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Document 52020M9064(02)
Summary of Commission Decision of 12 November 2019 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9064 – Telia Company/Bonnier Broadcasting Holding) (notified under document number C(2019) 7985) (Only the English version is authentic) (Text with EEA relevance) 2020/C 160/04
Summary of Commission Decision of 12 November 2019 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9064 – Telia Company/Bonnier Broadcasting Holding) (notified under document number C(2019) 7985) (Only the English version is authentic) (Text with EEA relevance) 2020/C 160/04
Summary of Commission Decision of 12 November 2019 declaring a concentration compatible with the internal market and the functioning of the EEA Agreement (Case M.9064 – Telia Company/Bonnier Broadcasting Holding) (notified under document number C(2019) 7985) (Only the English version is authentic) (Text with EEA relevance) 2020/C 160/04
C/2019/7985
OJ C 160, 11.5.2020, p. 6–14
(BG, ES, CS, DA, DE, ET, EL, EN, FR, HR, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
|
11.5.2020 |
EN |
Official Journal of the European Union |
C 160/6 |
SUMMARY OF COMMISSION DECISION
of 12 November 2019
declaring a concentration compatible with the internal market and the functioning of the EEA Agreement
(Case M.9064 – Telia Company/Bonnier Broadcasting Holding)
(notified under document number C(2019) 7985)
(Only the English version is authentic)
(Text with EEA relevance)
(2020/C 160/04)
On 12 November 2019 the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (1) , and in particular Article 8(2) of that Regulation. A non-confidential version of the full Decision, as the case may be in the form of a provisional version, can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address: http://ec.europa.eu/competition/elojade/isef/index.cfm?clear=1&policy_area_id=2
I. THE PROCEDURE
|
(1) |
On 15 March 2019, the European Commission (the ‘Commission’) received a formal notification pursuant to Article 4 of the Merger Regulation by which Telia Company AB (‘Telia’, or ‘Notifying Party’, Sweden) would acquire within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the whole of Bonnier broadcasting Holding AB (‘Bonnier broadcasting’, Sweden) (the ‘Transaction’). Telia and Bonnier Broadcasting are jointly referred to as the ‘Parties’. |
|
(2) |
After a preliminary examination of the notification and based on the phase I market investigation, the Commission raised serious doubts as to the compatibility of the Transaction with the internal market and adopted a decision to initiate proceedings pursuant to Article 6(1)(c) of the Merger Regulation on 10 May 2019 (the ‘Article 6(1)(c) Decision’). |
|
(3) |
The Parties submitted their written comments on the Article 6(1)(c) Decision on 24 May 2019. |
|
(4) |
On 4 June 2019, the Commission adopted decisions pursuant to Article 11(3) of the Merger Regulation, addressed to Telia and Bonnier Broadcasting, following their failure to provide complete information in response to an RFI from the Commission. The decisions had the effect of suspending the time limits referred to in the first subparagraph of Article 10(3) of the Merger Regulation. Telia and Bonnier Broadcasting complied with the Article 11(3) decisions addressed to them on 4 July 2019. Thus, the suspension of the time limits expired at the end of 4 July 2019. |
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(5) |
On 4 July 2019, the Notifying Party requested an extension of the Commission’s investigation by 20 working days under Article 10(3) second paragraph of the Merger Regulation. |
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(6) |
On 12 August 2019, the Notifying Party submitted commitments pursuant to Article 8(2) of the Merger Regulation in order to address the competition concerns identified by the Commission. On 13 August 2019, the Commission launched a market test of the commitments submitted by the Notifying Party on 12 August 2019. |
|
(7) |
Based on the Commission’s feedback, the Notifying Party submitted a revised set of commitments on 2 September 2019, and a slightly further revised version of the commitments on 18 September 2019 (the ‘Final Commitments’). |
|
(8) |
The Advisory Committee discussed a draft of this Decision on 24 October 2019 and issued a favourable opinion. |
II. THE PARTIES AND THE CONCENTRATION
|
(9) |
Telia is a Swedish telecommunication operator and the parent company of the Telia group, which has approximately 20 000 employees. The Telia group provides mobile and fixed telecommunications services as well as broadband and television services in Denmark, Estonia, Finland, Lithuania, Norway and Sweden. It provides mobile telecommunications services in Latvia and wholesale network access (carrier services) worldwide. Telia is a publicly listed company. Telia’s largest shareholder is the Swedish state. |
|
(10) |
