Final report of the Hearing Officer in Case COMP/M.3916 — T-Mobile Austria/Tele.ring

(pursuant to Articles 15 and 16 of Commission Decision (2001/462/EC, ECSC) of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (1))

(2007/C 72/22)

On 21 September 2005, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (2) by which the undertaking T-Mobile Austria GmbH (‘T-Mobile’, Austria) belonging to the German group Deutsche Telekom AG (‘DTAG’) acquires within the meaning of Article 3(1)(b) of the Council Regulation control of the whole of the undertaking Tele.ring Unternehmensgruppe (‘TeleRing’, Austria) by way of purchase of shares.

At the end of the first phase of the investigation, the Commission concluded that the concentration raised serious doubts as to its compatibility with the common market and with the EEA Agreement. In particular, concerns resulted from the fact that TeleRing was considered to be the most active competitor in the market driving prices down due to, inter alia, its very strong incentive to build up a sufficiently large customer base in order to generate considerable economies of scale for its fully expanded mobile 2G network.

Accordingly, and in spite of the commitments proposed by T-Mobile on 19 October 2005, the Commission initiated proceedings in accordance with Article 6(1)(c) of the Merger Regulation on 14 November 2005.

T-Mobile did not request access to the ‘key documents ’in the Commission file in accordance with chapter 7(2). of the ‘Best Practices on the conduct of EC merger control proceedings’.

On 1 December 2005, T-Mobile submitted a further commitment proposal.

On 8 February 2006, a Statement of Objections was sent to T-Mobile, which replied on 27 February 2006. The same day, access to file was provided. On 1 March 2006, TeleRing submitted its comments to the SO.

The parties did not request to develop their arguments in a formal oral hearing.

In agreement with T-Mobile, the Commission issued a decision on 21 February 2006 pursuant to Article 10(3) second paragraph of the Merger Regulation in order to extend the procedure by 20 working days.

On 3 March 2006, T-Mobile submitted an improved set of commitments which were subsequently market-tested. The market test of these improved undertakings was mainly positive.

I have not been asked to verify the objectivity of the enquiry.

In the light of the commitments eventually proposed and having analysed the results of the market test, the draft Decision concludes that the proposed concentration, subject to full respect of the commitments, is compatible with the common market and with the EEA Agreement.

In the light of the above, I consider that the parties' rights to be heard have been respected.

(1)  OJ L 162, 19.6.2001, p. 21.

(2)  OJ L 24, 29.1.2004, p. 1.