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Λογότυπος της Ευρωπαϊκής Επιτροπής
Competition Policy

Cases &Judgments (Media)

The Directorate-General for Competition, in cooperation with National Competition Authorities, aims at ensuring that the competition rules are respected in the media sector. This means applying the general EU competition rules across Antitrust, Mergers and State Aid.

Antitrust

The Commission is carrying out a sector inquiry in the Internet of Things (IoT) sector of consumer-related products and services in the European Union (including voice assistants, smart home appliances and wearable devices).


Licensed merchandise cases (AT. 40436, AT.40432 and AT.40433)

On 14 June 2017, the Commission opened three separate antitrust investigations into Nike’s (AT. 40436), Sanrio’s (AT.40432) and Universal Studios’ (AT.40433) licensing and distribution practices, to assess whether they illegally restricted traders from selling licensed merchandise cross-border and online within the EU Single Market. Licensed merchandise products are extremely varied (e.g. mugs, bags, clothes, shoes, stationery, toys) but all carry one or more logos or images protected by intellectual property rights, such as copyright or trademarks.

The Commission found that Nike, Sanrio and NBCUniversal infringed Article 101 TFEU by imposing a wide range of direct and indirect measures meant to restrict licensees’ out-of-territory sales over several years, to the detriment of European consumers.

On 25 March 2019, the Commission fined Nike EUR 12.5 million for restricting sales of merchandising products of some of Europe’s best-known football clubs and federations. Similarly, on 9 July 2019, Sanrio was fined EUR 6.2 million for restricting traders from selling products featuring characters owned by Sanrio (such as Hello Kitty). Finally, on 30 January 2020, NBCUniversal was fined EUR 14.3 million for restricting sales of film merchandise products. Nike, Sanrio and NBCUniversal were granted a fine reduction in return for their cooperation beyond their legal obligations.


E-book MFNs and related matters (Amazon) (AT.40153)

On 11 June 2015, the Commission opened a formal investigation into Amazon’s e-book distribution arrangements (AT.40153). The Commission had concerns about certain clauses included in Amazon’s contracts with publishers. These clauses, sometimes referred to as "Most-Favoured-Nation" clauses, required publishers to offer Amazon similar (or better) terms and conditions as those offered to its competitors and/or to inform Amazon about more favourable or alternative terms given to Amazon's competitors. The clauses covered not only price, but also many aspects in which a competitor can differentiate itself from Amazon, such as an alternative business (distribution) model, an innovative e-book or a promotion.

The Commission considered that such clauses could make it more difficult for other e-book platforms to compete with Amazon, by reducing publishers' and competitors' ability and incentives to develop new and innovative e-books and alternative distribution services.

On 4 May 2017, the Commission adopted a decision that rendered legally binding the commitments offered by Amazon to address the Commission's preliminary concerns. Amazon committed inter alia not to enforce or include any of the relevant clauses in its e-books distribution agreements.  The commitments apply for a period of five years and to any e-book in any language distributed by Amazon in the EEA.


Cross-border access to pay-TV (AT.40023)

On 13 January 2014, the Commission opened an investigation on restrictions affecting cross-border pay-tv services and examined provisions in licensing agreements between major US film studios (Twentieth Century Fox, Warner Bros., Sony Pictures, NBCUniversal, Paramount Pictures) and Sky UK (AT.40023). Clauses in these agreements prevented Sky UK from allowing EU consumers outside the UK and Ireland to subscribe to Sky UK's pay-TV services to access films via satellite or online. They also required some of the studios to ensure that broadcasters other than Sky UK were prevented from making their pay-TV services available in the UK and Ireland. To address the Commission’s concerns, Paramount Pictures offered commitments that the Commission made binding via decision in July 2016. On 7 March 2019, the Commission adopted a decision making legally binding similar commitments offered by Disney, NBCUniversal, Sony Pictures, Warner Bros. and Sky UK. The commitments applied throughout the EEA for five years, and covered both online and satellite pay-TV services. Following the acquisition of Fox by Disney, the commitments also applied to Fox.

Both decisions of the Commission were appealed by Groupe Canal+, a third party broadcaster. While the General Court had upheld the 2016 Commission decision with its judgement in 2020, the Court of Justice of the European Union set aside the General Court's judgment and annulled that decision, finding that the commitments had disproportionally affected the contractual rights of Groupe Canal+ (case C 132/19). However, both the General Court and the Court of Justice upheld the Commission's preliminary competition concerns regarding the legality of the clauses in question. Both the General Court and the Court of Justice confirmed that licensing agreements with clauses designed to eliminate the cross-border provision of broadcasting services and conferring on broadcasters absolute territorial protection along national borders give rise to competition concerns.

In view of these rulings and the changes made to the agreements between the studios and broadcasters, and in light of the annulment of the 2016 decision, the Commission withdrew its decision making the 2019 commitments binding on Disney, NBCUniversal, Sony Pictures, Warner Bros. and Sky UK on 31 March 2021, and closed the proceedings.
 

