underserved in terms of internet, for an amount of between EUR 0.2 billion and EUR 0.4 billion) and, second, to upgrade Vodafone’s cable infrastructure in accordance with the DOCSIS 3.1 standard with a view to providing faster internet to ‘all 12.6 million households concerned’ (for an amount of EUR 0.2 billion).
154It must therefore be held that that project concerns the market for the provision of fixed internet access services and that it is therefore not relevant to the examination whether there is potential competition between the merging parties on the MDU market.
155In any event, it should also be noted that the main purpose of that project is to connect (to very fast broadband internet) rural businesses and households in under-served areas, and therefore not MDU customers, and, to a lesser extent, to update Vodafone’s existing cable network in order to improve the internet connection of current customers of that operator.
156It should be added that it is apparent from the ‘Gigabit’ investment plan adduced by the applicant that that project satisfies Vodafone’s investment criteria as referred to in the contested decision, which confirms that, first, that operator ensures that those criteria are satisfied when it intends to launch an infrastructure project and that, second, the Commission was entitled to rely on those criteria when it examined the likelihood that Vodafone would overbuild the cable networks in Unitymedia’s footprint in order to connect MDU customers.
157Lastly, the fact that Vodafone announced on 6 December 2019 that it was expanding its collaboration with Deutsche Glasfaser to roll out fibre optic for private individuals, inter alia within Unitymedia’s cable footprint, is not relevant in the context of an examination of the lawfulness of the contested decision, since that fact took place after that decision was adopted. In an action for annulment, the legality of the contested act must be assessed on the basis of the facts and the law as they stood at the time when the act was adopted (see judgment of 10 September 2019, HTTS v Council, C‑123/18 P, EU:C:2019:694, paragraph 37 and the case-law cited; judgment of 17 September 2007, Microsoft v Commission, T‑201/04, EU:T:2007:289, paragraph 260) and in the light of the information available to the institution responsible for the measure at the time when it was adopted (judgments of 9 September 2009, Brink’s Security Luxembourg v Commission, T‑437/05, EU:T:2009:318, paragraph 96, and of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 157). An applicant cannot therefore rely, before the EU Courts, on facts which occurred subsequent to the act the lawfulness of which is challenged or if the author of that act could not have been aware of those facts at the time the act was adopted. In any case, the applicant has not demonstrated that that collaboration was intended to connect MDU customers.
158The applicant’s seventh complaint must therefore be rejected.
159As regards, in the eighth place, the allegation that it would be possible to serve MDU customers without needing to roll out a level 3 cable network, it should be noted that the Commission did not confine itself to examining the likelihood of potential competition by means of overbuilding the cable network of the other party to the concentration, as is apparent from recital 745 of the contested decision in relation to Vodafone and recital 763 of that decision in relation to Unitymedia. In that context, the Commission concluded that it was also unlikely that a party would enter the other party’s cable footprint other than by infrastructure, such as, inter alia, via leased lines, satellite infrastructure or level 4 networks.
160In that regard, it should also be noted that, in recital 820 of the contested decision, the Commission found that level 4 operators were fully dependent on the parties’ willingness to offer intermediary TV signal transmission services on competitive terms, which the applicant does not dispute. Next, in recital 1479 of the contested decision, the Commission noted that level 4 operators had themselves explained that they were active in a niche segment of the market, whereas the housing associations had stated that those operators frequently did not meet the required service level requirements and were not able to undertake level 3 network upgrades, which the applicant also does not dispute.
161Furthermore, contrary to the applicant’s allegations, the fact that the merging parties’ use of that technical possibility was only negligible merely confirms that it is not attractive from a competitive point of view and supports the Commission’s finding that it was unlikely that the merging parties would expand their activities within the cable footprint of the other party other than via infrastructure.
162The applicant’s eighth complaint must therefore be rejected.
163As regards, in the ninth place, the references made by the applicant, first, to the Commission’s previous decision-making practice and, second, to a decision of the Federal Cartel Office and to a judgment of the Oberlandesgericht Düsseldorf (Higher Regional Court, Düsseldorf), it should be noted that the Commission is not bound by them.
164First, it must be noted that when the Commission takes a decision on the compatibility of a concentration with the internal market on the basis of a notification and a file pertaining to that transaction, an applicant is not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case, on the basis of a different notification and a different file, even where the markets at issue in the two cases are similar, or even identical (judgments of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 118, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 142).