Bonnier Broadcasting is a Swedish based media company with approximately […] employees engaged primarily in the television (‘TV’) broadcasting business, in Sweden and Finland, but also to a more limited extent in Denmark and Norway. Bonnier Broadcasting’s activities are conducted through the subsidiaries TV4 AB, C More Entertainment AB, and MTV Oy. Furthermore, Bonnier Broadcasting owns the captive Finnish production company Mediahub. Finally, Bonnier Broadcasting also produces news and other journalism content in Sweden and Finland. Bonnier Broadcasting is a wholly owned subsidiary of Bonnier Euro Holding AB. Bonnier Euro Holding AB is indirectly controlled by Bonnier AB and ultimately controlled by Albert Bonnier AB. Albert Bonnier AB is owned by around 90 members of the Bonnier family, none of whom solely or jointly controls Albert Bonnier AB or any other relevant company within the Bonnier group. |
|
(11) |
By means of a share purchase agreement entered into on 20 July 2018, Telia will acquire 100 % of the shares in Bonnier Broadcasting, which will become a wholly-owned subsidiary of Telia. Therefore, the Transaction consists of the acquisition of sole control by Telia over Bonnier Broadcasting and thus constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation. |
|
(12) |
As Telia’s largest shareholder is the Swedish state (with a 38,4 % shareholding interest), the Commission has assessed whether Telia is de facto controlled by the Swedish state. In addition, it has assessed whether the Swedish state exercises de facto control over the Swedish public broadcaster SVT. In that respect, the Commission has examined whether Telia and SVT have a power of decision independent from the Swedish state, and whether the Swedish state is able to coordinate the commercial conduct of Telia and SVT. |
|
(13) |
In the Decision, the Commission concludes that (i) Telia may not have independent power of decision from the Swedish state, and (ii) there are sufficient elements likely conferring on SVT an independent power of decision from the Swedish state. The Commission considers that it is not necessary to reach a definitive conclusion on the independence of Telia from the Swedish state, as (i) the Swedish state does not control any (other) undertaking active within any relevant market related to the Transaction, and (ii) the public broadcaster SVT should be considered to constitute an economic unit with independent power of decision. Further, the Commission found that the commercial activities of Telia and SVT are not coordinated through the intervention of the Swedish state. |
III. UNION DIMENSION
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(14) |
In 2017, the undertakings concerned had a combined aggregate worldwide turnover of more than EUR 5 000 million (Telia: EUR […] million; Bonnier Broadcasting: EUR […] million; combined: EUR […] million). Each undertaking has an EU-wide turnover in excess of EUR 250 million (Telia: EUR […] million; Bonnier Broadcasting: EUR […] million), but they do not achieve more than two-thirds of their aggregate EU-wide turnover within one and the same Member State. The notified operation therefore has an EU dimension pursuant to Article 1(2) of the Merger Regulation. |
IV. THE RELEVANT PRODUCT MARKETS
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(15) |
In the Decision, the Commission considers that, for the assessment of the Transaction, the relevant markets are:
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V. COMPETITIVE ASSESSMENT
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(16) |
The Transaction gives rise to a number of horizontally and vertically affected markets. The following sections of this note summarise the main findings of the Commission in the markets where the Transaction would significantly impede effective competition, then in the markets where the Transaction would not significantly impede effective competition. |
1. Finding of a significant impediment to effective competition
(a) Input foreclosure of retail suppliers of AV services with regard to the wholesale supply of FTA and basic pay TV channels in Sweden and Finland
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(17) |
In the Decision, the Commission notes that the Transaction would create a vertically integrated player with market shares of [30-40] % in Sweden and [20-30] % in Finland in the wholesale supply of FTA and basic pay TV channels, and a market share of [60-70] % in the supply of pay children’s TV channels in Finland. When considering commercial broadcasters only and excluding the public service broadcaster SVT in Sweden, and Yle in Finland, the share increases to [50-60] % and [40-50] % respectively. Based on total viewing, continuous viewing and prime time viewing, Bonnier Broadcasting’s TV4 channel in Sweden and MTV3 channel in Finland alone are important channels. Several internal documents, as well as the results of the market investigation, showed that Bonnier Broadcasting’s TV4 and MTV3 channels are particularly important to compete in the Swedish and the Finnish markets respectively. Therefore, the merged entity will likely have significant market power in the market for the wholesale supply of FTA and basic pay TV channels in Sweden and Finland, and the wholesale supply of pay children’s TV in Finland. |
|
(18) |
