Competition Law Review

Volume 9 - Issue 1

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Competition Law Review - Volume 9 Issue 1


Editorial - Media Markets: A Crucible for Assessing the Intrinsic and Extrinsic Challenges for Competition Law and Policy

Andrew Scott Editorial - Andrew Scott


The EBU’s Eurovision System Governing the Joint Buying of Sports Broadcasting Rights: Unfinished Competition Business
Ben Van Rompuy and Karen Donders Vol 9 Iss 1 Art 1 - Van Rompuy & Donders

On 4 October 2011, the Court of Justice delivered its judgment in two joined cases, FA Premier League v QC Leisure and others (Case C-403/08) and Murphy v Media Protection Services (Case C-429/08). The court found that the sale of broadcasting rights to Premier League matches on a country-by-country basis, backed up with prohibitions to prevent the licensed content from being accessed outside the country in question, is against EU law. This challenges the business model of rights holders that currently license their content on an exclusive territorial basis in the EU. Given the court’s emphasis on the cross-border provision of broadcasting services, the joint acquisition of (EU-wide) sports broadcasting rights will likely regain importance. Interestingly, this would revivify ‘old’ conflicts between public and private broadcasters over the EBU’s Eurovision system for the joint buying of sports rights. Anticipating these developments, this article revisits the unresolved EBU/Eurovison case - one of the European Commission’s most significant antitrust cases regarding the audiovisual sector. It analyzes: (1) the incredible rise in the economic importance of sports broadcasting rights since the late 1980s and 1990s, and the competition between public broadcasters (represented by the EBU) and private broadcasters for these rights; (2) the European Commission’s first and second exemption decision for the Eurovision system; and (3) the lessons to be learned from the Commission’s handling of the EBU/Eurovision case and the competition problems that still linger.

Product Market Definition in Online Search and Advertising
Nicolo Zingales Vol 9 Iss 1 Art 2 - Zingales

One of the thorniest questions which competition authorities are increasingly confronted with is the extent to which traditional market definition tools can be used to assess the competitive dynamics of today’s knowledge-intensive, user-based internet search business. The question is challenging for two main reasons: (1) the peculiarities of two-sided markets; and (2) the key role of user data in online search and advertising. This article addresses these issues individually: starting from a description of the interrelationship between online search and advertising, it highlights the role of user data as the most valuable asset for future growth in the industry, a potential barrier to entry and a cause of switching cost. Finally, it concludes with suggestions for product market definition.

European merger control in the broadcasting sector: Does media pluralism fit?
Konstantina Bania Vol 9 Iss 1 Art 3 - Bania

Over the past years, the European broadcasting industry has been experiencing major consolidation trends with very large concentrations getting the green light by the European Commission (hereafter the Commission). Such operations are detrimental to competition and media pluralism, two values that the Commission is bound to protect under the Treaties, the Charter of Fundamental Rights of the EU and the Merger Regulation. An overview of the relevant decision-making reveals that the Commission has focused on securing a diversity of suppliers in the broadcasting markets with the effects of a concentration on content diversity having abundantly been ignored thus far. In that regard, media pluralism has been catered for only coincidentally and to the extent that it fits the Commission’s understanding of competitive broadcasting markets. Yet, assessing the impact of a concentration on content diversity is not only a legitimate subject for relevant merger inquiries, but also the Commission’s duty under both primary and secondary EU law. The paper argues that, while it would be unlawful for the Commission to conduct a politically contentious assessment and ban a merger operation on pluralism grounds, it is also true that European competition law does not operate in a vacuum but rather as an apparatus used for the realization of the European project. Therefore, merger control needs to be exercised in a pluralism-friendly manner.