J.\11I.\AI

S S ION OF THE EUROPEAN COlV1l.VlUN I TIESCOM(92)480 final

Brussels, 23 December 1992

ELURAL I $M . AND MED IA CONCENTRAT ION

IN THE I NTERNAL MARKET

An .assessment of the need for Communi ty .act (onCommission Gree~ Pacer

NonCE TO 'IHE READER.

On a number of occasions , the European Parliament has requested that the Commission
should propose measures aiming to safeguard pluralism in view of mergers andacquisitions taking place within the media sectors. The questions arising as to thenecessity and timeliness of such possible actions are both complex and sensitive requiring,prior to taking a final decision , the wide canvassing of views from interested parties aswell as the initiation of a public debate. To these ends the Commission has decided topropose this Green paper.

The Green paper analyses the need for action and considers potential options. The
Commission has not committed itself to any of these options to date and would be willingto consider others that might arise.

In addition to the views of the European Parliament and competent national authorities,
the Commission seeks to receive the opinions of all interested parties and particularly theEuropean organisations representing television broadcasters

radio broadcasters

publishers , journalists , audio-visual creative artists, audio-visual producers

satellite

distributors, cable distributors and advertisers.

The Commission plans to invite these European trade organisations to a hearing on thisissue in the spring of next year.

Written comments should be submitted before the hearing and mailed to the following
address:

DGllIlF/5 - " Media and Data Protection " Unit
9; 6/11200 rue de 1a Loi
B - 1049 Brussels

- 2 -SUMMARY CONTENTS

SUMMARY

Introduct Ion

Part One.

OUTLINE OF THE ISSUE

Part Two.

THE LEVEL OF MEDIA CONCENTRATIONPart Three.

REVIEW OF MEASURES TAKEN AT NATIONAL LEVELPart Four.

ASSESSMENT OF THE NEED FOR ACT I ON

Chapter I. COMMUNITY OBJECTIVES
Chapter II. NEEDS IN THE LIGHT OF COMMUNITY OBJECTIVES

Section 1.

IdenHflcation of needs

In the light of the object Ives

relating to plural ism
Sect ion 2.

Identification of needs linked to the proper functioning of
the InternalmarketChapter III. NECESSITY FOR ACTION IN THE LIGHT OF NEEDS

Chapter IV. NECESSITY FOR ACTION AT COMMUNITY LEVEL

Chapter V.

THE TYPE OF ACT ION

IN THE LIGHT OF THE PRINCIPLE OFPROPORT IONAL I TY

Chapter V I .

SUMMARY OF POSSIBLE OPTIONS

1. No specific action at Community level (Option I)

2; Act ion that might be envisaged at Community level (Opt ions II and III)

Annex

Review of . national legislations

.......... .....

. .' . . .......
.. . . . . ........
. . . . . . ................
. . . . . . . . . . .. . ~- 3 -CONTENTSSUMMARY............................................................
Introduction.... .................... ....

Par tOne.

OUTLINE OF THE ISSUE.....................................

The concept of pluralism........................................

II.

Pluralism and concentration....................................

Conclusion..... ...

THE LEVEL OF MED I A CONCENTRATION........ . . . .. .

Part Two.

I.

................ 21. . . . . 23

General observations................................... .......

II. Observations by type of media.................................. 25
111. Oper-a-tors' strategies..........................................

Conclusion........
REVIEW OF MEASURES TAKEN AT NATIONAL LEVEL.............

Part Three.

Situation in each country......................................

II.

Overview....... ......

" 52

Conclusion..... ......

Part Four.

Chapter I.

ASSESSMENT OF THE NEED FOR ACT ION.. . .....

I.

COMMUNITY OBJECTI VES. . .

The completion and functioning of theinternal market.....................................

II.

Industrial POIICy...................................

III .

Audiovisual POliCy..................................

IV.

Respect of fundamental rights....................... 60

Chapter II. NEEDS IN THE LIGHT OF COMMUNITY OBJECTIVES..............

Section 1. Identification of needs in the light of theobjective of pluralism...................................

.....".......................

- 4 -Subsect ion 1.

Effectiveness of national safeguards.................

R I sics of circumvent Ion.

11.
12.

.. . . . . . . . . . . . 62

Discr imlnatory restr Ict ions............................... .

Indistinctly applied restrictions........ ...............

A. Measures relating to the providerof the service.......................................

Measures re I at i ng to serv ices. . . . . . . . . . . . . . . . . . . . . . . . 73
Conclusion.......................................................... 75

II. Yerger control at the nat ional level........................... 77
III

Transparency. . . . .

. . . . . . . . . . . 78

Conclusion............. ......................

Subsect ion 2.

The effectiveness of Community competition law.......

