International In - house Counsel Journal Vol.14, No. 55 , Spring 2021, 1

EU Towercos or Making the Utmost Value of Current Infrastructures: Eventual Competition Concerns

XANTHI BITZIDOU 1

Senior lawyer - E.E.T.T

1. Introduction The main priority of the EU Digital Agenda 2 is to transform Europe into an attractive, secure and dynamic digital economy with clear and fair rules, while investing in next generation, standards, tools and infrastructures 3 . At the first list of the framework stands the deployment of 5G networks 4 , for which the Commission ha d se t the ambitious goal of having at least one major city in each Member State “5G enabled” by the end of 2020 and uninterrupted 5G coverage in all urban areas and major terrestrial transport paths by 2025. Among the primary objectives of promoting competitio n, securing the internal market and promoting the end - user interests, the “connectivity objective” 5 captures the attention, if articulated in terms of outcomes. Europe wants widespread access to and take - up of very high capacity networks for all citizens of the Union and Union businesses 6 , on the basis of reasonable prices and choice, effective and fair competition, open innovation, efficient use of radio spectrum, e.t.c. It’s undeniable that the requirements concerning the capabilities of electronic comm unications networks are constantly increasing. In this frame, infrastructure competition seems to be ideally fostered through an economically efficient level of investment in new and existing infrastructure, complemented by regulation, where necessary. 2. Th e case of “Towercos” (Tower companies) Without doubt, the communications market is one of the most competitive playgrounds and for this reason market players (operators) need to constantly reinvent themselves, in order to catch the technological challenges. The deployment of 5G creates signific ant challenges for telecommunications operators. They need to pay for access to available

1 Xanthi G. Bitzidou is a Greek senior lawyer of E.E.T.T with an extensive experience in regulation, Greek/EU competition law, corporate law and litigation in network sectors such as Electronic Communications, Postal, Media and Energy . – The views are those of the author and do not represent the official position of EETT (Hellenic Telecommunications and Posts Commission - www.eett.gr ). 2 https://digital - strategy.ec.europa.eu/en . 3 See D IRECTIVE (EU) 2018/1972 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2018 establishing the European Electronic Communications Code. 4 Communication from the Commission to the European Parliament, the Council, the European Economic and Socia l Committee and the Committee of Regions of 14 September 2016, “5G for Europe: An Action Plan”, COM(2016) 588 final; Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions of 14 September 2016, “Connectivity for a Competitive Digital Single Market – Towards a European Gigabit Society”, COM(2016) 587 final. 5 See the “Connectivity Toolbox” 6 https://digital - strategy.ec.europa.eu/en/policies/supporting - industry .

International In - house Counsel Journal ISSN 1754 - 0607 print/ISSN 1754 - 0607 online

2 Xanthi G. Bitzidou spectrum 7 and undertake massive infrastructure investments, as the complexity of 5G and the required denser coverage of base stations entail much higher deployment c osts than previous technologies. A McKinsey study 8 found that a change to 5G technology could double the total cost of ownership (TCO) for telecommunications infrastructure from 2020 - 2025. This supports the sale of cell towers for two reasons. First, sell ing off assets can help a company raise the capital necessary for new investments; and second, shifting expenditures from CAPEX to OPEX improves the balance sheet, makes it easier to raise funds and reduces overall costs, including maintenance and site upg rade expenses. Α s such, mobile network operators (MNOs) have been seeking for new financial weapons , in order to play cost - intensive and require a ramp - up in their investments in future networks. The extreme investment demands, in addition to the regulator y threats that overcharge the traditional telcos, increase the volume of complexity. Among the strategic business approaches, the statistics show on one side the practice of “network sharing (the joint building of networks) and on the other side the creati on of “Towerco” companies, which popped - up and captured the attention of the market. The latter seemed to be the most relevant cash up strategy and “asset monetization” (mainly of tower sites). The practice seemed attractive, as all service providers need a place for their network equipment, not to mention that the new services era demands more and more additional sites. Thus, with the creation of Towercos, operators could easily focus on their core business operations, outsource management of cost - intensiv e assets and raise valuable financial strength, as their future network deployment became already a necessity. It’s additionally the “European Electronic Communications Code” 9 (EECC) that reflects the pro - competitive nature of independent Towercos and is expected to benefit them through increased certainty for the wholesale infrastructure sector. As numbers prove their obvious benefits, a typical location of a wireless network operator (also point of presence) managed by a TowerCo is circa 40% more efficie nt than one managed by one MNO, resulting in economic savings of €31b across Europe (estimated between the period of 2019 and 2029). A closer look reflects that the average number of wireless network operators sharing an independent tower is 2.4, compared to 1.3 for MNO - controlled towers, meaning that independent TowerCos make it easier and cheaper to roll out new networks. Since 2018, the share of independent TowerCos in Europe has increased from 17% to 20%, releasing around €3.5b of capital in the process , via acquisition of tower portfolios from MNOs 10 . As a result, when outsourcing to independent Towercos (under certain models 11 ), the MNOs earn a new capital, which can be then reinvested in new networks and mostly to the rollout of 5G.

