52003XX0807(01)

Final report of the Hearing Officer in case COMP/C1/38.370 - O2 United Kingdom Limited/T-Mobile UK Limited ("United Kingdom Network Sharing Agreement")

(pursuant to Article 15 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings (OJ L 162, 19.6.2001, p.21))

(2003/C 187/06)

(Text with EEA relevance)

On 6 February 2002, O2 United Kingdom Limited ("O2 UK") (formerly BT-Cellnet Limited and BT3G Limited) and T-Mobile United Kingdom Limited ("T-Mobile UK") (formerly One2One Personal Communications Limited) notified to the Commission an Agreement of 20 September 2001 concerning infrastructure sharing and national roaming on the United Kingdom market for the third generation of GSM mobile telecommunications ("3G"). In their notification O2 UK and T-Mobile UK ("the Parties") requested either negative clearance under Article 81(1) the EC Treaty/Article 53(1) EEA or alternatively an exemption under Article 81(3) of the EC Treaty/Article 53(3) EEA.

On 28 February 2002, the Commission published a summary of the application, inviting comments from interested parties. On 10 September 2002, a notice pursuant to Article 19(3) of Regulation 17 setting out the main elements of the agreement, stating the Commission's intention to take a favourable position, and inviting third parties to provide their comments.

Comments were received from third parties and the United Kingdom National Competition Authority.

At the beginning of March 2003, the Parties, following discussions with the Commission services, amended their agreement to reduce the reliance on "national roaming" in the most densely populated parts of the United Kingdom.

The draft decision finds that part of the agreement relating to "site sharing" and the exchange of information does not infringe Article 81(1) of the EC Treaty/Article 53(1) EEA. The draft decision grants an exemption under Article 81(3) of the EC Treaty/ Article 53(3) EEA to the part of the agreement concerning "national roaming". The Commission has specified the duration of the exemption.

The rights to be heard in the present case have been respected.

Karen Williams