Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Sixth Chamber)

13 November 2024 (*)

( Competition - Concentrations - Italian market for mobile telecommunication services - Decision declaring the concentration compatible with the internal market - Grouping of passive infrastructure into a joint venture - Commitments entered into during the first phase of examination - Granting of access to the joint venture’s sites - Manifest error of assessment - General terms of the commitments - Protection against a risk of bias when selecting sites - Implementation of commitments )

In Case T‑692/20,

Iliad Italia SpA, established in Milan (Italy), represented by D. Fosselard, D. Waelbroeck, G. Carnazza and M. Finocchio, lawyers,

applicant,

supported by

Fastweb SpA, established in Milan, represented by M. Merola and E. Pistis, lawyers,

intervener,

v

European Commission, represented by G. Conte and J. Szczodrowski, acting as Agents,

defendant,

supported by

Telecom Italia SpA, established in Milan, represented by S. Spagnuolo, F. Salerno and P. Fattori, lawyers,

and by

Vodafone Group plc, established in Newbury (United Kingdom), represented by G. van Gerven, A. Mangiaracina and M. Faglia, lawyers,

interveners,

THE GENERAL COURT (Sixth Chamber),

composed of M.J. Costeira, President, M. Kancheva and E. Tichy-Fisslberger (Rapporteur), Judges,

Registrar: M. Zwozdziak-Carbonne, Administrator,

having regard to the written part of the procedure, in particular the order of 15 June 2023, Iliad Italia v Commission (T‑692/20, not published, EU:T:2023:352), by which the President of the Sixth Chamber of the General Court granted, in part, the requests for confidential treatment submitted by the applicant on 20 July, 18 October and 5 November 2021 and 27 January and 1 March 2022 vis-à-vis Telecom Italia and Vodafone Group,

further to the hearing on 14 March 2024,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Iliad Italia SpA, seeks the annulment of Commission Decision C(2020) 1573 final of 6 March 2020 (‘the contested decision’), by which the Commission, pursuant to Article 6(1)(b), read in conjunction with Article 6(2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), and Article 57 of the European Economic Area (EEA) Agreement, declared compatible with the internal market and the EEA Agreement the concentration consisting of the grouping, into a jointly controlled undertaking, of the passive mobile telecommunications infrastructure in Italy of Telecom Italia (‘TIM’) and Vodafone Italia SpA (‘Vodafone’) (Case M.9674 – Vodafone Italia/TIM/INWIT JV).

 Background to the dispute

2        The applicant provides mobile telecommunications services in Italy. It entered the Italian market in 2016 as beneficiary of the remedies provided for by Commission Decision C(2016) 5487 final of 1 September 2016 in Case M.7758 – Hutchison 3G Italy/Wind/JV, and launched its commercial offer in 2018.

3        TIM is a former incumbent operator that provides mobile and fixed telecommunications services to consumers and businesses in Italy.

4        Vodafone and Vodafone Europe BV are part of Vodafone Group plc, an international group which operates telecommunications networks and offers telecommunications and other services in several countries. Vodafone provides mobile and fixed telecommunications services to consumers and businesses in Italy.

5        By a framework agreement concluded on 26 July 2019, TIM and Vodafone Europe planned to group their passive mobile telecommunications infrastructure in Italy into a jointly controlled undertaking (‘the concentration at issue’). They each consist of approximately 11 000 sites owned by Infrastrutture Wireless Italiane SpA (‘INWIT’), a subsidiary in which TIM was a majority shareholder with 60.33% of the capital, and by Vodafone respectively.

6        To that end, Vodafone has created a separate legal entity, Vodafone Towers Srl, to which it has contributed its passive infrastructure operations. In the context of the concentration at issue, Vodafone Towers Srl will merge with INWIT, which is jointly controlled by TIM and Vodafone, which each hold 37.5% of its capital.

7        In its new form following the merger, INWIT manages around 22 000 radio access network sites, consisting of ground-based and rooftop towers (together referred to as ‘macro-sites’), and will enter into a master service agreement for the provision of hosting services (‘the MSA’) with TIM and Vodafone respectively. It will grant them priority access rights to those sites by restricting third party access to the space that TIM and Vodafone will leave free. The parties to the concentration at issue will also enter into a series of other agreements, including a passive sharing agreement extending their existing passive sharing agreements mainly for municipalities with fewer than 35 000 inhabitants at national level.

8        On 17 January 2020, the European Commission received notification of the concentration at issue pursuant to Article 4(1) of Regulation No 139/2004.

9        After examining the potential effects of the concentration at issue, first, the Commission found that that concentration gave rise to serious doubts as to its compatibility with the internal market as a result of vertical non-coordinated effects to the detriment of the applicant as a provider of mobile retail and wholesale services or of any new mobile network operator (‘MNO’) entrant with the same needs as the applicant in terms of access to the sites of the parties to the concentration (paragraphs 294 and 300 of the contested decision).

10      Secondly, the Commission stated that it could not exclude that the concentration at issue gave rise to serious doubts as to its compatibility with the internal market as a result of (i) horizontal non-coordinated effects in the supply of hosting services on macro-sites to MNOs (paragraph 229 of the contested decision); (ii) horizontal non-coordinated effects in the supply of hosting services on macro-sites to fixed wireless access (‘FWA’) suppliers (paragraph 247 of the contested decision); (iii) horizontal non-coordinated effects in the supply of hosting services on macro-sites to customers other than television and radio broadcasters (paragraph 259 of the contested decision); and (iv) vertical non-coordinated effects to the detriment of FWA operators as suppliers of retail and wholesale fixed services (paragraphs 321 and 328 of the contested decision).

11      In order to eliminate the serious doubts identified by the Commission during the initial examination, the parties to the concentration at issue put forward, on 14 February 2020, a proposal containing commitments pursuant to Article 6(2) of Regulation No 139/2004.

12      The Commission consulted market participants on the commitments. Following the feedback received from that consultation, the parties to the concentration put forward, on 3 March 2020, a proposal containing revised commitments (‘the final commitments’).

13      The Commission considered that the final commitments were sufficient to dispel its serious doubts as to the compatibility of the concentration at issue with the internal market (paragraphs 481 and 495 of the contested decision).