Convergence between the ma I ntenance of compet I t Ion

and the maintenance of plllrallsm................................

II. Limits to the convergence.......................................

11.
12.

Pluralism and competition: different crlterla...........
The Impossibility of applying competition

law in certain sltuat Ions where plural ism
may be affected.......................................... 83

13. The diff icul ty of a broad interpretat ionof c;:ompetition law.......................................
14.- Potential Ilmlts.........................................

Conclusion of Section 1.............................................

Sect ion 2.

Identification of needs I inked to the proper
functioning of the Internal market......................

- 5 -

I.

Restrictions on the free IIOvement of services where
there Is clrcwaventlon of legislation.........................

II .

Restrictions on the right of establishment.................... 89

III. Restr Ict Ions on c:ompet I t Ion. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . 90
IV.

Distort Ion of COIIP8t I t Ion. . . . ... .. . . . . . . . . . . . . . . .

. 91

Legal uncertainty regarding circumvention................ ......

VI.

ObStacles to access to mad la act Ivl ty In the COmmun I ty. . . . . . . . 93

Conc I us Ion ofChapter II............................................
.............. 98

Question 1

Chapter III. NECESSITY FOR ACTION IN THE LIGHT OF NEEDS............ 99
Cone I- usl-on-. . . . . . . . . . . . . . . . . . . . . . . 101

Question 2

101

Chapter IV. NECESSITY FOR ACTION AT COMMUNITY LEVEL.............. 102
Conclusion......................................................... 102

103

Quest Ion 3......... .

Ch~pter V.

THE TYPE OF ACTION IN THE LIGHT OF THE PRINCIPLEOF PROfORT I ONAlI TY . . . . . . . .

I.

.. . . . . . . . 1 03

H~rmonlzatlon of restrictions on media ownershlp............... 103
Ob j ect i ve of such act ion. . . .

. 103

Competence... ......... ......,

104

Scope................................................

104

General structure........... ..............

106

Question 4

108

II. Transparency.................................................. 108
Question 5......................................................... 109

.........................................................

- 6 -III . Estab II shment of a spec lal body............................... 109
Question 6

111

Chapter VI.

Stl&lARY OF POSSIBLE OPTIONS........................... 112

No specific action at community level (Option 1)............... 112
Specific actions that might be envisaged
level (Options II to V)........................................ 115

Option II : Recommendation relating to transparency........... 115
Option III : Harmonization of laws............................. 116
Sub-ootion A: co-ordinatlon of nat lonal legislat ions bymeans of a Council Dlrectlve................................. 116
Sub-oot ion B

approxlma-tion- of the dltferlng laws by meansof a Council regulation....................................... 117
Sub-oot ion C: approximat Ion of leg Is I at ion accompanied by

the establishment of an independent committee................ 118

Question 7 ............................................... ........ 119

Annex

Review of national legislation

- 7 -

s u .. .. AR

the Green Paper I s to present an in I t I a I assessmentof

The purpose

need for community act ion concerning concentrat ion

of

the

In the media(Television, radio, press) together with the different approaches which thecommission might adopt once it has consulted the parties concerned.

In recent years, Parliament has expressed Its concern about this Question

on several occasions, in part Icularofln Its resolut ions

15 February 1990

regulatory
measures so as to restrict concentnit ion In the media and safeguardand 16 September 1992, which call on the Commission to propose

pluralism.

In the I

ight

of

of

the community s objectives and powers, the results

thislook Into the need for action can be summarized as follows:

1.

ofProtection

pluralism as such Is primarily a matter for thevesand exerc i sing Its
Member States. I n work I ng towards its ob ject i
powers, the Community must , however, ensure that Its own activities andthose for which it has competence do not adversely affectofthis respect with regard solely to the objective

pluralism.

safeguarding plural ism,

there would not appear to be any need for act Ion at community level , sincenational mechanisms for protecting pluralism can be appli. ed to situations

with a Community dimension. Thus, should a broadcaster establ ished In
another Member State genuinely circumvent leglslat Ion on pluralism, theMember State

down In the case lawofreception could, subject to observing the conditions laidofthe CourtofJustice, restrict the free movement

such broadcasts. Similarly, where a merger declared to be compatible- withthe common market under the Merger Control Regulat Ion

Is harmful toplural ism, the Member State would sti II be able to take appropriate
measures to ensure that pluralism Is protected.

- 8 -

2. This capacity of the Member States to safeguard pluralism through anatlona.

regulatory. framework for mergers may. howeverlead toInterference within the area without frontiers consisting of the Community.

