sou · GNB330 · 2000-01-01 00:00:00 — I enlighet med andra stycket kommer de procedurbestämmelser som föreskrivs i konkurrenslagen att gälla för sådana mål. 4 § Ordföranden, vice ordföranden och en av de särskilda ledamöterna skall vara jurister och ha erfarenhet som domare. De andra särskilda ledamöterna skall vara ekonomiska experter. Om det i målet skall prövas en fråga som avses i mediekoncentrationslagen (0000:000) skall dock minst en av de sär- skilda ledamöterna ha särskilda insikter i sådan verksamhet som avses i nämnda lag. För vice ordföranden och var och en av de särskilda ledamöterna finns en eller flera ersättare. Bestämmelserna om vice ordförande och särskild ledamot gäller även ersättare. Enligt förslaget skall minst en av de särskilda ledamöterna ha särskilda insikter i verksamhet som avses i mediekoncentrationslagen, när Mark- nadsdomstolen skall pröva en fråga som avses i nämnda lag. Detta gäller även om dessutom frågor som avses i konkurrenslagen skall prövas i målet. Hinder föreligger inte mot att mer än en av ledamöterna har sådana särskilda insikter. En ledamot kan tänkas vara både ekonomisk expert och ha sådana insikter, exempelvis en specialist inom ämnet medieekonomi. 18.6Förslaget till lag om ändring i radio- och TV-lagen (1996:844) 8 kap. 7 § Om det i ett avtal om anslutning till en anläggning för trådsändning, varifrån TV-program sänds vidare till allmänheten och sändningarna når fler än tio bostäder, uppställs villkor som innebär begränsning av rätten att installera eller använda annan anläggning för trådsändning, eller andra tekniska hjälp- medel för att ta emot TV-program, är villkoret utan verkan. Förslaget innebär att det civilrättsligt blir utan verkan, om ett kabel-TV- företag som villkor för anslutning till anläggningen uppställer villkor som innebär begränsning av rätten att installera eller använda annan anläggning för trådsändning eller andra tekniska hjälpmedel för att ta emot TV-program, t.ex. en parabolantennanläggning. Förutsättningen är att det är fråga om ett villkor för anslutning till en anläggning varifrån TV-program sänds vidare till allmänheten och sändningarna når fler än tio bostäder. Förslaget har motiverats i kapitel 15. Förslaget föreslås träda i kraft . Normalt brukar ny civillag inte tilläggas tillbakaverkande kraft men något konstitutionellt hinder mot detta föreligger inte. Förevarande bestämmelse är av den karaktären att något hinder mot att låta det få verkan för redan träffade avtal inte kan anses föreligga. 18.7Förslaget till förordning om ändring i förordningen (1996:353) med instruktion för 3 § skall fullgöra de uppgifter som följer av konkurrens- lagen (1993:20 ), lagen (1994:615) om ingripande mot otillbörligt beteende avseende offentlig upphandling och mediekoncentrationslagen (0000:000). är sådan behörig myndighet som avses i 2 § lagen (1994:1845 ) om tillämpningen av Europeiska gemenskapernas konkurrens- och statsstödsregler. Förslaget innebär att mediekoncentrationslagen nämns bland de lagar som ålägger uppgifter. 12 a § I enlighet med 7 § mediekoncentrationslagen (0000:000) prövas frågor som avses i nämnda lag av . Generaldirektören får hänskjuta även andra frågor till nämnden. består av generaldirektören, som är ordfö- rande, och högst tio andra ledamöter. Andra ledamöter än ordföranden utses av regeringen för bestämd tid. Nämnden är beslutför när ordföranden och minst hälften av de andra ledamöterna är närvarande. Uppgifterna för och nämndens samman- sättning har berörts i anslutning till 7 § förslaget till mediekoncentra- tionslag. Att kommittén föreslår att så många som tio ledamöter skall ingå i nämnden sammanhänger med att jävsfrågor inte sällan kan förut- sättas uppkomma för vissa ledamöter och att det därför är väsentligt att det finns ett så stort antal ledamöter att nämnden kan bli beslutför. In accordance with its terms of reference, the Committee was charged with putting forward proposals for legislation, the purpose of which would be to safeguard the pluralism of Swedish media and counteract any concentration of ownership and power in mass media that may harm a free and broad exchange of views and a free and comprehensive dissemination of information. It was recommended that the proposals be incorporated in a special law. was also directed to examine the applicability of legislation concerning competition in this particular area. In describing the background to its considerations, the Committee reports on the structure of the media industry in , current technological developments, constitutional requirements, the current regulations on competition and relevant provisions relating to radio and television (Chapters 2- 6). also reports on conditions in a number of comparable countries and on developments in the EU and (Chapters 7- 9). The terms of reference state that development in parts of the media market in recent years has been moving towards diminished pluralism and a greater concentration of ownership. The details given in the Committees report (Chapter 2) indicate that this development has not been entirely clear cut. It is true that because of their acquisitions, several owner groups in the daily press field have increased their share of the total market. On the other hand, a considerable number of new owners have established themselves in the daily press, radio and television markets while at the same time one of the major daily press groups has been dissolved. Although the tendency towards greater concentration should not be exaggerated, it is not improbable that the present development will continue to move towards even larger companies with interests in several media and in several countries and in the long term could lead to greater concentrations of ownership. This development has been the subject of lively public debate with strongly opposing opinions. Some commentators regarded the processes leading to greater concentration as