The EU Competition Authority’s Role in the Failed Telenor Telia Merger in Denmark and the Consequences for Europe – Post Mortem Part I
Last Friday morning Telia and Telenor announced that they had withdrawn their application to merge their remaining Danish activities into one company. They already share the same network under TT Network P/S, a company which supplies traffic to both firms.
Leading up to Friday’s announcement, an approval process was running by the EU competition authorities DG Competition led by Margrethe Vestager. DG Comp conducted a series of analyses to assess the impact of the merger. The analysis was extensive and involved the Danish authorities, many of the stakeholders of the Danish telecommunications market, and Telia and Telenor themselves plus their advisors White & Case and Orrick, Herrington & Sutcliffe. The analysis also included market tests based on the proposed remedies.
To understand what went wrong and who is to blame for the failed outcome, one needs to review the process which started many months ago and who developed the foundation for the revised proposal that Telia and Telenor submitted. Another item to review is the market test proposed by DG Comp on September 2nd with a deadline of September 4. Prior to the final market test, extensive analysis was prepared by Sophie Moonen, Head of Unit C5, the group that deals with mergers in the IT, telecoms, and media sectors. DG Comp had several meetings with Telia, Telenor, their advisors, and other stakeholders, developing an extensive analysis.
Officially DG Comp is not supposed to create remedies, or even to provide guidance. Their role is to assess the facts of the proposed merger before them and either approve or reject it. In practice things are not so straightforward. The many meetings between DG Comp, Telenor, and Telia suggests that the communication provided by DG Comp amounted to a form of guidance. Moreover the resulting set of remedies were so severe that no company would willingly take them. It appears that DG Comp forced the operators into the position of having to rescind their merger. That DG Comp can influence with this sort of soft power sends a strong signal to other countries that, regardless of the facts, mergers will not be straightforward.
Strand Consult has followed the process from the beginning. Had the proposed merger been clearly anticompetitive based on the facts, DG Comp would have no problem to reject it. DG Comp would have made an obvious determination and thereafter could grandstand on a successful decision. But this is not the case with the Telenor Telia merger in Denmark. So the proposed merger falls into the category of subjective judgement call.
Based upon the statements of Margrethe Vestager and the discussions around the merger, the drivers that ultimately derailed the merger could be one of the following.
1. Telenor and Telia were not serious about doing the merger and proposed a flawed set of remedies on purpose, or were misled by their advisors.
2. DG Comp has limited skills to analyze or understand the telecommunications market and prefers not to expose their incompetence with a ruling, something that makes them look bad, whether they reject or approve the merger
It is possible the DG Comp opposed the merger out of spite. There are a number of noted officials and academics who a priori believe that there should be no consolidation in the telecom industry, regardless of the facts. But more likely, the competition authorities are out of touch. They lack the understanding of the telecommunications industry, how it develops, and what creates competition in the market. To be sure, many including noted business leaders and entrepreneurs, fail to understand the technological and financial trends that characterize the world today. At least when they make mistakes, shareholders replace the management. The citizens of the EU, unfortunately, are stuck with career bureaucrats in Brussels, who keep their jobs regardless of the failed outcomes of their decisions. See this research note Telecom operators, regulators and competition authorities need-to-update their knowledge of what creates competition in the market. Here are four factors that should be considered when regulators define consolidation remedies.
During the merger process Vestager said there needs to be four mobile operators in Denmark. Vestager, who comes from Denmark herself, failed to mention that there are dozens of mobile operators in country, however there are only three mobile networks. Telenor and Telia already share the same network. The merger of the two companies was never an issue of consolidating from four network operators down to three. There are three networks in Denmark today, and there would still be three after the merger. The merger would have been the equivalent of joining two large MVNOs, neither of which own spectrum but are shareholders in the same network infrastructure company. See EU Competition Commissioner Margrethe Vestager is a gifted woman who should spend some time to get acquainted with how the telecommunications market works.
