FOI-Decision-1117 DM.Pdf
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#1117 BAI Schedule of Records: Summary of Decision-Making • A copy of the BAI report and recommendations prepared by the Broadcasting Authority of Ireland (BAI) for he Minister of Communications, Climate Action & Environment following its full merger review of the proposed purchase of Celtic Media Newspapers group (CMNL) by Independent News and Media. The report was delivered to the Minister on May 9th 2017. Description of the • A copy of the Advisory Panel Opinion provided to the BAI during the full media merger review of the proposed purchase of CMNL by Independent News and Media. request: • A copy of the Phase 1 examina ion review prepared by the Department of Communications, Climate Action & Environment • Correspondence between CMNL/INM and the BAI following he delivery of the BAI report. Brief Description of Any Attachments? Grant / Refuse / No Date of Record Relevant Section of Legislation Record Edited? / Identified sections for Deletion? Record If so, please list. Partial Grant/Defer CMNL Limited & Independent News and Media Holdings Section 35 (1)(a) Commercially sensitive and confidential information is 1 4th January 2017 Limted - Phase One Examination Review by Department of N/A Part Grant Section 36 (1)(b) redacted Communications, Climate Action and Environment Reasoned opinion to the BAI of the Advisory Panel on Media Mergers on the proposed axquisition of CMNL Limited Section 35 (1)(a) Commercially sensitive and confidential information is 2 9th March 2017 (formerly known as Celtic Media Newspapers Limteid) by N/A Part Grant Section 36 (1)(b) redacted NM holdings Limited, pursant to Section 28F of the Competition Act 2002 Report released in full The BAI report on the proposed merger of CMNL Limited (i) The plurality implications of the proposed Section 35 (1)(a) Communications Chambers document part granted. 3 9th May 2017 ("CMNL") and Independent News and Media Holdings merger of INM plc/Celtic Media Newspapers Part Grant Section 36 (1)(b) Commercially sensitive and confidential information is Ireland Limited ("INM") Ltd - Communication Chambers redacted Section 35 (1)(a) 4 18th May 2017 Letter from Matheson Solicitors to BAI N/A Refuse Section 36 (1)(b) Section 35 (1)(a) 5 30th May 2017 Letter from BAI to Matheson Solicitoris N/A Refuse Section 36 (1)(b) Document 1 Document 2 REASONED OPINION TO THE BROADCASTING AUTHORITY OF IRELAND OF THE ADVISORY PANEL ON MEDIA MERGERS ON THE PROPOSED ACQUISITION OF CMNL LIMITED (FORMERLY KNOWN AS CELTIC MEDIA NEWSPAPERS LIMITED) BY INDEPENDENT NEWS & MEDIA HOLDINGS LIMITED PURSUANT TO SECTION 28F OF THE COMPETITION ACT 2002 9 March 2017 Contents Section 1: Preliminary ............................................................................................................................. 3 Section 2: The Parties.............................................................................................................................. 4 Section 3: Methodology .......................................................................................................................... 5 Section 4: Application of the Relevant Criteria: ...................................................................................... 9 4.1 Relevant Criteria: (a) the likely effect of the media merger on plurality of media in the State. ................................................................................................................................................ 9 4.1.1 Ownership and Control ................................................................................................... 9 4.1.2 Governance and Editorial Management ...................................................................... 13 4.1.3 Content ......................................................................................................................... 19 4.1.4 Market Share ................................................................................................................. 24 4.2 Relevant Criteria: (b) the undesirability of allowing any one undertaking to hold significant interests within a sector or across sectors ....................................................................................... 28 4.2.1 Significant Interests… .................................................................................................... 28 4.2.2 …Within a Sector or Across Different Sectors ............................................................... 32 4.2.3 Relevant Media Assets .................................................................................................. 36 4.3 Relevant Criteria: (c) the consequences for media plurality of preventing the media merger or of allowing it subject to conditions .............................................................................................. 40 4.3.1 Financial ........................................................................................................................ 40 4.4 Relevant Criteria: (d) the adequacy of alternative measures to media plurality ................. 45 4.4.1 The Scale and Reach of RTÉ and TG4 ............................................................................ 45 4.4.2 Part 6 of the Act of 2009 ............................................................................................... 45 4.4.3 Ownership and Control Policy of BAI ............................................................................ 46 4.5 Relevant Criteria: (e) Proposed Commitments ..................................................................... 47 4.6 Relevant Criteria: (f) Imposition of Conditions ..................................................................... 47 Section 5: Conclusions .......................................................................................................................... 49 APPENDIX .............................................................................................................................................. 52 Introduction ...................................................................................................................................... 52 Part 1: Measures and Policies Proclaimed by the Parties to Secure Media Plurality ....................... 52 Economic Safeguards (Continuation, New Investments…) ........................................................... 52 Safeguards In Relation To Staff and Operating Policies ................................................................ 53 Safeguards in relation to editorial policies (editorial independence/autonomy) ......................... 54 Safeguards In Relation To Local Identity and Local News Sourcing Policies ................................. 55 Part 2: Recommendations for commitments/conditions by T. Felle ................................................ 56 Part 3: Illustrations from Belgian Decision Practice .......................................................................... 56 2 Section 1: Preliminary 1. On 2 September 2016 Independent News and Media Holdings (Ireland) Limited (INM Holdings), a wholly owned subsidiary of Independent News and Media Limited (INM), and CMNL (formerly known as Celtic Media Newspapers Limited) signed a Share Purchase Agreement (SPA) under which INM Holdings would acquire the entire issued share capital of CMNL. Further details of these entities (described henceforth as “the Parties”), both of which carry on media businesses within the State, are contained in Section 2 of this Opinion. 2. On 5 September 2016 the Competition and Consumer Protection Commission received a notification of this proposed transaction from the Parties. 3. By decision dated 10 November 2016, following an examination which included a number of third party submissions, the Commission concluded that “the proposed acquisition will not substantially lessen competition in any market for goods or services in the State.” 4. On 21 November 2016 the Parties submitted a joint notification of the proposed acquisition to the Minister for Communications, Climate Action and Environment. 5. On 4 January 2017 the Department of Communications, Climate Action and Environment completed its Phase One Examination review of the proposed acquisition. 6. This examination concluded, and reported to the Minister on 4 January 2017, that the proposed acquisition would lead to an increase in the market shares and influence, and a concentration of significant interests in the publishing sector, of INM plc and Mr Denis O’Brien; that – given Mr. O’Brien’s significant interests in other relevant media assets – the proposed acquisition would likely lead to a greater concentration of his significant interests across sectors than it would for INM plc; and that the proposed acquisition would likely have an effect on diversity of ownership; and might have an adverse effect on the plurality of media in the State. 7. In the light of the conclusions outlined in the previous paragraph, the examination recommended that the Minister should refer the proposed acquisition, as constituting a media merger, to the Broadcasting Authority of Ireland (BAI) for a Phase 2 examination 3 under the relevant legislation and that he should, under the same legislation, consider setting up an Advisory Panel to assist the BAI in such an examination. 8. By letters dated 3 February 2017 the Minister appointed Professor John Horgan, Ms. Marie McGonagle, and Professor Peggy Valcke as the members of an Advisory Panel under Section 28 of the Competition and Consumer Act 2014, with effect from Friday, 10 February