On July 2, 2014, the Commission conditionally cleared Telefónica Deutschland’s acquisition of E-plus, KPN’s German mobile telecommunications business, which combined the third and fourth largest mobile network operators in Germany. The acquisition was characterized as a 4-to-3 merger resulting in three mobile operators of a similar size.[1]

The Commission’s decision was controversial for authorizing a 4-to-3 merger among mobile network operators and for accepting a commitment to sell network capacity and radio spectrum instead of a structural divestment of a standalone business.[2] At the time of its adoption, five national competition authorities issued a negative opinion on the decision[3] and the OECD, which conducted a study of the German mobile telecommunications market, concluded in 2018 that four big telecoms operators are needed to provide competitive prices and innovation.[4]

As part of its commitments to obtain conditional clearance,[5] Telefónica had an obligation to extend existing wholesale agreements for the provision of wholesale 4G services to Telefónica’s and E-Plus’s partners, both Mobile Virtual Network Operators (“MVNOs”) and service providers (“SPs”),[6] at “best prices under benchmark conditions of comparable products, volumes and commercial/ operational model, which TEF DE [Telefónica Deutschland] offers to another SP/MVNO.”[7] The aim of the wholesale 4G access obligation was to improve the position of MVNOs and SPs.

On February 22, 2019, the Commission issued an SO against Telefónica Deutschland for an alleged breach of the wholesale 4G access obligation.[8] The Commission has preliminarily concluded that Telefónica failed to implement its obligation “by not including certain existing wholesale agreements in the benchmark” used for assessing prices of the provision of wholesale 4G services.[9] This led to less advantageous conditions for wholesale 4G access and may have reduced the ability of MVNOs and SPs to compete in the German market for mobile communication services. In addition, potential beneficiaries of the commitments have initiated both litigation and arbitration proceedings against Telefónica for failure to comply with the commitments.[10]

This is the first time that the Commission has issued an SO for a failure to comply with merger commitments. The Commission may ultimately impose a fine of up to 10% of the company’s annual worldwide turnover and arguably, in theory, even revoke the merger approval. This case highlights the Commission’s continued enforcement of procedural breaches in merger control cases.[11]


[1]      See Commission Press Release IP/14/771“Mergers: Commission clears acquisition of E-Plus by Telefónica Deutschland, subject to conditions”, July 2, 2014.

[2]      See, e.g., James Fontanella-Khan, “Telefónica’s €8.6bn takeover of E-Plus approved”, July 2, 2014, Financial Times. See also “DT angry as Telefónica/E-Plus deal is finally given green light”, July 2, 2014, European COMMUNICATIONS.

[3]      Telefónica Deutschland/E-Plus (Case COMP/M.7018), Commission decision of July 2, 2014, para. 8.

[4]      See the full study: OECD (2018), “OECD Economic Surveys: Germany 2018”, OECD Publishing, Paris, https://doi.org/10.1787/eco_ sur veys-deu-2018-en, “Key policy insights” available at https://w w w.oecd-ilibrar y.org/sites/eco_ sur veys-deu-2018-3-en/index.html?itemId=/content/component/eco_ sur veys- deu-2018-3-en.

[5]      Telefónica also committed to divest: (i) up to 30% of its network capacity to a maximum of three MVNOs at fixed prices to ensure short-term entry or expansion; and (ii) radio wave spectrum and certain assets to these MVNOs.

[6]      MVNOs and SPs are providers of mobile communication services, which do not operate a mobile network themselves. These sell mobile communication services to end-customers in their own name and on their own account based on wholesale access granted by mobile network operators (e.g. Telefónica) to their respective mobile networks. While MVNOs partially own network infrastructure, such as the core network, which allows them to control their traffic, SPs do not own any network infrastructure at all. See Telefónica Deutschland/E-Plus (Case Comp/M.7018), Commission decision of July 2, 2014, paras. 174-175.

[7]      Telefónica Deutschland/E-Plus (Case Comp/M.7018), Commission decision of July 2, 2014.

[8]      See Commission Press Release IP/19/1371 “Mergers: Commission alleges Telefónica breached commitments given to secure clearance of E-Plus acquisition”, February 22, 2019.

[9]      Ibid.

[10]    See, e.g., Harro Ten Wolde and Georgina Prodhan, “UPDATE 3- Telefónica Deutschland’s E-Plus takeover faces legal challenge”, June 8, 2015, Reuters.

[11]    The Commission recently fined Facebook €110 million for providing incorrect or misleading information during the investigation of its acquisition of WhatsApp. The Commission has also fined Altice €124.5 million in 2018 for implementing its acquisition of PT Portugal before notification. The Commission has recently also sent SOs to (i) Merck and Sigma-Aldrich for allegedly providing incorrect or misleading information, and (ii) General Electric and Canon for allegedly implementing a merger before notification.