165Second, it should also be noted that, having regard to the clear division of powers on which Regulation No 139/2004 is based, decisions taken by the national authorities cannot be binding on the Commission in proceedings for the control of concentrations (see, to that effect, judgments of 18 December 2007, Cementbouw Handel & Industrie v Commission, C‑202/06 P, EU:C:2007:814, paragraph 56, and of 7 May 2009, NVV and Others v Commission, T‑151/05, EU:T:2009:144, paragraph 139).
166The applicant’s ninth complaint must, consequently, be rejected.
167It follows from the foregoing that the applicant has not succeeded in demonstrating that the Commission made manifest errors of assessment in finding, in the contested decision, that the merging parties were not potential competitors on the MDU market and that they therefore did not exert competitive constraints on each other.
5.The third part: manifest errors in the assessment of the impact of the concentration on the competitive constraints exerted by competitors
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(b)The analysis of the foreseeable competitive constraints exerted by third parties post-merger was allegedly insufficient and incorrect
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190In that regard, it is true that a situation in which the competitive pressure exerted by competitors would be significantly reduced as a result of a merger may give rise to a SIEC.
191In addition, it should be noted that the Commission, when assessing the compatibility of a concentration with the internal market, must take account of a number of factors, such as the structure of the relevant markets, actual or potential competition from undertakings, the position of the undertakings concerned and their economic and financial power, possible options available to suppliers and users, any barriers to entry and trends in supply and demand (judgment of 15 February 2005, Commission v Tetra Laval, C‑12/03 P, EU:C:2005:87, paragraph 125). A finding of an increase in the financial strength of the merged entity does not, consequently, in itself make it possible to find a SIEC.
192Furthermore, it is indeed apparent from Article 2(1)(a) of Regulation No 139/2004 that, in assessing whether a transaction is compatible with the internal market, the Commission is to take account of the need to maintain and develop effective competition in the internal market in the light of, inter alia, the structure of all the markets concerned and the actual or potential competition from undertakings located either within or outside the European Union. That is a requirement which constitutes a major factor in the appraisal which the Commission must undertake (judgment of 6 November 2012, Éditions Odile Jacob v Commission, C‑551/10 P, EU:C:2012:681, paragraph 68).
193However, that requirement cannot alter the rule stated in paragraph 2 of that article, according to which concentrations which would not significantly impede effective competition in the internal market or in a substantial part of it, in particular as a result of the creation or strengthening of a dominant position, must be declared compatible with the internal market (judgment of 6 November 2012, Éditions Odile Jacob v Commission, C‑551/10 P, EU:C:2012:681, paragraph 68).
194It should also be pointed out that the Commission may declare a concentration incompatible with the internal market only if it finds a SIEC which is the direct and immediate effect of the concentration. Such an impediment, which would stem from future decisions by the merged entity, may only be regarded as a direct and immediate effect of the concentration if that future conduct is made possible and economically rational by the alteration of the characteristics and the structure of the market caused by the concentration (judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 118).
195Finally, it should be noted that the assessment of the relative strengths of the various undertakings competing on a market is, as a general rule, part of a complex economic assessment in respect of which the Commission has a margin of assessment (see judgment of 14 December 2005, General Electric v Commission, T‑210/01, EU:T:2005:456, paragraph 253 and the case-law cited).
196As regards, in the first place, the applicant’s complaint alleging insufficient review by the Commission of the potentially negative consequences for the development of competitors on the MDU market of the alleged increase in the financial strength of the merged entity, the Commission’s assessments of the likely effects of the concentration on the competitive constraints exerted by competitors are not based on superficial verifications and mere assumptions, as the applicant maintains.
197As is apparent from paragraphs 179 to 182 above, the explanations provided by the Commission in recitals 821 to 831 of the contested decision, analysing in detail the likely effects of the concentration on the competitive constraints exerted by competitors on the MDU market post-transaction, reflect the prospective nature of its assessments, the standard of proof required by it and the evidence available to it, in the context of an analysis in respect of which the Commission had a margin of discretion, with the result that that first complaint, alleging insufficient examination, cannot be upheld.
