EUROPEAN COMMISSION DG Competition Case M.7000 - LIBERTY GLOBAL / ZIGGO Only the English text is available and authentic. REGULATION (EC) No 139/2004 MERGER PROCEDURE Article 6(1)(b) in conjunction with Art 6(2) Date: 30/05/2018 In electronic form on the EUR-Lex website under document number 32018M7000 EUROPEAN COMMISSION In the published version of this decision, some Brussels, 30.5.2018 information has been omitted pursuant to Article C(2018) 3569 final 17(2) of Council Regulation (EC) No 139/2004 concerning non-disclosure of business secrets and other confidential information. The omissions are PUBLIC VERSION shown thus […]. Where possible the information omitted has been replaced by ranges of figures or a general description. To the notifying Parties Subject: Case M.7000 – LIBERTY GLOBAL / ZIGGO Commission decision pursuant to Article 6(1)(b) in conjunction with Article 6(2) of Council Regulation No 139/20041 and Article 57 of the Agreement on the European Economic Area2 1. INTRODUCTION (1) On 14 March 2014, the European Commission received notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (the "Merger Regulation") by which Liberty Global plc (''Liberty Global", the United Kingdom, also the "Notifying Party"), acquired within the meaning of Article 3(1)(b) of the Merger Regulation sole control over Ziggo N.V. ("Ziggo", the Netherlands) by way of a public bid ("the Transaction") in order to form an entity which would take over the parties' respective activities in the Netherlands ("NewZiggo"). (2) On 10 October 2014, the Commission declared the Transaction compatible with the internal market subject to the fulfilment of certain conditions (the "Conditional Clearance Decision" or "the 2014 Decision"). (3) By judgment of 26 October 2017 (the "Judgment"), the General Court annulled the Commission's Conditional Clearance Decision on the ground that the Commission failed to state the reasons of its finding that the proposed merger would not lead to vertical anti-competitive effects on the possible market for 1 OJ L 24, 29.1.2004, p. 1 (the 'Merger Regulation'). With effect from 1 December 2009, the Treaty on the Functioning of the European Union ('TFEU') has introduced certain changes, such as the replacement of 'Community' by 'Union' and 'common market' by 'internal market'. The terminology of the TFEU will be used throughout this decision. 2 OJ L 1, 3.1.1994, p. 3 (the 'EEA Agreement'). Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel, BELGIË Tel: +32 229-91111. Fax: +32 229-64301. E-mail: [email protected]. Premium pay TV sports channels.3 The General Court found, in fact, that the Conditional Clearance Decision did not contain any analysis of the impact of the downstream structural changes, with the joining together of Liberty Global’s and Ziggo’s respective distribution platforms, on the relevant market in question. In addition, the Court argued, when discussing the ability and incentive of Liberty Global to engage in foreclosure of Sport1, the Commission should also have assessed the respective market positions and competitive relationships of Fox Sports and Sport1.4 (4) In order to comply with the Judgment, the Commission is undertaking a re- assessment of the entire Transaction, including all affected markets, under current market conditions as stipulated by the text of Article 10(5) of the Merger Regulation. (5) On 4 April 2018, Liberty Global and Vodafone (the "Notifying Parties") submitted to the Commission a supplement Form CO providing information on the Transaction, on its effect on competition and on the changes in market conditions occurred since the Conditional Clearance Decision (the "Supplement Form CO"). (6) Since the Conditional Clearance Decision, Liberty Global and Vodafone have combined their telecommunications businesses in the Netherlands in VodafoneZiggo. This subsequent transaction was conditionally cleared by the Commission on 3 August 20165 and was completed on 31 December 2016. As of that date, the target (which had become part of NewZiggo), was contributed by Liberty Global to VodafoneZiggo and is now indirectly jointly controlled by Liberty Global and Vodafone. 2. THE PARTIES (7) Liberty Global owns and operates cable networks and some mobile networks worldwide and offers television, broadband internet, mobile and telephony services as well as mobile services. (8) At the time of the Conditional Clearance Decision, Liberty Global owned a regional cable network in the Netherlands under the brand UPC. This was then merged with the Ziggo business into NewZiggo. Today, Liberty Global is active in the Netherlands via its joint venture with Vodafone – VodafoneZiggo - into which the NewZiggo entity was contributed. (9) The Conditional Clearance Decision found that John Malone, a United States citizen, is the largest shareholder (albeit a minority shareholder) of Liberty 3 Case T-394/15, KPN v Commission, EU:T:2017:756. 