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Case Summary 11 December 2018

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Case Summary 11 December 2018 Case Summary 11 December 2018 CTS Eventim AG & Co. KGaA, Bremen prohibited from acquiring shares in Four Artists Booking Agentur GmbH and Four Artists Events GmbH Sector: Ticketing, Live Entertainment Ref: B6-35/17 Date of Decision: 23 November 2017 The Bundeskartellamt has prohibited CTS Eventim AG & Co. KGaA, Bremen (hereinafter: CTS) from acquiring the majority of shares in each of the companies Four Artists Booking Agentur GmbH and Four Artists Events GmbH, both based in Berlin (hereinafter: jointly known as Four Artists), via a subsidiary of CTS. In the Bundeskartellamt’s view the planned merger would strengthen CTS’s dominant position on the multi-sided market for ticketing system services and thus significantly impede effective competition on this market. I. Background CTS is active in the areas of ticketing services and live entertainment. With its ticketing system EVENTIM.NET, the company offers promoters of live entertainment and advance booking offices ticketing system services and other ticketing services. CTS also operates the important online shop EVENTIM.DE and organises live entertainment events itself, especially rock/pop tours and concerts as well as festivals. Four Artists is also active in the area of live entertainment; it organises and finances concerts, events and open-air concerts, and provides event marketing and production services for events. It specialises in the organisation of festivals and tours and functions as a local promoter of tours organised by third companies. Moreover, as a booking agency Four Artists organises concerts for artists in Germany and provides corresponding services. Four Artists represents die Fantastischen Vier, Clueso, Marteria, David Guetta, Rea Garvey, Andreas Bourani and other artists. In addition to CTS, ticketing system services are provided in Germany by the nationally active ticketing systems Reservix/AD Ticket and Ticketmaster, a subsidiary of the US company Live 1 Nation Entertainment Inc., as well as several regional providers (e.g. München Ticket, Frankfurt Ticket). As part of their services, all the ticketing systems offer their customers the technical connection to a database which contains data about the various events. For this purpose the providers of ticketing systems conclude contracts against payment with the promoters on one side of the system, providing them with technical access to the system and facilitating the administration of events within the system by the promoters themselves. The main purpose of a ticketing system service is to provide the promoters with access to a sales network of stationary and online advance booking offices. Advance booking offices are connected to the other end of the system, sometimes free of charge. These can access the events entered in the system via the technical connection in order to sell tickets to end customers. All the ticketing systems have their own advance booking offices, especially online shops and a network of external, mostly stationary advance booking offices which access the system to sell tickets to end customers. II. Markets affected The Bundeskartellamt defines a multi-sided product market for the offer of ticketing system services in which both market sides, the promoters and the advance booking offices, constitute separate markets and from which other ticketing services are to be excluded. In geographic terms the Bundeskartellamt has defined the market as German-wide. The decision applies the new provision of Section 18 (3a) of the German Competition Act (GWB) introduced with the 9th Amendment to the GWB.1 In this context the Bundeskartellamt considers products or companies as a multi-sided market if they function as intermediaries and facilitate the direct interaction of two or more user sides between which indirect network effects exist. The group of promoters on the one side and that of the advance booking offices on the other are the relevant user groups in the assumption of a multi-sided market for ticketing system services. Mutually positive indirect network effects exist between the user group of promoters and that of advance booking offices. Indirect network effects exist where the benefit or gain of the users in one group depends on the number of users from another group. The higher the increase in connected advance booking offices, the more attractive a ticketing system becomes for the user group of promoters, because the probability of selling sufficient tickets to end customers increases with a growing number of connected advance booking offices. The benefits advance booking offices derive from ticketing systems increase with the number of promoters and events entered 1 https://www.gesetze-im-internet.de/englisch_gwb/index.html 2 into the system as they can offer a wider selection of tickets to end customers, which enhances the chances of bookings. The ticketing systems also provide for a direct transaction between the user groups. The ticketing systems enable a direct transaction between promoters and end customers, i.e. event