• : Authority prohibits Viasat’s Business Terms Regarding Distribution of TV 3 and TV 3

The Danish Competition Council (DCC) adopted on 30 September 2009 a decision finding that Viasat´s business terms, regarding distribution of the TV-channels TV 3 and TV 3+ in cable networks infringe Article 81 of the EC Treaty (now Article 101 of the Treaty on the Functioning of the European Union) and the corresponding Danish provision. As a consequence, the DCC decided that Viasat must cease preconditioning package placements in all business terms as well as preconditioning other terms such as minimum carriage requirements that have similar anti-competitive objectives. Viasat (a company in the ) is vertically integrated and operates both as pay-tv broadcaster (with some of the most popular TV-channels – TV 3 and TV 3+) and as satellite distributor (covering more than half the Danish satellite market). Viasat’s business terms examined by the DCC stipulated that TV 3 and TV 3+ must be placed in the most advantageous programme package for commercial TV-channels offered by cable-networks. The business terms were adopted in all distribution agreements between Viasat and the cable distributors/local cable networks, resulting in a TV market with a parallel network of vertical agreements. The DCC had previously adopted a decision in the same case concluding that Viasat’s business terms did not infringe either EU competition law or the corresponding Danish competition legislation. However, the Danish Competition Appeal Tribunal annulled this first Council’s decision and remitted it for reconsideration by the DCC. The Tribunal found that the Council’s decision was unfounded and based on insufficient grounds regarding the definition of the relevant market. Moreover, the Tribunal declared that the business terms had the objective of distorting competition. Under those circumstances and taking into account the instructions from the Tribunal, the DCC reconsidered the case on the basis of a new market survey. It concluded that the business terms in question have as their object and effect to restrict competition. The decision also found that Viasat’s business terms do not fall within the scope of the block exemption for vertical agreements, firstly because Viasat has a market share above 30% and secondly as the business terms primarily constitute the licensing of copyrights. Finally, according to the decision the conditions for exemption of Art. 81 (3) of the EC Treaty and the corresponding Danish provision were held not to be fulfilled. Originally, the case was initiated by a complaint from the Danish Cable Television Association, claiming that Viasat’s business terms restricted competition by reducing the options of local cable networks to decide which TV-channels to place in which packages. Recently, the Council’s decision has been appealed. See further: http://www.konkurrencestyrelsen.dk/konkurrenceomraadet/afgoerelser/afgoerelser-1998- 2009/afgoerelser-2009/konkurrenceraadets-moede-den-30-september-2009/viasats-vilkaar- om-placering-af--og-tv3/ (only in Danish) Description of the Viasat-case in English: http://www.konkurrencestyrelsen.dk/en/competition/decisions/decisions-2008-and- earlier/national-decisions-2009/konkurrenceraadets-moede-den-30-september-2009/viasats- business-terms-regarding-the-distribution-of-tv-3-and-tv-3/