The market investigation indicates that the merged entity would have the ability to foreclose access to Bonnier Broadcasting’s FTA and basic pay TV channels to rival TV distributors. FTA and basic pay TV channels are important inputs to TV distributors, forming the basis of basic packages sold to TV customers. Bonnier Broadcasting’s FTA and basic pay TV channels in particular are considered by market participants to be important inputs for which no suitable alternative is available. The market investigation confirms that if the merged entity were to cease licensing Bonnier Broadcasting’s FTA and basic pay TV channels and/or degrade the terms on which it does so, it would likely harm the businesses of rival TV distributors, thereby negatively affecting their ability to compete against the merged entity. Economic modelling undertaken by the Commission supports these findings, showing the merged entity will have the incentive to carry out foreclosure strategies, with significant likely effects on downstream prices. |
|
(19) |
Therefore, in the Decision, the Commission concludes that the Transaction is likely to significantly impede effective competition in the market for the retail supply of AV services in Sweden and Finland, as a result of total or partial input foreclosure of FTA and basic pay TV channels, irrespective of any plausible segmentation. |
(b) Input foreclosure of retail suppliers of AV services with regard to the wholesale supply of premium pay sports TV channels in Sweden and Finland
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(20) |
In the Decision, the Commission notes that Bonnier Broadcasting’s premium sports pay TV channels (in particular C More) have a market share by value of [40-50] % in Sweden and [40-50] % in Finland, and that C More sports channels hold major sport contents for which customers are willing to pay more and which drive customers’ behaviour and switching (e.g. ice hockey rights). Several internal documents, as well as the results of the market investigation, showed that Bonnier Broadcasting’s premium pay sports TV channels are particularly important to compete in the Swedish and the Finnish markets. |
|
(21) |
The market investigation indicates that the merged entity would have the ability to foreclose access to Bonnier Broadcasting’s premium sports pay TV channels to rival TV distributors. Premium sports pay TV channels are important inputs to TV distributors. Bonnier Broadcasting’s premium sports pay TV channels are considered by market participants to be important inputs for which no suitable alternative is available. The market investigation confirms that the merged entity will have the incentive to engage in input foreclosure, and that if the merged entity were to cease licensing Bonnier Broadcasting’s premium sports pay TV channels and/or degrade the terms on which it does so, it would likely harm the business of rival TV distributors, thereby negatively affecting their ability to compete against the merged entity. |
|
(22) |
Therefore, in the Decision, the Commission concludes that the Transaction is likely to significantly impede effective competition in the market for the retail supply of AV services in Sweden and Finland, as a result of total or partial input foreclosure of premium pay sports TV channels or any premium pay package including those channels. |
(c) Conglomerate non-coordinated effects: foreclosure of providers of retail mobile, fixed internet access and multiple play services in Sweden and Finland
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(23) |
In the Decision, the Commission considers that the merged entity would have the ability and the incentive to make Bonnier Broadcasting’s over the top (OTT) services (AVOD and subscription video on demand (SVOD)) exclusive to Telia mobile and broadband customers. Such a strategy would likely divert a significant number of mobile and fixed internet telecom customers to Telia. |
|
(24) |
Therefore, in the Decision, the Commission concludes that the Transaction is likely to significantly impede effective competition in Sweden and Finland, as a result of the conglomerate relationships between Telia’s activities as provider of telecommunications services and Bonnier Broadcasting’s activities as retail supplier of AV services, in particular OTT services, due to the potential foreclosure of providers of retail mobile, fixed internet access and multiple play services. |
(d) Sale of TV advertising space and retail provision of AV, fixed and mobile telecom services in Sweden and Finland (input foreclosure)
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(25) |
In the Decision, the Commission notes that the merged entity would have a market share of [50-60]-[60-70] % in Sweden and [40-50]-[40-50] % in Finland in TV advertising space. The market investigation supported the preliminary view that TV advertising (potentially including advertisement video on demand (AVOD) services) constitute a distinct market from advertising in other media formats. The market investigation also indicates that TV advertising space, in particular, on Bonnier Broadcasting’s TV4 channel in Sweden and MTV3 channel in Finland, are important inputs without which AV/telecoms distributors would not be able to communicate their competitive offers to the general population in a sufficiently fast and impactful way. |
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(26) |
