Bundeskartellamt: Vodafone has hindered 1&1 in 5G network rollout

The Federal Cartel Office has made progress with its investigation into the serious allegations made by 1&1 that Vodafone has made it more difficult for the comparatively young network operator to share the use of radio masts. On Friday, it sent the parties involved its preliminary legal assessment regarding the lack of provision of antenna sites for 1&1. The President of the Cartel Office, Andreas Mundt, explained: "According to the findings obtained so far, the delay in providing the contractually agreed sites is to be regarded as an obstruction of 1&1's market entry as the fourth network operator in breach of antitrust law."

The delays and the negative effects on competition in the relevant markets "could have been avoided according to our current state of knowledge and should have been avoided due to the prohibition of abuse under antitrust law," emphasized Mundt at the preliminary conclusion of the investigation initiated in mid-2023. In view of this now substantiated suspicion, the Bonn authority is considering "enforcing the provision of the outstanding sites with our antitrust authority resources".

The dispute was triggered by the fact that the Vodafone Group's radio tower division, which has since been spun off, had concluded a contractual agreement with 1&1 at the end of 2021 for the shared use of around 3,800 antennas. The agreement was to be implemented in several batches until the end of 2025. However, the provision of the locations promised to 1&1 has been massively delayed since the contract was concluded. Currently, only a fraction of the contractually agreed locations can be used by 1&1, the cartel watchdogs complain. At the same time, Vodafone itself has greatly expanded its own network and upgraded – to 5G in large parts of –, including at the locations intended for 1&1.

Negotiations on commitments are considered to have failed

The use of the contractually agreed antennas is a "key factor for 1&1 in the expansion of its own mobile network", which is subsequently being severely delayed. According to the Cartel Office's preliminary assessment, this "significantly impairs the competitiveness" of 1&1. The United Internet spin-off also got into trouble with the Federal Network Agency because it did not meet the supply requirement from the 2019 auction for the commissioning of 1000 5G base stations on time.

In their comments, the cartel watchdogs classify the behavior of Vodafone and Vantage Towers as abusive obstruction within the meaning of Sections 18 and 20 of the Act against Restraints of Competition (GWB). This involves the abuse of a dominant market position as well as prohibited behavior by companies with relative or superior market power. The contractual partners would have had numerous opportunities to react to any difficulties without causing such massive delays, according to the statement. According to the auditors, they have been negotiating with Vodafone since the end of 2023 regarding the submission of commitments. Until the end, however, the proposals fell far short of the agreed provisions.

The warning letter that has now been sent is an interim step. The parties involved can still comment on it before the final decision is expected to be made in June. Vodafone once again rejected the accusations. The German mobile telecommunications market was characterized by intense competition throughout the entire period under investigation.

(nen)