7 Spectrum prices imposed by national Governments are high, with some telecom operators being charged up to 14x higher than their global peers. ETNO, “The state of digital communications 2020”, available at: https://etno.eu//downloads/reports/etno%20state%2 0of%20digital%20communications%20report%2020 20.pdf. 8 https://www.mckinsey.com/industries/ technology - media - and - telecommunications/our - insights/the - road - to - 5g - the - inevitable - growth - of - infrastructure - cost# . 9 DIRECTIVE (EU) 2018/1972 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL of 11 December 2018 establishing the European Electronic Communicati ons Code – OJ L 321/36/17 - 12 - 2018. 10 See https://www.itu.int/en/itunews/Documents/2017/2017 - 06/2017_ITUNews06 - en.pdf . 11 While there is great diversity in towerco bu siness models, they can be categorized into two groups. The first are pureplay independent towercos , exemplified by American Tower, Crown Castle, SBA Communications, Protelindo and Cellnex, which can all trace their origins back to the phenomenon where pri vately - owned tower builders started retaining and acquiring assets in the U.S. in the mid 1990s. The second category are operator - led towercos, towercos in which 51% or more of the equity is retained by parent MNOs , exemplified by China Tower Corporation, Indus Towers, Bharti Infratel, edotco and INWIT. A third variant on the business model, which overlaps with both the pureplay independent and operator - led categories, are the power - as - a - Competition - T elecommunications 3

During the last years, serious investors in Europe focus on the Towerco model, and as a consequence a new M & A market seems to arise all over Eu rope 12 , where Towecros are mainly and currently controlled by MNOs, as in the cases of Vantage Towers, CK Hutchison Networks, Orange TowerCo, e.t.c. In the close future though, the corporate independence of Towercos is obviously expected, as their value is continuously increasing . Therefore, it seems that “Towermania” is the new trend in Europe, as service providers found a profitable way to face their debts and exploit their masts. Infrastructure firms are being renting out space to other operators and of course investors rub their hands for the new lucrative game of the sector. 3. Should Regulation be an issue for the new “ infrastructure players” (Towercos)? As Towercos sweep the traditional telecoms markets, eventual questions and scepticism on the existin g regulatory framework were inevitable, compared to the current telecoms regulation. As this “new kid on the block” does not exactly fit the current rules of telecom players and the massive densification of networks with deployment of small cells is around the corner, a discussion on the amendment of regulation has started lately, given the fact that the core of the traditional existing regulation covers wholesale obligations, pricing obligations, roll - out obligations, non - discrimination obligations, e.t.c. Without doubt, the telecoms market and its services depend on the critical element, alias the infrastructure (network) and as such the majority of infrastructure players were created through the sale of the existing infrastructure from vertically integrat ed operators – including heavily regulated entities. Another critical issue for regulation connected with the further consolidation of the infrastructure layer expected could be the possibility of the current players to squeeze their margins or inflate pri ces for end - users. Price regulation in the telecom industry was among the most commonly used measures to ensure that entities with SMP did not overcharge other industry players or end - users. Therefore, it’s valid to question whether price control mechanism s should also be commonly used to regulate prices for a pure infrastructure play, which is now the picture. In particular, a certain influence over price setting may be required to prevent abuse of power by landlords and municipalities. With extremely dens e small cell networks (as is the case of 5G), the locations for both outdoor and indoor sites become critical and very valuable for rollout. This creates a risk of setting rental prices above the fair value. Regulatory measures 13 that could prevent inflati on of rental prices range from restricting rental charges for the telecom space to zero - rental fees for small cells. It would be ideal to see infrastructure players starting a dialogue with regulators to help drive a development of an optimal regulatory en vironment. Up to now in Europe, the new challenges urged the telecom players to conclude network sharing agreements 14 (“NSAs”), whereby mobile network operators (“MNOs”) share some