14      In the first place, the Commission found, on the basis of a market reconstruction, that the 4 000 sites which the parties to the concentration at issue undertook to make available to MNOs and to FWA suppliers for a period of eight years under the final commitments covered the network expansion needs of their main customers and would even be able to meet demand if a new MNO or large FWA players were to enter the market (paragraphs 482 and 483 of the contested decision). First, the number of those sites exceeds the number of sites on which TIM or Vodafone are not currently hosted and for which the concentration at issue could, due to the preferential rights stemming from the MSAs, bring about a reduction of the capacity made available to third parties. Secondly, the final commitments ensure that a certain percentage of sites will be located in municipalities with more than 35 000 inhabitants or those undergoing difficulties in site deployment. Thirdly, the parties to the concentration at issue undertook not to exercise any early termination right and the final commitments offered third parties the option to extend the duration of all existing hosting or framework contracts (paragraph 484 of the contested decision).

15      In the second place, the Commission considered that the temporal scope of the final commitments was adequate given that it was sufficiently long to ensure that macro-site capacity would remain on the market during the period critical for the deployment of 5G and expansions of FWA networks (paragraphs 485 to 487 of the contested decision).

16      In the third place, the Commission considered that the period of exclusivity granted by the final commitments to new entrant MNOs was appropriate to ensure that competitors of the parties to the concentration at issue in greater need of access would be protected against a reduction of the capacity in the market resulting from that concentration in combination with the MSA.

17      In the fourth place, the Commission considered that the definitions foreseen in the final commitments and the procedure for making sites available to third parties were sufficiently clear (paragraph 490 of the contested decision). First, several definitions have been improved in order to clarify the services to be offered by the joint venture and the requirements for third party requests to be considered reasonable. It is no more difficult for third parties to obtain access compared to what is usual market practice (paragraph 491 of the contested decision). Secondly, the Commission, observing that existing contracts could serve as a reference point, considered the revised definition of reasonable and non-discriminatory terms to be appropriate (paragraph 492 of the contested decision). Thirdly, the Commission considered that the access procedure had been aligned to market practice and also met the needs of FWA suppliers. The publication of available sites on a transparency register ensures greater visibility of capacity availability, the duration of the request review has been shortened, free electromagnetic space must be made available and the parties to the concentration at issue may only seek remedies for abuses by third parties in accordance with the applicable laws and under the supervision of a monitoring trustee. If no effective use is made of the website within 12 months it will be re-listed on the transparency register (paragraph 493 of the contested decision).

18      In the fifth place, the Commission found that the procedures for monitoring and dispute resolution were clear and in line with its previous practice (paragraph 494 of the contested decision).

19      For those reasons, the Commission, by the contested decision, declared the concentration at issue compatible with the internal market and the EEA Agreement, subject to full compliance with the conditions set out in Sections A to D and H of the final commitments annexed to the contested decision and the obligations contained in the other sections of the final commitments (paragraph 496 of the contested decision).

 Forms of order sought

20      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission, TIM and Vodafone Group to pay the costs, including those incurred in responding to the statements in intervention and the supplementary statements in intervention lodged by TIM and Vodafone Group.

21      The Commission, TIM and Vodafone Group contend that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

22      Fastweb SpA contends that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs incurred by Fastweb.

 Law

 Preliminary observations

23      In support of its action, the applicant initially put forward four pleas in law. In the reply, it abandoned two of those pleas in their entirety. The applicant therefore relies on only two pleas, alleging (i) the lack of sufficient precision of the final commitments with regard to the definition of ‘free space’ in order for a site to qualify as an ‘available site’, and (ii) the lack of protection of third parties, under the final commitments, against a risk of bias of the parties to the concentration at issue in the selection of the available sites.

24      As the applicant itself states, it is challenging the contested decision only in so far as the Commission concluded that the final commitments were sufficient to dispel the serious doubts identified in that decision, which relate essentially to access to the sites of the parties to the concentration at issue (see paragraphs 9 and 10 above). By contrast, the applicant does not call into question either those doubts or INWIT’s main obligation under those commitments to grant such access to third parties by making available to them, over a period of at least eight years, at least 4 000 ‘available sites’ in municipalities in Italy with more than 35 000 inhabitants, at least [confidential] (1) of which must be located in the most densely populated municipalities or in those where, for historical reasons, site deployment is most difficult, as listed in Schedule C of those commitments (paragraphs 3 and 4 of the final commitments and paragraphs 450, 482 and 484 of the contested decision).

25      It should be recalled that the procedure for the control of concentrations takes place in two stages. As part of the preliminary investigation (‘phase I’), the Commission carries out an initial examination. Under Article 6(1)(b) of Regulation No 139/2004, it is to decide not to oppose it and is to declare that it is compatible with the internal market if that concentration does not give rise to serious doubts as to its compatibility with the internal market. On the other hand, if the concentration raises such serious doubts, the Commission, in accordance with Article 6(1)(c) of Regulation No 139/2004, it is to initiate the in-depth screening procedure (‘phase II’). That procedure is closed by means of a decision pursuant to Article 8(1) to (4) of that regulation, by which the Commission rules on the compatibility of the concentration with the internal market.

26      If, at the end of phase I, the Commission finds that, as a result of the commitments from the undertakings concerned, there are no longer serious doubts as to the compatibility of a notified concentration falling within the scope of Regulation No 139/2004 with the internal market, it declares, in accordance with Article 6(2) of that regulation, read in conjunction with Article 6(1)(b) of that regulation, that concentration to be compatible with the internal market. It may, by virtue of those provisions, attach to its decision conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into with a view to that compatibility.

27      According to the case-law, the commitments proposed in Phase I must allow the Commission to form the view that the notified concentration does not raise serious doubts as to its compatibility with the internal market during that phase. Those commitments therefore make it possible to avoid the initiation of phase II (judgments of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 290, and of 16 December 2020, American Airlines v Commission, T‑430/18, EU:T:2020:603, paragraph 114).

28      Thus, the commitments entered into in phase I are intended to dispel any serious doubts as to whether the concentration would significantly impede effective competition in the internal market or a significant part of it, in particular by creating or strengthening a dominant position (judgments of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 129; of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 297; and of 16 December 2020, American Airlines v Commission, T‑430/18, EU:T:2020:603, paragraph 120).

29      Although commitments which are structural in nature, such as the sale of assets, are often the most suitable corrective measure to remedy a competition problem easily, it cannot automatically be ruled out that commitments which prima facie are behavioural, such as access to essential infrastructure on non-discriminatory terms, may be capable of dispelling the serious doubts raised by a concentration (see, to that effect, judgments of 25 March 1999, Gencor v Commission, T‑102/96, EU:T:1999:65, paragraph 319, and of 3 April 2003, BaByliss v Commission, T‑114/02, EU:T:2003:100, paragraph 170).

