Konstantina Bania http://cmpf.eui.eu/events/policy-conference.aspx PhD Candidate, EUI Research Assistant, CMPF-EUDO, RSC, EUI

1. EU Competition Law: Does
media pluralism fit?
Konstantina Bania
PhD Candidate, EUI
Research Assistant, CMPF-EUDO, RSC, EUI
Konstantina.Bania@eui.eu

2. EU Competition Law: Does media pluralism fit?
• Outline:
1. How does the European Commission perceive
the relationship between EU competition law
and media pluralism?
2. How should the European Commission perceive
the relationship between EU competition law
and media pluralism?
3. Conclusions

3. 1. How does the European Commission perceive
the relationship between EU Competition Law
and media pluralism?

4. 1. Media pluralism is a spontaneous result delivered by
the undistorted functioning of the markets (1)
– See, for instance, EC Issue Paper for the Liverpool
Audiovisual Conference, p. 2 (2005); EC SWD on media
pluralism in the MS of the EU, SEC(2007) 32, p. 7:
“The application of European competition law plays an
important role not only in respect of the preventing the
creation or the abuse of dominant positions, but also with
regard to ensuring market access for new entrants. […] Thus,
in applying antitrust and merger control principles
competition policy can make an important contribution to
maintaining and to developing media pluralism, both in
traditional television markets and in new upcoming markets”

5. 1. Media pluralism is a spontaneous result delivered by
the undistorted functioning of the markets (2)
– E.g. Bertelsmann/Planeta/Circulo, Case COMP/M.5838
[2010] OJ C 228, para. 122: “Círculo has a small
presence in the various markets analyzed. The notified
operation will not have any significant impact on the
diversity of books made available to consumers and is
therefore unlikely to threaten consumer choice and
cultural diversity”
– E.g. Bertelsmann/KKR, Case COMP/M.5533 [2009] OJ
C 240/01, para. 79: “[I]t can be concluded from the
competitive assessment that the transaction is unlikely
to have a negative impact on cultural diversity”

6. 2. Media pluralism is not the Commission’s problem
to solve
• E.g. Newscorp/BSkyB Case COMP/5932 [2011] OJ C 37/02 ,
paras. 307 and 309: “The purpose and legal frameworks for
competition assessments and media plurality assessments are
very different. The focus in merger control is whether there
is […] the ability of the merged entity to profitably increase
prices on defined antitrust markets post-merger […] The
present decision is based solely on competition-related
grounds under the Merger Regulation”

7. Why does the Commission go down that path?
1. Impact of U.S. antitrust policy on EU competition
decision-making (how decisive are non-economic
considerations?)
2. Media pluralism a fuzzy concept and a highly
controversial issue: See, for instance, OECD PRR
on media mergers (2003), p. 10
3. Article 21(4) EC MR: MS are better placed to deal
with pluralism concerns

8. What does the Commission do?
Supply diversity = Competitive media markets =
Media pluralism? (1)
• The objective? Market access
• How? Access to premium content
and infrastructure

9. Supply diversity: a proxy for content diversity (?) (2)
Impact of an operation on content diversity?
• E.g. Bertelsmann/Kirch/Premiere, para. 122: ‘[s]ince the
parties will wall off and control the market, other potential
providers of digital pay-TV and multimedia services will be
unable to develop freely and without restriction’
• E.g. Newscorp/Telepiù, para. 37: if the merged undertakings
restrict access to premium content, ‘potential competitors
will not be in a position to create an alternative successful
pay-TV platform’

10. 2. How should the Commission perceive
the relationship between EU competition
law and media pluralism?

11. Rethinking the Commission’s competition practice:
Applying EU Competition law in a pluralism-friendly
manner (1)
• Does the integration of content diversity considerations
comply with EU law?
– Article 167(4) TFEU
– Article 11(2) and 51(1) CFR
– Recital 23 and Article 2(1) EC Merger Regulation

12. Rethinking the Commission’s competition practice:
Applying competition law in a pluralism-friendly
manner (2)
• Is the integration of content diversity considerations a
legitimate subject for competition law enquiries?
– Competition has non-price dimensions: high quality,
wide selection of goods and services and innovation;
– Commission’s job is to check “the ability of one or
more undertakings to profitably increase prices, reduce
output, choice or quality of goods and services or
diminish innovation” (EC Horizontal Merger
Guidelines, [2004] OJ C 31/3, para. 8)

13. 3. Conclusions
• The EU framework is not clear-cut
• The Commission’s duty to develop a pluralism-
friendly merger practice is not an easy task
BUT,
• The EU’s limited competence to regulate for
media pluralism is NOT an excuse to violate the
Treaties

14. Thank you for your attention.
Konstantina.Bania@eui.eu