Therefore, the Commission concludes that the Transaction is likely to significantly impede effective competition in the markets for the retail supply of AV services, of mobile telecommunication services and of fixed internet access services in Sweden and Finland, as a result of total or partial input foreclosure of advertising space whether in a market for the supply of advertising space for advertisements in video format limited to space on TV channels or including also space in other AV services, most notably AVOD services. |
2. No finding of a significant impediment to effective competition
(a) Horizontal non-coordinated effects in the market for the production of AV content (demand-side) in Finland
|
(27) |
In the Decision, the Commission assesses the likelihood of anticompetitive horizontal non-coordinated effects in the market for the production of AV content on the demand-side in Finland. Given the combined market share of the Parties on the demand-side ([20-30] %), the presence of a certain number of competitors, the distribution of market shares, the increment ([0-5] % points) and the results of the market investigation, the Commission concludes that the Transaction would not significantly impede effective competition. |
(b) Horizontal non-coordinated effects in the market for the licensing of broadcasting rights of sport AV content in Finland
|
(28) |
In the Decision, the Commission assesses the likelihood of anticompetitive horizontal non-coordinated effects in the market for the licensing of broadcasting rights of sport AV content in Finland. Given (i) the results of the market investigation, (ii) the large number of players active on the demand-side, (iii) the Parties not being considered as the closest competitors, (iv) the tender frequency and (v) the evidence from Telia Company’s agreements, the Commission concludes that the Transaction would not significantly impede effective competition. |
(c) Input foreclosure of retail suppliers of AV services with regard to the wholesale supply of non-sport premium pay TV channels in Sweden, Finland, Norway and Denmark
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(29) |
In the Decision, the Commission assesses the risk of foreclosure of rival retail providers of AV services through the denial of access to Bonnier Broadcasting’s premium pay non-sport TV channels, or through an increase of the carriage fees (or revenue share) paid by such rival providers to be able to carry Bonnier Broadcasting’s premium pay non-sport TV channels. In Sweden, Finland, Denmark and Norway, premium pay non-sport TV channels are all premium pay films and series TV channels. |
|
(30) |
The Commission considers that the merged entity will lack the ability to foreclose actual upstream competitors. Indeed, (i) premium pay films and series content included in these TV channels do not constitute an important input from a viewer perspective, (ii) the information gathered during the market investigation indicated that retail providers of AV services competing with Telia can typically license alternative channels to C More films and series channels, and that SVOD services are relevant distribution channels for films, (iii) the importance of premium pay TV non-sports channels is impacted by the launch of OTT offering directly by content owners. |
|
(31) |
In the Decision, the Commission therefore concludes that the Transaction does not raise competition concerns of total or partial input foreclosure of premium pay films and series TV channels in Sweden, Finland, Norway and Denmark since the merged entity would lack the ability to foreclose actual upstream competitors and such strategy would likely have no impact on effective competition. |
(d) Customer foreclosure of wholesale suppliers of FTA and basic pay TV channels with regard to the retail supply of AV services in Sweden and Finland, and of premium pay TV channels with regard to the retail supply of AV services in Sweden, Finland and Norway
|
(32) |
The merged entity’s market share in the Swedish, Finnish and Norwegian markets for the retail supply of AV services is below 30 % and therefore the downstream markets are not vertically affected markets. Nevertheless, given the results of the market investigation and Telia’s higher market share in a narrower market segment for the retail supply of AV services ([60-70] % through IPTV in Sweden, [60-70] % in areas where Telia owns the regional fixed network in Finland, and [40-50] % through cable in Norway), the Commission assessed the risk of customer foreclosure strategies in Sweden, Finland and Norway. |
|
(33) |
The Commission considers that, even if the merged entity had some incentives to engage in customer foreclosure, it would lack the ability to engage in either total or partial customer foreclosure strategies of third parties’ TV channels. Competing wholesale suppliers of FTA, basic pay and premium pay TV channels would be able to maintain a significant proportion of their viewership by relying on alternative distributors or distribution technologies to bypass the merged entity. |
|
(34) |