30      By making a particular type of behaviour of an operator binding in relation to third parties, a decision adopted in accordance with Article 6(1)(b) of Regulation No 139/2004, read in conjunction with Article 6(2) of that regulation, may indirectly have legal effects erga omnes which the undertaking concerned would not have been in a position to create on its own (see, by analogy, judgment of 9 October 2018, Multiconnect v Commission, T‑884/16, not published, EU:T:2018:665, paragraph 56).

31      According to settled case-law, the Commission enjoys a broad discretion in assessing the need for commitments to be given in order to dispel the serious doubts raised by a concentration (judgments of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 128; of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 295; and of 16 December 2020, American Airlines v Commission, T‑430/18, EU:T:2020:603, paragraph 119).

32      When it decides to accept the proposed commitments, the Commission must, by virtue of the principle of proportionality, verify that those commitments address the concerns it expressed to the undertakings concerned and that they have not offered less onerous commitments that also address those concerns adequately. When carrying out that assessment, the Commission must also take into consideration the interests of third parties (see, by analogy, judgments of 29 June 2010, Commission v Alrosa, C‑441/07 P, EU:C:2010:377, paragraph 41, and of 9 December 2020, Groupe Canal + v Commission, C‑132/19 P, EU:C:2020:1007, paragraph 105).

33      Given the complex economic assessments which the Commission is required to carry out in exercising the discretion which it enjoys with respect to examining the commitments proposed by the parties to the concentration, the applicant must, in order to obtain annulment of a decision approving a concentration on the ground that the commitments are insufficient to dispel the serious competition concerns, show that the Commission has committed a manifest error of assessment (judgments of 3 April 2003, Royal Philips Electronics v Commission, T‑119/02, EU:T:2003:101, paragraph 78, and of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 187).

34      It follows that it is not for the Court to substitute its own assessment for that of the Commission: the Court’s review must be limited to ascertaining that the Commission has not committed a manifest error of assessment (judgments of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 128, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 295).

35      In exercising its power of review, the Court must take into account the specific purpose of the commitments given during phase I, as set out in paragraph 28 above. Consequently, where the General Court is called on to consider whether, having regard to their scope and content, those commitments are such as to permit the Commission to adopt a decision of approval without initiating the Phase II procedure, it must examine whether the Commission was entitled, without committing a manifest error of assessment, to consider that those commitments constituted a direct and sufficient response capable of clearly dispelling all serious doubts as to the compatibility of the concentration with the internal market (see, to that effect, judgments of 3 April 2003, Royal Philips Electronics v Commission, T‑119/02, EU:T:2003:101, paragraphs 79 and 80; of 7 June 2013, Spar Österreichische Warenhandels v Commission, T‑405/08, not published, EU:T:2013:306, paragraph 188; and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 297 and the case-law cited).

36      The pleas raised by the applicant must be examined in the light of those principles.

 The plea alleging a lack of precision in the definition of ‘free space’

37      The applicant, supported by Fastweb, submits that the definition of ‘free space’ on the sites which INWIT must make available under the final commitments is insufficiently clear. Those commitments do not provide for a minimum requirement or a benchmark for that free space and therefore do not guarantee that there will be sufficient power for an MNO to install its radio equipment. The definitions of the concepts of ‘third party’ and ‘reasonable request’, as provided for in those commitments, are also vague. The applicant considers that there is still doubt as to the correct interpretation of those commitments, which is demonstrated by the conduct of the parties to the concentration at issue. The final commitments thus allow a foreclosure strategy to be put in place. The out-of-court redress mechanisms are not capable of remedying those shortcomings since they cannot be used to add to the text of the final commitments or amend it.

38      The applicant submits that a more precise definition of ‘free space’ could easily have been found, for example, by applying the principle of non-discrimination or a rebuttable presumption of compatibility based on a benchmark. The average power granted by the agenzie regionali protezioni ambiente (ARPAs, regional environmental protection agencies, Italy) in similar areas and on similar sites could also be used as a benchmark. In so far as the ARPAs may require a reduction of power in order to allow a new operator to install on the relevant site, it is not necessary for the parties to the concentration at issue to limit the usable power.

39      The applicant submits that its position has deteriorated in relation to the situation prior to the concentration at issue, in so far as it had, first, a concrete possibility of obtaining access to Vodafone’s sites, in particular in urban areas, and, secondly, a framework agreement with INWIT which did not allow any discretion in setting the quantity of electromagnetic space made available. The concentration at issue reduces the incentive for those operators to market their sites externally and the extension of their passive sharing agreement to urban areas could foreclose third parties from the space available on those sites prior to that concentration.

40      For those reasons, the applicant considers that the final commitments do not clearly dispel the serious doubts expressed as to the potential effects of the concentration at issue. They do not therefore meet the requirements laid down in the case-law and in paragraph 81 of the Commission notice on remedies acceptable under Council Regulation (EC) No 139/2004 and under Commission Regulation (EC) No 802/2004 (OJ 2008 C 267, p. 1; ‘the Remedies Notice’).

41      The Commission, TIM and Vodafone dispute the applicant’s arguments.

42      It should be noted that, in accordance with the definitions set out in the first paragraph of the final commitments, ‘available sites’ are, in essence, all existing sites and, subject to a ceiling, new INWIT sites after the completion of the concentration at issue, which have ‘free space’ in municipalities with more than 35 000 inhabitants. ‘Free space’ is defined as available space on sites that is sufficient in terms of physical and electromagnetic space to provide, from a technical perspective, a reasonable request for hosting services to one or more third parties. The term ‘third party’ encompasses any MNO or FWA other than Vodafone Group, TIM and their affiliated undertakings, which submits a ‘reasonable request’. ‘Reasonable request’ means, from a technical perspective, a request for hosting services by a third party which, in particular, is to ensure that the use of power is consistent with the relevant emitted frequencies, uses up-to-date equipment and all reasonable electromagnetic frequency efficiency options which optimise the use of electromagnetic and physical space in line with best market practice. ‘Hosting services’ are defined, in essence, as the renting of space on the available sites and all related services, in line with market practice, to enable third parties to install, operate, maintain and use their equipment for the provision of wireless (for example, FWA) and wireline communication services, with all the relevant frequencies and technologies available at the point at which the site becomes an ‘available site’ and is added to the transparency register.