service towercos, which provide a full service inclusive both tower an d power, exemplified by IHS Towers, Helios Towers and Eaton Towers. See Kieron Osmotherly interview, Founder and CEO of Towerxchange. 12 Until recent adoption in MENA, the business model of the joint venture infraco (infrastructure company) had hitherto bee n unique to Europe, exemplified by CTIL and MBNL in the UK, as well as 3GIS, SUNAB, Net4Mobility, Yhteis Verkko and TT Networks in Scandinavia. Joint venture infracos own or operate 10% of Europe’s towers, but since 2012 Europe has seen significant growth in both the pureplay independent towerco sector (driven by Cellnex and American Tower) and the operator led towerco sectors (with the carve outs of INWIT, Telxius); pure - play independent towercos now own 12% of Europe’s towers, operator - led towercos own 17 %. 13 Delta Partners, Infrastructure Regulation: Overview and impact on Towercos. 14 NSAs are agreements between two or more MNOs, whereby operators share some components of their network to deliver their services to end users. NSAs allow MNOs to roll out th eir networks faster and to increase coverage, while splitting costs – See GSMA, “Mobile Infrastructure Sharing”, available at https://www.gsma.com/publicpolicy/wpcontent/uploads/2012/09/Mobile - Infrastructure - sharing.pdf, page 16. 4 Xanthi G. Bitzidou components 15 of their infrastructure to deliver their services to end users . This looks as an effective way to speed up the rollout of 5G networks and reduce the costs of such a rollout. It seems even fair to say that, because of the large investments required, 5G networks will not be rolled out in most EU Member States within th e ambitious timeframe set by the Commission, absent the conclusion of NSAs, as few operators will be able to undertake the required investments on their own. To meet the goals of 5G densification, operators are expected to deploy a massive number of cells on time, which equals with obtaining on time, all the required permits for site deployment, the licenses for the rights - of - way to provide fiber backhaul, plus conform to each city’s environmental regulations, and other. The problem is that these procedures are time consuming, there is no one - stop shop, but many institutions instead, both locally and nationally. However, as for the moment, there is no consistent regulatory approach towards network sharing across the EU and the framework is fragmented, nation al authorities adopt their own guidance on the framework surrounding NSAs. As currently the creation of Towercos is another new form of infrastructure sharing, the MNOS should be well prepared and mostly guided through a certain frame on what is “acceptabl e” in terms of active or passive sharing, coverage, technologies, territorial and/or population restrictions, licensing and spectrum conditions. The only existing EU guidance for the network sharing consists of three reports BEREC 16 has issued on network sharing – namely the «2011 Report on infrastructure and spectrum sharing in mobile/wireless networks», the «2018 Report on infrastructure sharing» and the «2019 BEREC Common Position on mobile infrastructure sharing». In December 202 0, another non - binding “BEREC Summary Report on the Outcomes of Mobile Infrastructure Sharing Workshop” 17 for the 5G rollout, was also published. The above three reports describe the member states experience, identify and describe factors to be considered b y authorities, when assessing an infrastructure sharing agreement. Additionally, the reports attempt an approach on the effects of these network sharing agreements and their compatibility with competition law, not being competition law guidelines though. However, some member states have been proactively constrained to frame the network sharing agreements in their territories and as such, they have already issued national guidelines on the assessment of network sharing agreements. For example, the Austrian NRA issued a position paper on infrastructure sharing in 2018, commenting on the permissibility of NSAs based on the type of sharing and their territorial and population coverage 18 . Similarly, the French NRA issued guidelines in 2016, setting out its frame work of assessment of NSAs, primarily focusing on the territorial and population coverage of each NSA, while pointing out that infrastructure competition should be encouraged in densely populated areas 19 . However, in most member states , existing ex - ante na tional

15 Radio access network (RA N) sharing has been increasingly used due to its evident benefits for the development of the sector, as a way of optimizing the use of the scarcest resource the sector has: radiofrequencies. - https :// www . itu . int / en / itunews / Documents /2017/2017 - 06/2017_ ITUNews 06 - en . pdf .

16 BEREC - RSPG report on infrastructure and spectrum sharing in mobile/wireless networks”, BoR (11) 26, June 2011 . “BEREC Report on infrastructure sharing”, supra note 12. and “BEREC Common Position on Mobile Infrastructure Sharing”, BoR (19) 110, 13 June 2019 . 17 identifies and describes factors to be considered by NRAs when assessing an infrastructure sharing agreement, where they have competence to do so. 18 See Telekom - Control - Kommission, “Position Paper on Infrastructure Sharing in Mobile Networks”, 28 May 2 018, available at https://www.rtr.at/en/tk/TKKPositionInfrShare2018/Position_Paper_TKK_Infrastructure_Sharing_Englis h_2018.pdf . 19 See ARCEP “Lignes Directrices: Partage de réseaux mobiles”, May 2016, available at https://www.arcep.fr/uploads/tx_gspublication/2016 - 05 - 25 - partage - reseaux - mobiles - lignesdirectrices.pdf. Competition - T elecommunications 5 regulation for NSAs ( or Towercos) is limited to licensing and capital requirements. In the US, the situation is slightly different though 20 . The problem is even more intense in the coming 5G deployment phase, as there are fragmented regulatory frameworks for each country (and also cities), there is additional administrative burden, non - harmonised requirements for equipment and sites (or even fees), issues that can greatly impact the pace of large - scale site densification and practical ly cancel the “big project’. Without doubt, the main challenge of any kind of regulation or guideline from a regulatory perspective should be to reduce the length and cost of the administrative processes, approvals, and/or fees and come up with a specific “conditions list”. Needless to add, the “spectrum harmonization”, apart from a main goal of the EU Commission 21 , is the sine - qua - non condition for Europe of 5G 22 , in addition to a consistent approach to coverage obligations and the establishment of predic table regulatory conditions. As such, even if the new European framework (European Communications Code) acknowledges the benefits brought by independent wholesale - only infrastructure operators and the very different incentives that apply to them, a stable regulatory landscape that encourages this business model is absolutely critical, not only for the investors but for the whole European market 23 . As such, by adopting guidelines and a consistent “cut - to measure” regulation, the Commission can take proper ac count of the particularities of any kind of network sharing in the 5G era (such as the need for sharing even in urban areas) and set a clear framework for MNOs and Towercos, wishing to enter into agreements to roll out their 5G networks. 4. Creating Towercos’ and eventual competition law concerns The competition law question popped up since the first NSA network sharing agreement between competitors appeared in 2003. During the last years, major acquisitions and mergers all over Europe (and around the world), bring to investigation new competition concerns, as main competitors create Towercos between them, sign similar sharing agreements and buy each - others assets. In this picture, competition authorities should assure that there is enough scrutiny over any si gn of coordinated agreements/practices or market abuse, risking to “reduce network competition”, “foreclose competitors” and/or possibly “facilitate collusive behaviour”. The examination of that kind of cases should promote infrastructure sharing (the appr opriate type) and support industry players in removing any legal and regulatory obstacles for large scale site deployment. Thus, depending on the business/corporate model and asset ownership, the critical question is how could infrastructure consolidation reassure fair treatment of all players, as a limited number of strong infrastructure operators seem to dominate the EU market. As the Director of El Towers 24 confirmed: “ When a new MNO first started and entered the market, independent TowerCos were the only ones who went to them and offered to share their

