C_2017249EN.01004701.xml

Action brought on 12 June 2017 — KPN v Commission

(Case T-370/17)

(2017/C 249/64)

Language of the case: English

Parties

Applicant: KPN BV (Den Haag, Netherlands) (represented by: P. van Ginneken and G. Béquet, lawyers)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—	annul the decision C(2016) 5165 final of the European Commission of 3 August 2016 declaring a concentration to be compatible with the internal market and the EEA agreement pursuant to Article 6(2) of Council Regulation No 139/2004 in Case M. 7978 — Vodafone/Liberty Global/Dutch JV;

—	revert the case to the Commission for further examination pursuant to Article 10(5) of Council Regulation No 139/2004;

—	order the European Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging that the Commission committed a manifest error in its assessment of the market for sports content and that, as a consequence of this, the competition analysis of the Commission is unfunded.

—	The applicant puts forward that sports content is not substitutable and is essential for subscribers. According to the applicant, this makes sports content (and especially must have sports content) essential for TV providers who want to compete on (among others) the markets relating to TV services.

—

The applicant further puts forward that the Commission, by considering otherwise, made a manifest error in its assessment of the market(s) for sports contents. According to the applicant, these errors in the market definition have consequences for the further assessment of the Commission in this decision and ultimately for the conclusions of the Commission to allow the merger.

Second plea in law, alleging that the Commission committed a manifest error in its assessment regarding the incentive to engage in input foreclosure on the market of wholesale supply of Premium Pay TV Sports channels.

—

The applicant puts forward that before the merger, Ziggo already had the ability and incentive to foreclose must have content from competitors. According to the applicant, the Commission knew this and the merger thus permits to extend the foreclosure to new markets, such as the markets for fixed-mobile multiplay bundles.

—

The applicant equally puts forward that the Commission erroneously assessed that the consumption of content on mobile devices is minor and that therefore these markets would not be affected by the merger. Furthermore, so the applicant claims, the Commission erroneously assessed that the markets for fixed-mobile multiplay bundles are only at their early stages in the Netherlands.

—	According to the applicant, the Commission therefore erroneously came to the conclusion that the merger would have no negative effects regarding foreclosure of sports content on the markets for fixed-mobile multiplay bundles.

Third plea in law, alleging that the Commission did not motivate why the joint venture would not have the incentive to foreclose downstream competitors from access to must have content.

—	The applicant puts forward that the conclusions of the Commission discussed in the previous pleas were insufficiently motivated.