Ebooks (AT.39847)

On 1 December 2011, the Commission opened proceedings to investigate whether five international e-book publishers (Hachette Livre, Harper Collins, Simon & Schuster, Penguin and Verlagsgruppe Georg von Holzbrinck) and Apple had engaged in anti-competitive practices concerning the sales of e-books in the EEA (AT.39847). The Commission had doubts concerning the joint switch by these companies from a wholesale model to agency contracts that all contained the same key terms for retail prices - including an unusual retail price Most Favoured Nation (MFN) clause, maximum retail price grids and the same 30% commission payable to Apple. In particular, the Commission was concerned that this switch was a part of a common strategy aimed at raising retail prices for e-books or preventing the introduction of lower retail prices for e-books, thus breaching Article 101 TFEU.

On 13 December 2012, the Commission adopted a decision that rendered legally binding commitments offered by four of the publishers (Hachette Livre, Harper Collins, Simon & Schuster and Verlagsgruppe Georg von Holtzbrinck) and Apple to address these concerns. In particular, the companies offered to terminate on-going agency agreements and to exclude certain clauses in their agency agreements during the next five years. The publishers also offered to give retailers freedom to discount e-books, subject to certain conditions, during a two-year period. On 25 July 2013, the Commission adopted a similar decision with regard to Penguin, which offered substantially the same commitments as the other four publishers.

 

State aid

In the media sector, State aid to public service broadcasting, films and printed and online news publishing and broadcast news media, is a recognition that government intervention may be necessary to fund services of general economic interest, to achieve economic objectives of growth and innovation, social cohesion, cultural diversity, media pluralism, and to satisfy society's democratic, social and cultural needs. The positive effects of State aid must be weighed against the risk of crowding out private initiatives and ultimately of hindering innovation. Whereas State aid to public service broadcasting should follow the rules in the Public Service Broadcasting Communication, and aid to film those in the Cinema Communication, State aid to news publishing and/or news broadcasting is approved on the basis of Article 107(3)(c).
 

Public service broadcasting

To minimise the impact of state subsidies on competition, the Commission requires EU countries to define the public-service obligations broadcasters must meet and limit state aid to the actual costs of these obligations. A public service broadcaster may carry out commercial activities, provided they are financed commercially and follow normal market behaviour.

The Broadcasting Communication requires ex ante control of significant new media services launched by public service broadcasters and which should receive State aid (balancing the market impact of such new services with their public value); addresses the issue of pay services in the public service remit; and requires effective control of overcompensation and supervision of the public service mission on the national level, while offering financial flexibility for public service broadcasters.

The Communication is designed to safeguard healthy competition in the rapidly evolving media environment. Public service broadcasters can take advantage of digital technology and Internet-based services to offer high quality services on all platforms, provided they do not distort competition unduly at the expense of other media operators. European citizens and stakeholders will be able to give their views in public consultations before any new services are put on the market by public service broadcasters.

See the list of cases  handled by the Commission.

The legal framework and the Commission’s policy towards public service broadcasting is further explained in:

Further reading:

 

A European approach to tackle online disinformation

On 26 April 2018 the Commission adopted a Communication on tackling online disinformation: a European Approach (COM(2018) 236 final).

Given the complexity of the matter and the fast pace of developments in the digital environment, the Commission considered a comprehensive response of the Union and the Member States.

One of the guiding principles of action in the fight against disinformation is to promote diversity of information, in order to enable citizens to make informed decisions based on critical thinking, through support to high quality journalism, media literacy, and the rebalancing of the relation between information creators and distributors.

Quality news media – including public media – and journalism play an important role in providing high quality and diverse information and to uncover, counterbalance, and dilute disinformation.

Accordingly, there is a need to invest in high quality journalism, reinforce trust in the key societal and democratic role of quality journalism, and encourage quality news media to explore innovative forms of journalism.

In that context, State aid may contribute, among other initiatives described in the Communication, to the support to quality journalism, media and, in particular, public service media as an essential element of a democratic society.

In the Communication, the Commission encourages Member States to consider horizontal aid schemes to address market failures that hamper the sustainability of quality journalism, as well as support measures for specific activities, such as training for journalists, service and product innovation.

Existing rules clarify the conditions under which public support may be granted by Member States. In addition, the Commission has adopted various decisions on State aid measures of Member States that have the objective to support the press, with a particular focus on quality journalism. Examples are State aid decisions regarding aid to the French and Spanish news agencies AFP and EFE, where the Commission acknowledges the importance of independent journalism and reporting for the reliability of information sources. Other decisions regarding, for example, Spain, Sweden and Finland, concern compatible aid schemes that help maintaining quality journalism in rural areas or for minority languages.

To enhance the transparency and predictability of State aid enforcement in this area, the Commission publishes this online repository in the area of State aid to the press and media. It contains references to the applicable State aid rules and relevant decisions adopted in this domain. Moreover, regularly updated information on aid granted by Member States will be accessible on the transparency register (State aid transparency public search page).