20 In the US, there are certain restrictions for TowerCos:  Foreign ownership is limited to 25% - although this can be waived - likely because of US concerns regarding national security and security of critical infrastructure;  New site deployments are subject to zoning laws; TowerCos are treated as real estate co mpanies and generally operate as Real Estate Investment Trusts (REIT), which are subject to certain legislation in taxation and dividend payouts. 21 https://digital - strategy.ec .europa.eu/en/policies/radio - spectrum . 22 https://digital - strategy.ec.europa.eu/en/policies/5g . 23 See the “Economic contribution of the European Towers sector”, EY report for the European Wireless Infrastructure Association, November 2020. 24 https://www.eitowers.it/en/company/ .

6 Xanthi G. Bitzidou infrastructure. There were no barriers, limits or difficulties preventing them from hosting their equipment on our sites. Oftentimes MNOs with existing infrastructure have no incentives to acc ommodate other TLC operators, especially if smaller…”. Unfortunately, specialized guidance over the compatibility of NSAs with EU competition law does not exist up to now, (apart from the non - binding BEREC papers), even if it must be clarified that BEREC i s not competent for the enforcement of EU competition law. The only type of guidance an authority or an MNO can get is the existing, quite limited though, EU case - law. The EU Commissions’ decisional practice in examining network sharing agreements (NSAs) i s limited to a few decisions, while the first ones were adopted 17 years ago. In particular, in April 2003, the Commission issued a decision on site sharing and national roaming agreement regarding O2 and T - Mobile’s 3G 25 networks in the UK. The Commission examined whether this agreement had the effect of “reducing network competition”, “foreclosing competitors” and possibly “facilitating collusive behavior” . With regards to site sharing, the Commission concluded that it did not infringe Article 101(1) TFEU , since the sharing parties were able to differentiate their downstream services as they “retained independent control of their networks, including the critical core network,” and the agreement “does not lead to widespread foreclosure for third - party opera tors ”. Finally, the Commission exempted the agreement under art. 101, par.3. Later, in July 2003, the Commission assessed in its second case , another site sharing and national roaming agreement between T - Mobile and O2 26 in Germany. The Commission’s reasoni ng echoed the decision it handed down in April, regarding the UK network sharing (which did not fall under Article 101(1) TFEU) and national roaming agreement between the same parties (which fell under Article 101(1) TFEU, but could be exempted under Artic le 101(3) TFEU). However, O2 appealed this decision, alleging that the Commission erred in finding that the national roaming agreement infringed Article 101(1) TFEU. The Court sided with the applicant, noting that the Commission was wrong to consider that the very nature of the roaming agreement placed it within the scope of Article 101(1) TFEU. The Commission should have based its assessment on specific evidence showing that the particular national roaming agreement concluded between O2 and T - Mobile infrin ges Article 101(1) TFEU. The Court 27 thus annulled the Commission’s decision. Years later, the Commission decided to launch proceedings in October 2016 and issue a Statement of Objections (“SO”) in August 2019 against the case of T - Mobile, CETIN and O2 to challenge their NSAs 28 (the “Czech NSAs”), involving 2G/3G/4G technologies, which were adopted at a time where no serious guidance existed on the compatibility of such agreements with EU competition law. While in its press release announcing the issuance o f the SO, the Commission recognizes the efficiencies generated by NSAs, it identifies several features of the NSAs at stake – such as the fact that they were concluded between the first and second largest MNOs and that they cover the entire Czech territory (with the exception of the two largest cities (Prague and Brno) – which are allegedly

25 Commission decision of APRIL 2003 in case No.COMP/38.370:O2 UK Limited T - Mobile UK Limited (The UK Network Sharing Agreement) . See also Case COMP/C1/N.38.370 — BT Cellnet&BT3G/One2One Personal Communications (UnitedKingdom Agreement)(2002/C 214/08). 26 Commission Decision of 16 July 2003, COMP/38.369 – T - Mobile Deutschland/O2 Germany: Network Sharing Rahme nvertrag, 2004/207/CE. – See also Judgment of the Court of First Instance of 2 May 2006, T - 328/03 O2 (Germany) GmbH & Co. OHG, ECLI:EU:T:2006:116. 27 https:// eur - lex.europa.eu/legal - content/EN/TXT/PDF/?uri=CELEX:62003TJ0328&from=LT . 28 See European Commission press release, “Antitrust: Commission sends Statement of Objections to O2 CZ, CETIN and T - Mobile CZ for their network sharing agreement”, 7 August 2019. Competition - T elecommunications 7

