The European Commission's Decision in Telefónica Deutschland/E-Plus

Abstract

The article critically examines the European Commission’s decision in the four-to-three merger between Telefónica Deutschland and E-Plus. Despite the explicit recognition of the importance of vertical effects in the telecommunications sector more generally as exemplified by the European Commission’s past antitrust enforcement record also held up by the European Courts and as also explicitly acknowledged in the context of the Telefónica/E-Plus transaction itself, the decision does not contain any vertical effects analysis. Only the analysis of possible vertical effects such as raising rivals cost or vertical foreclosure would have allowed assessing the transaction in line with the Commissions own merger guidelines. That the Commission recognizes the importance of vertical effects in the decision but then provides no analysis of these effects is an omission reminiscent of Schneider/Legrand.

Keywords: mobile telecommunication, EU merger control, Telefónica Deutschland, E-Plus, four-to-three merger, clearance decision, Schneider/Legrand, raising rivals cost, vertical effects, foreclosure, MVNO remedy, MBA remedy

JEL Classification: K21, L40