Since the mld- 1980s. laws on media ownership have been Introduced and arede"eloplng In divergent ways. Such laws on pluralism . which consist

particular In I imlting maximum holdings In media companies andprevent Ing cumulative control of . or holdings in. several media companies

at once. must be distinguished from the dlscr imlnatory restr Ictlons which
limit ownership by foreigners and which .are therefore incompatible with theTreaty.

3. Disparities between national measures aiming to safeguard pluralism
may. at least potentially. impact upon the functioning of this- area without

front iers :a Member State could possibly restrict the free movement of broadcasts
In the event of genuine circumvention of one of these laws;
the establ iShment of media companies In another Member State could be

Ilml ted;
restrictions and distortions of competition are Introduced;

uncertainty in the law . harmful to the competitiveness of companies.
could result from diverging views on what constitutes circumvention;such laws limit access to the activities and to the ownership of the
med I a. when access shoul d be fac III tated so as toperm I t theestablishment of the single market and secure the competitiveness of
media companies which plural ism requires.

The restr. ictions on ownership at the root of these effects are not . assuch

Incompatible with Community law.

pursue a pub I ic-

They are not dlscr imlnatory andinterest objective associated with freedom of expression.

Restrictions on media ownership cannot be replaced just by applying

general competition law and in particular. at Community level . the Merger
Control Regulation.

The latter can prevent mergers which adversely affectpluralism only inso far as they also affect competition. which Is nota Iways the case.

- 9 -

6. In the Iight of this analysis. there are three different options among

which the Commission may choose and on which the commission would like toknow the opinions of the parties concerned:(I) taking no action;(Ii) proposing a recommendation to enhance transparency;(i i I) proposing the harmonlzat Ion of nat ional restr ictions on media
ownersh i p by(a) a Council Di rect(b) a Council regulat Ion, orive. or(c) a directive or a regulation together with an independentcomml t tee.

The Commission does not current Iy have a part lcular preference for. anyoneof these opt Ions and leaves open the possibi I ity for other eventual
alternatives. It wishes to know the views of Interested parties on these

options as well as on the Questions posed In this Green paper which aresummar i sed be low:

QUESTIONofThe Commission would welcome the views

Interested parties regarding theneeds for action. and In particular on:- any cases

where the Community dimension

restrictionsofmedia activity has meant thatmedia ownership Imposed for theon

purposeofmaintaining

pluralism have become Ineffective. for eXample because they areofcircumvented or becauseofthe existencetransparency problems;

restrictions or restrictive

effectsother than thoseI dent I fled above;practical Instances where ownership restrictions have actually Impeded
the activityofeconomic operators In the sector;

- 10 -

the sectors and activities which are especially affected by restrictions
toon ownership (for example. Is the press subject

only In respect

effects not

restrictive

multimedia aspects but also In respectofmonomedlaof

aspects?).
QUESTIONofThe Commission would welcome the views

toobjectives.

sufficient Importance. In .the lightofneeds Identified are

Communityofwhen suchso.

require action In the media Industry and. If

taken.

beaction shouldInterested parties on whether the

QUEST ION

Theof

Commission would welcome the viewsofeffectiveness. In the lightbeaction whl.ch wouldofCommunity objectives.

theMember State level.

attaken solely

onInterested parties

QUEST IONofThe Commission would welcome the viewsof apossible harmonizationonparticularaudienceas a

the two variants for Its

basis for setting thresholds.

distribution areas

def Inlng theInstrUment

concept of

on

any

as

content

theonInterested parties

envisaged above. and In
on the use
on

the

of

the

demarcation

other cossible references , and on ways ofcontroller

QUEST ION 5

The Commission would welcome the views of Interested parties on thedesirability of action to promote transparency which would besecarate froma harmonizat ion instrument.

QUEST ION 6

The Commission would welcome the views of interested parties on thedesirability of setting up a body with compe~ence for media concentration.

- 11 -QUESTION 7

The commission would welcome the views of Interested parties on each ofthese foreseeable options.

- 12 -NTRODUCT ION
Before , taking up a position on the need for a Community initiative withregard to media (Television, radio, press) concentration, the Commission
wishes to present Its initial assessment and gather contributions from allinterested part ies.
The Green Paper is In response to the requests expressed over several years

by Par I iament, in particular in its resolut Ion of 15 February 1990 on media
takeovers and mergers, 1 In which it called on the Commission In particular
to put forward proposals for establ ishing a special legislative framework
on med I a mergers and takeovers

Par I lament drew UP a fresh resolut ion, adopted on 16Septenlber 1992, which
repeats this request.

This resolution refers to the effects of differing

national laws on the operation of the internal market and caliS on theCommission .. tosubmit, after consultation with the parties concerned,

effective measures to combat or restrict concentrat ion in the

proposal for

media, if necessary in the form of an anti-concentration directive...

