Decision no.11 from 05.04.2007
related to the economic concentration realized by Hungarian Telephone and Cable Corporation
through achieving the sole control over Matel Holdings N.V.
The Competition Council
On the basis of:
1. The Competition Law no. 21/1996, republished in the Official Journal of Romania , Part I, no. 742/16.08.2005;
2. The Decree no. 57/17.02.2004 regarding the appointment of the Competition Council Plenum members;
3. The Decree no. 1089/06.09.2006 regarding the appointment of the Competition Council vice president;
4. The Decree no. 1087/06.09.2006 regarding the appointment of a member of the Competition Council Plenum;
5. The Competition Council Plenum’s Decision no.7/08.03.2007 regarding the interim assurance of The Competition Council Presidency;
6. The Regulation on the organization, functioning and procedure of the Competition Council, published in the Official Journal of Romania, Part I, no. 288/01.04.2004 with the subsequent modifications and completions;
7. The Regulation on the authorization of economic concentrations, published in the Official Journal of Romania, Part I, no. 280/31.03.2004;
8. The Guidelines related to the turnover calculation in cases of anticompetitive behavior provided by Art. 5, par. (1), in the Competition Law no. 21/1996 and in cases of economic concentrations, published in the Official Journal of Romania Part I, no. 440/17.05.2004;
9. The Guidelines on relevant market definition with a view to determining the significant market share published in the Official Journal of Romania, Part I, no. 288/01.04.2004;
10. The Guidelines on the application of provisions of Art. 331 in the Competition Law no. 21/1996 concerning the calculation of the authorization fee in cases of economic concentrations, published in the Official Journal of Romania, Part I, no. 288/01.04.2004;
11. The acts from the case file (RS 7/02.02.2007) with subsequent completions; 12. The Note of the commission responsible for merger and antitrust
(AG/459/04.04.2007).
1
Taking into consideration that:
1. On the 8th of January 2007, Hungarian Telephone and Cable Corporation2
and Invitel Holdings N.V.3 (named together the parties) concluded a sell and purchase agreement („Sell and Purchase Agreement concluded on the 8th of January 2007 among Invitel Holdings N.V. and Hungarian Telephone and Cable Corp.”) according to which Hungarian Telephone and Cable Corporation acquired 100% of issued share capital of Matel Holdings N.V.4 The notified economic concentration consist in direct acquiring of the sole control over Matel Holdings N.V. by Hungarian Telephone and Cable Corporation, through the acquisition of entirely issued share capital of Matel Holdings N.V.;
2. The proposed economic concentration was not submitted to the European Commision because the treshold conditions provided by Art.1 par.(2) şi (3) from Council Regulation (EC) no.139/2004 on the control of concentrations between undertakings (the EC Merger Regulation), are not fullfiled;
3. The acquiring of the sole control directly over Matel Holdings N.V. by Hungarian Telephone and Cable Corporation is an economic concentration in the meaning of Art. 10 par. (2) lit. b) from Competition Law no. 21/1996, republished;
4. This economic concentration operation fulfilled the condition5 of thresholds stipulated in art. 14 of the Competition Law no. 21/1996, republished, in order to be submitted to The Competition Council’ control;
5. The notification file of the economic concentration realized by Hungarian Telephone and Cable Corporation through achieving directly the sole control over Matel Holdings N.V., was submitted by the legal representative of Hungarian Telephone and Cable Corporation in due term and it was registered at the Competition Council under no. RS 7/02.02.2007. The notification became effective on 21.03.2007;
6. According to thouse declared by the parties, from the undertakings controled by Matel Holdings N.V. (hereinafter Matel Group) only Invitel
2
Registered address:1201 Third Avenue, Suite 3400, Seattle, WA 98101-3034, SUA. Contact adress: Dorottya Udvar, Bocskai út 134-146, H - 1113 Budapest, Hungary;
3
Registered address: Pareraweg 45, Curaçao, Antilele Olandeze;
4
Registered address: Kaya W.F.G. (Jombi) Mensing 14 PO Box 3895 Willemstad, Curaçao, Dutch’s Antilles; registration number: 86225; date and place of registration: the 27 December 2000, Curaçao, Dutch’s Antilles;
5
Távközlési Szolgáltató Rt.6 and Euroweb Romania S.A.7 are actives in
Romania. These undertakings are fixed-line electronic communications services suppliers and are actives on the following fixed-line electronic communications services markets:
1. The wholesale markets:
a. The market for voice services; b. The market for leased line services; c. The market for Internet access services; 2. The retail markets:
a. The market for voice services for business segment; b. The market for leased line services for business segment;