positive. They consider, for example, that the elimination of weak newspapers from the local daily press markets provide the remaining newspapers with the resources to raise editorial quality and, at the same time, broaden the material that is opinion-moulding in order to attract different categories of readers. According to this view, the financially stronger newspapers are better able to withstand pressure from advertisers and other pressure groups. They maintain that insofar as such trends towards standardisation have manifested themselves, they were the outcome of totally different factors than that of ownership concentration, such as a greater commercialisation of the media. Others hold the view that the concentration has already had a disquieting effect, or that there is a risk of it happening if the trend continues. Yet another group believe that the issue is basically one of principle, and affects the foundations of democracy. In their opinion, the distribution of power is equally important in the area in question as it is for political democracy. The need for legislation etc. The most disquieting factor in this area, irrespective of the way we assess developments so far, is the present uncertainty about whether a possible measure exists which could counteract even very drastic changes that seriously threaten media pluralism as well as practical opportunities of utilising freedom of speech. This situation appears to be unparallelled in almost every other comparable country. Public responsibility in this field cannot easily be set aside by referring to the interests of a self-regulating market and the fundamental right of . Under the Instrument of Government, democracy in is based on freedom of opinion and it is the duty of the Government to ensure that it remains a reality. This is particularly valid in that it is doubtful whether reliance can be placed on the corrective implied in the regulations relating to company acquisitions laid down in the Competition Act. Although the regulations are based on established international principles, it is doubtful as far as is concerned whether the law can penetrate the right of , protected as it is by the Freedom of the Press Act and the Fundamental on Freedom of Expression. The legal position is not at all clear on this point at present. This legal uncertainty is not just a matter of whether the regulations on merger control in the Company Act are applicable in an area protected under the Constitution (a matter widely debated at the time of acquisition of ), but involves other established principles for the protection of fair competition, namely, the prohibition on cooperation for the purpose of limiting competition and the abuse of dominant positions in the market. It is likely that these principles and relevant regulations in earlier legislation on competition were generally accepted as applicable to the media sector as well. However, recent discussion has shown that this has also become highly controversial. The principles concerned have considerable practical significance, as the media sector is a dynamic and central area with rapidly developing new technology. In addition, competition in a limited market, such as , that lacks protective regulations, could be substantially reduced or even cease to exist in some sectors of the media without much difficulty. It could be done, for example, through imposing conditions on the sale of advertising space, blockades that affect distribution and printing, or similar measures. The convergence that characterises development in this field means, among other things, that the borderlines are becoming less clear cut between different technical methods for the dissemination of information, and is an argument for applying the same rules to all types of media business activities irrespective of the technology on which they are based. As far as could be ascertained, not one of the comparable countries doubted that the general rules concerning competition were applicable in the media field. Moreover, special legislation exists in many of these countries in order to protect against a concentration of companies in this area. The Committee considered whether voluntary agreements would satisfy the need for measures in this field, and thereby avoid legislative measures. However, this did not meet with any appreciable response from leading organisations and actors in the media industry, and it is obvious that considerable legal and practical difficulties would be encountered. Voluntary agreements may, however, serve a purpose from other points of view. One of these is the to satisfy the wishes of readers of daily newspapers or magazines for greater information than is at present supplied in the actual publication about the interest groups behind the newspaper company. Several countries have regulated this aspect in law. A view sometimes met with in debate is that legislative measures in this sensitive area should not be considered seriously unless developments lead to a definite need to intervene. In the event of a rapid change in ownership and power, or abuse of a dominating position or similar practices that could threaten competition, pluralism and freedom of speech, the Government authorities, the public and competitors would be confronted with a fait accompli. In order to intervene, the first requirement would be to change the Constitution, and that takes some time. Thus, a proposal put forward now would not come into force before 2003. The Committee considered it doubtful to rely on a strategy which in the long run would mean that changes might have to be made with retroactive effect. This is not always possible if is to respect the fundamental principles of law and the international conventions that we have adopted. The above indicates that there is a need for legislation if it is desired to remove the present legal uncertainty straight away while