The communicat ion from the Commission to the Counci I and Par I iament
21 February 1990 on audiovisual pollcy 4 states, in the section entitled
Pluralism and mergers" , that:On

account

plural Ism,

of

. the

the ImportanceCommission

possible proposal for
aspects of

It attaches tonationalIs

stUdying this quest

directive, whose aim would be

legislation Inofthe objective

Ion withtomaintaining
vlfM

to a

harmonize certain

this field"

OJ No C 68, 19. 1990, pp. 137-8.
Resolution on media concentration and diversity of opinions, Resolution

A3-0153/92/(;:orr.
Paragraph 27.
COM(90) 78 final.

Study on pluralism and concentration in media - economic evaluation"

Booz-Allen & Hami Iton; February 1992; This studY wi II be made avai lable

by the Commission on request by fax or mall to the following address:
Commission of the European Communities, DG 1II/F-5, Media and Data
200, rue de la Lol, B - 1049 Brussels,
6/11;
Protection Unit , N-9,

Be Ig lum; Fax: 32-2- 295 02 81.

- 14 -

rt
T HE

T l

U E

The effect of concentration in the media on media pluralism can beunderstood only If one first defines what is meant by " pluralismI.

THE CONCEPT OF PLURAL ISM

Outside the legai context, the concept of pluralism Is used in a broad,general sense. Thus, reference is sometimes made to plural ism when It
comes to just Ify i ng pos i t I ve measures i n support of freedom of express ion
and diversity of Information sources, e.
al-d to the pntss or dl-strtbutton
systems. This kind of use Is encountered in the general context ofmeasures to assist the media; with its limits difficult to gauge sincepluralism is easi Iy invoked as soon as a problem involves the media.
Legal analysis provides some clarification, however, even if the term

not used In international statutes on basic rights. In national legal

systems, the concept of plural ism

constitutional statutes

is not explicit Iy recognized In

but can be found In the rulings of theconstitutional courts of certain Member states (France. Germany and Italy).

which treat It as a constitutional principle. Other legislative statutes
wh ich refer toplural ism do not def Ine the concept. The var ietyexpressions used containing the word " pluralism" - pluralism of the media.

plural ism in the media. the pluralist nature of the expression of currents
thought and opinion, plural ism of informatlon. plural ism of thepress. plurality of the medla 10 - shows that there Is no common

ofunderstanding of the concept.

Article 20(3) of the Spanish Constitution refers to " the pluralism ofsociety" .
The French law of 30 September 1986.
Italy, Law of 6 August 1990; Spain. Law of 3 May 1990; Luxembourg. Law
of 27 July 1991. Portugal . Law of 7 September 1990.
Luxembourg, Law of 27 July 1991
10 Council Regulat Ion (EEC) No 4064/89 of 21 December 1989 on the control
of concentrat ions between undertak ings.

- 15 -

However, two common features do emerge from a legal analysis of theEuropean Convent ion on Human Rights as Interpreted by the European COurt of

Human Rights and of national laws:

the concept Of plural ism serves to limit the scope of the pr Inclple offreedom of expression;

the purpOse of such Ilmltat Ion IS to guarantee diversity of Information
for the public.

1. The concept of pluralism serves to 11I.lt the sCOPe of the principle offree~ of express Ion
While the principle of safeguarding pluralism has constitutional force In

certain Member-States, It does not as such constitute a human or basic

right. The link between maintaining pluralism and the principle of freedomof expression is not such as to make the former a basic right. 80th
statutes and case- law the I ink is one of derogat Ion from the pr Inclple offreedom of expression. LIke certain obi igations relating to editorial

content (moral ity, impartiality, taste and decency, etc. ), the function of
the concept Is to limit In certain cases the application of the right tofreedom of expression to a potential beneficiary. Thus, It is possible in

the name of plural ism to refuse a broadcast ing licence or permission for
the takeover of a newspaper, a monolithic corporate structure, a holding In
a media company, etc.

- 16 -

The fact that a derogation Is involved Is brought out both by the judgmentsof the European COurt , of Human Rights and the ru. llngs of the supreme courtsof certain countr les.

The European Court of Human Rights (hereinafter, the ECHR) takes the viewthat pluralism is an except ion to the pr inciple of freedom of expression,

designed to protect the rights of others (Art Icle 10(2) of the European

COnvent Ion -on Human Rights).
GroDDeraIn thedecision (28 March 1990), the ECHR I inlcs pluralism to

Article 10(2) of the Convention (which provides for the possibility ofrestriction if the measure is prescribed by law, If it relates to alegitimate objective and If

it is necessary in a democratic society).

referring to the legitimate aim of protecting the rights of others(clause 70). The European Commission on Human Rights had not ex-am-ined thl-spoint (It limited itself to the examination of the condition " prescribed bylaw

However, the holders of these " rights of others " are not specified:

are they the viewers, who have the right to a diversity of opinions, or are

they other beneficiaries of freedom of expression, who have a right ofaccess to such means of express ion?