4 KPN v Commission, paragraphs 57-69. 5 Commission decision of 3 August 2016, in case M.7978, Vodafone/Liberty Global/ Dutch JV. 2 Global.6 He also held significant minority shareholdings in Liberty Interactive Corporation ("LIC"), Liberty Media Corporation ("LMC") and Discovery Communications, Inc. ("Discovery"). John Malone also held the positions of Chairman of the respective boards of Liberty Global, LIC and LMC, as well as of director of Discovery. None of LIC, LMC or Discovery was found to be part of Liberty Global. Discovery was found to be active in the wholesale supply of TV channels, including in the Netherlands, and had recently acquired Eurosport SAS ("Eurosport").7 (10) The issue of whether John Malone controls Liberty Global, LIC or LMC was left open in the Conditional Clearance Decision given that the outcome of the competitive assessment was considered not to change whether or not John Malone controlled those companies.8 (11) Today, John Malone still holds significant minority shareholdings in Liberty Global, LMC, Discovery and LIC (which was renamed Qurate Retail, Inc. ("Qurate Retail") as of March 2018). In addition, John Malone today holds significant minority shareholdings in GCI Liberty, Inc ("GCI") and Liberty Broadband Corporation ("Liberty Broadband").9 (12) The Commission has assessed whether the exercise of voting rights or powers related to corporate offices enables John Malone to exercise either de jure or de facto control on, in particular, LMC and Discovery. The purpose of the assessment is to verify whether Liberty Global and LMC (with its Formula 1 broadcasting rights owned as of January 2017) may be subject to the control of the same individual, so that Liberty Global may be considered active in the supply of sports broadcasting rights in the Netherlands. The same analysis has been carried out in relation to Discovery, which controls the sports channel Eurosport. (13) In this respect, the Commission has requested and examined all relevant information concerning the corporate governance of the companies in which Mr John Malone owns voting rights and/or holds corporate offices. 6 Liberty Global was (and is) listed on the NASDAQ stock exchange with the largest shareholder, John Malone, ultimately holding approximately 28% of voting power in Liberty Global. To Liberty Global's knowledge, no other stockholder had a significant equity interest in Liberty Global. 7 Commission's decision of 8 April 2014 in Case No M.7170 - Discovery Communications/Eurosport. 8 The issue of possible control by John Malone over Liberty Global, LMC or Discovery was left open in the Commission's decision of 14 April 2013 in Case No COMP/M.6880 - Liberty Global/Virgin Media, because the transaction did not raise competition concerns, even when assuming that such control were to exist. The same was considered to apply in the Conditional Clearance Decision given that LCI has no activities in the Netherlands and LMC's interest in relevant companies (Viacom and Time Warner) equated to less than 3% voting rights. 9 As of 31 March 2018, Mr John Malone controls 26.9% of the voting rights in GCI Liberty, a company that provides communication services in the United States. As of 28 February 2018, Mr John Malone controls 47.1% of the voting rights in Liberty Broadband, whose principal assets consist of its interest in Charter Communications, Inc. and its subsidiary TruePosition, Inc. Charter Communications, Inc. appears to be one of the largest providers of cable services in the United States. TruePosition, Inc. is a mobile positioning and contextual location intelligence solutions business. 3 (14) Mr John Malone holds, with his spouse and trusts, 28% of the voting rights in Liberty Global. Voter turnout percentages at the shareholders meeting of the company have been [...] in the years 2017, 2016 and 2015 respectively. Therefore, Mr Malone has less than 50% of the voting rights in the shareholders meeting. His voting shares allow him to block the approval of special resolutions that require a pass majority of 75% (and do not concern strategic commercial decisions), but do not allow Mr Malone to either pass or block the approval of ordinary resolutions that concern strategic commercial decisions. (15) Based on information publicly available and information provided by the Notifying Parties, GCI, Qurate Retail and Liberty Broadband, where Mr Malone has minority shareholdings too, carry out business activities unrelated to the Netherlands.10