Denmark has some of the lowest rates in the EU and world for advanced wireless services in business and residential markets. The ARPU is just €13-15 for unlimited voice, SMS, MMS and 4G data. Three of the five greenfield operators which entered the country (Orange, Telia and HI3G) have not been able to build up a business where they can recoup their historical investments. Orange sold its assets at a loss to Telia. It took HI3G ten years to become cash-flow positive, even though it started at a time where there was lower penetration and significantly higher ARPU than today. The continual drive down of ARPU and profitability is what many experts call the mobile operators’ nightmare. Additionally the spread of disruptive MNVOs which started in the Denmark is aptly called the “Danish Disease”. When the trend began, Strand Consult called it a picture of the future and has analyzed this market for the last 20 years.
It also bears mention that last year Denmark, long recognized for top performance in many indicators for mobile prices, technology, adoption and penetration, pushed aside South Korea to become the world’s leader in the ITU’s ICT Development Index. The success evidences that Denmark has been on the right track in its mobile development, and that consolidation was only a natural next step for the Danish marketplace.
Put simply, the failed Telia and Telenor merger in Denmark is a textbook example of Type 1 regulatory errors, mistakenly prohibiting procompetitive activity. Regulators and competition authorities are locked in a paradigm of judging competition by counting the number of players on the market, not by assessing the larger dynamic, technological and competitive trends. As for the former paradigm, it doesn’t take much skill to count the players in the market, and it provides DG Comp with an effective screen to hide its incompetence. To be sure, there are economists, lawyers, and academics around the world who proffer a magic market number thesis, but none can come up with a justifiable formula. Hence decisions on mergers are generally political judgement calls, not evidence-based conclusions.
Indeed if there was any merit to this number of player in the market theory, it would have been used long ago on the Internet companies. Competition authorities have sat idly while the super giants Google, Facebook, Netflix, and Amazon have come to dominate not only national markets, but international ones as well. Some claim that the Danish Vestager wants to avoid appearing to be soft on her homeland, or better still that she is tough on all players, large and small, as she’s now going after Google. But it’s a stupid and ultimately dangerous strategy to be tough with no justification. It’s a far better option to stick with the facts. Vestager purports that the merger would bring higher prices in Denmark, an assertion for which there is no evidence. In any event, Vestager may have well created her a self-fulfilling prophesy, as the failure to approve the merger actually increases the likelihood of higher prices, as explained below.
Why is the Danish case so important to the telecommunications industry?
The attempted merger by Telenor and Telia has been followed by many, and many more will look at the Danish case to see what it means for outcomes of other country attempts for consolidation. Operators, their investors and shareholders want a clear answer about how DG Comp is working. Are DG Comp decisions based on facts, or is their process a black box?
Mergers are underway in the United Kingdom and Italy. In light of what happened in Denmark and the mercurial DG Comp decisions on Austria, Ireland, Germany and Spain, it is clear that there needs to be more transparency when it comes to how DG Comp works and how they look at the market. Simply put, operators would not spend millions of euros on counsel and consultants to attempt a merger if they did not believe it would be approved by competition authorities. It seems that operators—and their investors—believe that mergers are approved on the facts.
But facts and evidence are not enough for DG Comp. Rather they appear to manage by a political standard, the design of which is not transparent, and may very likely change given the situation. Put simply, DG Comp is a black box, and operators and investors don’t know—and DG Comp will not disclose—their secret standards for how they will approve or reject mergers.
The European Commission oversees DG Comp and its brother organization DG Connect led by Andrus Ansip and Gunther Oettinger. DG Connect has made an effort to recognize the challenges that the telecommunications industry faces, and has said repeatedly said there is need for consolidation and increased investment. Denmark is exactly the kind of situation that DG Connect was talking about, the opportunity for harvesting in-country synergies among the fragmented 28 member states.