11 In particular in France and Germany (see Annex). In the United Statesof Amer ica too, the Supreme Court has ruled that the right of viewers
takes precedence over the right of broadcasters, and that the divers i ty
Red LionInof opinion on the airwaves serves First Amendment
Broadcast ino v the Federa I Commun icat ions Commission (FCC) (1969), theCourt made the explicit point, with regard to the First Amendment, thatvalues.

itright of thenotthe right ofis theviewers and listeners,
broadcasters, which is paramount" (a concept which is close to therights of others
European Convention on Human Rights) andIn thesince frequencies are I imlted, " no one has a First Amendment right to alicence"
Metro Broadcast Ino v FCC (27 June 1990), concerning theIn

fCC' s poliCY of promoting the racial and ethnic plural ism of programmes
increasing the diversity of radio broadcasting ownership throughminority ownership policies
Supreme courtthat " thediversity of views and Information on the airwaves serves importantin
Post ComDanv National Citizens
First Amendment values
Committee for Broadcast Ina (12 June 1978) concerning a cross-medla

by

the

ruled

Lastly,ownership rule of the FCC' s (radlo-TV/dai Iy news In a same community),
the COUrt held that the rule " did not violate First and Fifth Amendment
rights of newspaper owners" . As regards the cross-ownership rule which
it drew up in 1975, the FCC explained that " the premise is that ademocratic society cannot function without the clash of divergent views.
If our democratic society
function, nothing can be more

Is toimportant than ensur Ing that there is a free f low of informat ion from as

many divergent sources as possible " (50 FCC 2nd , Par. 111).

- 17 -

2. The purpose of such limitation Is to guarantee diversity of Information
for the public
The I imit placed on the principle of f.reedom of expression, on the groundsof pluralism, Is justified by the fact that the objective is to ensure
diversity of information for the public. In the interests of access tosuch diversity of views, it may indeed be necessary, In ce.rtaln cases, tolimit appl

icatlon of the principle of freedom of expression because It

would resu.lt in prevent ing another benef iciary of that freedom from using

It. Such Is the case, for Instance, where there Is a shortage of means ofbroadcasting or where access to them is limited.

In accordance with the interpretation placed on the European Convention on

Human Rlghts, 12 the " information

whose diversity

is sought must be

underst-oodas a generic term in the-" broad sense, I. e. not just newspapers
the news bulletin but all kinds of ideas. all types of programme,orconununicat ion andcontent.13 Only in supervising the lawfulness of therestr Ict ions on freedom of expression may the di fferences in the nature ofsuch Informat ion be accounted for.

12 As regards advertising, see In particular the Judgment of the ECHR of
20 November 1989 in Markt Intern Verlaa and Klaus Beerman v Federal
Reoubllc of Germany , series A. No 165, paragraph 26.
13 Thus, entertainment programmes could cause real problems of diversity of
information If the only fictional works which the public could watch
were ones in which the vi Ilains were always played by coloured actors.

- 18 -

PI vers I ty

of I nformat Ion can be ach I eved in one of two ways. A media

operator can be aSked to provide. In Its communication activity. diversityof existing opinions (Internal pluralism) or to make several media
I ic. the combination of which represents diversity.
~ach medium being one element In that diversity (external pluralism).
available to the pub

the case of Internal pluralism. the me asures adopted relate either to theinternal organlzat ion of the media company whose control structure will

have to represent the various currents of opinion. or to the editorial

the newspapers or broadcasts. I

content of

the case of externa I

plural ism. the measures are directed at organizlng relat Ions between thevar ious media companies so as to ensure a degree of autonomy between themthese). Similar to this type ofmeasure are those which are aimed at facilitating access to media
act i v It i es. for I nstance by Increas i ng the number of broadcast I ng II cences(anti-concentration measures are part of(TV or radio) available on a particular territory and thus maktng
possible to increase the number of media available to the public.

CONCLUSION

The concept

In tera

of

view

cases
to

can

the

scope ofthe prIncIple

ofguaranteeing dIversity

report. the ter8 - pluralls,,ofdiversityII.

be defined both In tera

Its ObJective: It Is a legal conceptofIn certaIn

pluralls8

Infor8atlon- wIll be used

- In the broad

of

whose

purpose Is

freedOllofof

Infor8atlon for theto eanIts function and
to

118/t

expressIon wIth

public. In thiS

the ObJectIve. that Is

sense.