‘problematic’, given the specific circumstances of the Czech market and the fact that it only comprises three (3) MNOs. The forth case, is the Telecom Italia/Vodafone J V 29 , where the EU Commission had to deal with an NSA assessment and especially with the creation of a Towerco at the Italian market, which was notified according to the EU Merger regulation 30 and the Commission ended up in its clearance with commitments (as well as the related NSA). In this 2020 merger examination, Vodafone Italia and Telecom Italia notified the Commission of a JV agreement to pool together their passive infrastructure. Under this agreement, Vodafone’s passive infrastructure was combined with the assets of INWIT, an undertaking solely controlled by Telecom Italia that owns and operates the latter’s passive infrastructure. After the transaction, Vodafone and Telecom Italia would hold joint control over INWIT and this JV would bring together Telecom’s and Vodafone’s telecommunications towers across Italy to rent space on these towers to operators. Through the investigation of Phase Ι of the EU Commission, the separate defined “ hosting sites market ” in Italy, would create a vast tank of teleco mmunications sites, which could create anti - competitive effects in Italian municipalities with more than 35.000 habitants, by decreasing competition in the wholesale sites market and excluding newcomers from the retail mobile markets. In order to face the Commissions’ concerns, the parties TIM και Vodafone committed to offer free space in 4.000 sites of INWIT in the above areas, with transparent and non - discriminating conditions. In this case, the Commission noted clearly that : ‘’network sharing can also re sult in “co - ordination and information exchange between competitors, which in certain circumstances may have a negative impact on competition. ” And concluded that: “ an appropriate balance must be found between co - operation and competition in order to ensur e compliance with EU antitrust rules” – an assessment that can only be made on a case - by case basis and that was not subject to review in the merger investigation . In March 2020, the Commission cleared the proposed acquisition, subject to a set of commitme nts 31 offered by the notifying parties. In the meantime , in many European countries 32 , similar agreements or mergers have been examined by national authorities, as Towerco companies have been spreading all over Europe. In particular, Tower companies have b een created in almost all European countries, among which Germany, France, UK, Italy, Spain, Austria, Poland, Sweden, Switzerland, Portugal, Netherlands, Finland, Greece and Ireland. However, the leading European players seem to be the Cellnex, Phoenix 33 and ATC 34 groups. Cellnex 35 seems

29 CO, M - 9674 – Vodafone Italia/TIM/INWIT JV, available at https://ec.europa.eu/competition/mergers/cases/additional_data/m9674_130_3.pdf . 30 COUNCIL REGULATION (EC) No 139/2004of 20 January 2004on the control of concentrations between undertakings(the EC Merger Regulation. 31 See Section 1.2 of decision M - 9674 and EU Commissions’ press release. 32 There are more than 426,000 tower sites in Europe today, including rooft ops and other larger structures that are used for wireless communication (but excluding small cells and DAS). This number has been broadly stable over the past years, with the number of newly built towers offset by decommissioning of duplicate and older to wers. In countries such as France, the UK and Germany, MNOs are in the process of increasing coverage in rural areas, which results in new tower build programs, often linked to coverage obligations in 5G licenses. 5G in urban areas will generally require f urther densification, driving tower growth, estimated at approximately 1% – 3% annually for the next five years. 33 Phoenix Tower International was founded in 2013 with the mission to own and operate high quality wireless infrastructure sites in stable market s experiencing strong wireless usage growth around the world. PTI is currently focused on infrastructure expansion throughout Latin America, the Caribbean, the United States, and Europe. Phoenix Tower owns more than 86,000+ sites spanning across 14 countri es all around the world. See https://phoenixintnl.com/. 34 https://www.americantower.com/. - ATC has a global portfolio of approximately 186,000 sites, composed of towers in advanced, evolving and developing wireless markets, in various stages of wireless network deployment. 35 Cellnex Telecom is the leading European operator of wireless telecommunications infrastructure, with a portfolio of around 128,000 sites, of wich 75,000 are already in the portfolio and the rest in the process of closure or scheduled for deployments until 2028. - https://cellnextelecom.fr/en/. - Back in 2020 Cellnex agreed 8 Xanthi G. Bitzidou to lead the way. The company acquired its first towers portfolio in 2016 in France from Bouygues Telecom, a deal followed by other agreements in 2017 and 2018, involving acquisitions and deployment of more than 5,000 loca tions until 2022. The deal allowed Cellnex to keep the expansion of its footprint of towers in Europe. During the last years, the company has completed 14 transactions in 6 countries with a committed investment of €4b. Apart from the giant Cellnex, at the beginning of 2021, Vodafone 36 confirmed its plans to float Vantage Towers, its European mobile phone masts business, on the Frankfurt stock exchange in March in a share offering worth about 3 billion euros, as published. Likewise, Orange 37 announced the la unch of its European masts company named TOTEM, which will house its 25,500 towers and Spanish telecom company Telefonica 38 has agreed to sell its mobile phone masts in Europe and Latin America to U.S. - based telecom infrastructure operator American Towers for 7.7 billion euros in cash. There is additionally a number of countries , who have investigated eventual anti - competitive risks in notified mergers or sharing agreements, through their competent national authorities, among which: 1. Danemark – The Telia/Telenor agreement 39 In 2012, the Danish Competition Authority granted permission (under commitments) for a network sharing agreement (Radio access network) between the Danish subsidiaries of operators Telia and Telenor. The conditions were , among ot hers , that they should make redundant towers and sites available to other market players 40 . This network sharing agreement between Telia and Telenor has led to substantial cost savings and a common network with a better coverage and capacity than the two p reviously independent networks. Recently, the 2 companies announced that they will proceed to the upgrade of their shared mobile network in Denmark and will now launch the 5G 41 network.