In particular, in Sweden, OTT is a significant alternative when customers have no longer access to FTA and basic pay TV channels via traditional distribution technologies. In Finland, alternate means of distribution remain available to rival wholesalers, including OTT and DTT, the latter of which give access to 99 % of the population. Moreover, in Finland, based on Telia Company’s agreements, the Commission concludes that it is not credible that Telia Company would engage in a partial foreclosure strategy in certain regions but not others. In Norway, sufficient alternatives are also available to rival wholesalers of TV channels including distribution through the market leading TV distributor Telenor (with [40-50] % share), as well as other distributors Altibox ([10-20] %) or RiskTV ([10-20] %), in addition to distribution via OTT. |
|
(35) |
The Commission concludes that the merged entity would lack the ability to engage in either total or partial customer foreclosure strategies of third parties’ FTA and basic pay TV channels in Sweden and Finland and of third parties’ premium pay TV channels in Sweden, Finland and Norway. In any event, it is unlikely that any customer foreclosure strategies would have an impact on effective competition. |
(e) Conglomerate non-coordinated effects: foreclosure of retail providers of AV OTT services in Sweden and Finland
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(36) |
In the Decision, the Commission considers that the merged entity would have the ability and the incentive to degrade significantly the service offerings of competing providers of OTT AV services on Telia’s mobile and fixed networks in order to favour its services and the mixed bundling strategy. |
|
(37) |
The Commission considers that it could not be excluded that the merged entity would have the ability to foreclose competing providers of OTT AV services by significantly degrading their service offerings on Telia’s mobile and fixed networks. However, the Commission finds that such a strategy is unlikely to have a significant impact on competition since cooperation with fixed and mobile internet providers is not necessary for OTT service providers to effectively compete in the retail AV market and any plausible sub-segments. In addition, the Open internet Regulation would protect the merged entity’s competitors from discriminatory treatment. |
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(38) |
The Commission concludes that the Transaction would not significantly impede effective competition in Sweden and Finland, as a result of the conglomerate relationships between Telia’s activities as provider of telecommunications services and Bonnier Broadcasting’s activities as retail supplier of AV services, in particular OTT services, due to the potential foreclosure of providers of retail AV OTT services. |
VI. COMMITMENTS
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(39) |
To be acceptable, the proposed commitments must be capable of rendering a concentration compatible with the internal market as they prevent a significant impediment to effective competition in all relevant markets in which competition concerns were identified. |
1. Description of the Final Commitments
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(40) |
The Final Commitments consist in a package of six commitments, namely:
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(41) |
In addition, the Final Commitments specify the role of the monitoring trustee, sets up a fast track dispute resolution system, and foresee a 10-year duration. |
2. Assessment of the Final Commitments
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(42) |
In the Decision, the Commission concludes that the Final Commitments are (i) capable of eliminating the Commission’s competition concerns, (ii) capable of being implemented effectively within a short period of time, and (iii) proportionate to the competition concerns identified by the Commission, for the following reasons. |
2.1. Adequacy of commitments addressing input foreclosure concerns in relation to FTA, basic pay and premium pay TV sports channels
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(43) |
The Final Commitments ensure that rival TV distributors can license the merged entity’s current and future linear FTA and basic pay TV channels, premium pay TV sports channels as well as the Liiga channel package at FRAND terms, for distribution to end users via traditional TV distribution technologies (cable, DTH, IPTV, DTT SMATV or any other platform using TV broadcasting technology to end users). |
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(44) |
The FRAND licensing commitments for such channels cover all ancillary rights available to TV distributors today and ensure that also future ancillary services offered by the merged entity as part of its TV service will be available for FRAND licensing to rival TV distributors. |
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(45) |
To ensure the effectiveness of the commitments, rival TV distributors wishing to distribute the merged entity’s channels can choose to negotiate a new agreement under FRAND terms but the commitments also provide for the possibility that TV distributors may elect to extend their existing distribution agreements (subject only to adjustments for inflation in relation to FTA and basic pay TV channels). |
|
(46) |
