On 2 February 2010, the Office of Fair Trading (OFT) asked the European Commission to allow it to consider the implications on the UK market of the proposed joint venture between Orange and T-Mobile. In addition, two consumer organisations, Consumer Focus and Communications Consumer Panel, have sent an open letter to the Commission supporting the referral. They have indicated that any review by the competition authorities will need to address the impact of on the market of the joint venture’s combined spectrum capacity and the impact of the deal on mobile virtual network operators (i.e. companies which operate mobile services but may not have their own licensed frequency allocation of radio spectrum or other infrastructure). The deal was notified to the Commission on 11 January 2010 and under the EU Merger Regulation, the Commission has exclusive jurisdiction to consider the competition implications of the deal.

However, it could accede to the OFT’s request if it considers that the central focus of the substantive competition issues are principally within the UK and that the OFT would be better placed to consider them.

Article 9 of the EU Merger

Article 9 of the EU Merger Regulation allows the Commission to refer the whole or part of a merger to the OFT if a merger threatens to significantly affect competition in a distinct market within the UK.