PLURAL I SM AND CONCENTRA T ION

Mergers in the media industry do not have. in themselves. a positive or anegative effect on pluralism. Such an effect can only be measured byreference to a genera I env ironment compr i si ng the pub I i c concerned and thedl vers ity

informat ion offeredto that pub I ic

at a given place.

- 19 -

Depending on Its impact on that environment, the merger may have a positiveor negative effect pn pluralism. The effect will be positive If thediversity of Information offered to the public is Increased, e. g. If themerger makes it possible to extend the geographical area served, or Is
preserved when it would diminish (If the merger prevents the disappearanceof a media operator). On the other h~nd, the effect wi II be negat Ive If
the diversity of information offered to the pub. lic is reduced (if a merger

leads tothe disappearance of titles or channels). One and the same

operat Ion could have both consequences, depending on - the pub I ic concerned:
thus, the public in a media operator s new broadcasting or circulation area

will take a positive view of a merger even though It restricts the choiceof the public In the original broadcasting or circulation area covered by
the media operators which were the subject of the merger.

It

to determine how far concentrat ion ma-y create problems of pluralism
therefore necessary to define what Is meant by diversity In the choice of
information offered to the public at a particular place.

Diversity of Information

Diversity can be assessed In many ways:

according to the editor ial content of

the broadcasts or the press,

accord I ng to the number of channe I s or tit I es. and accord i ng to the numberof media controllers or owners. These three methods vary in Importance.
Diversity of content is the most logical criterion but It is also difficult

to apply given the complexity of the analysis which it requires
subjectivity. The

nUmber of-

14 and its

channels or titles Is easily measurable as acriterion but not very significant as regards diversity of editorial
content, which may remain weak and virtually controlled by a single
media controllers
operator. Nor does the criterion ofthenumberofreflect editorial content . but It is a more sensitive indicator than theprevious one since it lays stress on autonomy andstructural independence

among controllers. which. without being able to guarantee it, constitutes aminimum condition of the diversity of choice offered to the public.

all editorial
characteristics of the medium in question (such as type of medium. type

14 It would indeed be necessary to take account oftheof programme or column . editorial opinions. frequency and duration of
consumerbroadcast or circulation.. etc. ) and also to see whether the
given actual media consumption patterns. genuinely benefits from suchIs the diversity of opinions
diversity (Does he have access toit?

soc i ety and among consumers ref I ected? etc.

- 20 -

Control of a collection of media by a single person, even If the objective
Is only commercial, .has the potential effect of making the spreading ofideas dependent on acceptance by a sing I person and of restr i ct ialternative means. Whatever the editorial content or the number ofInformation carriers, concentration of control of media access in the handsof a few is by definition a threat to the diversity of Information.
Conversely, multiplying the number of alternative control lers Increases theprobability of diversity of information, even if this is not automati.

Economically speaking, effect ive compet It Ion among controllers may lead toqual itative differentiation between the products offered by each of themand, hence, favour editorial diversity.

Contro I .

Since it may serve as a cr iter ion formeasur I ng the d i versi ty

Information , the question of control is essential , for it is necessary toknow who controls what.

It is not possible simply to use the concept of owner or

The controller.

major I ty shareholder

in a media company since, under the Inf luence ofanti-concentration rules, there may be .several shareholders with the same

15 While the notion of controller is moresuitable, It may also be difficult to identify clearly who Is the
proportion of ownership.

controller with decisive inf luence.
Diversitytaken ofof'control.

To assess choice in a given area, account must be

the consumpt Ion of a II med I a, I . e. not just of each type(monomedla) but of all

types. eonsumpt Ion of the media indeed shows that

one type may constitute an alternative and a substitute foranother: since

the large majority of individuals (except in Spain, Portugal and Greece)

consumes three types of media every day - radio, television and the press(see Tab I e 1) - somebody who Is a reader and capt i ve v I ewer of the productsof the same controller. may neverthe less listen to radio programmes
broadcast by another controller. This highlights the problems of

mul t Imedla control , since I f one controller dominates the three media there
is no longer any alternative, either within one medium or between types.

15 In Spain, for example, Fininvest, Javier la Rosa and BOCE each have a
25% holding in Telecinco.. In France, the Hachette Group and Reteltal ia(Ber lusconi) each had a 25% holding in La Cinq.

- 21 -

Logically, everybody to whom the media are
addressed should be . taken as a reference (viewer. listener . reader)

Refer~nce to the Dub lie

order to determine the number of Independent media offered to that person
Is Impossible. It Is necessary to focus on thewhere he lives. As

thisnot Ion of consumpt Ion area and determine the choice of media offeredsuch areas (which may not be precisely ~ellneated or homogeneous).