It has long been known that DG Comp and DG Connect are not in sync. Officially, the DG Connect is responsible for the “de jure” framework for how the telecommunications market should work, but in practice it is DG Comp which makes the “de facto” framework by influencing which mergers get approved or not. It is the latter group’s decision has the greater impact on how investments will proceed in the future. In the EU Commission family, DG Comp’s Vestager is dominant sister who gets her way while DG Connect’s Ansip and Oettinger are nice, albeit intelligent, brothers along for the ride. These sibling agencies have been working against each other and the lack of alignment has derailed a process that could help to restore profitability, which is so important for future investments in the Danish telecom market as well as the EU overall. See the research note EU Commission’s schizophrenic telecom policy: hurts investments, costs jobs, and pulls EU’s digital development even further back compared to other parts of the world.
What happened in Denmark is bad news for the industry as a whole. If the mobile industry in Denmark cannot come to an agreement with DG Comp, it is difficult to see how solutions will be found in the UK and Italy, home to ten times as many people and where the metrics are not as stunning as those in Denmark.
What happens now in Denmark and the rest of the EU?
Strand Consult has no doubt about how the process going forward is going to look like in Denmark and in the rest of the EU. Not only is the failed merger an outcome not favorable to telecom operators or their investors, it’s a bad situation for Europeans as a whole. Europe is facing a number of challenges that Strand Consult and others have described in this research note and report The EU’s Broadband and Telecom policy is not working. Europe is falling further behind the US.
Denmark is a country with the mobile market capitalization equal to that of only greater Hamburg. If a small nation cannot get economies of scale in just the mobile market, then forget about 28 nations building a single digital market for telecoms. DC Comp’s decision shows that the European Commission is not serious about realizing the Digital Agenda. Stakeholders should not waste their time on digital single market discussions. It’s time to throw in the towel now. The window for the EU to win back its global leadership position in mobile has passed, and it falls further behind the US and East Asia. Investors know that there are other regions in the world and other industries with a better outlook for profitability. See Lack of telecom investments will create the next EU crisis. Action from the Commission is too little, too late, and too slow.
That a merger cannot be completed in a country where the typical mobile subscriber spends the same on mobile telephony for a month as he does for two café lattes or a pizza shows that the competition authorities have lost touch with reality. Telia and Telenor have withdrawn their offer. In the short term, there will be massive cost cutting and layoffs in the two companies. Any plans for further investment will be canceled. If anything, prices may increase by 10 to 15 percent to maintain revenue as operations will be scaled back.
The Danish mobile market consists of three networks, four operators and over 40 MVNOs in a country of 5.5 million people. All of the operators have struggled with profitability, including market leader TDC and 4th player HI3G. If mergers are not allowed, profitability can only be achieved through lower costs and/or higher prices. Ironically, what is going to happen in Denmark is what DG Comp fears. Prices will not go up because of a merger, but for the lack of one. As prices increase by Telenor and Telia, TDC and HI3G will follow too.
What happened in Denmark is important for other EU countries, not the least of which are UK and Italy. DG Comp created regulatory uncertainty on whether mergers are approved. Moreover DG Comp is working against the policy that DG Connect promotes. It means that the European telecommunications industry can only react in a way, and that is by cutting costs, laying off workers, and holding back investment. See Europe’s Disconnected Continent: The next crisis hitting the EU will likely be digital—and long and expensive for society.
It should not be too much to ask that Margrethe Vestager get on the same page with Andrus Ansip and Günther Oettinger about the framework for telecom. But even if that happens, the team at C5 will have long washed their hands of the Telenor Telia deal.
Don’t be surprised if DG Comp blames Telenor and Telia for the failed merger. Nor should operators or investors expect transparency from the black box in Brussels. What would be interesting to know is why Telenor and Telia would willingly walk down a dead end as described in a document the EU sent to market test on Wednesday, September 2.
Read Post Mortem Part II.
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