COMMISSION DECISION of 21/05/1999 declaring a concentration to be compatible with the common market (Case No IV/M.17 - * MANNESMANN / BELL ATLANTIC / OPI) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic) Official Journal C 011 , 14/01/2000 P. 0004 - 0004 COMMISSION DECISION of 21/05/1999 declaring a concentration to be compatible with the common market (Case No IV/M.17 - * MANNESMANN/BELL ATLANTIC/OPI) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic) Brussels, 21.05.1999 To the notifying parties, Dear Sirs, Subject : Case No.
IV/JV.17 - Mannesmann/Bell Atlantic/Omnitel Notification of 22 April 1999 pursuant to Article 4 of Council Regulation No. 4064/89 1. On 22 April 1999, Mannesmann AG (Mannesmann) and Bell Atlantic Corporation (Bell Atlantic) notified the Commission, pursuant to Article 4 of Council Regulation (EEC) No. 4064/89 [1] (the "Merger Regulation"), a proposed concentration by which Mannesmann and Bell Atlantic acquire within the meaning of Article 3 (1) b of the Council Regulation joint control of Omnitel Pronto Italia (OPI). [1] OJ L 395 of 30.12.1989, p. 1, corrigendum in OJ L 257 of 21.9.1990, p. 13; as last amended by Regulation (EC) No.
1310/97, OJ L 180 of 9.7.1997, p. 1, corrigendum in OJ L 40 of 13.2.1998, p. 17. 2. After examination of the notification, the Commission has concluded that the operation falls within the scope of the Merger Regulation and does not raise serious doubts as to its compatibility with the common market and the EEA agreement. I. PARTIES 3. Mannesmann is active in a number of sectors including machinery construction, material handling, hydraulic and automotive technology, production of steel and tubes and in all sectors of telecommunications. In particular it is active in mobile telephony through Mannesmann Mobilfunk GmbH, the first private mobile telephone company in Germany (Mannesmann's participation is 65.2 %).
In the mobile sector it is also active outside Germany: -in France: it has an indirect minority participation (through Cégétel) in the second mobile operator SFR - Societé Française de Radiotéléphonie). -in Italy: it holds a participation in the Italian operator Omnitel Pronto Italia. In fixed telephony, it controls Mannesmann Arcor, a wireline operator in Germany, which provides and handles innovative telecom services in the areas of data, voice and video transmission. Outside Germany it has recently acquired a participation in the Austrian operator Tele.ring (53.8 %) and it is in the process of acquiring sole control of the Italian wireline operator Infostrada s.p.a.
Mannesmann also operates in specialised telecommunications sectors such as traffic control (through Mannesmann Autocom and DDG Gesellschaft für Verkehrsdaten mbH) and carrier services for corporate customers (through Euro.Map). 4. Bell Atlantic is involved in the telecommunications and information services industries, predominantly in the United States. Bell Atlantic is involved in Europe in: -Greece (mobiles and directories): through a non-controlling participation of a 20 % in STET Hellas Telecommunications S.A., company which provides mobile telecommunications services in Greece and a 60 % participation in Bell Atlantic Information Services Hellas, which publishes directories and offers ancillary products. -UK: it has a participation of an 18.53 % in Cable & Wireless Communications, company which provides pay-television broadcasts and various telecommunications services via cable and fixed networks in the UK, as well as international "carriers' carrier" services. -Gibraltar:
Gibraltar NYNEX Communications, Limited ("GNCL") is jointly controlled by Bell Atlantic and the Government of Gibraltar and provides fixed domestic telecommunication services in Gibraltar, including the provision of service to Spain. It is also engaged in directory publishing and the provision of ancillary products in Gibraltar. -Czech Republic: through an indirect participation of 24.5 % in EuroTel Praha s r.o., a mobile telecommunication services company. -Slovakia: through an indirect participation of 24.5 % in EuroTel Bratislava a.s., a mobile telecommunication services company. -and it has approximately a 34 % direct participation in FLAG (Fibre optic Link Around the Globe), which provides international carriers' carrier services and network facilities 5.
Omnitel is one of the three operators currently licensed to provide mobile telephony in Italy. Its network covers 96 % of the Italian territory and the number of subscribers has reached 6.5 million. OPI is currently constructing its own infrastructure and intends to expand the range of its activity to the provision of advanced fixed voice telephony for corporate customers (to this end OPI has just requested a fixed licence). II. THE OPERATION 6. The operation notified consists of two agreements: (a) the "Mannesmann-Olivetti Agreement", and (b) the "Bell Atlantic Agreement. The completion of (a) is subject to the success of the public bid which Olivetti has launched for the control of Telecom Italia s.p.a., and the completion of (b) is subject to the completion of the "Mannesmann-Olivetti Agreement".
