EN Case No COMP/M.7360 - 21st CENTURY FOX/ APOLLO/ JV Only the English text is available and authentic. REGULATION (EC) No 139/2004 MERGER PROCEDURE Article 6(1)(b) NON-OPPOSITION Date: 09/10/2014 In electronic form on the EUR-Lex website under document number 32014M7360 Office for Publications of the European Union L-2985 Luxembourg EUROPEAN COMMISSION In the published version of this decision, some Brussels, 09.10.2014 information has been omitted pursuant to Article C(2014) 7472 final 17(2) of Council Regulation (EC) No 139/2004 concerning non-disclosure of business secrets and PUBLIC VERSION other confidential information. The omissions are shown thus […]. Where possible the information MERGER PROCEDURE omitted has been replaced by ranges of figures or a general description. To the notifying parties Dear Sir/Madam, Subject: Case M.7360 - 21st Century Fox/ Apollo/ JV Commission decision pursuant to Article 6(1)(b) of Council Regulation No 139/20041 (1) On 4 September 2014, the European Commission received a notification of a proposed concentration pursuant to Article 4 of the Merger Regulation by which Twenty-First Century Fox, INC (‘21st Century Fox’, United States of America) and Apollo Management, LP (‘Apollo’, United States of America) acquire within the meaning of Article 3(1)(b) and 3(4) of the Merger Regulation joint control of the whole of a joint venture (the ‘JV’), by way of contribution to the JV of their respective businesses in the production and distribution of audio-visual content, namely the Shine Group (‘Shine’, United Kingdom) of 21st Century Fox, and Endemol Holding BV (‘Endemol’, the Netherlands) as well as CORE Media Group (‘CORE Media’, United States of America) of Apollo. (2) 21st Century Fox and Apollo are collectively referred to as ‘Notifying Parties’. 21st Century Fox, Apollo, Shine, Endemol and CORE Media are collectively referred to as ‘Parties’. 1 OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’). With effect from 1 December 2009, the Treaty on the Functioning of the European Union (‘TFEU’) has introduced certain changes, such as the replacement of ‘Community’ by ‘Union’ and ‘common market’ by ‘internal market’. The terminology of the TFEU will be used throughout this decision. Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel, BELGIË Tel: +32 229-91111. Fax: +32 229-64301. E-mail: [email protected]. 1. THE PARTIES (3) 21st Century Fox is a media and entertainment company with operations all over the world in both the production and the distribution of film and TV content. It controls Shine, a group of production companies, which is active in the production and distribution of audio-visual content in 12 countries. Shine also distributes a catalogue of pre-produced TV content and formats to TV channel suppliers. Moreover, 21st Century Fox controls Fox International Channels which operates TV channels including the Fox Channel, National Geographic, Baby TV, and STAR channels. 21st Century Fox will retain control over Fox International Channels. (4) Apollo manages investment funds which invest in companies involved in various businesses around the world. Funds managed by Apollo control Endemol and CORE Media. Endemol produces and distributes audio-visual content for broadcasting and to other platforms. It also distributes a catalogue of pre-produced TV content to TV channel suppliers. CORE Media consists of SHARP Entertainment, which produces and distributes TV content in the U.S., and 19 Entertainment, which is active in TV production, recording and artist management. In the EEA it is active in the licensing of audio-visual TV content. 2. THE OPERATION (5) On 25 July 2014, 21st Century Fox and Apollo entered into an agreement with the purpose of combining their respective businesses in the production and distribution of audio-visual content and constitute the JV. (6) 21st Century Fox and Apollo will each hold […]. The agreement envisages that 21st Century Fox and Apollo will each have the ability to appoint […] voting directors of the Board of Directors, and that approval by at least […] voting directors will be required for, inter alia, […]. Both 21st Century Fox and Apollo will have the ability to […]. 21st Century Fox and Apollo will thus acquire joint control over the JV. (7) The agreement envisages that the JV will have its own management dedicated to the day-to-day operations and access to sufficient resources. It will conduct the businesses previously conducted by each of Endemol, CORE Media and Shine, which involves operating an integrated, standalone business beyond one specific function for 21st Century Fox and Apollo. The JV will be selling to companies outside to its parents’ groups and it will operate on a lasting basis. The JV will thus be full-function. (8) Therefore, the proposed transaction constitutes a concentration within the meaning of Article 3(1)(b) and 3(4) of the Merger Regulation. 