2. France a) The KKR/Altice/SFR Filiale case In September 2018, The EU Commission gave its clearance without conditions 42 to the acquisition through the joint venture of SFR Filiale, (the infrastructure company of Altice), from the American fund KKP and the Telecommunications and mass media company Altice. The Commission c oncluded that the 2 companies KKR και SFR Filiale are not

to acquire Portuguese mobile operator NOS’s telecom - tower business for an initial 375 million euros. Later on, Cellnex said it will buy 24,600 towers and sites that CK Hutchison owned in Europe for a total 10 billion euros. Since 2021, Cellnex and German telecoms group Deutsche Telekom agreed to combine their tower businesses in the Netherlands and set up a joint fund to invest in digital infrastructure. Later, Cellnex has reached an agreement in France with Altice and Starlight Holdco to acquire Hi vory, which has around 10,500 masts in France, planning an initial investment of 5.2 billion euros ($6.3 billion). At the same month, Cellnex announced a 1.6 billion euro deal with Poland’s Cyfrowy Polsat to take over Polkomtel Infrastrukture, which manage s around 7,000 masts. 36 https://www.vodafone.com/news/press - release/vantage - towers . 37 https://www.orange.com/en/newsroom/press - releases/2021/orange - takes - major - step - forward - creation - totem - its - european - towerco . 38 https://www.telefonica.com/en/web/press - office/ - /telefonica - sells - telxius - tower - division - to - american - towers - corporation - at - record - multiples - for - 7 - 7 - billion - euros . 39 https://www.en.kfst.dk/nyheder/kfst/english/decisions/20120229 - radio - access - network - sharing - agreement - between - telia - denmark - and - telenor/ . 40 The DCC found that the network sharing agreement entailed a better and more efficient network for Telia’s and Telenor’s individual businesses. This improved coverage and improved availability of technology of and in th e parties’ respective networks is beneficial to the consumers. However, the DCC has identified six issues which gave rise to anti - competitive concerns. Five of these issues were solved by commitments, offered by the parties. Accordingly, the DCC has no gro unds for action according to TFEU article 101(1) and Section 6 of the Danish Competition Act. The latter issue meets the criteria for individual exemption in TFEU article 101(3) and Section 8 of the Danish Competition Act. 41 https://www.teliacompany.com/en/news/news - articles/2020/5g - switch - in - denmark/ . 42 https://ec.europa.eu/competition/mergers/cases/decisions/m9072_72_3.pdf Competition - T elecommunications 9 active in the same relevant and/or related markets and assessed that the transaction will not change anything in the overlapping activities of the 2 companies SFR Filiale και Altice, as the first wa s already a member of the Altice group. In 2018, KKR and Altice announced the creation of Hivory, the biggest telecommunications sites company in France and third bigger European tower company. b) The Cellnex France Group/Iliad 7 case Similarly, in August 2019, the French Competition authority (Autorité de la concurrence) approved 43 without conditions the acquisition of the exclusive control of Iliad 7 from Cellnex . Iliad 7 is the French subsidiary of ILIAD Operator with a portfolio of 5.700 of sites in France. Cellnex (former Abertis) is a wireless infrastructure operator, based in Spain and business activity in France, Italy, Holland, Spain, Switzerland and UK. Th e French authority defined a separate “hosting” market of mobile telephony in France, assessing that the acquisition of Iliad 7 from Cellnex will not create anti - competitive effects in the market. As analysed, the authority assessed that Cellnex would not have a motivation to increase the “renting prices” (hosting) and/or downgrade the quality of services offered in base stations, after the transaction completion. As such, the transaction got the green light by the authority. c) The Bouygues Telecom/Phoenix Tower International case In another French case, in February 2020, the EU Commission also approved without conditions 44 the creation of Phoenix France Infrastructures, a joint venture between Bouygues Telecom and Phoenix Tower International (PTI). Bouygue s Telecom is the third biggest mobile operator in France (MNO), while belongs to the Bouygues group, offering fixed services as well. PTI has a wireless infrastructure portfolio, all over United States and belongs to the Blackstone group (USA). According t o the transaction, PTI Iberica, a subsidiary of PTI, acquired a 60% share in Bouygues Telecom Infrastructures, while Bouygues Telecom retains the other 40%. The aim of the joint venture was to develop a mobile sites network in France, in order to host othe r MNOs, especially including Bouygues Telecom. The Commission, in its analysis concluded that the transaction would not create anti - competitive effects in the market, due to its limited effect in the structure of the relevant market. In March 2020, PTI ann ounced that in collaboration with Boygues Telekom, they will develop a number of 4.000 sites in France, for the next 12 years, excluding the densely populated areas. 3. Italy - The “INWIT - TELECOM ITALIA/Vodafone” Ran Sharing case Apart from the above mention ed Italian INWIT merger and almost in parallel, the EU Commission did not oppose the previous agreement of the active RAN sharing agreement 45 signed between Telecom Italia and Vodafone using 2G, 4G and 5G technologies, which would cover over 70% of the Italian population. However, the agreement, excluded the municipalities over 100.000 habitats, as well as those cities with the most densely pop ulated suburbs. Lately, in Italy, Phoenix Tower International 46 has reached an agreement with EI Towers to acquire their telecom tower subsidiary, TowerTel, which owns a portfolio of 2,400 towers in Italy. F2i, one of EI Towers’ shareholders will retain a minority interest in TowerTel. In addition, PTI will obtain the rights to market and lease 1,600 broadcast sites owned by EI Towers. 4. UK - The Cellnex/Arqiva case

