Antitrust: Commission re-adopts decision and fines Telefónica and Pharol (formerly Portugal Telecom) €79,040,000 for entering into a non-compete agreement

The European Commission has re-adopted a decision against Telefónica and Pharol (formerly Portugal Telecom) and has imposed a fine of €66,894,000 on Telefónica and of €12,146,000 on Pharol forentering into a non-compete agreement, in breach of EU antitrust rules. In January 2013, the Commission adopted a decision imposing fines on Telefónica and Portugal Telecom for agreeing not to compete with each other on the Iberian telecommunications markets. In June 2016, the General Court entirely upheld the Commission's findings with regard to the infringement of EU antitrust rules by the two companies and their liability for it, but annulled the fines imposed by the Commission.

The General Court found that the Commission should have examined the parties' arguments that there was no potential competition between them in certain markets and that those markets should have been excluded from the value of the sales on the basis of which the fines were calculated (cases T-216/13 and T-208/13).

The General Court's judgment was later confirmed by the judgment of the Court of Justice of 13 December 2017. The decision takes full account of the General Court's judgment and excludes, after further assessment, those services from the value of sales for which insurmountable barriers to entry were found to exist and for which the parties were thus not in potential competition with each other during the period of application of the non-compete clause.

The decision re-imposes fines on Telefónica and Pharol for entering into a non-compete agreement. The newly imposed fines use the same parameters as regards gravity, duration and aggravating and mitigating circumstances as in the 2013 Commission decision. The amending decision will be made available under the case number AT.39839 in the public case register on the Commission's competition website.

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