198In any event, it must be recalled that, even if the Commission had, following that analysis, found an increase in the financial strength of the merged entity, which was merger-specific, such a finding would not have been, in itself, sufficient to confirm the existence of a SIEC, as is apparent from the case-law cited in paragraph 191 above.
199The applicant’s first complaint must therefore be rejected.…
215The third part of the first plea and the first plea in its entirety must therefore be rejected.…
E.The fourth plea: manifest errors of assessment and infringement of Articles 2 and 8 of Regulation No 139/2004, of the obligation to state reasons and of the duty of diligence in the assessment of the WCBA commitment
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3.The second part: manifest errors of assessment and inadequate statement of reasons and investigation in that the WCBA commitment gives rise to new competition concerns
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(a)The examination and the statement of reasons relating to the effects of the concentration on competitors active on the market for fixed internet access combined with the WCBA commitment was inadequate
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340In that regard, in the first place, it must be noted, with regard to the alleged failure to verify that the WCBA commitment would entirely eliminate the competition concerns identified, that, in recital 1895 of the contested decision, in the part of that recital dedicated to examining the initial commitments submitted by Vodafone, it is true that the Commission explained that, in accordance with the principles of Regulation No 139/2004 relating to the acceptability of the commitments, it had assessed whether the initial commitments were appropriate and sufficient to eliminate the competition concerns and whether they were capable of being implemented effectively within a short period of time. Accordingly, the Commission did not indicate expressly that the commitments had to eliminate the competition concerns identified in their entirety.
341Nonetheless, the Commission had previously recalled, in recital 1894 of the contested decision, that, in order to be acceptable, the proposed commitments must be capable of rendering a concentration compatible with the internal market as they prevent a SIEC in all relevant markets in which competition concerns have been identified, and it added that, in the present case, the commitments needed to eliminate the competition concerns identified, inter alia in the markets for fixed internet access and 2P bundles. It follows that, in its examination of the WCBA commitment, the Commission did indeed verify that that commitment would eliminate entirely the competition concerns identified, despite not having undertaken that verification in a specific section, formally separate from the examination of whether that commitment was suitable and sufficient to eliminate those concerns and whether it was capable of being implemented effectively within a short period of time.
342Moreover, it should be noted that, in recital 1953 of the contested decision, in which the Commission sets out its final conclusion on the WCBA commitment, it states that the scope and effectiveness of that remedy are sufficient ‘to eliminate competition concerns’ in the markets for fixed internet access and 2P bundles, which confirms that the Commission did indeed carry out that verification.
343Next, as regards the Commission’s alleged failure to state reasons, in that it failed to ensure that the WCBA commitment would not itself cause a SIEC, it must be observed that it is apparent from recitals 1995 to 2005 of the contested decision that, in response to the concerns expressed by market participants in the context of the consultation relating, inter alia to the initial version of the WCBA commitment, the Commission verified that that commitment would not have negative effects, including on investments in fibre optics or on the retail market for multiple play, and set out in detail the reasons why it concluded that that would not be the case. Therefore, the Commission cannot be criticised for having failed sufficiently to examine and give sufficient reasons for its conclusion that the concentration, in conjunction with the WCBA commitment, would not have negative effects on competitors active on the market for fixed internet access.
344In any event, the applicant provides no explanation whatsoever of how the explanations set out by the Commission in recitals 1995 to 2005 of the contested decision are not reasoned sufficiently so as to enable the persons concerned to ascertain the reasons for the measure and to enable the Court to exercise its power of review.
345In the second place, as regards the applicant’s allegation that the use of the expression ‘prima facie’ – in the section preceding the analysis of the absence of competition concerns arising from the implementation of the WCBA commitment – is indicative of the Commission’s analysis in the contested decision being summary in nature, it must be stated that that part of the contested decision, although its heading refers to a ‘prima facie’ analysis, contains a full examination of all the objections raised by the market participants during the assessment relating to the commitments initially submitted by Vodafone (see, in particular, recitals 1995 to 2005). Therefore, the Commission’s examination of the potentially negative effects of the WCBA commitment on competitors cannot be qualified as being summary in nature, which is sufficient to dismiss the applicant’s argument.