retaining some preparedness for meeting a development that could become a serious threat to competition, pluralism and to practical opportunities of exercising freedom of speech. Furthermore, developments in the EU may make legislation unavoidable. has also recently recommended that if they have not already done so, member states should introduce legislation for this purpose. The uncertain constitutional position means that legislation must be supported by a change in the Constitution, to avoid the risk of contravening the Freedom of the Press Act and the Fundamental on Freedom of Expression. Other countries have been able to take measures without changing their constitutions. In case, the difference lies in our detailed constitutional control of the freedom of the press and speech which is without parallel in other countries. This control is of inestimable value in that it guarantees freedom of speech. At the same time it has meant that continuous changes have been required in order to adapt the control of various principles that were deemed sufficiently important to make adjustments unavoidable to the fundamental provisions. The interpretation of constitutional law in this area is difficult and the implications of the provisions are uncertain. Unless there are clear lines of interpretation, respect for constitutional law may be undermined in the long run. felt that, taken altogether, interest in maintaining respect for constitutional law, the legitimate for law and order, competition and freedom of speech as well as the international aspects mean that need for legislation is so strong that there is an overriding number of reasons for changing the constitutional law. This would make it possible to legislate in the present area and guarantee the observance of the general principals of fair trading even in the media sector. Act or a special law? The Committee considers that the Competition Acts prohibition on cooperation for the purpose of limiting competition and the abuse of dominant positions could be applied to the media sector without difficulty, provided that some special provisions are included. A special provision should be established when the Freedom of the Press Act is opened for the purpose of ensuring the applicability of the Competition Act. This should state that the application of the Competition Act allows no grounds for an authority or other public body to prevent the printing or publication of printed matter, or its dissemination to the general public, nor limit the powers which are vested in the publisher of periodicals through the Freedom of the Press Act. Similar provisions relating to radio and television programmes and technical recordings, should be included in the Fundamental on Freedom of Expression. The Committee considers that as a further guarantee to ensure that the distinctive character of the media sector is observed when applying the Competition Act, a special provision should be included in the Act stating that when in the examination of cases involving a sector protected under constitutional law, the fundamental interest of ensuring the free exchange of opinion, the free and comprehensive exchange of information and free artistic creation should be borne in mind. With regard to the matter of concentration, the Committee considers that there are overriding reasons for special legislation which would be complementary to the Competition Act, as presupposed in the terms of reference. Special legislation would mean the provisions would be better adapted to the special conditions that apply in the media sector. The predominance of fundamental concepts in the Competition Act and the relevant market would not be fully adequate as far as the extreme opinion-moulding media are concerned. Among other things, the Competition Act does not allow scope for a unified assessment of ownership and influence in different media, such as press and television, because the Competition Act regards them as different product markets. Moreover, the Competition Act provides support for examining the of local or regional companies with national coverage. The above thus resulted in the Committee drawing the conclusion that a special law should be introduced concerning media concentration that would be complementary to the Competition Act. Principles underlying a new control rejects the idea of framing a new law in such a way that existing company concentrations could be broken up. should any special restrictions be introduced to obstruct the of new companies, multi media ownership or any definite limitation on the expansion of a media company. The new law should be restricted to covering company acquisitions and other corresponding concentrations. The scope of application for the special law should be restricted to media which are opinion-moulders to an extreme degree, i.e., daily newspapers (whether produced on paper or electronically), radio and television. The general rules laid down in the Competition Act on company concentration should be adequate as far as other media are concerned. Technical developments may, however, require extending the area of application covered by the special law. decision in this respect should wait pending the work of currently underway, which is dealing with the coordination of regulations for electronic information services with those applying to radio and television. The new law should not extend to national public service companies which are owned by a foundation. In other respects, the law should apply to both state-owned and private companies, irrespective of whether the company has Swedish or foreign ownership, provided that it operates on the Swedish market. It is not necessary to introduce new regulations for the compulsory notification of the acquisition of a media company. The rules laid down in the Competition Act ought to be adequate and involve the compulsory notification of