Antitrust, start of investigation into agreements between Tim and Fibercop

In this framework, 'for the entire duration of the Msa, Tim undertakes to: (i) purchase all [omissis] services as well as all other [omissis] services from Fibercop; (ii) not self-supply or purchase from others any [omissis]. For Tim, the provision of exclusive supply from Fibercop constitutes a guarantee of continuity of supply of wholesale services necessary for the marketing of services in the fixed network retail markets'.

In the end, Antitrust decided to put the agreement under the microscope because 'the MSA presents some clauses and provisions that could be exorbitant with respect to the aforementioned business continuity requirements and, above all, could lead to unjustified restrictive effects on competition, also in light of the important competitive position that the Parties each hold in their respective markets'. Among these, as mentioned, there are volume discounts that "increase, for each additional customer, once certain thresholds are exceeded, as a percentage of the ratio between activated lines and lines that can be activated, within a given geographical area, reaching a maximum of two euros per line discount, compared to the price regulated by Agcom, once 12% of that ratio is exceeded".

In this case, the Antitrust Authority's assessment is that there may be critical profiles because "if on the one hand these discounts are also offered to other operators on a non-discriminatory basis, on the other hand it is noted that the market share thresholds provided for by the MSA to access the discounts could only be reached by Tim. It also notes that, in order to obtain the discounts, the operator will have to choose an active access service, the VULA FTTH, precisely at a time when Fibercop's offer of passive services (Gpon and semi-Gpon) is no longer subject to cost-oriented price control but only to fairness and reasonableness criteria'.

Could this decision be intertwined with the two dossiers: the 1 billion concession fee, not due, that the Mef should turn over to Tim and the push on the single network? This is the assessment of Giorgio Tavolini, of Intermonte: 'The investigation was somewhat expected after DgComp's referral of the Msa review to the national authorities during the approval of the agreement in May. Tim has stated that Msa adheres to regulatory standards, with volume discounts limited to non-regulated activities. We do not see this as retaliation by the government for the EUR 1bn concession fee, given Agcm's independence and the government's stakes in FiberCop (16% through Mef, 11% through F2i) and Tim (9.9% through Cdp). However, the investigation could act as leverage to push Kkr to support a single network or accelerate the transition from copper to fibre'.

Together with the decision to open the investigation into the master service agreement (Msa) between Tim and Fibercop, the Antitrust Authority in its Bulletin ordered the revocation of the co-investment commitments made by Tim and Fibercop as part of the agreements between Fibercop, Kkr, Tim, Fastweb and Tiscali in 2020 when Fibercop, a newco into which Tim's secondary network had been transferred, was established.

Also among the measures is the approval of the sale of Vodafone Italia to Swisscom, with a few caveats: Fastweb's continuation of the provision of wholesale services to third-party operators; the sharing of information in any public tenders for fixed telephony and fixed connectivity services in which the incumbent provider is Fastweb or Vodafone Italia; and the appointment of a monitoring trustee, an independent trustee, who will guarantee the fulfilment of the commitments, which will be valid for three years.