1. Existing relevant rules:

  • Articles 106(2) and 107(3)c of the Treaty on the Functioning of the European Union;
  • Regarding public service broadcasting, specific detailed guidelines are in place (Communication from the Commission on the application of State aid rules to public service broadcasting, OJ C 257 of 27 October 2009, p.1);
  • Depending on the type of support envisaged, the guidelines for R&D&I aid (Communication from the Commission — Framework for State aid for research and development and innovation, OJ C 198 of 27 June 2014, p. 1) may also be relevant;
  • Likewise, the General Block Exemption Regulation (Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty, OJ L 187 of 26 June 2014, p. 1, as amended by Commission Regulation (EU) 2017/1084 of 14 June 2017, OJ L 156 of 20.6.2017, p. 1) may be relevant with regard to training aid.

2. State aid decisions concerning aid to the press and media

 

Film support

Commission policy regarding state aid for film and audiovisual works is laid out in its 2013 Cinema Communication. The Communication allows film-support schemes meeting the following state aid assessment criteria to benefit from the cultural derogation to the general ban on state aid in the EU Treaty:

  • the aid must be legal under the EU Treaty (e.g., it must not be contrary to provisions of the TFEU in fields other than State aid );
  • territorial spending obligations are acceptable if they do not link more than 160% of the aid amount and in any case not more than 80% of the production budget to expenditure in the granting Member State;
  • the aid must be directed towards a cultural product. Each Member State must ensure that the content of the aided production is cultural according to verifiable national criteria (in compliance with the application of the subsidiarity principle);
  • the aid intensity must in principle be limited to 50% of the production budget, except in the case of difficult and low budget films;
  • the aid must not provide supplements for specific filmmaking activities (e.g. post-production).

The Cinema Communication refers to aid for film production, which represents about 80% of the film support provided by EU member countries (an estimated €1.5 billion per year), for developing film projects as well as for promoting and distributing films.

Aid for cinemas and other cinematographic and audiovisual cultural institutions, as well as festivals and other cultural performances and events may be granted in application of Article 53 of the General Block Exemption Regulation (Commission Regulation (EU) No 651/2014 of 17 June 2014 declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty, OJ L 187 of 26 June 2014, p. 1, as amended by Commission Regulation (EU) 2017/1084 of 14 June 2017, OJ L 156 of 20.6.2017, p. 1) may be relevant with regard to training aid.

List of decisions concerning aid to the audiovisual sector.

Further reading:

More about the Commission’s audiovisual policy:

 

Sports

Read about media and sports on the Sports section.

 

Mergers

As the media sector evolves rapidly, firms tend to develop new types of mergers and cooperation. Digital content is increasingly available and can be distributed across various platforms (digital terrestrial, cable, satellite, IPTV, Internet, mobile networks).

One of the Commission's main concerns is that mergers in the media sector do not significantly impede competition and that access to key elements (whether content, technology or interconnection) is not affected.

The Commission analyses markets, taking into consideration the technical and regulatory developments in the EU countries.

Recent cases include:

Clearance of Discovery’s acquisition of Scripps, subject to remedies

In February 2018, the Commission approved the proposed acquisition of Scripps by Discovery, both US based global media companies. The approval was conditional upon Discovery’s commitment to making certain TV channels available to current and future TV distributors in Poland for a reasonable fee (IP/18/670).
 

Clearance of Liberty Global’s acquisition of Ziggo

In May 2018, the Commission approved the proposed acquisition of Ziggo by Liberty Global, both cable TV operators providing mainly fixed telecommunications services. The approval was conditional on a series of commitments to address concerns relating to effective competition on the Dutch market for the wholesale of premium Pay TV film channel. This transaction was first approved in 2014. Following the annulment of this approval by the General Court in 2017, the Commission reassessed the merger (IP/18/3984).
 

Clearance of Comcast’s acquisition of Sky

In June 2018, the Commission approved unconditionally the proposed acquisition of Sky, a pay TV operator in Austria, Germany, Ireland, Italy and the UK, by Comcast, a global media, technology and entertainment company. Comcast owns Universal Pictures, one of the six major Hollywood film studios, and operators a number of TV channels (IP/18/4183).
 

Clearance of Disney’s acquisition of parts of Fox, subject to remedies

In November 2018, the Commission approved the proposed acquisition of parts of Fox, including its film and television studios, and its cable and international television businesses, by Disney. The approval was conditional upon Disney’s commitment to divest its interest in all factual channels it controls in the EEA (IP/18/6312).
 

Clearance of Bonnier Broadcasting’s acquisition by Telia, subject to remedies

In November 2019, following an in-depth investigation, the Commission approved the proposed acquisition of Bonnier Broadcasting by Telia. The approval was conditional upon the merged entity’s, amongst others, licensing its free-to-air and basic pay TV channels as well as premium pay TV sports channels to rival TV distributors in Finland and Sweden under fair, reasonable and non-discriminatory terms (IP/19/6271).