c. The market for data transmissions services for business segment; d. The market for Internet access services for business segment. 7. The relevant markets on which the economic concentration takes places
are the markets where the Matel Holdings N.V. and the firms controlled by Matel Holdings N.V. are actives. Taking into consideration: the economic activities deployed by the Matel Group in Romania, the share of the revenues from these activities within the turnover from Romania by the parties and the fact that a further segmentation of the fixed electronic communication markets does not lead to a different result of this economic concentration analysis, the relevant product/services for this economic concentration operation are:
1. The wholesale markets:
a. The market for voice services; b. The market for leased line services; c. The market for Internet access services; 2. The retail markets:
a. The market for voice services for business segment; b. The market for leased line services for business segment;
c. The market for data transmissions services for business segment; d. The market for Internet access services for business segment. 8. According to those declared by the parties, the group of companies to
whom Hungarian Telephone and Cable Corporation belongs (hereinafter HTCC Group) deploys its business activities only through PanTel Romania S.R.L.8 and PanTel Távközlési Kft.9 Those undertakings are
suppliers of fixed electronic communication services and are actives on the following wholesale relevant markets:
a. The market for voice services;
6
Registered address: Puskás Tivadar útca 8–10, 2040 Budaörs, Ungaria, inregistrata la Registrul Comertului Budapesta sub nr. Cg. 13-10-040575;
7
Registered address: Lipscani street no.102, Nouveau Center, A building, third floor, Sector 3, Bucharest, Romania, C.U.I. 10347830, registered to R. C. Bucharest under no. J40/2587/1998;
8
Registered address: Calea Serban Voda, no. 133, Central Business Park, E building , second floor, E 2.21 section, sector 4, Bucharest, Romania, C.U.I. 14341318, registered to R.C. under no.J40/10154/2001;
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b. The market for leased line services; a. The market for Internet access services.
9. In Romania, taking into consideration the market shares of the Matel Group and HTCC Group, the aria covered by the networks and the situation on the fixed electronic communication relevant markets both on wholesale level and retail level, regardless of the geographic market definition as local, regional or national, the result of the analysis is the same. So, in the case of this economic concentration operation and taking into consideration the above mentioned, the geographic relevant market is defined as national for all the fixed electronic communication relevant product/services markets, both on wholesale level and retail level.
10. Through this economic concentration operation, in Romania is creating horizontal overlaps of economic activities, on the following fixed electronic communication wholesale relevant markets:
a. The market for voice services; b. The market for leased line services; c. The market for Internet access services.
11. According to those declared by the parties, both undertakings within Matel Group and HTCC Group are vertical integrated. Previous of this economic concentration operation, there were vertical economic relations between Matel Group and HTCC Group. Through this economic operation it is accomplished a non-horizontal concentration too, which has as effect a vertical integration of the economic activities of those two groups in Romania. The analysis of this vertical integration was approached both in the traditional meaning, on which the production and selling at the wholesale level and the retail level are on the same vertical and considerate to be vertical related markets, and from the perspective of an possible incentive for anticompetitive behavior;
12. Regarding the infrastructure needed to supply the electronic communication services, according to those declared by the parties, neither Matel Group nor HTCC Group have their own transport infrastructure – optical fiber – in Romania, this infrastructure being leased. At the retail level, the Matel Group supplies its electronic communications services by optical fiber, DSL, radio access and dial-up;
13. The market shares of the new entity created through this economic concentration operation estimated by the parties, indicates that on the relevant markets identified above it was not created or consolidated a dominant position. From the analysis of the possible coordinated and non-coordinated effects of this economic concentration operation results that this operation does not generates the following competition problems: the limitation of the access to inputs, the limitation of the access to customers
or the creation of the possibilities to coordinate the competitive behavior with the others electronic communications operators.