CONClUS ION

The

effects of aaecila aerger

onplurallsa

IlUst

be

by reference

assessed

the erwlronaent In which It occurs. Mergers

canhtNe negatIVe

plurallsa. slnce 'ofaecilathey can Iia/t the dIVersity

the essential conditions for the diversity

public.

ofcontrollers.

Inforutfon offeredeffects on
one oftotheNEWSPAPER

TV AND DAILY~ 7

NEWSPAPER

RADIO AND DAILY. Nole: - All figures refer to weekly reach except Germany (bi-weekly), Netherlands and Spain (daily)- 50% of unreached audience is assumed to overlap (after rounding uP)

United Kingdom

SDain

PortuClal

Netherlands

Italy

GreeceGermanv

FranceDenmark

Belalum

TV AND RADIO

9112. N8S. G.QIRADIO AND DAILYNEWSPAPER

APPROXIMATE MINIMUM PERCENTAGE OF POPULATION (OVER 13 YEARS) WITH
MULTI. MEDIA REACH (DERIVED FROM MEDIA REACH DATA - 19Q9/90)

THERE IS A HIGH- LEVEL OF CERTAINTY THAT MULTI- MEDIA CONSUMPTION IS VERYCOMMON IN THE NORTHERN COUNTRIESTAB I

- 23 -

art Two
THE

LEVEL

NEO

CONCENTRAT I

The level of concentration can be assessed using many different criteria.
with the analysis then producing divergent results or no figures at all.
To be able to draw on an economic analysis which addressed th~ problems ofconcentration and plural ism, the Commission ordered an economic study (seeabove) .

GENERAL

In view of the problems which mergers r. aise with regard to plural ism In the
med I a and wh

i ch have been out lined I n Par tOne, It Is necessary to starfrom the effects of concentrat ion on actual patterns of media consumpt

Ion(see Tables I and II).
For the reasons already given, the study gives a picture of the diversity

controllers

audience reached by media

of media ownership by measuring thestili

Imprecise, thiS method
In the Member states (see Table III). Though
Is appropriate to the object Ive of measur Ing the effect of mergers onpluralism, sinceinterest Ing

it focuses on media

compar I son

betweenconsumption and provides an

Member States.

does

not

use

the

criterion of the number of media carriers (titles. channels, radio) owned
by a single controller. which Is not as such a sufficient criterion forassessing the Impact on pluralism. In the United Kingdom. for instance.

the two I argest newspaper pub I i shers ho I d on I y 2% of tit I es but account for
58% of circulation (see Tabl~

IV).

- 24 -Taking the audience of the two largest controllers In each country. It is
possible to make a co~parison between Member States (see also Table V):

Television.

Highest leve I:

P (100%). DK (95%). UK (89%)(French-speaking) B (59%). D (62%);

Press.

Lowest level:
Highest level:
Lowest I eve I :E (24%). F and D (33%);

Highest level:
Lowest level:

UK (96%). D (93%). DK (88%)

Radio.

IRL (76%). GR (60%) . UK (58%)

GR (21%). F (43%). NL (51%).

As regards the number of acqulslt ions of (minor ity or major Ity) holdingsin the medl

industry. the study shows (Table VI) that between April 1990

and April 1991 there were 81 deals. 37 of them In the television
broadcasting sector . 33 In production and 20 which were c I ass If i ed
television monomedia

there were only six multimedia acquisitions wher-e
the press moved into television broadcasting . The latter figure is thesame asthat for financial Investors

operations in

the television

broadcast i ng sector.
Another character 1st Ic Is that there were very few media takeovers byforeign operators (see Table VII). who most often acquired a minority

interest only. The situation

controllers (seeeconom i ctherefore. is

study. Tables 4.

one where most large
20)

focus

their

activities on a particular country. As regards television broadcasting.
Spain is the only possible exception. where in two of the three newconcessions Canal Plus and Fininvest play an important part. As regards
operators. only Canal Plus (in E , B and D) and RTL (in B . D and NL) have

opted for a more ambitious strategy on foreign markets. This prevalence ofessentially minority holdings creates a dense. complex web of ownership.
the principal consequence of which is to create a strategy of agreement andnon-aggression rather than dynamic competition. Such a situation may prove
to be precarious if one of the large groups breaks the status quo.

- 25 -II.

OBSERVATIONS BY TYPE OF NEOlA

Te lev Is lon/rad

10

Contrary to what is sometimes maintained. the diversity of controllers

increased between 1980 and 1990 in the television broadcasting sector(mostly as a result of new private entrants). except in Denmark and theUnited Kingdom (see Table VIII).

PUb I ic "controllers account for the major ity of the audience In most of

the Member States (see Annex I. Table 3. 3).