(a)- The Mannesmann-Olivetti Agreement: Mannesmann will acquire Olivetti's entire stake in Omnitel Pronto Italia (by acquiring the stake which Olivetti holds in Omnitel Sistemi Radiocellulari s.p.a.) and in Infostrada s.p.a. The operation is due to be completed five days after the successful completion of Olivetti's bid for Telecom Italia, but no later than 30 June 1999, and is subject to certain other conditions: Bell Atlantic has to give its consent to the transaction and the Italian authorities have to state that the increase in Mannesmann's indirect stake in OPI is compatible with the terms of OPI's license.
The Agreement further provides that, until the launch of the public bid, Mannesmann has the right to withdraw from the Agreement if certain events occur relating to the bid which would raise doubts about its success. Moreover, the agreement provides for the termination of all relationships between Olivetti and Mannesmann. (b)- The Mannesmann - Bell Atlantic Agreement: it is intended to govern the relations between Mannesmann and Bell Atlantic, conferring on Bell Atlantic to certain shares purchases in the event that the first agreement takes place. It moreover states that, regardless as to whether Mannesmann acquires Olivetti's stake in OPI, the parties will endeavour to rationalise and streamline the ownership structure of OPI.
III. CONCENTRATION Joint control 7. Mannesmann will hold a [57.71%] of OPI and Bell Atlantic a [19.71%] (respectively [55.14%] and [21.71%] if Bell Atlantic exercises the said purchase rights. Once the Mannesmann-Olivetti Agreement is implemented, Bell Atlantic will have the right to appoint three of the 13 directors of OPI, and Mannesmann will appoint seven (six through Omnitel Sistemi and one through Pronto Italia) According to Section 4 of the Mannesmann-Bell Atlantic Agreement, Bell Atlantic and Mannesmann agree to vote together at board level on all matters relevant to the adoption or material amendment of the business plans and the budgets of OPI.
Together, they control the ten out of thirteen directors which gives the majority required for the adoption of the mentioned decisions. 8. Since the decisions referred to above are the fundamental ones to determine the conduct of the strategy and businesses of OPI and the fact that the two companies are obliged to vote together on these matters, leads to the conclusion that, the changes involved by the two agreements result of these two shareholders acquiring joint control of OPI. Full-function entity 9. OPI, which began its activity in December 1995, is a fully-fledged telecommunications operator which in 1998 had a turnover of Euro 2,300 million.
It is one of the three operators currently licensed to provide mobile telephony in Italy, with a network covering 96 % of the Italian territory and 100% of the population. After the implementation of the agreements, it will continue to perform all the functions of an economic entity in the sense of the Merger Regulation. OPI does not have any investment, assets, subsidiaries or other operations in the EEA. IV. COMMUNITY DIMENSION 10. The combined aggregate worldwide turnover of Mannesmann (ECU 19,065 million), Bell Atlantic (ECU 35,388 million) and OPI (ECU 2,300 million) exceeds ECU 5,000 million.
The aggregate Community-wide turnover of each of these companies is more than ECU 250 million. Mannesmann achieves more than two thirds of its Community-wide turnover in Germany. OPI achieves turnover only in Italy. Bell Atlantic achieves more than two thirds of its Community-wide turnover in the U.K. Therefore not all the parties achieve two thirds of their EU wide turnover in one and the same Member State. 11. The concentration therefore has a Community dimension within the meaning of Article 1 (2) of the Merger Regulation. 12. The notified operation does not constitute a concentration to which the co-operation procedure provided for in Articles 57 and 58 and Protocol 24 of the EEA Agreement applies.
V. RELEVANT PRODUCT MARKET OPI is active in the following product markets: the provision of wireless telephone service using GSM standard and, to a limited extent, the DCS 1800 standard, and the distribution of mobile handsets. The provision of wireless telephone services 13. In recent decisions the Commission has considered whether mobile telecommunications systems using the GSM and the DCS systems belong to different markets (see cases IV/JV.2 - ENEL/FT/DT of 22 June 1998 and IV/JV.3 - BT/Air Touch/Grupo Acciona/Airtel of 8 of July 1998). According to the parties, all mobile telephone systems - and particularly GSM and DCS - belong to the same market independently from the standard used.
However, the definition of the relevant product market in this case can be left open since the transaction does not create or strengthen a dominant position which could impede effective competition in the common market, the EEA or a substantial part thereof, as it is set out in the competitive assessment under point VII. below (see cases IV/M.570 - TBT/BT/Tele Danmark/Telenor of 24 April 1995 and IV/M.1025 -Mannesmann/Olivetti/Infostrada of 15 January 1998). VI. RELEVANT GEOGRAPHIC MARKET 14. According to the notifying parties, the scope of the relevant geographical market in telecommunications is determined (a) by the extent and coverage of the network and the customers that can economically be reached and whose demands may be met; and (b) by the legal and regulatory system.