43      Therefore, inter alia, the definitions of the concepts of ‘available sites’, ‘free space’, ‘third party’, ‘reasonable request’ and ‘hosting services’, taken together, specify the principal obligation that the parties to the concentration at issue have under the final commitments consisting of making 4 000 sites available to MNOs and FWA suppliers in municipalities in Italy with more than 35 000 inhabitants over a period of eight years.

44      The Commission found, in paragraph 490 of the contested decision, that those definitions were sufficiently clear for the final commitments to be effectively implemented (see paragraph 17 above).

45      By the present plea, the applicant disputes that finding, criticising the imprecise nature of certain definitions set out in the first paragraph of the final commitments, in particular the concept of ‘free space’.

46      In so far as those definitions, in particular the definition of ‘free space’, reference each other, they cannot, contrary to the view apparently taken by the applicant, be examined in isolation. Rather, it is necessary to examine, in accordance with the case-law cited in paragraph 35 above, whether those definitions, taken as a whole, allowed the Commission to consider, without making a manifest error of assessment, that the final commitments constituted a direct and sufficient response capable of clearly dispelling all the serious doubts identified.

47      In that regard, it is apparent from a combined reading of the definitions of the concepts of ‘available sites’, ‘free space’, ‘third party’ and ‘hosting services’, as set out in paragraph 42 above, that the existing and new INWIT sites which are made available under the final commitments, in municipalities with more than 35 000 inhabitants (available sites), must, from a technical perspective, have sufficient physical and electromagnetic space (free space) to enable one or more MNOs or FWAs (third parties), in line with market practice, to install, operate, maintain and use their equipment for the provision of wireless and wireline communication services (hosting services).

48      In other words, under the final commitments, INWIT must make available sites with sufficient physical and electromagnetic space to allow at least one MNO or FWA supplier to provide communication services in line with market practice.

49      The reference to ‘market practice’ ensures that the provision of those services from sites made available by INWIT is not more difficult than is usual on the market and that, consequently, those sites are of genuine interest to those operators. That is in line with the applicant’s claim that third parties must be able to emit their frequencies correctly and in line with standard practices in the industry. It follows that, conversely, a site whose physical and electromagnetic space does not allow an MNO or an FWA to provide those services in line with market practice does not, in principle, comply with the final commitments.

50      However, access to INWIT’s sites is not without limits. In accordance with the definition of the concept of ‘reasonable request’ (see paragraph 42 above), third parties are to ensure that the use of power is consistent with the relevant emitted frequencies, up-to-date equipment and all reasonable electromagnetic frequency efficiency options which optimise the use of electromagnetic and physical space in line with best market practice. Those conditions of access may be justified by the fact that, as the Commission and Vodafone maintain, electromagnetic space is a scarce resource which must be used as efficiently as possible and in conformity with the regulatory frequency requirements, in particular with a view to allowing several operators to be hosted on those sites. Although INWIT may restrict or refuse access to its sites where those conditions are not met, the Commission found, in paragraph 491 of the contested decision, that no burden was imposed on the third parties making it more difficult for them to obtain access compared to what is usual market practice.

51      Therefore, contrary to what the applicant claims, the final commitments do contain criteria ensuring that the electromagnetic space of the sites made available by INWIT is sufficient for an MNO to be able to install its radio equipment.

52      It is true that those criteria are expressed in general terms and do not provide for any minimum level of power. However, it should be noted that, as is apparent from the judgment of 27 June 2012, Microsoft v Commission (T‑167/08, EU:T:2012:323, paragraph 91), the use of imprecise legal concepts is not unusual in competition law. That is particularly true of access commitments which, according to paragraph 66 of the Remedies Notice, ‘are often complex in nature and necessarily include general terms for determining the terms and conditions under which access is granted’.

53      The use of general terms is also common practice in the field of telecommunications and makes it possible, as the Commission and Vodafone Group maintain, to ensure the flexibility necessary to take account of the specificities of sites, the needs of access seekers, and regulatory requirements in terms of frequencies and technological developments. Accordingly, Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code (OJ 2018 L 321, p. 36) contains several provisions drafted in general terms which relate, much like final commitments, to access to electronic communications networks on ‘fair, reasonable and non-discriminatory’ terms (see, in particular, Article 57(4), Article 61(2)(d), Article 76(1)(b)(i) and Article 79(2)(c) of that directive).

54      Contrary to what the applicant claims, the requirement resulting from the case-law cited in paragraph 35 and paragraph 81 of the Remedies Notice, according to which commitments submitted to the Commission must be sufficient to rule out clearly any serious doubts identified as to the compatibility of the concentration concerned with the internal market, does not preclude the acceptance of commitments using general terms. As the Commission rightly notes, that requirement relates to the ability of the commitments offered in Phase I, as a whole, to dispel all those serious doubts. The word ‘clearly’ indicates that that ability must be entirely unambiguous, given that the Commission is, according to the case-law, required to initiate Phase II where such doubts persist at the end of Phase I (see, to that effect, judgments of 3 April 2003, Royal Philips Electronics v Commission, T‑119/02, EU:T:2003:101, paragraph 77, and of 11 December 2013, Cisco Systems and Messagenet v Commission, T‑79/12, EU:T:2013:635, paragraph 49). On the other hand, that requirement does not require the clauses in the commitments to contain all the technical details of their implementation.

55      Moreover, the applicant itself uses general terms when it maintains that the power made available should be ‘sufficient’, ‘proportionate’ and in line with ‘standard practices in the industry’ and that it seeks to obtain access to a ‘reasonable’ number of sites. Most of those terms are found in the definitions of the final commitments, as set out in paragraph 42 above.

56      As the Commission notes by reference to paragraph 66 of the Remedies Notice, the use of general terms in the final commitments is offset by safeguards which enable third parties to enforce those commitments in the event of a dispute with the parties to the concentration at issue. First, an independent trustee is responsible for monitoring compliance with those commitments (Section G of the final commitments) and, secondly, those commitments provide for a fast track dispute resolution procedure (Section E of the final commitments) and arbitration proceedings (Section F of the final commitments). Those safeguard measures considerably limit INWIT’s discretion when making sites available and constitute an effective means of remedying a possible breach of the criteria set out in paragraphs 47 to 50 above. In view of the binding and sufficiently precise nature of those criteria, the applicant’s argument that those measures cannot alter the wording of the final commitments is irrelevant.

