CoE National Cases on Pluralism

Florence, 28 October 2012

Susanne NikoltchevHead of Department for Legal Information

European Audiovisual Observatory

2

IRIS Special 2012

I. EU LawII. National Legal Frameworks

III. Market DataIV. Analysis

Susanne Nikoltchev, 28 October 2012

CH

DE

FR

ES

NL

NO

PL

GB

HU

IT

LU

http://www.obs.coe.int/oea_publ/iris_special/index.html

Agenda: Focus Regulating Market Power

1. Is media-specific anti-concentration (msac) regulation still important?

2. What is the role of competition law?3. What other rules have an impact on

media power?

Explained with selected national cases

Susanne Nikoltchev, 28 October 2012

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Focus: Regulation of Market Power

Susanne Nikoltchev, 28 October 2012

Regulation

Media-specific

competition

Other

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Is media-specific anti-concentration (msac) regulation still important ?

Linear services (TV broadcasting)• Classical area for msac, exists in all

countries of study except NL, UK, LU• Alternatively or additionally

concentration regulation via licensing (incl. UK, LU)

• Monitoring in NL and UK

Susanne Nikoltchev, 28 October 20125

Is media-specific anti-concentration (msac) regulation still important ?

Non-linear services Not targeted by msacNot targeted by licensingPossible inclusion in the future?

E.g. UK, France

Case law: Axel Springer AG’s acquisition of ProSiebenSat1 as a lead?

Susanne Nikoltchev, 28 October 20126

What is the role of competition law?

Definition of marketsFocus: complementary markets

Polish case:Spartan Holding

acquires

Polkomtel

Susanne Nikoltchev, 28 October 2012

1 of 2 leading commer-cial national TV channelsSeveral other TV channels

Satellite TV platformSome major VoD services

leading mobile telephony operator

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What is the role of competition law?

Definition of marketsFocus: complementary information sourcesHungary: press case (application withdrawn)

Axel Springercompanies

to merge with

Ringier

companies

Susanne Nikoltchev, 28 October 2012

In… Poland, Czech Republic

Hungary

In… Serbia, Bosnia-Herzegovina,

Slovakia, Czech Republic, Hungary

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What is the role of competition law?

General national legal frameworkmerger & acquisitionsabuse of dominant positions

Characteristics:applicable to all sectorscase-by-caseex postflexible remedies

Susanne Nikoltchev, 28 October 20129

What is the role of competition law?

Plenty of cases Film rights market (in pay-TV and free-to-air context)

TPS/Canalsatellite, Sky investigation, Telecinco/Cuatro, Antena 3/La Sexta (mergers), Swisscom/Cinetrade AG (acquisition, also sports rights)…

Sports rights market Deutsche Fußball Liga GmbH (antitrust), Cyfrowy Polsat , Mediaset (abuse)…

Television advertising marketProSiebenSAt1/Bertelsmann, Telecinco/Cuatro, Antena 3/La Sexta, Canal+/ITI-TVN, RTL CEE/IKO, Granada/Carlton (mergers), IKOT/MRTL (acquisition), Telewizja Polska/TVP (abuse)..

Transmission network marketsSES Global Europe/DPC (acquisition), Abertis (abuse), Swiss Cablecom, …

...for more read IRIS Special

Susanne Nikoltchev, 28 October 201210

What other rules have an impact on media power?

Must-carry Access (API, CAS)

prohibition to develop lock-out standardsFRAND termsfree choice of digital reception devices such as decoders

EPGuse of recognised open standardsequal reference conditionsFRAND termslogical numbering obligation

Net neutralitynon-discriminatory handling of traffic

Case law: EDML complaint about Sky EPG

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Some conclusions

Media-specific anti-concentration rules still important but to be adapted to converged environment.

Competition law enjoys greater flexibility because case-by-case;inbuilt pluralism objective can make it even stronger.

“Trend”: regulation addressing new power positions.

Susanne Nikoltchev, 28 October 201212

Contact :Susanne Nikoltchev

Head of Department for Legal Informationsusanne.nikoltchev @ coe.int

For further information:www.obs.coe.int