Converged Markets - Converged Power? Regulation and Case Law A publication series of the Market power becomes an issue for European and media services and enabling services, platforms and European Audiovisual Observatory national law makers whenever market players acquire a converged services, and fi nally distribution services. degree of power which severely disturbs the market balance. In this sense, the audiovisual sector is no The eleven countries were selected for this study because exception. But this sector is different in that too much they either represented major markets for audiovisual market power may not only endanger the competitive media services in Europe, or because they developed out- parameters of the sector but may also become a threat side the constraints of the internal market, or because they had some interesting unique feature, for example to the freedom of information. It is this latter aspect the ability to attract major market players despite lacking which turns market power into a particularly sensitive an adequately sized market. issue for the audiovisual sector. National legislators and regulators backed by national courts seek solutions The third part brings in the economic background in the adapted to this problem. form of different overviews concerning audience market shares for television and video online. This data puts the This IRIS Special issue is deals with the regulation of legal information into an everyday context. market power in the audiovisual sector in Europe. The fourth and fi nal part seeks to tie together the common The fi rst part of this IRIS Special explores the European threads in state regulation of media power, to work Union’s approach to limiting media power, an approach out the main differences and to hint to some unusual still dominated by the application of competition law. solutions. Here and there it will weave in aspects of EU Converged Markets - This IRIS Special explains the general functioning of law that have infl uenced the national legal frameworks. competition law and other regulatory instruments. It specifi cally shows how the various services provided in This IRIS Special issue is a milestone on the way towards the audiovisual sector are regulated and what markets are greater transparency in the audiovisual sector con- Converged Power? to be distinguished. cerning the regulation of market power. It also high- lights the challenges of regulating converged markets The second part contains a description of the legal frame- and related market power. works of 11 European countries used to address media Regulation power. For each of these countries you will fi nd in This comprehensive and timely analysis clarifi es the com- particular information on the regulation of audiovisual plex subject of the regulation of market power across Europe. and Case Law The European Audiovisual Observatory has published other titles relevant for the regulation of market power and other important topics: Law and Case Regulation Power? - Converged Markets Converged IRIS Special: IRIS plus: IRIS plus: The Regulation of On-demand Must-Carry: Renaissance Why Discuss Network Audiovisual Services: or Reformation? Neutrality? Chaos or Coherence? 100 pages - December 2011 - EUR 98,50 48 pages - September 2012 - EUR 24,50 40 pages - September 2011 - EUR 24,50 ISBN 978-92-871-7301-0 ISBN 978-92-871-7551-9 ISBN 978-92-871-7246-4 Get our latest short reporting on legal media issues: IRIS, Legal Observations of the European Audiovisual Observatory The newsletter is available free of charge at http://merlin.obs.coe.int/newsletter.php EUR 114 – ISBN 978-92-871-7595-3 20 Years of Information services IRIS Special: for the audiovisual sector Converged Markets - Converged Power? Regulation and Case Law It is the task of the European Audiovisual Observatory to improve transparency in the European Audiovisual Observatory, Strasbourg 2012 audiovisual sector in Europe. It does this by collecting, processing and publishing up-to-date ISBN: 978-92-871-7595-3 information about the various industries concerned. EUR 114 The Observatory has adopted a pragmatic defi nition of the audiovisual sector in which it Director of the Publication: works. Its principal areas of interest are fi lm, television, video/DVD, on-line audiovisual media Wolfgang Closs, Executive Director of the European Audiovisual Observatory services and public policy on fi lm and television. In these fi ve areas, the Observatory provides E-mail: [email protected] information in the legal fi eld as well as information about the markets and fi nancing. As Editor and Coordinator: far as its geographical scope is concerned, the Observatory monitors, records and analyses Dr. Susanne Nikoltchev, LL.M. (Florence/Italy, Ann