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H/APMD (2003) 1
Media diversity
in Europe
report prepared by the AP-MD
(Advisory Panel to the CDMM on media concentrations, pluralism
and diversity questions)
Media Division
Directorate General of Human Rights
Strasbourg, December 2002
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- 3 -
Report on
Media diversity
in Europe
by
Peter A. Bruck , Institute for Information Economy and New Media, Salzburg
Dieter Dörr, Professor for Public Law, Johannes Gutenberg!ni"ersit#t, Mainz
Jacques Favre, $om%etition $ommission, &erne
Sigve Gramstad, 'irector General, Norwegian Media (wnershi% )uthority,(slo
Rosaria Monaco, *ead of Legal )d"ice 'e%artment, +)I, +ome
Zrinjka Peruko !u"ek , *ead of 'e%artment for $ulture and $ommunication,IM(, agreb
)ssisted by the Secretariat of the Media 'i"ision of the $ouncil of Euro%e
Media Division
Directorate General of Human Rights
Strasbourg, December 2002
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-he )d"isory Panel on media di"ersity . )PM' . is a $ouncil of Euro%e wor/ing grou%
which was established after the 0th Euro%ean Ministerial $onference on mass media %olicy
1$racow, 2320 June 45556 with a "iew to monitoring de"elo%ments in the area of media
di"ersity and %luralism7 -his re%ort has been drawn u% by the )PM' and %resented to the
$ouncil of Euro%e Steering $ommittee on the Mass Media 1$'MM6, which has a%%ro"ed it7
-his being said, the $'MM is not bound by the conclusions and information %resented in the
re%ort, which is the full res%onsibility of its authors7
Media Division
Directorate Genera o! Human "ig#ts
$ounci o! %uro&e
'*0*+ Strasbourg $ede
#tt&-//...#umanrig#tscoeint/media/
Printed at t#e $ounci o! %uro&e
http://www.humanrights.coe.int/media/http://www.humanrights.coe.int/media/
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#AB$% &F '&(#%(#S
Page
Part 58 Introduction777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777773
Part )8 9reedom of e:%ression and information as a basis of media di"ersity 77777777777777777777773
I7 )rticle 25 of the E$*+ +eading the $on"ention in a new way8 from
freedom of e:%ression to freedom of information and beyond7777777777777777777777777777777777
II7 'i"ersity of culture as an as%ect of %luralism7777777777777777777777777777777777777777777777777777777777777
III7 'i"ersity of content and sources as an as%ect of %luralism7777777777777777777777777777777777777777
I;7 *ow to regulate the media mar/et . by s%ecial regulation or through
com%etition regulation777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777
Part &8 Media ownershi% regulations8 ensuring di"ersity in the %ri"ate sector77777777777777777777722
I7 Introduction to media ownershi% rules777777777777777777777777777777777777777777777777777777777777777777777
II7 (wnershi% rules in se"en Euro%ean countries8 /ey features for com%etent
authorities to safeguard %luralism77777777777777777777777777777777777777777777777777777777777777777777777777777
III7 +ecent trends in media ownershi% %ro"isions8 future regulatory %ro%osals for
anticoncentration measures7777777777777777777777777777777777777777777777777777777777777777777777777777777777777
I;7 9oreign ownershi% of media in countries of central and eastern Euro%e777777777777777777
Part $8 Public ser"ice broadcasting8 an essential element for media di"ersity7777777777777777777772<
Part '8 New technologies and di"ersity issues7777777777777777777777777777777777777777777777777777777777777777777772=
I7 $hallenges and o%%ortunities of con"ergent media77777777777777777777777777777777777777777777777777
II7 'igital terrestrial tele"ision 1'--677777777777777777777777777777777777777777777777777777777777777777777777777
Part E8 -rade liberalisation and audio"isual ser"ices7777777777777777777777777777777777777777777777777777777777744
Part 98 $onclusions and recommendations7777777777777777777777777777777777777777777777777777777777777777777777777774>
)PPEN'I?777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777740
I7 Structural e"olution of the media sector7777777777777777777777777777777777777777777777777777777777777777777II7 New trends towards crossmedia ownershi%8 the emergence of the multimedia
multinational7777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777
III7 $ross country mergers8 the lowering and erosion of national media mar/et
boundaries77777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777
I;7 -he e:am%le of telecommunications777777777777777777777777777777777777777777777777777777777777777777777777
I;7 -he ;odafone case7777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777777
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%)ecutive Summar*
)rticle 25 of the Euro%ean $on"ention on *uman +ights is the basic framewor/ for
media %luralism on the Euro%ean scale7 !nder its effect, States are under a @duty to %rotectA
and, when necessary, to ta/e %ositi"e measures to ensure di"ersity of o%inion in the media7-he Euro%ean $ourt of *uman +ights has stated that without %lurality of "oices and o%inions
in the media, the media cannot fulfil their contributory role in democracy7
-hus, Euro%ean States are under the obligation of safeguarding and %romoting
%luralism in the media7
-his re%ort e:amines factors and %oints to measures which are s%ecific and sensiti"e to
"arying conte:ts7
Gi"en the significant differences in culture, in the size and characteristics of media
mar/ets, and in legal and administrati"e traditions within Euro%e, no common or singleregulatory model will be suitable for all Euro%ean countries7
Gi"en this, it is nonetheless clear that a com%etition law a%%roach alone is not
sufficient7 Sectors%ecific media ownershi% measures and regulations are necessary and will
contribute %ositi"ely to media %luralism obBecti"es7
'ifferent indicators and thresholds are used in Euro%ean countries to monitor and
control media concentrations7 -his re%ort recalls that the audience share a%%roach is one of
the %ossible models, which %resents the ad"antage of reflecting the real influence of a
broadcaster in a gi"en mar/et and at the same time is neutral on the number of licences which
the broadcaster can hold and allows its international de"elo%ment7 Chiche"er the indicator
em%loyed, %ermissible thresholds "ary at around 2D of the audience, 2D of re"enues or 2D of
the networ/ ca%acity, im%lying a general Euro%ean understanding that controlling one third of
the mar/et is tolerable, but that going beyond that le"el could infringe u%on freedom of
e:%ression and information7
Media ownershi% rules need to be com%lemented by other measures which fa"our
media %luralism8 %ublic ser"ice broadcasting has an essential role to %lay in this res%ect and
ensuring di"ersity at the le"el of sources is also im%ortant7
-he de"elo%ment of digital technology %oses new challenges to %luralism whichresults from, among others, the use of %ro%rietary systems by o%erators7 -he trend towards
media concentration is strengthened with digital con"ergence7
Liberalisation and globalisation of mar/ets increase the %ressures for concentration on
the national scale7
States need to strengthen national regulators and authorities res%onsible for ensuring
and %rotecting media %luralism7 $onstant monitoring and %roacti"e %olicyma/ing by States
are reFuired7
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Media diversity in Europe Page +
PART 0: INTRODUCTION
1. -he im%ortant role which the media %lays in sha%ing %ublic o%inion should be
recognised and gi"en %articular attention when addressing Fuestions of
economicDmar/et concentration in this sector7
2. Media enter%rises, as economic units, are subBect to mar/et rules, and conseFuently,
com%etition legislation can a%%ly to this sector too7 *owe"er, gi"en the heterogenous
nature of the media mar/et, com%etition authorities often ha"e difficulties in
determining the @rele"ant mar/etA, and furthermore it is generally acce%ted that
com%etition law alone is not sufficient to ensure media %luralism7
3. Guaranteeing media di"ersity, in %articular in the current trend of globalisation,
reFuires an a%%roach which se%arates media content Fuestions from %urely economic
ones7
4. -his re%ort deals with different a"enues to %romote and ensure di"ersity in the media,
focusing in %articular on the broadcasting sector7 It %resents, for instance, e:am%les of
media ownershi% rules, and stresses the im%ortance of ha"ing strong %ublic ser"ice
broadcasting and intero%erable technical standards7
PART A: FREEDOM OF EXPRESSION AND INFORMATION
AS A BASIS OF MEDIA DIVERSITY
+. AR#+'$% ,- &F #% %'R / R %AD+(G #% '&(0%(#+&( +( A (%1 1A23 FR&M FR%%D&M &F %4PR%SS+&( #& FR%%D&M &F +(F&RMA#+&( A(D B%2&(D
5. )rticle 25 of the Euro%ean $on"ention on *uman +ights1 is of crucial im%ortance on
the Fuestion of media di"ersity7 In effect, it ma/es res%ect for the human right to
freedom of o%inion binding on all member States of the $ouncil of Euro%e7 -he
contents of this reFuirement ha"e been narrowed down in the numerous Budgements of
the Euro%ean $ourt of *uman +ights7 9urthermore, the )rticle concerns legally
enforceable, indi"idual rights, and since the entry into force of Protocol No7 22 to the
$on"ention any citizen of a signatory State is entitled, after e:hausting domesticremedies, to lodge a com%laint alleging a "iolation of these human rights with the
$ourt7 Lastly, within the Euro%ean !nion, the rights guaranteed by the $on"ention,
and therefore also by )rticle 25, Fualify as general %rinci%les of $ommunity law, as is
now e:%ressly ac/nowledged in )rticle 074 of the -reaty on the Euro%ean !nion
1MaastrichtD)msterdam67
1 )rticle 25 of the Euro%ean $on"ention on *uman +ights reads8 @27 E"eryone has the right to freedom of e:%ression7 -his
right shall include freedom to hold o%inions and to recei"e and im%art information and ideas without interference by %ublic