attendance, with the connected advance booking offices acting as agents. The advance booking office's direct access to events by means of a booking process can be seen as another form of direct interaction between promoters and advance booking offices. In that context, the agreement of a commissionaire relationship or commercial agent relationship with the users of the system does not exclude the assumption of a multi-sided market. When it comes to ticketing systems, the two market sides are not assessed as one single market even though a multi-sided market exists. This is due to the fact that ticketing systems perform an important sales function as a commercial agent or commissionaire for promoters. If the market sides were considered under the existing Vertical BER,2 which does not categorise multi-sided markets as a specific form of distribution, the two market sides would have to be considered separately. Alternative ticketing systems are to be included in the market for ticketing system services for promoters. In view of the significance of the advance booking office network for promoters, services supporting promoters in the sale of tickets and the direct sales services of advance booking offices are not to be included. Also the market for ticketing system services for advance booking offices includes the offer of all ticketing systems to advance booking offices. Free ticketing system services for advance booking offices are also to be included as market services under the new provision of Section 18 (2a) GWB. In geographical terms the markets are to be defined as national markets. 2 https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32010R0330 3 III. Dominant position CTS holds a dominant position on both sides of the market. It achieves high market shares on both sides of the market, in particular in terms of the value of tickets sold via the ticketing systems (transaction volume) which is a significant market share indicator for multi-sided markets. By comparison, competing national ticketing systems such as Reservix/AD Ticket and Ticketmaster achieve significantly lower market shares. In examining CTS’s dominant position the Bundeskartellamt also took the additional criteria of the newly introduced Section 18 (3a) GWB into account. In particular the mutually positive indirect network effects indicate that CTS has a dominant position on the market for ticketing system services for promoters. These network effects act as a massive market entry barrier and have a considerable lock-in effect for users on both sides in favour of the largest ticketing system, CTS, which greatly reduces users’ willingness to switch provider. CTS’s own promoters and online shop considerably contribute to the indirect network effects. Neither the barrier to entry nor the lock-in effect is lessened to a relevant extent by the parallel use of ticketing systems (“multi-homing”) on both market sides. Multi-homing activities are limited on both the promoters’ and advance booking offices’ side as competing systems are primarily used as second-tier systems for the sale of limited ticket quotas. Both sides predominantly regard connection to the CTS system as indispensable and only use other ticketing systems to complement CTS’s service. Conversely, CTS’s market position is additionally strengthened by economies of scale and in particular access to data relevant for competition via its successful online ticket shop EVENTIM.DE. Such data can be used above all to improve marketing and customer loyalty, thus strengthening CTS’s sales network for promoters. Competing ticketing systems cannot easily duplicate this data, because their online shops are far less frequented and used. No specific innovation-driven competitive pressure can be observed. In the Bundeskartellamt’s view the market dominance of online platforms with substantial market positions cannot be denied simply on account of a general reference to the innovative power of the internet and its potential for disruptive change. The internet’s potential for innovation has to be assessed in each individual case. Concrete indications that such internet-related developments could limit CTS’s powerful market position, especially in online sales, are neither evident within the short period of abuse control nor in the medium term. 4 IV. Significant impediment to effective competition and strengthening effects In the Bundeskartellamt’s view CTS’s planned acquisition of shares in Four Artists would strengthen CTS’s dominant position on the multi-sided market for ticketing system services and thus significantly impede effective competition on this market. With the merger CTS would under corporate law be able to influence the demand behaviour of a major customer of ticketing system services and block this customer’s access to CTS’s competitors. The merger would also increase CTS’s negotiating power vis-a-vis promoters, which would equally strengthen its dominant position. The annual ticket volume which would fall under CTS’s influence as a result of the planned acquisition of Four Artists merger amounts to between 500,000 and 1 million tickets, i.e.
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