43 https://www.autoritedelaconcurrence.fr/sites/defau lt/files/integral_texts/2019 - 11/19dcc169_version_publique.pdf 44 https://ec.europa.eu/competition/mergers/cases/decisions/m9729_72_3.pdf 45 https://ec.europa.eu/commission/presscorner/detail/en/IP_20_414 . 46 https://phoenixintnl.com /pti - to - partner - with - f2i - to - acquire - towertel - providing - ownership - or - leasing - rights - to - over - 2400 - wireless - telecommunications - sites - across - italy - with - potential - leasing - rights - for - over - 4000 - sites/ . 10 Xanthi G. Bitzidou

In April 2020, the Competition & Markets Authority - CMA of the UK, approved without conditions 47 the acquisition of a part of the telecommunications infrastructure of the Arqiva company from Cellnex, the Spanish Tower company, with a portfolio of 7.000 sites in the UK. CMA concluded that due to the small market power of Cellnex in the UK market, the transaction would not create anti - competitive effects in the market, especially with a focus to the access to macro - sites and micro - sites, which are necessary for the development of 5G technology. The authority gave its clearance to the transaction. 5. Ire land – The Phoenix Tower International/Eir case In July 2020, the Irish Competition and Consumer Protection Commission approved without conditions 48 the acquisition from Phoenix Tower Infrastructure (PTI) 49 of a number of 650 wireless stations of Eir, the dominant telecoms operator of Ireland. The transaction included a “built - to - suit” program for the construction of new sites, for the following 8 years in the country. The Commission left the market definition open, assessing that there are no horizontal ov erlapping activities between the parties, as Emerald manages the current passive infrastructure of Eir, offering infrastructure services in other wireless and fixed operators and at the same time PTI or Blackstone (or any of the controlled portfolio compan ies) have similar activity with the passive infrastructure. Emerald has no activity in any of the business units of PTI or Blackstone in Ireland, since June 2020. The proposed transaction was approved, as it would not substantially lessen competition in an y market for goods or services in the State. 6. Greece – The Vodafone/Wind Towerco merger (Vantage Towers) In Greece, EETT (The Hellenic Telecom m unications and Posts Commission) examined in late 2020 50 , the notified concentration of the 2 mobile competitors, namely Vodafone Hellas and Wind Hellas. The authority , after an extensive analysis of the Greek oligopoly mobile market structure, the clauses for the third parties’ access, the contractual commitments of the agreement, the non - anti - competitiv e effect of the agreement to the pricing policy at the retail market, the absence of a 4rth operator to the 5G auction and the provisions of the existing Greek co - location regulation, gave its clearance under Greek competition law L.3959/2011. The new enti ty, Vantage Towers Greece, is 62% owned by Vantage Towers and 38% owned by Crystal Almond (Wind Hellas’ controlling shareholder). Vantage Towers has a call option until 31 December 2021 to acquire the remaining 38%, with this call option automatically trig gered should Vantage Towers publish an intention to float. 7. Poland – The Cellnex/Polkomtel Infrastruktura merger (pending case) Recently, in 2021, Spain - based tower company Cellnex 51 notified to the Polish competition authority its proposed €1.6bn acquisition of Polkomtel Infrastruktura, a subsidiary of

47 https :// assets . publishing . service . gov . uk / media /5 ec 246 ffe 90 e 071 e 29 d 537 f 6/ Cellnex _ Arqiva _ full _ text _ decision _ PDFaa . pdf 48 Eir, is the third biggest mobile operator in Ireland (MNO), with the scope to undertake the relevant sites for a perod of 20 years. Η PTI is a wireless infrastructure group, belonging to Blackstone (USA). Its portfolio includes more than από 86.000 wireless infrastructure sites, mainly in the United States. See https :// www . ccpc . ie / business / wp - content / uploads / sites /3/2020/06/ M - 20 - 018 - Com mission - clears - acquisition - of - Emerald - Tower - eir - by - Phoenix - Tower - International . pdf 49 Phoenix Tower International is a subsidiary of Phoenix Tower US Holdings L.P., which is the holding company for the PTI Group. The PTI Group is a privately - owned wireless infrastructure group, which currently owns a portfolio of more than 86,000 wireless infrastructure sites operating in 14 countries across Latin America, the Caribbean, Europe and the United States. Emerald is a newly - formed entity, which is currently owned by Meteor, a wholly - owned subsidiary of Eir. Emerald is an independent trading enti ty. It is an operator for Eir’s existing passive infrastructure assets in the State, providing passive infrastructure to wireless and fixed line operators in the State. 50 See EETTs’ case N. 967/1/12 - 11 - 2020. 51 https://www.broadbandtvnews.com/2021/03/01/cellnex - to - buy - cyfrowy - polsat - company/ .

Competition - T elecommunications 11

Cyfrowy Polsat, that owns both passive and active mobile telecoms infrastructure. The authority’s provisional phase I deadline to dec ide on the case wa s April 2021.