authority and regardless of frontiers7 -his article shall not %re"ent States from reFuiring the licensing of broadcasting,tele"ision or cinema enter%rises7 47 -he e:ercise of these freedoms, since it carries duties and res%onsibilities, may be subBect
to such formalities, conditions, restrictions or %enalties as are %rescribed by law and necessary in a democratic society, in the
interests of national security, territorial integrity or %ublic safety, for the %re"ention of disorder or crime, for the %rotection of health or morals, for the %rotection of the re%utation or rights of others, for %re"enting the disclosure of information recei"ed
in confidence, or for maintaining the authority and im%artiality of the Budiciary7A
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Page Council of Europe
6. )rticle 2572 first and foremost guarantees the indi"idual right to freedom of
e:%ression7 )s indicated in the second sentence of the same %aragra%h, this includes
freedom of information7 *owe"er, no e:%ress mention is made to freedom of the
media or to media %lurality and di"ersity7 9reedom of broadcasting and of the %ress as
%art of acti"e and %assi"e freedom of o%inion is arri"ed at by an inter%retation of thesecond sentence of )rticle 25727 -he Euro%ean $ourt of *uman +ights first construed
)rticle 2572 in terms of indi"idual rights and regarded freedom of broadcasting as
deri"ing from freedom of e:%ression and as a form of freedom of enter%rise, that is,
freedom to %ursue a %ri"ate broadcasting acti"ity27
7. )t first sight, this %ers%ecti"e differs clearly from the functional a%%roach to media
freedoms ta/en, for e:am%le, by the $onstitutional $ourts in Germany and Italy7
Generally s%ea/ing, in Euro%ean countries, freedom of broadcasting is %ercei"ed as a
%ur%oseser"ing freedom or a functional basic right37 -his a%%roach is based on the
assum%tion that freedom of broadcasting, li/e other media freedoms, is aimed at
ensuring freedom of information and must therefore afford the %ublic access to free,com%rehensi"e information, in the interests of democracy7 9reedom of the media
accordingly im%lies that the %ublic has access to a free media system, which %ro"ides
o"erall balanced, full and "aried information7 -he underlying idea is that a free
system of this /ind is an essential %rereFuisite for a functioning democracy7 It follows
that this conce%t of freedom of the media also guarantees media di"ersity7 -he State is
moreo"er obliged to ta/e %ositi"e regulatory measures ensuring the widest %ossible
range of balanced %ri"ate media, if for %ractical reasons such "ariety is not in fact
achie"ed47
8. -he more recent Budgments of the Euro%ean $ourt of *uman +ights clearly show that
Strasbourg still regards freedom of the media as %art of the indi"idual right to freedom
of e:%ression enshrined in )rticle 2572 of the $on"ention7 -he conce%t of the
%ur%oseser"ing function of the media as a means of %romoting freedom of
information has nonetheless been ta/en u% and a%%lied elsewhere by the $ourt,
namely in connection with )rticle 25747 -his has %ermitted the $ourt to ta/e into
account the socialDcultural and %oliticalDdemocratic facets of the media and to
introduce these into its decisions7 9or instance, it stressed in the Budgment concerning
the )ustrian broadcasting mono%oly5 that the %reser"ation of a %lural, culturally
di"erse broadcasting offer was undoubtedly an aim that could Bustify restrictions to
broadcastersH freedoms7 9urthermore, such %luralism can be achie"ed by other means
than a %ublic ser"ice broadcasting mono%oly, for e:am%le, through a dual broadcastingsystem7
2 See, abo"e all, the Euro%ean $ourt of *uman +ightsH Lentia Informations"erein Budgment of 4>72272 in Euro%#ische
Grundrechtseitshrift 1EuG+6 2>, %7 3> similarly, see the Budgment deli"ered by the $ourt on 4=7725 in EuG+ 25,
%7 433 for a commentary, see M7 Stoc/, E!Medienfreiheit Kommuni/ationsgrundrecht oder !nternehmerfreiheit
19reedom of the media in the E! a fundamental right to communicate or freedom of enter%rise6 in Kommuni/ation
+echt 4552, %%7 4= and 44 ff73 See the leading decision of the 9ederal $onstitutional $ourt 1&;erfGE6, No7 3
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Media diversity in Europe Page *
9. -he need to guarantee media %luralism in the conte:t of )rticle 25 of the $on"ention
has been underlined by the Euro%ean $ourt of *uman +ights in other Budgments7 9or
e:am%le, in the Jersild case, it em%hasised the im%ortance of the audio"isual media for
a democratic society6 7 In the Piermont Budgment of 47237 , the $ourt li/ewise
referred to the mediaOs im%ortant role in a democratic society and the related need for %luralism, tolerance and o%enness7 Lastly, in the &ladet -roms8, 9ressoz and +oire,9
(berschlic/ 10 and Janows/i11 cases, it stressed the s%ecial democratic role of the %ress
as a %ublic watchdog7
10. It can therefore be seen that the Euro%ean $ourt of *uman +ights has recently been
gi"ing increasing weight to the social, cultural, %olitical and democratic role of the
media, although this is done in the conte:t of the restrictions under )rticle 25747 It is
also worth noting that the Euro%ean !nion follows this case law7 -he Euro%ean $ourt
of Justice considers that, in the light of )rticle 2574 of the $on"ention, there is a
com%elling %ublic interest in the maintenance of a %luralistic radio and tele"ision
system, which Bustifies restrictions on fundamental freedoms127 )rticle 25 of the$on"ention accordingly not only enshrines an indi"idual right to media freedom, but
also entails a duty to guarantee %luralism of o%inion and cultural di"ersity of the media
in the interests of a functioning democracy and of freedom of information for all7
Pluralism is thus a basic general rule of Euro%ean media %olicy7
++. D+0%RS+#2 &F '5$#5R% AS A( ASP%'# &F P$5RA$+SM
11. In Euro%e, cultural di"ersity is an integral %art of Euro%ean cultural identity7 -he
ability of the media to reflect the cultural di"ersity de%ends on the %lurality of the
media7
12. 9reedom of information im%lies that citizens will ha"e the %ossibility to access a
"ariety of information, %rimarily different o%inions and ideas, but in a wider conte:t
also a "ariety of cultural as%ects and e:%ressions7 $ulture in a broad sense influences
society in subtle ways, building the basis on which we form our o%inions7 !niformity
in the media strengthens the tendency to conformity and wea/ens the ability to assess
other %ers%ecti"es and alternati"e o%inions7 Euro%e has the ad"antage of ha"ing many
cultures7 -he reflection of this cultural di"ersity in the media strengthens the sense of
Euro%ean identity and the citizenOs ability for democratic %artici%ation7
13. Cithin the framewor/ of the Corld -rade (rganisation, there is an attem%t to treatculture as an ordinary commercial good or ser"ice7 Should such efforts succeed, there
is a danger of narrowing cultural di"ersity down to one or a few dominant cultures
6 Judgment of 4772>, Series ) No7 4=, %7 4, Q 27 Judgment of 4723, Rearboo/ of the Euro%ean $on"ention on *uman +ights 23, 4338 Judgment of 457372, Neue Buristische Cochenschrift 1NJC6 4555, 25239 Judgment of 427272, NJC 2, 22310
Judgment of 27
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Page Council of Europe
which will ser"e global audiences through the global dominant media7 $om%etition
between cultures or cultural e:%ressions and "alues im%lies that someone will gain
mar/et shares and thus marginalise or e:tinguish other cultures or cultural
e:%ressions7 -his is, howe"er, contrary to the traditional Euro%ean "iew on cultural
di"ersity7 -he Euro%ean tradition, which has been strengthened o"er the last decade, is
to ac/nowledge the "alue of Euro%ean cultural di"ersity, and rather than lettingmaBority cultures @winA o"er minority cultures, the %olicy has been to %rotect and
%romote minority cultures7 -his %olicy is based on a belief that culture and cultural
e:%ressions transcend the notion of being a merchandise, and that cultural di"ersity
contributes %rofoundly to Euro%ean identity and democracy7
14. -he technological, economic and social facets of globalisation a%%ear at the same time
as challenges and as o%%ortunities to a newly highlighted cultural di"ersity7 -he
ongoing im%ortant efforts by the nongo"ernmental International Networ/ for $ultural
'i"ersity 1IN$'6 and the International Networ/ on $ultural Policy 1IN$P6 of the
Ministers of $ulture to %re%are an international con"ention for the %rotection of
cultural di"ersity %ro"ide an o%%ortunity to ele"ate cultural di"ersity as a %olicy aim both within national cultural and media %olicies and as a %rotected global "alue7 It
seems a%%ro%riate that the $ouncil of Euro%e member States closely follow the
de"elo%ments of this debate and its conseFuence on the %rotection of and su%%ort for
media %luralism7
+++. D+0%RS+#2 &F '&(#%(# A(D S&5R'%S AS A( ASP%'# &F P$5RA$+SM
15. 'i"ersity in the ownershi% of media outlets is not sufficient %er se to ensure %luralism
of media content7 -he way media content is %roduced also has an im%act on the
o"erall le"el of %lurality in the media7
16. +eaders who consult se"eral news%a%ers sometimes find they contain the same
articles, usually %receded by the initials of a %ress agency7 -ele"ision "iewers who
switch from one channel to another often see the same news re%orts, documentaries or
dramas7 -he reason for this uniformity is that the newsrooms of media com%anies do
not themsel"es %roduce all their articles or %rogrammes7 -hey use outside agencies
that su%%ly information, %hotos, newsreel, broadcasts, documentaries, series and films7
)s a conseFuence, the intense com%etition between news%a%ers or tele"ision channels