3. EU DIMENSION (9) The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 5 000 million2 (21st Century Fox: EUR 21 682 million3, Apollo: 2 Turnover calculated in accordance with Article 5 of the Merger Regulation and the Commission Consolidated Jurisdictional Notice (OJ C95, 16.04.2008, p. 1). 2 EUR […]4). Each of them has an EU-wide turnover in excess of EUR 250 million (21st Century Fox: EUR […], Apollo: EUR […]), but they do not achieve more than two-thirds of its aggregate EU-wide turnover within one and the same Member State. The notified operation therefore has an EU dimension pursuant to Article 1(2) of the Merger Regulation. 4. INTRODUCTION: THE TV VALUE CHAIN AND THE PARTIES’ ACTIVITIES (10) Audio-visual TV content (hereinafter, also ‘TV content’) comprises entertainment products (films, sports, series, shows, live events, documentaries, etc.) that can be broadcasted via TV. 5 In its past decisional practice, the Commission has distinguished different activities in the value chain for TV-related content, namely: (1) the production of TV content; (2) the licensing of broadcasting rights relating to TV content; (3) the wholesale supply of TV channels; and (4) the retail supply of TV services to end customers.6 (11) The proposed transaction mostly relates to activities (1) and (2) identified above, since the activities contributed by the Notifying Parties to the JV relate to the production of TV content and the licensing of broadcasting rights relating to TV content rights.7 4.1. Production of TV content (12) This part of the value chain concerns the production of new TV content. TV production companies produce TV content either (i) for internal use on their own TV channels or video-on-demand (‘VOD’) services if they are vertically integrated in the wholesale supply of TV channels and/or in the retail of TV services (i.e., captive TV production), or (ii) for supply to third-party customers (i.e., non-captive TV production). Third-party customers are typically (i) TV channel suppliers, which then incorporate them into linear TV channels; or (ii) content platform operators, which then retail the TV content to end users on a non-linear basis (i.e., Pay-Per-View (‘PPV’) or VOD, including non-traditional platforms, i.e. Over-The- Top (‘OTT’) platforms). (13) In most cases, TV production companies produce TV content tailored to the needs of their customers on the basis of original TV formats 8 that they develop 3 This figure and the other turnover figures for 21st Century Fox in this section are for the business year running from 1 July 2012 to 30 June 2013. 4 This figure and the other turnover figures for Apollo in this section are for the business year running from 1 January 2013 to 31 December 2013. 5 Commission decision of 25 June 2008 in case M.5121 News Corp / Premiere, paragraph 28. 6 See for instance Commission decision of 21 December 2010 in case M.5932 News Corp / BSkyB; Commission decision of 22 September 2006 in case M.4353 Permira / All3Media Group; and Commission decision of 15 April 2013 in case M.6880 Liberty Global / Virgin Media. 7 Both Shine and Endemol also have activities in digital production and advertising. Shine’s ChannelFlip and Endemol Beyond are companies which produce and distribute digital entertainment content and advertising campaigns online. The proposed transaction does not give rise to any affected markets in this area and this overlap will therefore not be further discusses in the present decision. 8 TV format refers to the overall concept and branding of a copyrighted TV program. 3 themselves or that they acquire from right holders (so-called ‘commissioned production’). However, in some instances, TV production companies are hired by TV channel suppliers or content platform operators to simply provide the technical production means and deliver the finished programme based on a TV format owned or acquired by the hiring company (so-called ‘production-for-hire’ or ‘supply of TV production services’). (14) The production costs are most often borne entirely or almost entirely by the TV channel suppliers or content platform operators. As regards ownership of the various rights relating to the TV content (e.g., primary TV broadcast rights, catch up, VOD, etc.), the extent to which those rights are retained by the production company – as opposed to the acquirer of TV content – may vary based on a number of factors, such as national regulation in the country concerned, the type of broadcasting, the outcome of the commercial negotiations between the parties, etc. Producers and/or the acquirers of TV content may then achieve secondary revenues by further licensing/distributing the TV content or the TV format to third parties.