57      In addition, it must be held that a strategy consisting of deliberately and systematically making available to third parties sites which do not fulfil the criteria set out in paragraphs 47 to 50 above would run counter to the objectives of the final commitments. First, as is apparent from the first paragraph thereof, those commitments are intended to render the concentration at issue compatible with the internal market and the EEA Agreement, and thus to eliminate the serious doubts identified by the Commission, which relate essentially to access to the sites of the parties to the concentration at issue (see paragraphs 9 and 10 above). Secondly, under the second paragraph thereof, those commitments must be interpreted in the light of the contested decision, in the general framework of EU law and, in particular, in the light of Regulation No 139/2004 and by reference to the Remedies Notice. In paragraph 491 of the contested decision, the Commission found that those commitments did not impose any burden on the third parties that made it more difficult for them to obtain access compared to what is usual market practice (see paragraph 17 above). That demonstrates that the objective underlying the final commitments is to ensure that the third parties have effective access to the sites made available by INWIT which is in line with market practice, which is also reflected by the reference to that practice in the criteria set out in paragraphs 47 to 50 above.

58      That finding is not called into question by the applicant’s other arguments.

59      First, as regards the claim that the concept of ‘free space’ can be defined by reference to the principle of non-discrimination, by setting a quantitative benchmark for a rebuttable presumption of compatibility, or by taking into account the (average) power granted by the ARPAs, it is sufficient to note, as the Commission and TIM have done, that, in accordance with the case-law, the fact that other commitments might also have been accepted, or might even have been more favourable to competition, cannot justify annulment of that decision in so far as the Commission was reasonably entitled to conclude that the commitments set out in the decision served to dispel the serious doubts (judgments of 4 July 2006, easyJet v Commission, T‑177/04, EU:T:2006:187, paragraph 128, and of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 295). The same is true of the applicant’s claim that third parties must be able to emit their frequencies from available sites with sufficient power considering the portfolio of frequencies concerned.

60      Secondly, as the Commission observes, the interpretation of the final commitments given by the parties to the concentration in question, together with Fastweb’s criticisms concerning the poor quality of the sites and the absence of information about future available sites, concern the implementation of the final commitments. Facts which post-date the adoption of the contested decision, even on the assumption that they are established, have no effect on the legality of that decision, in so far as that legality must be assessed on the basis of the facts as they stood at the time when the decision was adopted (see judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraph 339 and the case-law cited).

61      Thirdly, as regards the arguments alleging a lack of incentive for the parties to the concentration at issue to market their sites externally and the reduction of third-party access capacity, it is true that the Commission identified those potential effects in its competitive analysis of that concentration (see, in particular, paragraph 287 of the contested decision). However, in its assessment of the final commitments, the Commission found that the 4 000 sites which INWIT was required to make available under those commitments met the needs of third parties and exceeded the number of sites in relation to which the concentration at issue could lead to a reduction in access capacity (paragraphs 483 and 484 of the contested decision; see also paragraph 14 above). The applicant does not call into question that finding or the number of sites being made available in general (see paragraph 24 above). Therefore, by merely repeating the potential effects identified by the Commission, it cannot demonstrate that the final commitments are insufficient to remedy those efforts.

62      Fourthly, as regards the arguments concerning the competitive situation prior to the concentration at issue, it must be borne in mind that, in accordance with the case-law set out in paragraph 28 above, the final commitments are intended to dispel any serious doubts which the Commission has identified as to the compatibility of that concentration with the internal market. By contrast, those commitments are not intended to improve that previous situation, since it is not for the Commission, in the context of the control of concentrations, to establish a perfect competition system (see, to that effect, judgment of 6 November 2012, Éditions Odile Jacob v Commission, C‑551/10 P, EU:C:2012:681, paragraph 67).

63      Prior to the concentration at issue, first, Vodafone’s external marketing of its sites was only marginal, as is apparent from paragraph 213 of the contested decision. In particular, Vodafone [confidential]. The applicant therefore had only a hypothetical possibility of obtaining access to Vodafone’s sites.

64      Secondly, as regards the framework agreement concluded between INWIT and the applicant, submitted as Annex C 2 to the reply, it is apparent from recital E thereof that its purpose is to define the terms and conditions of a long-term commercial relationship between the applicant and INWIT [confidential]. In accordance with point 4.1(a) of that framework agreement, the applicant may [confidential] in accordance with the procedure provided for in Annex 4.1(a)bis to that framework agreement [confidential].

65      [confidential]

66      [confidential]

67      [confidential], the applicant did not therefore have a well-established right of access to INWIT’s sites prior to the concentration at issue, which the applicant itself acknowledged in its observations on TIM’s statement in intervention.

68      By contrast, in accordance with the case-law cited in paragraph 30 above, the final commitments produce legal effects erga omnes and, as follows in particular from paragraphs 24, 51 and 56 above, confer on the applicant and other third parties an enforceable right of access to at least 4 000 INWIT sites in municipalities in Italy with more than 35 000 inhabitants over a period of eight years.

69      In any event, under the final commitments, the parties to the concentration at issue are required to offer to third parties standard contractual conditions which are no worse than those applied prior to the concentration, and third parties have the right to extend their existing hosting contracts for the duration of the commitments (see paragraphs 1 and 7 of the final commitments; see also paragraphs 451 and 454 of the contested decision). Therefore, the applicant cannot claim that the competitive situation after the concentration at issue deteriorated as compared with that prior to that concentration.

70      Accordingly, it has not been shown that the Commission made a manifest error of assessment in finding, in paragraph 490 of the contested decision, that the definitions set out in the final commitments were sufficiently clear for those commitments to be implemented effectively.

71      Consequently, the present plea must be rejected as unfounded, without it being necessary to rule on the Commission’s challenge to the admissibility of the applicant’s arguments relating to the concept of ‘third parties’ and to the framework agreement concluded with INWIT.

 The plea alleging a lack of protection for third parties against a risk of bias when selecting available sites

72      The applicant and Fastweb claim that the terms of the final commitments allow the parties to the concentration at issue to make available to them sites which are of little or no use, such as sites located at the periphery. The final commitments therefore do not resolve the competition problems identified by the Commission. That is confirmed by the first sites made available by INWIT, of which only [confidential] were the subject of a request for access from the applicant. Fastweb also complains of the low quality of the sites made available, which has a considerable impact on the development of its 5G network.

73      The applicant submits that, due to regulatory constraints, third-party access to INWIT’s sites is particularly important in municipalities with more than 35 000 inhabitants, and more specifically in historic centres and densely populated areas of those municipalities. It notes that, under the final commitments, only [confidential] of INWIT’s sites located in those municipalities must be made available to third parties. That percentage would decrease further if the sites still to be built were included. Given INWIT’s current portfolio, the final commitments cover only around [confidential] of INWIT’s existing sites in those areas and access to all other INWIT sites could be refused. By contrast, prior to the concentration at issue, the framework agreement concluded with INWIT [confidential] and, under that framework agreement, access [confidential]. It thus obtained access to a considerable number of sites located in those municipalities.