does not itself guarantee %luralistic content7 -his raises the Fuestion of whether, and if
so to what e:tent, inadeFuate com%etition among information sources can ha"e anegati"e effect on the functioning of democratic society7
17. Particular attention must be %aid to restrictions related to information which is
necessary to form %ublic o%inion7 ) mono%oly situation as regards such information
can be e:%loited to mani%ulate %ublic o%inion7 -his ha%%ens, for e:am%le, when
Bournalists co"ering a conflict are denied access to the %lace of o%erations and ha"e to
ma/e do with re%orts su%%lied by military %ress s%o/es%ersons, as was the case in the
Gulf Car7 -here is also the danger of uniform sources of economic information, with
consumers no longer able to fulfil their role in the mar/et economy7 !niformity
occurs when it is im%ossible to chec/ information using other sources7 -he Internet
encourages di"ersity of information sources, %articularly in discussion fora7 &ut it can
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Media diversity in Europe Page
do little to counter the uniformity of unchec/able information su%%lied by
go"ernments, organisations and businesses7
18. In"estigati"e Bournalism is e:%ensi"e but necessary if the media are to fulfil their
@%ublic watchdogA role7 In this res%ect, it is noted that %ublic tele"ision channels
generally do ha"e sufficient resources to %ro"ide welldocumented information, than/sto their licence fee income, whilst smaller media com%anies rarely ha"e the necessary
resources for this ty%e of Bournalism7 Press conferences can also be a useful source of
information they offer Bournalists an o%%ortunity to Fuestion their source %ro"ided
that Bournalists ha"e the resources 1timewise and other6 to "erifyDchec/ the
information recei"ed7
19. 'es%ite the Fuantity of information recei"ed by newsrooms, the %ublic has the
im%ression that it sees the same headlines almost e"erywhere7 -he media as a whole
focus on a limited number of e"ents that are gi"en %riority o"er all the others7 (ften
they are relati"ely tri"ial, and the attention they recei"e only lasts a short time, after
which it shifts to other news items7 -his is the conseFuence of the intense com%etition between media underta/ings to retain %ublic readersH and "iewersH . attention7
$om%etition is sometimes res%onsible for influencing the way information is
%resented, fa"oring attracti"e formats rather than the actual content7 -he selection of
information is not go"erned solely by mar/eting considerations, there is also a form of
@Bournalistic correctnessA, which is guided by the %erce%tion BournalistsO ha"e of
society7
20. Pluralism is not enhanced when newsrooms confine themsel"es to re%eating agency
re%orts or showing %ictures su%%lied by other channels, for e:am%le foreign ones in
the case of e"ents abroad7 In such cases, the BournalistsH role is reduced to selectingfrom a great mass of information coming from a limited number of sources7
+0. &1 #& R%G5$A#% #% M%D+A MAR6%# 7 B2 SP%'+A$ R%G5$A#+&( &R #R&5G'&MP%#+#+&( R%G5$A#+&(
21. $om%etition legislation a%%lies to the media sector, as well as to all other economic
sectors in most countries7 -he %ur%ose of com%etition legislation is to secure an
effecti"e use of societyOs resources by creating conditions for real com%etition7 -he
E! merger regulation, monitored and enforced by the Euro%ean $ommission, has a
similar %ur%ose7 Mergers and acFuisitions within the media sector are thereforee:amined by com%etition authorities, at the national and E! le"els 1for E! member
States67
22. Ne"ertheless, a number of countries ha"e introduced s%ecial regulations to secure
media %luralism7 -he main reason behind such s%ecial regulations is that com%etition
legislation is considered insufficient to secure media %luralism7 -he %ur%ose of media
s%ecific regulation is to secure freedom of e:%ression and information, and the main
concern of media regulation is to safeguard the human and democratic rights of
indi"iduals7 -he assessment of conditions for effecti"e com%etition is not within the
sco%e of media regulation, and li/ewise com%etition authorities will not ta/e freedom
of e:%ression and information into consideration7 Media %luralism is not a %rimarygoal of com%etition legislation7
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Page 10 Council of Europe
23. Cithin the Euro%ean !nion, the 'irectorate General for $om%etition is res%onsible for
com%etition regulation, and a number of acFuisitions and merger cases ha"e been dealt
with7 Some of these cases ha"e in"ol"ed media com%anies7 In many of the @mediaA
cases in which the 'irectorate General for $om%etition has inter"ened, the
inter"ention has had %ositi"e effects also in relation to freedom of e:%ression andmedia %luralism7 Generally s%ea/ing, howe"er, com%etition legislation will only deal
with a minority of rele"ant cases 1from a media %luralism %oint of "iew6, and the
decisions are often too restricted to meet the needs of the media and cultural concerns7
24. -his shortcoming has been ac/nowledged in the Euro%ean !nionOs regulation7
&asically, the 'irectorate General for $om%etition has e:clusi"e com%etence to deal
with acFuisitions and mergers that fall within E! regulation7 National authorities ha"e
no com%etence to deal with those cases7 -here e:ists, howe"er, an e:ce%tion for cases
concerning media %luralism137 E"en if a case is being dealt with by the 'irectorate
General for $om%etition, the case can also be dealt with by national authorities, and
member States may establish stricter rules than the E! regulation7 -he fact that thereis an e:ce%tion for media %luralism in addition to %ublic security and %rudential rules,
demonstrates the im%ortance attached to media %luralism7 Chen the $ouncil
+egulation was ado%ted, it was clear that the economic and com%etition as%ects that
the regulation was based u%on did not ma/e it suitable for the safeguarding of media
%luralism7
25. )t a conference in No"ember 4552, $om%etition $ommissioner Mario M(N-I
commented in relation to the regulation of the media industry that @com%etition rules
are necessary to ensure an effecti"e, functioning free mar/etA, but added8 @-here will
often also be a "aluable %olitical aim to ensure media %lurality and a di"ersity of o%inion both within and across media7 Such %lurality and di"ersity are fundamental to
the health of an o%en, democratic society . may not be assured by a sim%le free mar/et
a%%roach7A
26. Mr Monti %ointed out that the need for media %lurality is %artly ensured by the
com%etition rules themsel"es, and he ga"e some e:am%les, which ha"e been
mentioned %re"iously in this re%ort7 *e ne"ertheless stated the following8 @In other
cases, howe"er, there may be legitimate concerns about media concentration where the
mar/et %ower is less than would trigger com%etition concerns7 In such cases, the
com%etition rules would normally be insufficient to ensure media %lurality7 )nd in
such cases, member States are free to im%lement additional rules7 Chere they aresee/ing to ensure media %lurality, they can e"en %re"ent mergers that would otherwise
be a%%ro"ed under the com%etition rules7A Similar %oints of "iew were %ut forward
during a seminar held by the &elgian E! $hairmanshi% in autumn 45527
27. -he %ur%ose and general sco%e of a%%lication of national com%etition rules are in
accordance with the E! regulation7 -he main difference is the di"ision of com%etence
between national com%etition authorities and the Euro%ean $ommission7 Practices in
se"eral countries show that there are "ery few cases which are being dealt with by
both com%etition authorities and media regulatory bodies7
13 $ouncil +egulation 1E$6 No >50>D= of 42 'ecember 2= )rt7 42 16
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28. $om%etition regulation does not gi"e a satisfactory %rotection against media
concentrations which are contrary to freedom of e:%ression and information, and to
the le"el of media %luralism which is desirable in a democratic society7 -here is
definitely a need for sectors%ecific media regulation7
PART B: MEDIA OWNERSHIP REGULATIONS: ENSURING
DIVERSITY IN THE PRIVATE SECTOR
+. +(#R&D5'#+&( #& M%D+A &1(%RS+P R5$%S
29. -here is great "ariety in the regulations of the different $ouncil of Euro%e member
States as regards concentration control in the media sector7 -his being said, in
countries where there are sectors%ecific regulations on media ownershi%, in additionto general com%etition law which a%%lies subsidiarily to the media sector, it a%%ears
that the legislation, irres%ecti"e of the criteria or monitoring threshold em%loyed, aims
at ensuring at least three o%erators in the mar/et .two %ri"ate and one %ublic ser"ice7
30. -herefore, although a single regulatory %attern does not emerge across Euro%e,
generally s%ea/ing it could be sustained that controlling more than 2D of the
tele"ision mar/et is deemed as a limit in many States7 -his would mean that a
minimum le"el of di"ersity and %lurality im%lies ha"ing at least three nationwide
broadcasters7 -he situation in some smaller countries can be different, since there are
limits on the economic affordability of %ri"ate broadcasting, where maybe only one
%ri"ate broadcaster can be su%%orted by ad"ertising re"enues7 In se"eral @smallerAcountries, the foreign channels recei"ed are a means of contributing to %luralism7
31. Gi"en the "ariety of ownershi% models throughout Euro%e, it would be unrealistic to
consider that a common Euro%ean regulatory a%%roach in this area would be feasible7
E! member States ha"e already in"o/ed in the %ast that securing media %luralism is a
national com%etence 1%rinci%le of subsidiarity6, which has resulted in no action being
ta/en so far on media ownershi% at the E! le"el7 In the same "ein, this re%ort does not