company acquisitions where the companies have a joint turnover of more than billion, and the acquired company has a turnover in excess of a certain sum. If special reasons exist, however, the law should be applicable even when compulsory notification is not automatically incurred. In special cases, therefore, it should be applicable even with regard to local concentrations. The Committee considers that the starting point for examining a company acquisition or corresponding concentration under the new law, should be the question of whether the acquisition creates or strengthens a position where it is feared there is an intention to impede a free exchange of opinion and comprehensive information. This solution guarantees that the law is in agreement with the general objectives underlying the Freedom of the Press Act and the Fundamental on Freedom of Expression. If the law specified only this condition for intervening there would be objective agreement with the regulations of most other countries, including a recent law in . Nevertheless, it must be clear that by Swedish traditions on freedom of speech, the law would be too weak and unpredictable in its application. The Committee considers that further criteria must be drawn up in order for pronouncing a prohibition. Another condition could naturally be the compliance in principle of the Competition Act requirement for a ban on concentration. Another pre-condition for intervening could be that a concentration creates or strengthens a dominant position which essentially impedes, or is intended to impede, the existence or development of effective competition. This would, however, mean that the Competition Act requirement for a turnover in excess of billion would have to be disregarded, as the law would otherwise only apply to the largest media companies. This solution would in principle mean that major media companies exercising the greatest degree of opinion-moulding would be privileged with regard to competition. It is not sufficient to prohibit a concentration, as is done in other industries, when it contravenes established legal principles concerning competition. There is the additional requirement of it being feared that the concentration intended to impede the free exchange of opinion and comprehensive information. Act provides no opportunity to weigh up the influence of different markets on the significance of opinion-moulding. An alternative requirement for intervening could therefore be that a concentration creates or strengthens a position exercising considerable influence through several markets of this kind. Act system does not take this into account except in cases where a dominating position has already been achieved on a product market. A third type of case should also receive attention. A situation could arise in which a Swedish group had built up a substantial concentration on the media market but, in view of the groups past history and various arrangements, was unlikely to impede the free exchange of opinion and comprehensive dissemination of information. In due course, however, the group, or a major part of it, is sold to another company, such as a foreign media group, from which the same guarantees are not available without further examination. In this kind of situation, the Committee considers that an examination of the acquisition should take place, irrespective of whether the acquiring company was previously established as a media company or not. This means that an examination should also occur if an acquisition alters the control of a dominant position or a position comprising an important multi media ownership. Last of all, the acquisition may be prohibited even though it would not mean any increase in concentration on the Swedish market. Finally, the law should expressly state that an examination of a company acquisition should take place if it is feared that there is an intention to impede the free exchange of opinion and comprehensive information, taking into account the type of concentration, market conditions and the part the companies concerned are expected to play in the new situation. Naturally, it is often easier to predict the part companies can be expected to play where Swedish media companies are involved. Their previous actions on the Swedish media landscape serve as guidance in appraising them. The advantage that Swedish companies sometimes gain may not, however, be regarded as a form of discrimination against foreign companies. To sum up, the Committee considers that the law should be framed so that a concentration shall be prohibited if: It creates, strengthens or alters control over a dominating position, which essentially obstructs or is designed to impede the existence or devlopment of an effective competition in respect of such activities that according to the above have particular significance for opinion moulders the daily press, radio and television or whose position includes considerable influence in several such activities, and 2.In consideration of the type of concentration, market conditions and actions of the company concerned it is feared that it is devoted to impeding the free exchange of opinion and comprehensive information. The Committees proposals mean that the examining body shall not be given the authority to prescribe any alternative measures to a prohibition. All the circumstances surrounding an acquisition shall be taken into consideration, including such arrangements that aim to preserve the independence of the units included in the concentration. No negotiations on issues of this kind, similar to those involving the application of the Competition Act, should take place. The products and services embraced by the special law should be exempted from the scope of application pertaining to the Competition Act. Under the new law, issues relating to intervention against a concentration shall be examined in a court of law.