74      According to the applicant, the mere fact that a site is located in one of the municipalities in Schedule C of the final commitments does not mean that it is located in an area where there are significant limitations to building new sites. In order to avoid the risk of bias, it is necessary to give the applicant an active role in the selection of sites or to ensure that the characteristics and composition of the sites made available are consistent with INWIT’s portfolio as a whole. The applicant notes the exceptional nature of the behavioural commitments and also refers to the terms and conditions of access contained in the commitments in Case M.5984 – Intel/McAfee and the Commission’s Remedies Notice. Fastweb considers it necessary to lay down selection criteria based on the location and intrinsic quality of available sites. The applicant and Fastweb argue that the access procedure implemented by the parties to the concentration at issue is slow and fragmented. To allow for radio planning, available sites should be identified and published in the transparency register at an early stage.

75      The applicant submits that, due to the confidential nature of Form RM relating to remedies, the content of which is set out in Annex IV to Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 (OJ 2004 L 133, p. 1), and by which the undertakings involved in the concentration at issue were, in accordance with Article 20(2) of Regulation No 802/2004, required to provide certain information and certain documents in the context of their proposed commitments (‘Form RM’), the final commitments cannot be interpreted in the light of that form. The information disclosed in the defence is also confidential. The fact that the Commission relies on that form to emphasise the suitability of those commitments to avoid bias when selecting sites confirms that those commitments do not resolve the competition concerns identified. The applicant considers that the differing interpretation of those commitments also confirms their lack of clarity. According to the applicant, the circumstances of the present case are different from those in the case giving rise to the judgment of 16 December 2020, American Airlines v Commission (T‑430/18, EU:T:2020:603), which is relied on by the Commission.

76      According to the applicant, the out-of-court redress mechanisms, in particular the arbitration procedure, do not offer effective protection against the risk of bias in the selection of sites either. In such a procedure, neither the applicant nor the arbitrator could rely on Form RM since it is confidential. By initiating that procedure, it must therefore take a costly risk in order to enforce its rights.

77      The Commission, TIM and Vodafone dispute the applicant’s arguments.

78      As a preliminary point, it should be noted, as the Commission and TIM maintain, that some of the arguments raised by the applicant and Fastweb in the context of the present plea concern the implementation of the final commitments after the implementation of the concentration at issue, including, in particular, the arguments relating to the number of requests and the rate of access to the sites made available by INWIT, the number, usefulness and availability of those sites, the interpretation of the final commitments by the parties to the concentration at issue and the conduct of those parties. In accordance with the case-law cited in paragraph 60 above, those facts which post-date the adoption of the contested decision cannot affect the legality of that decision, which must be assessed on the basis of the facts as they stood at the time when the decision was adopted. Therefore, the arguments based on such circumstances must be rejected as ineffective.

79      By the other arguments raised in the context of the present plea, the applicant submits, in essence, that the terms of the final commitments do not guarantee the absence of bias in the selection of sites, allowing the parties to the concentration at issue to select, in a discretionary manner, sites which are of little use to third parties.

80      In order to ensure the quality of the 4 000 sites being made available to third parties under the final commitments, INWIT is required to comply with certain geographical location requirements. In accordance with paragraph 4 of those commitments, those sites must be distributed across the municipalities of Italy with more than 35 000 inhabitants, at least [confidential] of which must be located in the municipalities listed in Schedule C of those commitments, which includes the most densely populated municipalities or those where, for historical reasons, site deployment is most difficult (see paragraphs 482 and 484 of the contested decision).

81      As regards the general criterion that the municipalities must have more than 35 000 inhabitants, it must be stated that the Commission has identified access and foreclosure issues in those municipalities in its analysis of the effects of the concentration at issue on competition (see in particular paragraphs 289, 297, 313 and 324 of the contested decision), an analysis which has not been disputed by the applicant.

82      As regards the more specific criterion of the most densely populated municipalities or those where, for historical reasons, site deployment is most difficult, as provided for in Schedule C of the final commitments, it is apparent from paragraph 475(b) of the contested decision that that schedule was not included in the initial commitments, but was added to the final commitments after the market participants were consulted. During that consultation, [confidential] areas where the construction of new sites was particularly difficult. More specifically, those were the [confidential] municipalities with more than 100 000 inhabitants and the [confidential] municipalities populated with more than 35 000 inhabitants which are cultural heritage sites. All [confidential] of those municipalities were subsequently included in Schedule C of the final commitments (see paragraph 484 of the contested decision).

83      Accordingly, the geographic requirements of the final commitments not only ensure that the minimum 4 000 sites that INWIT is obliged to make available to third parties are located in the municipalities where the Commission has identified access and foreclosure issues generally, but also that at least [confidential] of those sites are located in the more specific areas [confidential] where the deployment of mobile networks is particularly difficult. It can therefore be said that those geographical requirements ensure that the sites made available by INWIT are located in areas which are of interest to third parties.

84      It is true that the final commitments, first, do not contain qualitative criteria for the selection of sites by INWIT, in particular as regards their characteristics, composition and exact location within those areas, and, secondly, allow a certain percentage of newly constructed sites to be made available (see the definition of ‘available site’ in paragraph 1 of the final commitments; see also paragraph 42 above).

85      However, it must be stated that the fact that a sufficient number of sites are made available to third parties ensures that there is no selection bias, as can be inferred from the consultation with market participants (see paragraph 462 of the contested decision). Account must therefore also be taken of the minimum number of 4 000 sites which INWIT is required to make available to third parties (see paragraph 24 above).

86      In that regard, it should be noted that, first, the applicant does not dispute whether that number is appropriate to address the access and foreclosure issues identified by the Commission (see paragraph 24 above). Secondly, that number exceeds the number of sites for which the concentration at issue could lead to a reduction in access capacity (see paragraph 61 above). Thirdly, it is apparent from Form RM that that same number corresponded, at the time when those commitments were proposed, to [confidential] of the portfolio of the parties to the concentration at issue in municipalities with more than 35 000 inhabitants. In those circumstances, it must be held that the number of 4 000 sites which INWIT is required to make available to third parties accounts for a proportion which significantly limits its discretion when selecting sites, even by including new sites (see paragraph 84 above).