recommend a %articular regulatory model for all $ouncil of Euro%e member States7 It
is ne"ertheless recalled that the audience share a%%roach is a widely used model,
which %resents the ad"antage of reflecting the real influence of a broadcaster in a
gi"en mar/et and which, at the same time, is neutral on the number of licences which
the broadcaster can hold and allows its international de"elo%ment7 -his model may
ne"ertheless be difficult to im%lement in certain countries7
++. &1(%RS+P R5$%S +( S%0%( %5R&P%A( '&5(#R+%S3 6%2 F%A#5R%S F&R '&MP%#%(# A5#&R+#+%S #& SAF%G5ARD P$5RA$+SM
32. ) summarised and com%arati"e o"er"iew of media ownershi% regulations in se"en
Euro%ean countries 19rance, !nited Kingdom, Germany, Italy, S%ain, Norway and
$roatia6 is %resented below7 -he measurementsDcriteria used in these se"en countries
to determine dominance and unacce%table mar/et concentration are Fuite "aried8
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audience share, eFuity limits, "oting rights, turno"er, etc7, and can be regarded as
re%resentati"e regulatory a%%roaches for the whole of Euro%e7
France -he basic limit in 9rance is that a legal %erson cannot hold, directly or
indirectly, more than > of the share capital or voting rights in anationwide terrestrial tele"ision ser"ice7 (wners of news%a%ers are
subBect to a circulation limit of 5 of the mar/et of the same ty%e of
dailies7 Audience share thresholds are also used as criteria to control
concentration in 9rance7 -he following audience thresholds a%%ly radio8
235 million inhabitants local regional terrestrial tele"ision -;8 0
million inhabitants cable -;8 = million inhabitants7 In addition, there are
numerical limits on the number of broadcasting licences which can be
held by the same %hysical or legal %erson, which ha"e to be ta/en into
consideration in combination with the audience share andDor ca%ital share
limits7 So far, o%erators ha"e been %ermitted to hold 2 licence at the
national le"el and 4 for satellite tele"ision ser"ices, but a degree of fle:ibility has been introduced for 'igital -errestrial -ele"ision 1'--;6,
where the same legal %erson can hold u% to 3 licences, and the >
ca%ital share limit does not a%%ly7 -here are no numerical limits for radio
and cable licences, but audience thresholds ne"ertheless a%%ly to the
latter7 -he crossownershi% regime is based on the “two out of four” rule8
o%erators are not %ermitted to hold interests in more than two of the
following four sectors8 terrestrial -;, cable -;, radio or %ress, and if an
o%erator is acti"e in two of these sectors, it must res%ect certain
thresholds7 -urno"er is not used as a criterion to control media
concentrations in 9rance7
5nited 6ingdom News%a%er concentrations are subBect to s%ecific %ro"isions under com%etition regulations7 -he threshold "alue in the %ress sector is an
average circulation of o"er 355,555 co%ies7 Chere a news%a%er
%ro%rietor has reached this threshold and intends to further e:%and, the
%ro%osed mergerDacFuisition will be authorisedDreBected after testing
whether or not it is in the %ublic interest7 -he %ublic interest test includes
the desirability of %romoting %lurality of ownershi%, di"ersity in the
sources of information a"ailable to the %ublic and in the o%inions
e:%ressed in the media7 -he basic threshold for the broadcasting sector is
23 of the total market share, measured in terms of audience time 1andincluding the %ublic ser"ice broadcasting audiences67 Chere an o%erator
has reached this threshold, a number of numerical and eFuity limits
concerning additional licences come into %lay, to %re"ent an
accumulation of interests in the tele"ision sector7 -he same 23
threshold is used for the radio sector, in conBunction with a %oints system
that attributes a weighting to the size of the audience in the co"erage area
of the licensee7 -he cross-ownership regime %re"ents a news%a%er owner
with a mar/et share of 45 from holding national terrestrial licences
1$hannel or 3 licences6 but there is no restriction for such a news%a%er
owner in holding licences for local deli"ery ser"ices, satellite tele"ision
ser"ices or digital multi%le: ser"ices7 Chere the news%a%er owner has amar/et share of less than 45, any intended crossholdings with regional
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or national $hannel or 3 licences will be e:amined against a %ublic
interest test7 -he draft $ommunications &ill contains %ro%osals to
radically reform the e:isting media ownershi% rules and reduce them to
the minimum necessary7 -he main changes in the &ill are8 1i6 the remo"al
of the e:isting restrictions on the nonEuro%ean ownershi% of
broadcasting licences, 1ii6 the remo"al of the 23 total -; audiencelimit, 1iii6 a rela:ation of the rules on radio ownershi%, and 1i"6 a less
onerous news%a%er merger regime7
German* $oncentration cases in the %ress, radio and tele"ision sectors fall under the sco%e of general com%etition law 1subsidiary a%%lication to the
tele"ision sector67 -he nationwide tele"ision sector is also subBect to
sectors%ecific legislation to safeguard %lurality in the media7 -here are
no numerical limits on the numbers of channels which o%erators are
%ermitted to e:%loit, but it is %rohibited for an o%erator to reach a
dominant o%inionforming %osition with its %rogrammes7 -he e:istence
of such a dominant o%inion %osition is assumed when an o%erator has a
general tele"ision audience share 1annual a"erage ta/ing into account allthe channels of a gi"en o%erator6 of more than 5 with the %rogrammes
that can be attributed to it7 *owe"er, this 5 threshold is as a rule only
an assum%tion which can be dis%ro"ed in each s%ecific case7 )lso, a
dominant o%inion %osition can be a%%ro"ed e"en abo"e a "iewer share of
5 7 -he &roadcasting State -reaty of the L#nder in its "ersion of 2 July
4554 will allow more e:tensi"ely to ta/e other factors into consideration
when e:amining whether there is a dominant o%inionforming %osition,
such as the %osition of the o%erator on similar mar/ets that are rele"ant
for the media7 9urthermore, as a means to secure %lurality of o%inion,
there is a regulation according to which %rogrammes with a tele"ision
audience share of abo"e 25 or o%erators with an o"erall "iewer share
of more than 45 are obliged to broadcast %rogrammes of inde%endent
third o%erators, socalled @window %rogrammesA, to a certain e:tent7
-here are no s%ecific crossownershi% regulations, but there are some
limitations at the L#nder le"el which %re"ent owners of maBor local or
regional news%a%ers from o%erating local or regional broadcasting
stations7 -urno"er is not used as a criterion to determine whether a
broadcaster has a dominant o%inionforming %osition or not7
S8ain )s regards nationwide analogue terrestrial broadcasters, as well as digital
terrestrial tele"ision 1'--6, the ownershi% limit that a legal or natural %erson could not hold, directly or indirectly, more than > of the share
capital in a licenceholding com%any has been abolished7 )s regards
local tele"ision, it is forbidden to hold more than two licences for the
e:%loitation of such ser"ices, or to carry out networ/ing, unless an
authorisation from the State or )utonmous $ommunity has been
obtained on grounds of the territorial, social or cultural characteristics of
the munici%alities7 -he main limit in the cable sector is that no legal or
%hysical %erson can hold shares, directly or indirectly, in two or more
com%anies which ha"e obtained a licence if they Bointly ha"e more than
2,3 million subscribers in the country7 No ownershi% limits e:ist for
analogue satellite broadcasters7 -here are no cross-ownership restrictionsin S%ain7 Pro"ided that com%anies res%ect general com%etition law and
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the s%ecific ownershi% limits mentioned abo"e, they may simultaneously
own or control an unlimited number of national and regional news%a%ers,
radio networ/s, satellite or regional '--; ser"ices7
+ta"* In addition to general com%etition law which also a%%lies to the mediasector, the national %ress mar/et is subBect to limits based on circulation
figures8 an owner cannot hold more than 45 of the o"erall circulation of dailies in this mar/et, whilst concentration control in the regional %ress
mar/et is based u%on the number of different news%a%ers owned by a
single %ro%rietor8 the latter cannot control more than 35 of the total
number of dailies in the region7 )s regards free nationwide terrestrial
tele"ision, there is a numerical limit on the number of licences which can
be held by a single %erson8 45 of the networ/ ca%acity, that is, currently
a ma:imum of two channels, since there there are 22 freFuencies for
channels 1this limit is therefore "ariable and de%ends on the number of
a"ailable freFuencies67 )s regards nationwide %ay terrestrial tele"ision,
only one licence can be held7 In addition to this numerical limit, a limit
based on turnover also a%%lies to %ay and free -; terrestrial broadcasters8 they may not accumulate more than 5 of the resources
of the tele"ision sector7 $able and satellite broadcasters are also subBect
to a 5 turno"er limit of the resources in their res%ecti"e mar/ets7 -he
cross-ownership regime is also based on ma:imum financial resources
which an o%erator can accumulate8 owners with interests in the radio or
broadcasting and news%a%er or magazine sectors cannot hold more than
45 of the total resources obtained from ad"ertising, telesho%%ing,
s%onsorshi%, -; subscri%tion re"enue, financing of %ublic ser"ice
broadcasting, and re"enues from news%a%er electronic %ublishing sales
and subscri%tions7 ) draft law foresees the elimination of %re"ious cross
ownershi% limits between %ress and tele"ision7 -he current limit based on
re"enuesDresources will be reduced for all o%erators from 5 to 45