The Final Commitments also ensure the licensing of standalone OTT rights to these channels (including ancillary OTT rights) to a player in each of Sweden and Finland for distribution to end users over the open internet. This will ensure that the merged entity will face competition post-Transaction also in the OTT space, which is an increasingly important distribution channel to reach end customers on the market for retail distribution of AV services. |
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(47) |
The FRAND licensing commitments and the standalone OTT licensing commitment contain a quality degradation clause which prevents the merged entity from knowingly doing anything that would reduce the quality of the channels or the OTT rights being licensed. |
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(48) |
The Final Commitments also ensure that information barriers are erected and maintained between the merged entity’s wholesale and retail businesses so as not to give undue advantage to the merged entity’s retail TV distribution business by gaining access to third party confidential information. |
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(49) |
In the Decision, the Commission concludes that these commitments, taken together, eliminate the Commission’s competition concerns in relation to partial and total input foreclosure in Finland and Sweden. |
2.2. Adequacy of commitments addressing conglomerate effects
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(50) |
The Final Commitments ensure that the merged entity’s standalone AVOD and SVOD services will remain available to all end users, at the same quality conditions, and irrespective of the provider of the mobile or fixed broadband network of the end user. In the Decision, the Commission therefore concludes that this eliminates the Commission’s competition concerns in relation to conglomerate effects in Sweden and Finland. |
2.3. Adequacy of commitments addressing input foreclosure concerns in relation to the sale of advertising space
|
(51) |
To address the Commission’s input foreclosure concerns in relation to the sale of TV advertising space in Finland and Sweden, the Notifying Party has offered two commitments, namely the commitment not to discriminate when offering TV advertising space and the commitment to maintain information barriers between the merged entity’s wholesale and retail businesses in relation to third party confidential information. In the Decision, the Commission concludes that, taken together, these commitments adequately address the input foreclosure concerns identified by the Commission. |
2.4. Duration and implementation of the Final Commitments
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(52) |
The Commission considers that in view of the expected market developments with on-demand TV services and distribution over the internet gaining in importance, but considering the uncertainties as to the speed by which the market will evolve, a duration of 10 years is appropriate and sufficient. |
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(53) |
The Commission considers that the commitments are capable of being implemented effectively within a short period of time as they will become effective either immediately or shortly after the adoption of the Decision. |
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(54) |
The commitments include further safeguards to ensure effectiveness and viability. In particular, the commitments provide for an arbitration mechanism, including an option for a fast track dispute resolution procedure, as a means of resolving disputes relating to the merged entity’s compliance with the Final Commitments, thus rendering the commitments enforceable by market participants themselves. |
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(55) |
The commitments also provide for the appointment of a monitoring trustee to oversee the implementation of the commitments and to ensure the full compliance of the merged entity with the commitments. In particular, the monitoring trustee will have a role in the process of determining what constitutes FRAND terms, act as the contact point for any complaints on non-compliance with the commitments, and be involved in the fast track dispute resolution process. |
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(56) |
Finally, the commitments provide for specific and clearly defined steps for the merged entity to follow in negotiating and granting a licence for standalone OTT rights in each of Sweden and Finland. These steps are designed to ensure the effectiveness of the standalone OTT licence commitment. |
VII. CONCLUSION
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(57) |
For the reasons mentioned above, the Commission concludes that the proposed concentration, as modified by the Final Commitments, will not significantly impede effective competition in the Internal Market or in a substantial part of it. |
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(58) |
Consequently the concentration should be declared compatible with the Internal Market and the functioning of the EEA Agreement, in accordance with Article 2(2) and Article 8(2) of the Merger Regulation and Article 57 of the EEA Agreement. The Decision is conditional on full compliance with the Final Commitments. |