Arbor/MI) developments in its member states. In addition, data on non-European countries is also made Head of the Department for Legal Information available when judged appropriate. The various stages involved in providing information E-mail: [email protected] include the systematic collection and processing of data as well as its fi nal distribution to Contributing Partner Institution: our users in the form of print publications, information on-line, databases and directories, and our contributions to conferences and workshops. The Observatory’s work draws extensively Institute of European Media Law (EMR) Institute for Information Law (IViR) on international and national information sources and their contributions of relevant Franz-Mai-Straße 6 Kloveniersburgwal 48 information. The Observatory Information Network was established for this purpose. It is D-66121 Saarbrücken NL-1012 CX Amsterdam Tel.: +49 (0) 681 99 275 11 Tel.: +31 (0) 20 525 34 06 composed of partner organisations and institutions, professional information suppliers and Fax: +49 (0) 681 99 275 12 Fax: +31 (0) 20 525 30 33 selected correspondents. The Observatory’s primary target groups are professionals working www.emr-sb.de E-mail: [email protected] within the audiovisual sector: producers, distributors, exhibitors, broadcasters and other ★ www.ivir.nl media service providers, international organisations in this fi eld, decision-makers within the ★ ★ ★ ★ various public bodies responsible for the media, national and European legislators, journalists, ★ ★ researchers, lawyers, investors and consultants. ★ ★ The European Audiovisual Observatory was established in December 1992 and is part of the ★ ★★ Council of Europe thanks to its status as a “partial and enlarged agreement”. Its offi ces are in Strasbourg, France. The Observatory’s membership currently comprises 39 European States and the European Union, which is represented by the European Commission. Each member Editorial Assistant: appoints one representative to its board, the Executive Council. An Executive Director heads Michelle Ganter E-mail: [email protected] the international Observatory team. Marketing: Markus Booms E-mail: [email protected] The Observatory’s products and services are divided into Translation/Proof-reading: four groups: Ulrike Aschermann-Henger, France Courrèges, Evelyna Dreiseitlova, Michael Finn, Sabina Gorini, Julie Mamou, Martine Müller-Lombard, Stefan Pooth, Erwin Rohwer, Nathalie Sturlèse, Britta Probol í Publications Typesetting/Print: í Information on-line Pointillés, Hoenheim (France) í Databases and directories Publisher: í Conferences and workshops European Audiovisual Observatory 76 Allée de la Robertsau F-67000 Strasbourg Tel.: +33 (0)3 90 21 60 00 Fax: +33 (0)3 90 21 60 19 European Audiovisual Observatory E-mail: [email protected] www.obs.coe.int 76 Allée de la Robertsau – F-67000 Strasbourg – France Tel: +33 (0) 3 90 21 60 00 – Fax: +33 (0) 3 90 21 60 19 Please quote this publication as: www.obs.coe.int – E-mail: [email protected] Susanne Nikoltchev, Ed., IRIS Special: Converged Markets - Converged Power? Regulation and Case Law (Strasbourg, European Audiovisual Observatory, 2012) © European Audiovisual Observatory, 2012. Opinions expressed in this publication are personal and do not necessarily represent the views of the Observatory, its members or the Council of Europe. Converged Markets - Converged Power? Regulation and Case Law CONVERGED MARKETS - CONVERGED POWER? 3 Converged Markets - Converged Power? Regulation and Case Law Published by the European Audiovisual Observatory Eleven years ago, the European Audiovisual Observatory published the IRIS Special entitled “Television and Media Concentration”.1 Back then it still seemed meaningful to restrict the publication to the regulation of traditional forms of concentration in the broadcasting sector and, to this end, collect and analyse information on specific national concentration rules and relevant competition-law decisions. Today the means by which enterprises can control the media sector are increasingly subtle and attach to virtually all stages of the value chain. Market power and media dominance can be based on a strong copyright portfolio as much as on the control of platforms and transmission networks. Vertically integrated businesses have advantages over competitors engaged in only one of the markets and therefore dependent on players of the up- and/or downstream markets. The advantages are especially pronounced for those undertakings that are able to build simultaneously on a rich repertoire of audiovisual content, various media services and priority transmission arrangements or that can control such infrastructure. While eleven years ago broadcasting was most likely the number one audiovisual media