but will be calculated ta/ing into account the total re"enues from all
media mar/ets7
(or9a* Media concentrations are regulated in the Media (wnershi% )ct of 2
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'roatia S%ecific media related anticoncentration regulation e:ists only for the broadcasting media, other media and crossmedia ownershi% falling
under the sco%e of the general Law on the %rotection of mar/et
com%etition 12=6, where mar/et share is defined andDor limited in
terms of turno"er7 -he Law on -elecommunications 126 limits to onethird the share in the ca%ital in terrestrial radio and tele"ision, and allows
%artici%ation in only one radio or tele"ision organisation with a national
licence7 )t the local le"el, this rule is rela:ed and allows ca%ital share in
both radio and tele"ision, but only in nonadBoining areas7 In "ery small
areas 1less than 3555 or 25555 %eo%le6, it is %ossible to own 255 or
35 of the media, res%ecti"ely7 9oreign ca%ital is allowed only u% to
onethird of ownershi% in any broadcasting media, with no restrictions in
the %ress7 In 4554, the go"ernment initiated a debate around its thesis for
a Media law, en"isaging a crossmedia ownershi% anti concentration
%ro"ision7
+++. R %'%(# #R%(DS +( M%D+A &1(%RS+P PR&0+S+&(S3 F5#5R% R%G5$A#&R2 PR&P&SA$S F&R A(#+/'&('%(#RA#+&( M%AS5R%S
33. Generally s%ea/ing, con"ergenceDdigitalisation has led to a growth of deli"ery means
of di"erse content7 )t the same time, a trend towards the liberalisation of media
ownershi% restrictions can be noted7 Less stringent numerical limits on the number of
licences which a single o%erator can hold or more fle:ible crossownershi% rules, are,
for e:am%le, being considered in a number of countries7
34. -he s%ecificities of digital deli"ery %latforms do not always ma/e it feasible or
rele"ant to a%%ly traditional ownershi% limits to all of the new deli"ery %latforms7 -his
is %articularly true for digital terrestrial tele"ision 1'--6, and s%ecial regulations on
the ownershi% of '-- multi%le:es ha"e therefore been introduced in some countries7
35. -his being said, generally s%ea/ing, e:isting regulations on media ownershi% are also
a%%lied to digital broadcasting ser"ices in most Euro%ean countries 1for e:am%le, the
audience share thresholds in Germany a%%ly to both analogue and digital tele"ision
ser"ices67 ) new com%lementary limit for digital deli"ery %latforms has been ado%ted
in Italy 1and is being considered in other countries6 based on reser"ing >5 of thetransmission ca%acity to inde%endent %rogrammers7
36. Some countries ha"e recently been considering the introduction of media ownershi%
regulatory models based on a general clause of in"estigation, which would allow
regulatory authorities to inter"ene whene"er they found that a media concentration
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case might be detrimental to freedom of e:%ression and the goal of ensuring di"ersity
of o%inions and ser"ices 1for e:am%le, Sweden1467
37. -hese systems easily ada%t to new circumstances as o%%osed to sectors%ecific
%ro"isions, which in"ol"e long decisionma/ing %rocesses, and which need to be
amended to co"er new situations adeFuately7 *owe"er, these systems ha"e their drawbac/s8 i6 decisions are ta/en on a casebycase basis, thus creating considerable
legal uncertainty among the affected %arties, and ii6 in some countries, im%osing limits
so loosely and "aguely defined u%on fundamental rights could be deemed
unconstitutional7
38. 9le:ible systems for the safeguarding of media %luralism based on a @harm test to
freedom of e:%ressionA should be established on the basis of clearD%recise legal
%ro"isions, and indicate at least which criteria should be ta/en into account by the
authorities when ado%ting their decisions7 -hese decisions should be duly reasoned,
o%en to re"iew by com%etent Burisdictions under national law and made a"ailable to
the %ublic7
39. Some mar/et %layers claim that the arri"al of new technologies undermines the
rationale for stringent restrictions on media ownershi%, based on the assum%tion, inter
alia, that new technologies %er se bring about a significant increase in the number of
choice and di"ersity in the media and that com%anies should not be ham%ered from
com%eting in a global economic system by regulatory restrictions on ownershi%7
*owe"er, based on de"elo%ments since 4552, it seems a%%ro%riate that Euro%ean
go"ernments maintain media ownershi% controls7
40.
It would a%%ear that the control of concentrations in the digital en"ironment willincreasingly be based on a set of fle:ible ownershi% limits in combination with
regulations on access to digital %latforms and cable networ/s 1the safeguarding of
%luralism in the new en"ironment will to a greater e:tent rely on access controls to
%re"ent @bottlenec/sA and to a lesser e:tent on ownershi% %er se67 +ules to ensure fair
access by third %arties to conditional access systems of digital %latforms and technical
intero%erability between decoding eFui%ment will remain im%ortant regulatory
obBecti"es7
+0. F&R%+G( &1(%RS+P &F M%D+A +( '&5(#R+%S &F '%(#RA$ A(D %AS#%R( %5R&P%
41. ) ra%id growth in the number of media outlets and the commercialisation of the media
sector in Euro%e o"er the %ast ten years has %roduced some distincti"e ownershi%
%atterns that may cause some concern in relation to media di"ersity7
2> ) Media $oncentration $ommittee in this country made a %ro%osal to the Go"ernment, suggesting that mergers and
acFuisitions of media com%anies should be subBect to both com%etition legislation and to a s%ecific Media
$oncentrations )ct7 Such an )ct would %ro"ide for a general clause of in"estigation and the %ossible %rohibition of
mergers and acFuisitions that could im%ede a free e:change of o%inions and com%rehensi"e information, that is, whenthere is a fear that the %ro%osed concentration could endanger freedom of e:%ression 1harm test to determine whether the
merger in Fuestion o%erates against freedom of e:%ression67 -he en"isaged legislation would be general and thus co"er both analogue and digital broadcasting ser"ices7
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42. 'ifferent foreign com%anies now %redominantly own the %rinted %ress in some of
these countries7 )t the national le"el, some of the %ress mar/ets are highly
concentrated7
43. In the broadcasting sector, commercial tele"ision, and to a lesser e:tent radio, is in
many countries owned by the same com%any, Scandina"ian &roadcasting System1S&S6, and %ublic ser"ice broadcasters are e:%ected to contribute to di"ersity, but the
fact remains that they do not always do so7
44. )s the re%ercussions of %redominant foreign ownershi% in the media sector in the
central and eastern Euro%ean countries are not clear, attention and analysis should be
directed to this in the future7
PART C: PUBLIC SERVICE BROADCASTING:AN ESSENTIAL ELEMENT FOR MEDIA
DIVERSITY
45. -he %ri"ate sector alone, that is, the mar/et, cannot guarantee %er se a %luralistic
media landsca%e7 In a conte:t of increasing concentration in the media, accelerated by
digital de"elo%ments, the role of %ublic ser"ice broadcasters becomes crucial, as a
counterbalancing factor and to ensure social and democratic cohesion7 -herefore,
o"er and abo"e legislati"e measures on media ownershi% in the %ri"ate tele"ision
sector, it is eFually im%ortant to strengthen and su%%ort the role of %ublic ser"ice
broadcasting7
46. -he ongoing concentration trend in the commercial media reFuires a balancing weight
on the other side8 %ublic ser"ice broadcasters7 -his means that the e:istence of a few
dominant com%anies can only be tolerated if %ublic ser"ice broadcasters ha"e a strong
and inde%endent %osition7
47. ) %ublic broadcasting system detached from State influence is absolutely essential to
%ro"ide di"erse information, culture and content to all citizens7 (nly in such a way can
the %lurality of cultures in Euro%e sur"i"e7 -his has been re%eatedly ac/nowledged bythe $ouncil of Euro%e and the Euro%ean !nion, and is reflected in the Protocol to the
E$ -reaties on Public Ser"ice &roadcasting, as well as in maBor decisions of the E$
institutions, for e:am%le the $ommunication of the Euro%ean $ommission clarifying
the a%%lication of State aid rules to %ublic ser"ice broadcasting 1(ctober 455267
48. Publicly funded, noncommercial broadcasting organisations need to be internally
%luralistic in order to ensure their o%timal role for media di"ersity7 Public ser"ice
charters, editorial agreements and bodies re%resenting the %ublic interest are beneficial
to foster internal %luralism7 -he media out%ut of these broadcasters can ma/e a
significant contribution to %olitical and cultural %luralism, as well as ser"e as a "ehicle
for the e:%ression of minority cultures7 -he fulfilment of the %ublic ser"ice mandatealso reFuires %rofessional management and go"erning bodies7
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49. -he contribution of %ublic ser"ice broadcasting to general interest obBecti"es is
ac/nowledged by most member States which, for e:am%le, im%ose mustcarry
obligations of %ublic ser"ice channels on cable o%erators7 In countries where digital
terrestrial -; is being introduced, transmission ca%acity should also be reser"ed for
%ublic ser"ice broadcasters on the networ/s, as some countries ha"e already done7
50. -he e:tension of mustcarry rules to all deli"ery %latforms would ob"iously ha"e a
%ositi"e im%act on %luralism, although the /ey factor should remain that %ublic ser"ice
%rogrammes can be easily recei"ed by all users8 if this is ensured, for e:am%le, by
means of terrestrial deli"ery, then e:tension of mustcarry rules to all %latforms might
not be so necessary7
51. E:tending mustcarry rules to certain %rogrammes ser"ices of a %ri"ate nature would
also seem Bustified if the latter were of general interest, if they fulfilled a %ublic
