The General Court’s ruling in Case T-43/16, 1&1 Telecom GmbH v. European Commission

October 2018

CPI EU News Column edited by Thibault Schrepel, Sam Sadden & Jan Roth (CPI) presents:

The General Court’s ruling in Case T-43/16, 1&1 Telecom GmbH v. European Commission By Dr. Anna Renata Pisarkiewicz (European University Institute)¹

Facts of the Case

In July 2014, the European Commission adopted decision M.7018 – Telefónica Deutschland/E-Plus, whereby it declared that the acquisition of E-Plus Mobilfunk GmbH by Telefónica Deutschland (hereinafter Telefónica) was compatible with the internal market, subject, however, to Telefónica’s compliance with certain Final Commitments. Commitments accepted in mobile mergers, such as this one, typically consists of three components: (i) the MNO; (ii) the MVNO or MBA (Mobile Bitstream Access); and (iii) the general non-MNO remedy.² Under the MNO component, Telefónica undertook to lease frequency spectrum to a new MNO and to also sell it and provide it with certain assets necessary for it to start providing services in Germany. To comply with the MVNO MBA part, and more importantly to be able to implement the concentration, Telefónica had to sell 20 percent of the combined network capacity of the merged entity to at least one (but no more than to three) non-MNOs. Last but not least, under the non-MNO component, Telefónica committed to offer all existing wholesalers that were at that time procuring access to 2G, 3G and/or 4G from either Telefónica or E-Plus to extend their existing contracts until t