14. The relevant markets of this economic concentration operation are dynamic, the level of the entry barriers on these markets allowing the new entrance;
15. The notified economic concentration does not lead to the restriction, prevention or significant distortion of competition on the above identified relevant markets or on any part of those;
DECIDES
Art.1 Pursuant the provisions of the Art. 46 (1) b) of the Competition Law no.21/1996 revised, and the Regulation regarding the authorization of the economic concentrations, Competition Council issues this authorization Decision regarding the economic concentration realized by Hungarian Telephone and Cable Corporation through acquiring directly the sole control over Matel Holdings N.V., being found that although the notified economic concentration operation falls within the scope of the Competition Law No 21/1996, republished, there are no serious doubts as regards the compatibility with normal competitive environment.
Art.2 Pursuant the provisions of the Art.32 par.(1) of the Competition Law no.
21/1996, republished, Hungarian Telephone and Cable Corporation shall pay the authorization fee of the notified economic concentration.
The authorization fee, according to the provisions of the Guidelines on application of the provisions of art. 3310 of the Competition Law no. 21/1996 regarding calculation of the authorization fee for economic concentrations, calculated on the basis of the turnover submitted through the Letter which was registered at Competition Council under the no. RG/1660/29.03.2007 is amounted for [...] RON.
Art.3 The amount of the authorization fee shall be paid by Hungarian Telephone and Cable Corporation within a term of maximum 30 days from the communication of the present Decision, to the State budget, through a treasury payment order, with the mention: “for the authorization of the economic concentration”. A copy of the payment order shall be sent without delay to the Competition Council.
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Art.4 Within a term of 5 days starting with the date of lodging of the Simplified Annual Financial Statements – on 31.12.2005 - to the territorial units of the Ministry of Public Finance, Hungarian Telephone and Cable Corporation shall refer a copy of those Statements to the Competition Council, together with a statement on the turnovers related to the activities carried out by the parties involved on the relevant markets (Matel Group and HTCC Group). According to the Guidelines related to the turnover calculation in cases of anticompetitive behavior provided by Art. 5, par. (1), in the Competition Law no. 21/1996 and in cases of economic concentrations, if the figures from the balance sheet significantly differ from those of the trial balance, then the Competition Council will reconsider the decision and will reanalyze the case. The Competition Council shall reserve its right to recalculate the amount of the authorization fee if the turnovers calculated on the basis of the final data are significantly different against the provisory data taken into account for setting the fee provided for under the art.3 of the present Decision.
Art.5 The present decision enters into force at the date of its remittance towards the involved parties.
Art.6 The Competition Council’s Decision can be challenged, according to the provisions of the Art. 47 (4) of the Competition Law no. 21/1996, republished, within 30 days of its acknowledgement, before the Appeal Court of Bucharest, to the administrative section.
Art.7 The Service Directorate and the General Secretariat of the Competition
Council shall supervise the enforcement of the present Decision.
Art.8 The present Decision will be communicated by the General Secretariat
of the Competition Council to:
Hungarian Telephone and Cable Corporation
Registered address: 1201 Third Avenue, Suite 3400, Seattle, WA 98101-30304, USA.
Contact address: Dorottya Udvar, Bocskai út 134-146, H – 1113 Budapest, Hungary;
Through: [...]
President a.i. Alexe Gavrilă