ser"ice mission and met clearly defined general interest obBecti"es 1cf7 )rticle 2 of
the 'irecti"e of the Euro%ean Parliament and $ouncil on !ni"ersal Ser"ice and !sersO+ights related to Electronic $ommunications Networ/s and Ser"ices67
52. In conclusion, %ublic ser"ice broadcasters should be strongly su%%orted in the conte:t
of digitalisation and mar/et concentration8 they should ha"e legal, technical and
financial security to ada%t to the com%etiti"e %ressure from %ri"ate broadcasters7 In
this res%ect, they should be able to coo%erate with other o%erators in the media field,
with a "iew to de"elo%ing new media ser"ices and content, thereby contributing to
media di"ersity7 -his might also reFuire the reorganisation of %ublic ser"ice
broadcasters for the realisation of their o"erall mandate7
PART D: NEW TECHNOLOGIES AND DIVERSITY ISSUES
+. 'A$$%(G%S A(D &PP&R#5(+#+%S &F '&(0%RG%(# M%D+A
53. 'e"elo%ment in technology %oses new challenges to %luralism, and unless a coherent
media %olicy based on citizensO right to information, as %ro"ided for in )rticle 25 of
the Euro%ean $on"ention on *uman +ights, is in %lace, the de"elo%ment of a
com%etiti"e and %luralistic media mar/et could be com%romised7
54. 9rom a technical stand%oint, the de"elo%ment of "ertical integration, fa"oured by %ay
tele"ision o%erators, ma/es it %ossible to erect barriers against intero%erability by the
use of )%%lication Programme Interfaces 1)PI6 and Electronic Programme Guides
1EPG6 which are not o%en and standardised throughout Euro%e7 If, on the contrary,
digital -; standards were harmonised and intero%erable, manufacturers would be able
to sim%lify their range of %roducts, %rices for consumers would tend to decrease and
access to a wide range of ser"ices would be facilitated7
55. -echnological con"ergence of broadcasting, com%uting and telecommunications, the
increase in the number of channels and liberalisation seemed initially to offer greato%%ortunities8 firstly, by channelling the same content "ia different means and
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technologies, and secondly, by ensuring the simultaneous %resence of different
contents on a single transmission means andDor technology7
56. -oday, it is already technically %ossible for Internet users to recei"e certain tele"ision
%rogrammes at the time of their own choosing, either in their original "ersions or
using the o%%ortunities o%ened u% by interacti"ity and multimedia, with a series of additional information ser"ices a"ailable on demand through databases7 *owe"er,
technical difficulties %ersist related to "ideo streaming on the Internet and "iewing
habits ha"e still not e"ol"ed radically so as to ma/e the "iewing on the com%uter of
certain ty%es of content, such as films, "ery successful7
57. Moreo"er, than/s to interacti"ity, traditional terrestrial broadcasting can include
content so far considered to be ty%ical of the telecommunications sector 1such as
"iewersH inter"ention during broadcasts for Fuestions or comments6 or as electronic
sho%%ing 1such as reFuesting or ordering a boo/ that is being discussed in a
%rogramme67
58. In res%onse to this ra%id de"elo%ment of technologies and what they ha"e to offer,
indi"idual countries ha"e o%ted for a @laissezfaireA %olicy7 (n the assum%tion that
the mar/et guarantees the use of all the %ossibilities o%ened u% by con"ergence, the
res%onsibility for ensuring consumer well being, o%timum resource allocation and the
effecti"eness of com%anies are left to mar/et forces7 -hese countries rely on
com%etition rules to ensure that the system %rotects consumer interests7
59. Tuite a%art from the %roblems of how mar/ets are defined, com%etition rules are by
their nature designed to %romote the de"elo%ment of the mar/et1s67 9or e:am%le, to
foster technological de"elo%ment, the E$ %ractice has been to encourage acFuisitionsand mergers, which may assist technological de"elo%ment but has led to the
emergence of global oligo%olies that run counter to the %rinci%les of %luralism in the
media field7
60. In the absence of corrections, the final outcome of liberalisation will be the transfer of
resources from State mono%olies to %ri"ate oligo%olies with too few safeguards for
consumers 1see the case of the sale of 'eutsche -ele/omHs regional cable -;
networ/s, KNC and K&C, a%%ended67
61. -he telecommunications sector %ro"ides sufficient e"idence that the su%%osed balance
guaranteed by the mar/et is neither fair nor stable, and that the mar/et has noto%timised resources andDor guaranteed consumersDusers satisfaction 1see a%%endi:67
62. )s in the case of telecommunications, the growing number of channels does not, of
itself, result in di"ersity of media or content7 Ret, with the ad"ent of digital broadcasting, media di"ersity remains a /ey %olicy obBecti"e that must be res%ected in
the interests of democracy and societiesH full cultural de"elo%ment7
63. E:%erience gained in the telecommunications sector offers a number of lessons on
how to deal with the media sector7
64. )s was shown in the re%ort on media %luralism in the digital en"ironment, ado%ted by
the Steering $ommittee on the Mass Media in (ctober 4555, multimedia grou%s
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1)(LD-ime Carner or ;i"endi6, the maBority of which o%erate internationally,
increasingly control the entire chain of audio"isual %roducts and ser"ices, including
the management of rights, %roduction, broadcasting and distribution7
65. Se"eral %ri"ate com%anies ha"e ado%ted strategic alliances and mergers within the
audio"isual sector or with %artners from neighbouring mar/et sectors or mar/ets, suchas com%uting and telecommunications7 Many of these alliances are intended to create
a synergy between the su%%liers of audio"isual content and the distributors of
audio"isual ser"ices7
66. Pluralism, that is, granting consumersDusers access to media ser"ices of their own
choice, under fair conditions, is only meaningful if there is a corres%onding guarantee
of di"ersity of su%%ly, and thus of the a"ailability of a whole range of content and the
%ossibility of using any medium7 -his has not so far been the case, on account of the
liberalisation of the mar/ets and the argument that it is sufficient to a%%ly com%etition
rules7
67. )s a conseFuence of media concentrations, a small grou% of com%anies control suchtraditional content as s%ort and films7 It is their interest in offering this content on %ay
tele"ision that discriminates against the less well off, and %re"ents access by certain
consumers to %articular ty%es of content7
68. -o sum u%, although a different regulatory a%%roach is needed for content and
networ/s, the new regulatory en"ironment must ta/e into account the lin/s between
the two, %articularly regarding media %luralism, cultural di"ersity and consumer
%rotection7
++. D+G+#A$ #%RR%S#R+A$ #%$%0+S+&( :D##;
69. 'igital -errestrial -ele"ision 1'--6 is the third system for the distribution of digital
tele"ision channels, and li/e the other two %latforms cable and satellite it offers
added channel ca%acity, enhanced tele"ision ser"ices and interacti"ity7 )ll three
%latforms are in a certain way com%lementary to each other7
70. Many Euro%ean go"ernments are committed to the introduction of '--, in large %art
due to its democratic %otential and o%%ortunities for more di"ersity7 )lthough
countries are at different stages with the de%loyment of this new technology, most aremo"ing in this direction7 (ne of the /ey elements which go"ernments recognise is
needed for the de%loyment of '-- is an effecti"e and wellmanaged digital switch
o"er %olicy7
71. -he s%ecial features of '--, which ma/e it an attracti"e transmission means, are that8
'-- is in many countries the best means to bring digital -; to all homes at an
affordable %rice for consumers, and can hel% in a"oiding that %art of the audience is
e:cluded from access to digital -;
'-- can facilitate the distribution of regional and local -;
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national authorities can regulate and im%ose %ublic ser"ice obligations as well as
obligations to distribute localDregional content to '-- o%erators, thus contributing to
di"ersity of information
'-- reduces the distribution costs for freetoair %ublic ser"ice tele"ision, which
today in many countries has the obligation of reaching most, if not all, of the %o%ulation7
72. 9rom a media di"ersity %oint of "iew, the establishment of '-- is im%ortant7 '--
will ma/e digital -; accessible to a larger %art of the %o%ulation, minimising the
number of %eo%le who cannot access tele"ision when switcho"er ta/es %lace7 '--
facilitates regional and local -; broadcasts, and %ublic ser"ice broadcasting will
generally ha"e an im%ortant %resence on this %latform as a result of @mustcarryA rules
ado%ted by go"ernments7
73. 'es%ite the abo"e, 'igital -errestrial -ele"ision has had a difficult start in se"eral
Euro%ean countries7 -he launching of '-- in S%ain, Sweden and the !nited Kingdomhas been far from successful7 In S%ain and the !K, the '-- o%erators ha"e gone out
of business and returned their licencesDfreFuencies to the regulator7 In Sweden, '--
has only attracted around 2557555 subscribers since )%ril 455515 7
74. '-- has been mar/ed by failures %rimarily because introduction of ser"ices was
carried out on a @%ay by userA basis, and the business models of the com%anies
in"ol"ed ha"e failed as a result of the low number of subscribers7 -he &ritish Minister
for Media Policy, -essa Jowell, has addressed the situation in the !K as @a failure of a
com%any, not of a technologyA7 )s mentioned abo"e, the !K Go"ernment, as well as
many other go"ernments, seems to stand firm in its decision to establish '-- as thethird digital -; %latform7
