52004XX0428(04)

Opinion of the Advisory Committee on Concentrations given at its 113th meeting on 20 March 2003 concerning a draft decision relating to case COMP/M.2876 - NewsCorp/Telepiù

(2004/C 102/08)

(Text with EEA relevance)

(Commission Decision 2004/311/EC - OJ L 110, 16.4.2004)

1. The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation and has a Community Dimension as defined by Article 1 (2) of that Regulation.

2. The Advisory Committee agrees with the Commission that the relevant product and geographic market comprises the market for pay TV in Italy.

3. The Advisory Committee further agrees with the Commission's definitions of relevant upstream markets affected by the concentration as (a) acquisition of exclusive rights on premium films; (b) acquisition of exclusive rights on football events that take place every year where national teams participate; (c) acquisition of exclusive rights on other sports events; (d) acquisition of TV channels; and that the relevant geographic market for each of these is confined to Italy.

4. The Advisory Committee agrees with the Commission that the notified transaction would lead to the creation or strengthening of a dominant position in the Italian pay-TV market.

5. The Advisory Committee agrees with the Commission's analysis of the relevant upstream markets.

6. The Advisory Committee agrees with the Commission that the transaction does not satisfy the conditions for the "failing company defence", and that therefore there is a causal link between the concentration and its effect on competition.

7. The majority of the Advisory Committee agrees with the Commission that the set of undertakings submitted by Newscorp on March 13 2003, are sufficient to remedy the competition concerns in all of the relevant markets where the concentration would lead to the creation or strengthening of a dominant position. A minority disagrees.

8. The majority of the Advisory Committee agrees with the Commission that the presence of Telecom Italia as a 19.9 % shareholder is such that the Commission is entitled to carry out a competitive assessment of the effect of this presence. A minority disagrees.

9. The majority of the Advisory Committee agrees with the Commission that the market investigation has not provided sufficient evidence to conclude that (a) Telecom ltalia's presence will further strengthen the dominant position of the combined platform on the pay-TV market; and (b) Telecom ltalia's dominant position on telecom markets will be strengthened, and that accordingly the undertakings offered on March 13 relating to Telecom ltalia should not constitute obligations or conditions of this Decision. A minority disagrees.

10. The majority of the Advisory Committee agrees with the Commission's draft Decision that, subject to full compliance with these commitments, the concentration should be declared compatible with the common market and the functioning of the EEA agreement. A minority disagrees.

11. The Advisory Committee recommends publication of its opinion in the Official Journal of the European Union.

12. The Advisory Committee asks the Commission to take into account the remarks and comments made by the Advisory Committee.