BLOMSTEIN has represented Vodafone in a successful challenge to a merger clearance of a joint venture between Deutsche Telekom and EWE AG. Following an appeal by Vodafone and complex court proceedings, on 22 September 2021 the Higher Regional Court of Düsseldorf annulled the 2019 clearance decision issued by the Federal Cartel Office for “Glasfaser Nordwest”, a joint venture to expand the fibre network in the north-western part of Germany.
Vodafone’s appeal succeeded inter alia on the grounds that the conditions imposed by the Federal Cartel Office on the joint venture partners were insufficient to alleviate the competition concerns raised by the joint venture. In the opinion of the court, the joint venture inter alia significantly strengthens Deutsche Telekom’s existing dominant position as a wholesale provider of infrastructure access and should therefore not have been cleared.
The successful challenge represents a rare case of a successful third-party challenge to a merger clearance.