75. -he %resence of freetoair ser"ices on '-- seems necessary for the success of this
%latform7 -he funding base of freetoair broadcasters would also need to be
strengthened, and %ublic ser"ice broadcasters should ha"e a @forerunnerA role as
regards digital terrestrial de"elo%ments7 Such a combination with non%ay channels on
'-- networ/s will also enhance the %ossibilities for all indi"iduals to e:ercise
freedom of e:%ression and information7
76. -he success of '-- would also be facilitated by ha"ing common 1or o%en
intero%erable6 technical standards for digital eFui%ment in Euro%e7 -his has manyad"antages, mainly that it reduces to one the number of setto% bo:es for "iewers,
regardless of the %latform andDor ser"ice %ro"iders7
77. Subsidies or economic su%%ort to facilitate the launching of '-- could be foreseen,
although such measures may be difficult for the E!DEE) countries7 In Sweden, the
'-- licence holder 1the %ublic ser"ice broadcaster6 has %ro%osed to offer e"ery
licence fee %aying household a "oucher, to be used to acFuire a basic digital recei"er
bo: fitting the householdOs choice of technical %latform16 7
15 )s of May 455416
(lof *ultUn, Swedish -ele"ision $om%any, s%eech at the 23th EP+) meeting, &russels 20 May 4554
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78. (ther measures %ossibly to be considered in highly cabled areas or because of other
national circumstances might be facilitating regional switcho"ers7 In Germany for
e:am%le, the switcho"er to '-- will ta/e %lace by regions, one after the other7
79. -he %roblem with '-- is how to get through the initial %eriod7 -he main challenge for
go"ernments is to define what conditions would be a%%ro%riate for the switcho"er %eriod as well for a %ermanent system7 Chen go"ernments loo/ at how to handle
'-- in the initial %eriod, they should ta/e into consideration media %luralism and
a"oid ado%ting s%ecial e:em%tory measures for '-- which could reduce or Beo%ardise
freedom of e:%ression and information or media di"ersity7
PART E: TRADE LIBERALISATION AND AUDIOVISUAL
SERVICES
80. 'i"ersity and %luralism of the mediaDin the media is influenced by international trade
%olicy7 )n e:am%le of how trade %olicy can ha"e an im%act on cultural %roduction and
distribution has been highlighted recently in the conte:t of negotiations within the
Corld -rade (rganisation on trade in goods 1G)--6 and ser"ices 1G)-S67 -he
audio"isual and broadcasting sectors and their treatment ha"e become %art of the
globalisation contro"ersy, where different %ositions can be identified7
81. G)--8 -he General )greement on -ariffs and -rade a%%lies to radio and tele"ision
broadcasting only insofar as %ay-; broadcasting entails the sale or rental of
decoders7 )rticle I; of the G)-- sets out s%ecial %ro"isions on cinema films which
allow the $ontracting Parties to set screen Fuotas for films of foreign origin7*owe"er, )rticle ?I of the G)--, to which no )rticle I; e:ce%tions are %ossible,
%rohibits restrictions on the Fuantity of im%orts or e:%orts7 -he Euro%ean !nion has
set Fuotas for the broadcasting of Euro%ean films on tele"ision in order, in %articular,
to %rotect Euro%ean films which are considered a cultural %roduct from being
swam%ed by )merican ones7 -he %roblem in classifying films is to decide which
regulations go"ern Euro%ean co%roductions7 -he nationality of the %roduction
com%any and of the actors and the country in which the film was shot are all rele"ant
factors7 It is an o%en Fuestion whether )rticle I; G)-- can also be a%%lied to -;
%roductions7
82. G)-S8 +adio and tele"ision broadcasting is a ser"ice within the meaning of G)-S7-he agreement does not, howe"er, contain any s%ecial %ro"isions concerning the
broadcasting of films7 -he main obligations G)-S im%oses on its members are8 most
fa"ourednation treatment 1)rt7 II6, trans%arency 1)rticle III6, and . subBect to
liberalisation commitments underta/en mar/et access 1)rt7 ?;I6 and 1eFual6
national treatment 1)rt7 ?;II67
83. E:ce%tions with regard to mostfa"oured nation treatment are allowed only insofar as
they are set out in the )nne: on )rticle II e:em%tions7 -his anne: sti%ulates that
G)-S members must %lace the ser"ice sectors they wish to e:em%t from the most
fa"oured nation treatment clause on socalled e:em%tion lists in which the sco%e of
the ser"ice and the duration of the e:em%tion must be clearly stated7 -he E! and
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other G)-S members ha"e also %laced certain as%ects of radio and tele"ision
%roduction and broadcasting on such a list7
84. Mar/et access and eFual treatment of nationals are s%ecific obligations, which only
a%%ly if the members concerned ha"e agreed to them on se%arate lists7 -he E! and
other G)-S members ha"e only o%ened u% their telecommunications mar/ets toforeign ser"ice %ro"iders to a "ery limited e:tent7
85. In telecommunications G)-S also has a s%ecial anne:, designed to secure access to
the ser"ices mar/et for ser"ice%ro"iders who need the telecommunications
infrastructure to %ro"ide other ser"ices7 In this anne:, G)-S members underta/e to
grant ser"ice %ro"iders from other member States more or less unrestricted access to
%ublic telecommunications trans%ort networ/s and ser"ices insofar as they are
reFuired for the %ro"ision of the ser"ice in Fuestion7 *owe"er, %aragra%h 4b of the
telecommunications anne: states that the anne: does not a%%ly to @measures affecting
the cable or broadcast distribution of radio or tele"ision %rogrammingA7
86. -here are %erha%s three broad and distinct basic arguments in the globalisation debate
concerning the audio"isual sector and the broader field of cultural industries8 one
fa"ours com%lete liberalisation of trade in audio"isual goods and the inclusion of
audio"isual in the ser"ices negotiations, in which case the audio"isual sector would
not be treated as being any different than trade in any other /ind of commodity or
ser"ice7 -his %osition is generally not acce%ted among Euro%ean countries, which are
%redominantly 1es%ecially members of the Euro%ean !nion where this is the official
common %olicy6 in fa"our of the second argument, i7e7 that the audio"isual field holds
a s%ecial %osition because of its cultural "alue and should therefore be granted a
%ri"ilege and an e:em%tion from total liberalisation 1which if a%%lied to theaudio"isual sector would %reclude measures in su%%ort of audio"isual industries, i7e7
sub"entions67 -he second argument is lin/ed to the wish to a"oid @)mericanisationA or
@globalisationA of culture and the loss of Euro%ean nationalDregional cultural "alues7
87. -here is also a third %osition which goes beyond the %rotection of the audio"isual field
at the national le"el by using the @cultural e:em%tionA in trade agreements, and see/s
the creation of an international instrument for the %rotection of cultural di"ersity7 -his
argument is broader than Bust the audio"isual field and centres on the issue of cultural
di"ersity, which is defined to include all forms of artistic and cultural e:%ression
including %o%ular culture, traditional /nowledge and %ractices and linguistic di"ersity7
-he third %osition is at %resent con"erging around the idea of a draft $on"ention on$ultural 'i"ersity, such as the one being %re%ared by the International Networ/ on
$ultural Policy 1IN$P67 )t the 3th Ministerial meeting of the IN$P which too/ %lace in
$a%e -own in South )frica on 2>20 (ctober 4554, the %artici%ating ministers agreed
on a draft instrument on cultural di"ersity717 ) final draft might be %resented to the
ministers at the ne:t ministerial meeting of the IN$P, to be held in $roatia in (ctober
4557 ) con"ention might be a future tool to %rotect and su%%ort di"ersity in the media
field as well, and in this res%ect is a de"elo%ment that should be followed "ery closely
by Euro%ean countries7
17 Published on www.incp-ripc.org1under )nnual meetings, 455467
http://www.incp-ripc.org/http://www.incp-ripc.org/http://www.incp-ripc.org/
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88. -he %ositions and arguments ta/en by countries differ according to their indi"idual
%osition and circumstances7 In Euro%e, the countries facing a more difficult %osition in
the international trade negotiations are those which are not members of the Euro%ean
!nion and are neither @candidate countriesA7 )t the international le"el, the de"elo%ing
countries face the most difficult challenge of retaining their cultural di"ersity in "iew
of mar/et globalisation7
89. In order to guarantee, %rotect and su%%ort media di"ersity and %luralism, attention
should be %aid not only to the rele"ant national and regional %olicies and %ractices, but
more and more also to the international instruments and their im%lications7
PART F: CONCLUSIONS AND RECOMMENDATIONS
90. )rticle 25 of the Euro%ean $on"ention on *uman +ights and the Budgments of the
Euro%ean $ourt of *uman +ights are conclusi"e that States are under the duty to
%rotect, and if need be, to ta/e %ositi"e measures to safeguard and %romote media
%luralism7 -oday, this necessitates that go"ernments act concretely and decisi"ely to
counter increasing concentration in the media7
91. (ngoing concentration and con"ergence in the media field necessitates a strong and
inde%endent %ublic ser"ice broadcasting to guarantee the dissemination of di"erse
information and o%inions to the %ublic7
92. -he goal of any regulatory or control system on media concentrations should be to
counteract mar/et dynamics and o%erations, whether horizontal or "ertical, that are
detrimental to %olitical and cultural %luralism, and thus a"oid that a single or few
com%anies control all o%inionforming media and the media culture within a gi"en
country7
93. -a/ing into account the s%ecificities of each country, sectors%ecific rules should be