346In any event, as the Commission submits in the present proceedings, the use of the expression ‘prima facie’ in the heading to that examination stems from an application of paragraph 104 of the Notice on remedies, according to which ‘in assessing whether the proposed purchaser threatens to create competition problems, the Commission will undertake a prima facie assessment in the light of the information available to the Commission in the purchaser approval process’. While it is true that that paragraph concerns the approval of the purchaser and of the sale and purchase agreement in the context of a divestiture commitment, it should be noted, first, that it is apparent from paragraph 129 of that notice that many of the principles relating to the implementation of divestiture commitments can equally be applied to other types of commitment and, second, that the examination of the risks to competition which might arise from the approval of the undertaking benefiting from a commitment providing for access to a network follows a logic similar to that which makes it possible to determine whether the purchaser proposed in the context of a divestiture commitment threatens to create competition problems, with the result that the Commission may carry out a similar analysis of those threats or that threat in those two situations.
347It follows from the foregoing that the applicant has not demonstrated that the examination carried out by the Commission in the contested decision of the effects of the concentration in conjunction with the WCBA commitment on competitors active on the fixed internet access market was insufficient, or insufficiently reasoned, with the result that that complaint must be rejected.
(b)The assessment of the prima facie effects of the WCBA commitment on competition was manifestly erroneous
…
358As regards the substance of the other arguments put forward by the applicant, it must be pointed out that the Commission must show, when conducting its phase II examination of the concentration, with a sufficient degree of probability that the merger, as modified by the commitments proposed by the parties thereto, will not significantly impede effective competition in the internal market or in a substantial part of it (see judgment of 23 May 2019, KPN v Commission, T‑370/17, EU:T:2019:354, paragraph 110 and the case-law cited).
359Similarly as for an assessment of the effects of a concentration, the question whether a commitment raises competition concerns involves an assessment of probabilities and not an obligation on the Commission to show beyond any reasonable doubt that the commitment in question does not give rise to any competition concerns (see, by analogy, judgment of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 47).
360Moreover, notifying parties are not obliged to confine themselves to proposing commitments aimed strictly at restoring the competitive situation existing before the concentration in order to allow the Commission to declare that transaction compatible with the internal market (see, to that effect, judgment of 23 February 2006, Cementbouw Handel & Industrie v Commission, T‑282/02, EU:T:2006:64, paragraph 308).
361In the present case, as regards, in the first place, the applicant’s allegation that the WCBA commitment would adversely affect the market and strengthen its oligopolistic structure by granting wholesale access on preferred terms to Telefónica, it must be observed that, in the contested decision, the Commission explained that that remedy would strengthen that operator, but that that would not give rise to competition concerns since Telefónica was not a strong competitor in the markets for fixed internet access and for 2P bundles, in which it had a limited market share of 5 to 6%, and its growth rate was negative. The Commission added that, although the WCBA commitment offered more attractive commercial conditions than those offered by Deutsche Telekom, that would not have the effect of increasing Telefónica’s competitiveness in such a way as to create competition problems in itself (see recitals 1993 and 1994 of the contested decision).
362In order to demonstrate the contrary, the applicant merely puts forward vague and general arguments which cannot call into question that evidence put forward by the Commission.
363Accordingly, while the applicant maintains that Telefónica was a large vertically integrated pan-European cable operator, it does not dispute the limited market share and the negative growth rate of that operator on the relevant markets, namely the markets for fixed internet access and 2P bundles, as found by the Commission in the contested decision, that is to say, the factors which enabled it to conclude that Telefónica was not a strong competitor on those markets and that the strengthening of that operator, to which the WCBA commitment would give rise, would not in itself give rise to competition concerns.
364Furthermore, it should be observed that the applicant has not demonstrated that, under the WCBA commitment, Telefónica’s position on the relevant markets would be altered in such a way that that remedy would, in the relatively near future, be capable, in itself, of resulting in competition concerns to the detriment of small and medium-sized competitors.
365Therefore, the applicant has not shown that the Commission made a manifest error of assessment in finding that the WCBA commitment would not in itself have the effect of creating competition concerns.…
Operative part
On those grounds,THE GENERAL COURT (Seventh Chamber, Extended Composition)hereby:
1.Dismisses the action;
2.Orders NetCologne Gesellschaft für Telekommunikation mbH to pay the costs.
Delivered in open court in Luxembourg on 13 November 2024.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.