87      By comparison, it is apparent from paragraph 280(c) of the contested decision that the applicant had planned, prior to the concentration at issue, to request access, until 2027, to [confidential] sites of the parties to the concentration at issue in municipalities with more than 35 000 inhabitants. In its observations submitted to the Commission on 7 February 2020 in the context of the administrative procedure, the applicant stated that it needed, within [confidential] years, access to approximately [confidential] sites in cities with more than 100 000 inhabitants and historic Italian cities with more than 35 000 inhabitants.

88      Accordingly, the minimum number of 4 000 sites being made available under the final commitments in the municipalities with more than 35 000 inhabitants corresponds to around [confidential]% of the sites which the applicant had considered necessary for the deployment of its mobile network and therefore, as is apparent from paragraph 483 of the contested decision, far exceeds its needs. Even taking into consideration only the more specific areas in Schedule C, in which [confidential] the construction of the new sites to be particularly difficult, it must be observed that the minimum of [confidential] sites being made available in those areas corresponds to around [confidential]% of the sites necessary for the construction of the applicant’s network and therefore still constitutes a significant proportion of its needs.

89      Therefore, it must be held that the geographic requirements of the final commitments, which take into account the municipalities for which the Commission has identified access and foreclosure issues generally and the areas indicated [confidential] in the consultation with market participants as being particularly difficult for the deployment of mobile networks (see paragraph 83 above), ensure, together with the obligation to make 4 000 sites available to third parties, which significantly limits INWIT’s discretion when selecting sites (see paragraph 86 above) and meets the applicant’s needs for the construction of its network (see paragraph 88 above), that those sites include a sufficient number of sites which are of use to the applicant and to other third parties.

90      By contrast, as Vodafone Group submits, it is inevitable that some of the 4 000 sites being made available by INWIT under the final commitments are of less interest to third parties than others, in particular due to their network deployment plans, the existence of other hosting agreements or economic considerations, without that calling into question the general ability of those sites to meet, in their entirety, the needs of third parties and, thus, to address the access and foreclosure issues identified by the Commission.

91      In addition, as the Commission observes and as the applicant itself acknowledges in the application and in its observations submitted to the Commission on 24 February 2020, it should be noted that a strategy consisting of deliberately and systematically making sites which are useless available to third parties would run counter to the objectives of the final commitments. The purpose of those commitments is to enable the Commission to dispel the serious doubts which it had identified as to the compatibility of the concentration at issue with the internal market and must, inter alia, be interpreted in the light of the contested decision (see paragraph 57 above). In paragraph 482 of the contested decision, the Commission concluded that those commitments addressed its doubts concerning the horizontal effects of the supply of hosting services on macro-sites and the input foreclosure concerns related to access to the same sites for MNOs and FWA suppliers. In particular, it is apparent from paragraphs 483 and 484 of the contested decision that the Commission considered, first, that the number of sites being made available under the final commitments was sufficient to meet third party demand and, secondly, that those commitments guaranteed the quality of those sites. That shows that the objective underlying those commitments is to ensure that those sites are useful for third parties.

92      That objective is confirmed by Form RM, from which it is apparent that the intention of the parties to the concentration at issue was to ‘[confidential]’. Having regard to the fact that the existence of that form derives from Regulation No 139/2004, in the light of which those commitments must also be interpreted (see paragraph 57 above), that form must, in accordance with the case-law (judgment of 16 December 2020, American Airlines v Commission, T‑430/18, EU:T:2020:603, paragraph 123), be taken into account and the Commission may, as the applicant itself acknowledges, rely on it in the event of non-compliance by the parties to the concentration at issue with the final commitments.

93      Finally, it is important to note that, as set out in paragraph 56 above, the final commitments provide for monitoring mechanisms to ensure that the parties to the concentration at issue comply with the final commitments. In particular, first, an independent trustee responsible for monitoring those commitments ‘[acts] as a contact point for any requests by third parties’ and has the power to propose to the parties ‘such measures as [it] considers necessary to ensure the parties’ compliance with the conditions and obligations attached to the [contested] decision’ (paragraph 65 of the final commitments). Secondly, arbitration proceedings allow third parties, in accordance with point 34 of those commitments, to raise ‘any matter … in relation to Sections B, C and D of [those] commitments’, namely the sections governing the availability of sites (Section B of the final commitments), the publication of information regarding available capacity (Section C of the final commitments) and the site access procedure (Section D of the final commitments). As the Commission and Vodafone submit, it must therefore be held that the applicant and other third parties may have recourse to those monitoring mechanisms in the event of biased site selection by the parties to the concentration at issue. Accordingly, those mechanisms enable market participants to implement the final commitments effectively and in a timely manner, in accordance with paragraph 66 of the Remedies Notice, as relied on by the applicant.

94      It follows from the foregoing that the parties to the concentration at issue are not subject to mere declarations of intent but are subject to specific conditions and obligations. It must be noted in that connection that if any of the conditions set out in Sections A to D and H of the final commitments, full compliance with which formed the basis for clearance of the concentration at issue (see paragraph 19 above), concerning the definitions (Section A), the making available of INWIT sites to third parties (Section B), the publication of information regarding available capacity (Section C), the procedure for obtaining access to sites (Section D) and the duration of those commitments (Section H), is not met, the contested decision and, accordingly, the clearance of the concentration at issue are no longer valid (see recital 31 of Regulation No 139/2004 and paragraph 20 of the Remedies Notice). Where the parties to the concentration at issue fail to fulfil an obligation contained in another section of those commitments, the Commission may, as it noted at the hearing, revoke that decision, in accordance with Article 6(3)(b) of Regulation No 139/2004. In addition, where the parties to the concentration contravene a condition or an obligation imposed by the contested decision, fines not exceeding 10% of their aggregate turnover may be imposed on them under Article 14(2)(d) of that regulation.

95      That finding is not called into question by the other arguments put forward by the applicant and by Fastweb.

96      First, in so far as the applicant relies on access problems in historic centres, it should be noted that it does not dispute the Commission’s analysis relating to the potential effects of the concentration at issue. In the context of that analysis, the Commission identified access and foreclosure issues in municipalities with more than 35 000 inhabitants in Italy generally, without limiting them only to city centres or historic centres (see in particular paragraphs 289, 297, 313 and 324 of the contested decision; see also paragraph 81 above). Even the term ‘urban areas’, as used in the contested decision, in particular in paragraphs 225 and 228 thereof, does not relate to a more specific category of urban sites, but relates to municipalities with more than 35 000 inhabitants, as is apparent from paragraphs 88, 242 and 334 and from the tables in paragraphs 157, 164, 279, 305 and 336 of the contested decision. The Commission cannot therefore be criticised for having accepted commitments the geographical requirements of which relate to municipalities with more than 35 000 inhabitants. In any event, in so far as the final commitments also take into account, first, the areas indicated [confidential] in the consultation with market participants as being particularly difficult for mobile network deployment (see paragraphs 82 and 83 above) and, secondly, the applicant’s access needs (see paragraph 88 above), they ensure that the sites made available under the final commitments include sites which are of use to the applicant, including in historic centres.