designed to safeguard and ensure %lurality and di"ersity in the media7 General
com%etition law can only ha"e a com%lementary role as regards concentration in themedia sector7
94. )mongst the indicators freFuently used to control mar/et concentration in the
media sector are8 turno"erDre"enues, shareholding, "oting rights, audience
shareDshare of "oice, etc7 -he audience share indicator is one of the most rele"ant
and useful since it reflects the real influence of an o%erator in a gi"en media mar/et,
is neutral on the number of licences which the broadcaster can hold and allows the
international de"elo%ment of the broadcaster7
95. -he u%todate collection and %ublic access to economic information on %ro"iders
and o%erators 1turno"er, audience share, etc6 are absolutely necessary7 (nly on the
basis of a%%ro%riate data is it %ossible to determine if media %luralism is "ibrant or
endangered7 Such data should be collected and used in monitoring and as the basisfor regulation and controls of media concentrations7
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APPENDIX
+. S#R5'#5RA$ %0&$5#+&( &F #% M%D+A S%'#&R
100. -he Euro%ean media sector is undergoing a ra%id and %rofound structural change7 It is
difficult to follow all transformations and e"aluate their conseFuences7 )s com%anies
enter into alliances and dissol"e them at great s%eed, mentioning concrete e:am%les in a
re%ort would ris/ being outdated at the time of its %ublication7 -heir mention would be
further com%licated by the fact that structural de"elo%ments "ary from one country to
another7 It is ne"ertheless %ossible to indicate certain trends8
101. )t a technological le"el8
the introduction of digital terrestrial tele"ision 1'--6,
the mono%oly %osition of cable networ/s, the continued increase in the %enetration of the Internet, es%ecially among young
audiencesDusers7
102. )t the le"el of com%anies8
the great number of mergers and collaboration agreements, with a tendency towards
internationalisation 1e7g7 the merger between ;i"endi and the $anadian com%any
Seagram, owner of !ni"ersal studios, has led to a transatlantic alliance6,
the difficult financial situation of se"eral grou%s in the media sector,
the significant losses in share "alues of media com%anies in the wa/e of the
bursting of the I- economy bubble7
103. 9rom a commercial %oint of "iew8
the de"elo%ment of %ay tele"ision, mainly in the form of grou%ed offers 1bouFuets6,
the e:%losion of the costs in transmission rights 1s%orts, films6,
the crisis in ad"ertising re"enues, which can become a factor of concentration7
104. )t the le"el of offerings8
a commercialisation of %rogrammes to reach audience le"els that will a%%eal toad"ertisers,
uniformity of the %rogramme schedules 1same ty%es of %rogrammes at the same
times6,
the standardisation of %rogramme formats as %art of international licensing7
++. (%1 #R%(DS #&1ARDS 'R&SS M%D+A &1(%RS+P3 #% %M%RG%('% &F #%M5$#+M%D+A M5$#+(A#+&(A$
2537 -he emergence of new communication technologies, %articularly illustrated by the
Internet and digital satellite tele"ision, has o%ened new mar/ets for the
telecommunications industry, broadcasters and other content %ro"iders7 -he %ri"atisationof former State telecommunication com%anies combined with a liberalisation of
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tele"ision mar/ets has made room for new %layers7 Ne"ertheless, telecommunication
o%erators still %lay a maBor role in the new con"ergent mar/ets7
2507 -he /ey to success on the Internet and digital satellite tele"ision is ha"ing both
%ractical technical solutions and attracti"e content7 $ontent seems to be acting as a
dri"ing force for the sale of subscri%tions to cable networ/s and decoders7 -heestablishment of %ermanent coo%eration structures such as mergers or Boint "entures has
been essential to ensure that o%erators ha"e content %ermanently at their dis%osal7
25
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been a growth in the number of mergers and acFuisitions in the media mar/ets o"er
recent years7 (utside the E!DEE) area or between member and nonmember States,
mar/ets are, in %rinci%le, more clearly se%arated7
2247-he growth of media com%anies across national borders has %rimarily ta/en %lace within
s%ecific areas8 for e:am%le, !P$, the )merican cable com%any, has bought cablecom%anies in many Euro%ean countries Scandina"ian &roadcasting System 1S&S6, a
Lu:embourgbased )mericanfinanced com%any, has bought satellite -; com%anies in
"arious countries similar e:am%les can be found in the mobile tele%hone sector 19
Norwegian news%a%er com%anies ha"e in"ested in news%a%ers in Scandina"ia, the &altic
States and Poland merger negotiations between national telecommunication o%erators
are constantly ma/ing the headlines7 ) noteworthy de"elo%ment is the growth of free
news%a%ers8 the Swedish com%any Kinne"i/ has introduced the free news%a%er conce%t
@MetroA in many Euro%ean cities7
227-he de"elo%ment of digital tele"ision and interacti"e ser"ices has also led to a number of
Boint "entures7 E:am%les include KirchD&s/y& and MicrosoftD-elewest in the tele"isionsector and ;odafoneD;i"endiD$analV 1;izza"i6 in the area of interacti"e ser"ices7
22>7 Many of these mergers, agreements or Boint "entures ha"e elements of "ertical
integration7 )s already mentioned, the most well /nown merger in this res%ect is that of
)(LD-ime Carner7 ;i"endiD$analVDSeagram is another notorious e:am%le of "ertical
integration which was es%ecially %roblematic because of the creation of ;izza"i7 -he
merger was cleared after a number of modifications were made to the original agreement7
2237 -he conditions to authorise some of these mergers and Boint "entures illustrates the %an
Euro%ean dimension of this acti"ity8 for e:am%le the )(LD-ime Carner merger was
cleared after the agreed coo%eration with &ertelsmann had been cancelled and the
;i"endiD$analVDSeagram merger was cleared after the shares in &S/y& had been sold 1in
addition to other adBustments67
+0. #% %4AMP$% &F #%$%'&MM5(+'A#+&(S
2207)fter three years of com%lete liberalisation of telecommunications ser"ices, it is %ossible
to assess the le"el of com%etition in the "oice tele%hony mar/et by the fact that in the E!,
about =4 of the %o%ulation can choose between more than fi"e o%erators for intercity
and international calls 13 can choose between at least two o%erators6, while about 4can choose between more than fi"e o%erators for local calls 1>3 for at least two
o%erators67
2202 o%erators were offering fi:ed "ocal tele%hony ser"ices for
intercity calls, >0= for international calls and == for local ones, re%resenting increases of
=, 0
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227 )t first sight, the answer is no7 -he socalled readBustment of charges has resulted in an
a"erage increase of 24 in monthly rental charges o"er the %eriod 25, and ones to the !nited States by
>7
2457It is clear from figures on a"erage monthly e:%enditure on national calls 1local and long
distance6, on the basis of the charges le"ied by longestablished o%erators, that businesses
ha"e benefited more from liberalisation in terms of %rices, and that ordinary %ri"ate users
cannot e:%ect too much from the new mar/et entrants, who tend to target more %rofitable
mar/ets and thus to lower their %rices for these mar/et sectors7
2427 )t the same time, the Euro%ean !nionHs renouncement to ado%t anticoncentration
measures has hadDwill continue to ha"e negati"e effects, e"en on new entrants7
2447 ("erall, the number of concentration cases e:amined by the Euro%ean $ommissionunder its com%etition law has doubled o"er the last three years, although the number of
new cases related to agreements and dominant %ositions has declined %urely as a result of
a fall in the number of com%laints and the more laissezfaire %olicy ado%ted by the
$ommunity7
247 -his a%%roach is "ery ob"ious7 )mong the cases concerning telecommunications
infrastructure, reference may be made to the M$I CorldcomDS%rint merger and the
;izza"i Boint "enture7
24>7In the latter case, the $ommission authorised the creation of the ;izza"i %ortal in the
form of a Boint enter%rise in"ol"ing ;odafone, ;i"endi and $analV, after the com%anies
concerned had gi"en an underta/ing that ri"al Internet %ortals would ha"e eFual access to
the decoders and mobile tele%hone handsets of the %arent com%anies, which meant that
consumers who so wished could change %ortal7 )lthough the issue at sta/e was the
%otential creation of a dominant %osition in a mar/et considered to be on the boundary
between infrastructure and electronic commerce 1that of %ortals6, the nub of the %roblem
remains the control e:ercised by the %artner com%anies o"er the technical systems8
;odafoneHs mobile networ/s and the decoders of $analV7
2437-he )(LD-ime Carner and ;i"endiDSeagram cases concern the control of content and
the resulting ris/ of re%ercussions on mar/ets downstream7
24079inally, two other cases need to be considered7 In 4555, the $ommission authorised the
sale of two 'eutsche -ele/om regional cable tele"ision networ/s, KNC in North +hine
Cest%halia and K&C in &adenCWrttemberg, to $allahan In"est Limited7 -he
$ommission too/ the "iew that while immediately after the transaction, KNC and K&C
would ha"e a de facto mono%oly in their territories, the transaction itself did not create or
strengthen a dominant %osition on the mar/et for %aytele"ision in Germany, as KNC
and K&C were sim%ly ta/ing o"er the mono%oly %re"iously held by '-7
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In terms of demand8
• *ow will customers react to the range of ser"ices on offer, as well as their Fuality and
%rice, not to mention the effect of fashion 1irrational beha"iour of mobile owners6
• Cill customers be more interested in certain ser"ices and neglect others
X X X