The provision of wireless telephone services 15. OPI is one of the three operators currently licensed to provide mobile telephony in Italy, with a network covering 96% of the Italian territory and 100% of the population. In its decision in case IV/JV.2 ENEL/FT/DT of 22 June 1998, the Commission considered that the price differences between national and international call charges might indicate largely national markets, though the market definition was left open in that case. In addition, at present, the charges for customers roaming on other networks are generally considerably higher than those charged when the customer is on its home network, which might further indicate a national market.
In any event, in the present case the definition of the relevant geographical market for mobile telephony may be left open since, on the basis of the assessment set out below, the concentration would not create or strengthen a dominant position as a result of which effective competition would be significantly impeded in the common market or a substantial part thereof even on the narrowest definition of the market. VII. COMPETITIVE ASSESSMENT A Dominance There is no market on which the notified transaction would lead to the creation of market shares in excess of 15 %. The provision of wireless telephone services 16.
If the geographic market were to be considered as Italy, the operation would not lead to an overlap between the parties, since only OPI is active on this market. Its market share for mobile telephony in Italy is approximately 30 % with Telecom Italia the other main competitor at about 70%. On a European wide basis, the combined shares of OPI and Mannesmann would not exceed 11 % since each of the parties has a share of the overall market of approximately 5.5 % in terms of numbers of subscribers. 17. The concentration will therefore not result in the creation or strengthening of a dominant position on any of the markets referred to above as a result of which effective competition would be significantly impeded in the common market or a substantial part thereof.
B Co-ordination of competitive behaviour 18. Pursuant to Article 2 (4) of the Merger Regulation, to the extent that the creation of a joint venture has as its object or effect the co-ordination of the competitive behaviour of undertakings that remain independent, such co-ordination shall be appraised in accordance with the criteria of Article 81 (1) and (3) of the EC Treaty. In order to establish a restriction of competition in the sense of Article 81 (1) of the EC Treaty, it is necessary that the co-ordination of the parent companies' competitive behaviour is likely and appreciable and that it results from the creation of the joint venture, be it as its object or its effect.
1. Definition of candidate markets for co-ordination 19. According to Article 2 (4) (2) of the Merger Regulation, the Commission shall, when making the said appraisal, take into account in particular 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. The provision of wireless telephone services 20. The parent companies are not present on the Italian market of the joint venture. As set out in above (paragraphs 3 and 4) both Mannesmann and Bell Atlantic have a number of telecoms related activities.
Bell Atlantic owns minority non controlling participation in mobile operators (in Stet Hellas in Greece and in the Slovak and Czech Republics). Mannesmann is present on this market both in Germany, in Italy (through Infostrada), and in France it has an indirect participation (through Cégétel) in the second mobile operator SFR. Therefore, even if the market for mobile telephony were to be considered in the future to be larger than the national market or to be European wide and even if Bell Atlantic is considered to have some influence over Stet Hellas or the Czech or Slovak operators, any co-ordination between Mannesmann and Bell Atlantic will be insignificant given that the maximum combined market share for these companies is 11% of the total number of subscribers in Europe.
There is also no likely co-ordination in terms of potential entry by the parent companies into the market of the joint venture given that the number of mobile licences in Italy is strictly limited and the two parents were in any event shareholders in Omnitel prior to the present operation. 2. Assessment under Article 2 (4) 21 There are no clear indications which would allow the conclusion that the creation of the joint venture has the object or effect of co-ordinating the competitive behaviour of Mannesmann and Bell Atlantic on any of the national markets considered here. It is therefore not necessary to establish a causal link between the creation of the joint venture and the behaviour of the parent companies outside the joint venture on the mobile market(s).
VIII. ANCILLARY RESTRAINTS 22. The notifying parties state that their agreement does not contain any conditions which may be considered ancillary restraints. The agreement provides that Olivetti will not, for a period of two years from execution of the agreement, directly or indirectly, enter into employment, consultancy, agency or any other arrangements with any manager or mid-level manager of Omnitel Sistemi and/or OPI without the prior consent of Mannesmann. This clause can be considered necessary and directly related to the concentration. IX. CONCLUSION 23. In the light of the above, the proposed transaction does not raise serious doubts as to its compatibility with the common market and with the functioning of the EEA Agreement.
24. The Commission therefore has decided not to oppose the notified operation and to declare it compatible with the common market and with the functioning of the EEA Agreement. This decision is adopted in application of Article 6 (1) (b) of Council Regulation (EEC) No. 4064/89. For the Commission,