97      Secondly, as regards the arguments of the applicant and Fastweb that, in order to avoid the risk of bias, it is necessary to lay down selection criteria based on the intrinsic quality or location of the sites, to give the applicant an active role in the selection of sites or to ensure that the characteristics and composition of the sites made available to third parties comply with INWIT’s portfolio as a whole, it must be borne in mind that, in accordance with the case-law cited in paragraph 59 above, the fact that other commitments might also have been accepted, or might even have been more favourable to competition, cannot justify annulment of the contested decision in so far as the Commission was reasonably entitled to conclude that the final commitments served to dispel the serious doubts which it had. In that context, it should also be recalled that if, as in the present case, such doubts no longer exist as a result of the proposed commitments, the principle of proportionality precludes the imposition of more onerous remedies (see, to that effect, judgment of 3 April 2003, BaByliss v Commission, T‑114/02, EU:T:2003:100, paragraph 173), and the Commission is required, under Article 6(2) of Regulation No 139/2004, read in conjunction with Article 6(1)(b) of that regulation, to declare the concentration compatible with the internal market (see paragraphs 26 and 32 above).

98      Thirdly, as regards the argument that, in order to allow for radio planning, available sites should be identified and published in the transparency register at an early stage, it must be observed that the final commitments do provide for such early identification and publication. Under paragraphs 8 and 11 of the final commitments, INWIT is required to publish in that registry the details of all its sites to which third parties may request access under those commitments as soon as it is sufficiently clear that the site concerned will become available, that is to say, that it has sufficient physical and electromagnetic space. As is apparent from paragraphs 452, 475 and 493 of the contested decision, the time of that publication was brought forward in relation to the procedure set out in the initial commitments and disconnected from the actual date of release of that site. In addition, the Commission considered, referring to the replies of EI Towers and Wind Tre in the context of the consultation with market participants, that that procedure was aligned to market practice. The applicant does not raise any argument that is capable of calling that finding into question.

99      Fourthly, as regards the arguments based on the confidentiality of Form RM, it should be noted that access to that form does not appear to be necessary in so far as that form, as a means of interpreting the final commitments, merely confirms the objective of those commitments, according to which the sites made available by INWIT must be useful to third parties (see paragraphs 91 and 92 above). Moreover, as the Commission submits, that form may be taken into account in the arbitration proceedings referred to in paragraph 93 above since, according to paragraph 45 of the final commitments, ‘[the arbitral tribunal] shall be entitled to request any relevant information from the parties to the arbitration’, which also includes, in accordance with paragraph 46 of those commitments, confidential information such as that form.

100    Fifthly, as regards the arguments based on the competitive situation prior to the concentration at issue, in particular the framework agreement concluded with INWIT, the number of INWIT sites on which the applicant was able to install its equipment and the commercial incentive of Vodafone and INWIT to market their sites externally, it is sufficient to refer to the considerations set out in paragraphs 63 to 65 and 67 to 69 above, from which it is apparent that, at that time, the applicant had neither a well-established right of access to the sites of the parties to the concentration at issue nor, consequently, geographical guarantees similar to those summarised in paragraphs 80 to 82 above. In those circumstances, the applicant cannot validly rely on that previous competitive situation in order to demonstrate a manifest error of assessment on the part of the Commission, without it being necessary to rule on the admissibility of the arguments relating to the framework agreement which it concluded with INWIT.

101    Sixthly, in so far as the applicant relies on Case M.5984 Intel/McAfee, it is sufficient to note that, when the Commission takes a decision on the compatibility of a concentration with the internal market on the basis of a notification and a file pertaining to that transaction, an applicant is not entitled to call the Commission’s findings into question on the ground that they differ from those made previously in a different case, on the basis of a different notification and a different file. Similarly, economic operators have no grounds for a legitimate expectation that a previous decision-making practice, which is capable of being varied by a change in circumstances or changes in the Commission’s analysis, will be maintained. A fortiori, they cannot plead such an expectation to challenge findings or assessments made in a given set of proceedings by invoking findings or assessments made in the context of just one previous case. In any event, neither the Commission nor, a fortiori, the Court is bound in the present case by the assessments in Case M. 5984 Intel/McAfee (see, to that effect, judgment of 13 May 2015, Niki Luftfahrt v Commission, T‑162/10, EU:T:2015:283, paragraphs 142 to 144 and the case-law cited).

102    Accordingly, neither the applicant nor Fastweb have shown that the final commitments did not contain sufficient safeguards to ensure the quality of the sites made available to third parties and to prevent their biased selection by the parties to the concentration. Consequently, they have not shown that the Commission committed a manifest error of assessment in accepting those commitments.

103    Therefore, the present plea must be dismissed as unfounded.

104    Since none of the pleas in law raised by the applicant in the present action is capable of demonstrating that the Commission made a manifest error of assessment in concluding, in paragraph 495 of the contested decision, that the final commitments were sufficient to dispel the serious doubts which it had identified as to the compatibility of the concentration at issue with the internal market, the action must be dismissed in its entirety.

105    There is no need to rule on the applicant’s challenge to the admissibility of certain information contained in the supplementary statements in intervention submitted by TIM and Vodafone Group. Those factors are not relevant to the outcome of the present dispute, in particular in so far as they concern the development of the Italian market after the adoption of the contested decision, a fact which, in accordance with the case-law cited in paragraph 60 above, has no effect on the lawfulness of that decision.

 Costs

106    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, TIM and Vodafone Group, in accordance with the form of order sought by them.

107    In accordance with Article 138(3) of the Rules of Procedure, Fastweb must be ordered to bear its own costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Iliad Italia SpA to bear its own costs and to pay those incurred by the European Commission, Telecom Italia SpA and Vodafone Group plc.;

3.      Orders Fastweb SpA to bear its own costs;

Delivered in open court in Luxembourg on 13 November 2024.

*      Language of the case: English.

1      Confidential data omitted.

© European Union
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