5. Summary A number of other countries all around the world, have experienced network sharing agreements, as well, apart from the European countries, adopting almost the same positive approach. According to the up to now statistics, it seems that network sharing agreements and mainly the creation of Tower companies is an adopted business practice for almost all operators, during the last ten years at the European electronic communications market 52 . The main guideline is not to oppose such agreements (depending on a case by case approach), because of the obvious efficiencies of the network sharing, the cost savings, the better coverage, the minimisation of the environmental harm, the optimum use of spectrum and the quicker upgrade to the new technologies, mostly now before the entrance to the 5G era. However, as there is no official competition law compatibility guidance, every case is examined on an ad hoc basis, depending on the national condition s of every country. As reflected at the previous EU Commissions’ assessments, there is an NSA - specific and market - specific characteristics analysis, taking under consideration the number of players in the market, the depth of sharing (active or passive), t he geographic/territorial coverage, the type of technologies, the share (or not) use of spectrum, the national roaming, the access to third parties and other national important factors to consider. 6. Conclusions To welcome the “ 5G challenge ” and be properly prepared, several operators across the EU are already planning the common rollout of their 5G networks, by entering into NSAs, by upgrading already existing NSAs to 5G technology or even by creating synergies through TowerCos for the advantages they offer. However, such an historical transition is risking to be undermined in an EU market without an “harmonised regulation” for network sharing opportunities and most of all for the new entities, the “Towercos”. Obviously, national regulation does not suffice and creates problematic diversities for Europe of 5G. Regulators need to think of ways to help new players “TowerCos” flourish in their market, whether that is mandating Telcos to carveout their assets or offering incentives to establish themselves and acq uire local assets. In markets that are either too small or economically challenging, regulators need to be progressive enough to attract TowerCos by setting win - win market conditions and promote universal, cheap and fast access to infrastructure. At the sa me time, as new competition concerns will pop - up in the 5G era, a specific EU competition law compatibility guidance of 5G and the forthcoming sharing agreements, seems to be more that indispensable, according to the previous experience, now that Europe is ready for the next era.

52 However, despite the share gain, there still remains a substantial gap in independent TowerCo ownership between Europ e and other parts of the world 52 . Countries such as the US have a substantially higher share of towers owned by independent TowerCos, as the regulatory environments have also been broadly more favorable in the US than in Europe. Apart from the US, a number of other countries all over the globe have been more active since long time now in order to face competition, ameliorate coverage, gain significant financial strength and prepare for the 5G era, like Brazil, Chile, Australia, South Africa, Ecuador, India, e.t.c.

12 Xanthi G. Bitzidou

REFERENCES 1) ITU Magazine “Sharing Networks, driving growth”, 06/2017. 2) The European Contribution of the European Tower Sector, European Wireless Infrastructure Association, November 2020. 3) Network sharing in 3rdgeneration mobi le telecommunications systems: minding the coverage gap and complying with EC competition rules, David GABATHULER, Directorate - General Competition. 4) Future Networks: Infrastructure Sharing: An Overview, GSMA, 18 June 2019. 5) Berec Report on Infrastructure Sha ring, BoR (18) 116, 14 June 2018. 6) Network Sharing and EU Competition Law in the 5G Era: A Case of Policy Mismatch, D. Geradin, T. Karaktinioti, TILEC Discussion Paper No. DP2020 - 03 7 , 2020. 7) http://www.tower - vision.com/infrasharing.html . 8) Network Economics Annual Report, https://www.gsma.com/futurenetworks/network - economics/. 9) The new digital landscape for Tower Companies, Ma rch 18, 2020 By Rüdiger Schicht , Sumit Banerjee, José Arias , and Andrey Voytenko , Boston Consulting Group (BBG). 10) https://www.eutower.com 11) https://towerxchange.com *** Xanthi G. Bitzidou is a Greek Senior lawyer with a 20 years experience in the full range of EU and Greek competition law (antitrust, merger/acquisitions and state aid), regulatory experience in the Electronic Communications, media and postal markets, corporate law, adminis trative law and litigation. Ms. Bitzidou obtained her Law Diploma from the Aristotelion Law University of Thessaloniki (Greece), holds a Masters degree in EU Business Law from the ‘Institut d’études européennes’ of U.L.B (Belgium) and also an MPhil from th e University of Kent (UK) in ‘EU Competition law and Telecommunications’ . Her EU and Greek professional experience includes a stage at the EU Commission, the Brussels office of an American law firm, the EU/Brussels office of a German Telecoms/Technology Co nsultancy and the South Eastern Europe headquarters office of a telecoms Institute. Since 2005, she is a lawyer at the legal department of E.E.T.T (Hellenic Telecommunications and Posts Commission), where for the last 16 years she handles a full range of regulatory and competition law issues (cases) of both the Electronic Communications and Postal sectors . Ms Bitzidou has authored a book and relevant articles on the topics of EU Law, Competition Law and Electronic Communications/Media. She is fluent in Gre ek, English, French and Italian . She is an active member of the Athens Bar Association (Greece). The Hellenic Telecommunications and Post Commission (EETT) is an Independent Administrative Authority, which was established in 1992. The Authority acts as th e National Regulator that monitors, regulates and supervises: (a) the electronic communications market, within which fixed and mobile telephony, wireless communications and Internet access providers operate and (b) the postal services market, within which postal and courier service providers operate. Moreover, EETT is entrusted with the competences to act as the Competition Authority in the said markets.