Television: P (100%). DK (93%). NL (76%). IRL (73%), E (71%), D (71%),
Flemish-speaki. ng B (53%), GR (50%), I (50%), UK (49%),
FrenCh-speak ing S (47%), F (38%);(83%),

DK (78%),French-speaking B (66%),

Flemish-speaking B (64%), UK (64%),

IRL (62%), P (47%), NL (42%),

Radio: D

I (38%), F (22%), GR (19%), E (15%).

The study shows that the restrictions on maximum shareholdlngs which

exist In certain Member states do not prevent a: single group fromexercising a dominant influence. It emphasizes. in this respect, theImportance of the concept of " controller " and the di ff icul ty of def Inlng

It.

Press
In some countries, only a few groups control a large proportion ofnewspaper circulat ion , the two largest pub I ishers account ing for more than
50% of the circulation figures. In certain specific markets, the market

share of the two largest owners is bigger than their share of total

circulation (D: Axel Springer Verlag has 32% of the total circulation but
82% of nat tonal dailies; E: COmcosa has 12% of the total newspaper
circulation but 77% of the circulation of regional newspapers In the BasqueCountry) .

- 26 -

III.

OPERATORS' STRATEG I ES

From the review above, three types of strategy emerge:

Mul t imedla developments are due more to publishers Invest ing in theaudiovisual sector than to audiovisual companies investing In pUb I ishing.

The interest of pub I i shers in the television Industry Is attributable tothe latter s growth prospects and to the value added which the multimedia
represent for advert isers or the advert islng Industry and for programme
suppl iers (for Instance, coverage of events by both press and TV can be adecisive advantage when acquiring exclusive rights to sports fixtures).

Two strategies would appear to emerge in the television field: one Is a

strategy of vert ical integrat ion , the weakness of Independent product Ion
pushing broadcasters into product ion; the other Is a strategy of expansion
with a view to reaching a certain critical size that can lead either tolevel (resulting In monomedla concentration or
multimedia activities) or, if the national scene is limited, toexpansion at national

internat ional expansion (aI icence in another Member State or cross-borderbroadcasting). For Instance, special- interest channels will naturally look
to foreign markets to supplement their domestic " niche " market , which
necessari Iy limited.

The role of institutional Investors is considerable, probably In part
because of the restrictions on media ownership which limit control andshareholdlngs and wh ich makeit necessary to fi nd neutra I

partners (sleeping partners). Financial

financialinvestors for their part areprobably Interested in the long- term prospects.

- 27 -

ConclusionThe

lled/asector

Is characterized

by aCOIIpared with other sectors and

a few
t~

latter exercise control over lledla

hIlve a/norlty holdings.

theY often

COlI/NUdes

bystatusquo

See18Ses

In orderpartnertJ.

Large

national

hIlve
passive role. In other countries. HowfNer. theholdlngtJ. withthe te/fNlslon .
count 1'1

web offora/ng alliances with sleeping

operators generally focus their ac;t/vltles

a/norlty

concentration

shareholdlng end lledlalarge national operators. Although

COIIplex

by aownership networks eentred aroundof

fairly high IfNel

on af)tI.I't/cu/ar country andIncreasingly fragile given that operators. particularly In
sector.

areto create

forcedsynerg lestoex(JtU1dandbe(;;oae active In otherWeekly% of adults
89.

86.

93.

UNITED KINGDOM

Dally% of adults

31.5

50.

85.

SPAIN

Weekly% of adults

920t-FFDOI7.A.OI FA

BARB, JICNARSJICRAR

G. May-June 'Team-Young &RubleanGear
23.

Weekly77.

83.

PORTUGAL

RubleanGeolYoung &MA ' 901 Gruner & Jab

Het Media Instltutel

80.

65.

NETHERLANDS% of population

WeeklyBI-weekly% of adults

CESP 1990

Dally% of adults

68.4

77.

98. 5 (monthly)

Weekly% of population

Brogger & Nygart

93.

44.

55.

64.

GREECE

Weekly% of adults

CIM 1989- heure dutemps, lap 1989

ISPI/ISEGII Audilell
Audlradlo

82.

87.

96.

GERMANY

Weekly% of adults% of adults

52.

87.

97.

FRANCE

ITALY

71.

95.

96.

gf:;'

DENMARK:;;;;:;;::i::;,~::

72.

:J.

1989/90

MEDIA REACH

85.

LOW REACHj.:;;:.

78.

RELATIVELY:::::.;:AND RADIO HAS A HIGH REACH ACROSS THE COMMUNITY, DAll Y NEWSPAPERS
IN THE SOUTHERN COUNTRIES!~_ ::.,;:,:,:::;;;:::.;::,:);;;;:.

BELGIUM

HAVE A

WHilE TVTAB II:,.:,:.-",::: ::,:.".:,::;:::;:

T /1.8

III

4()

100

100

Source: PrOject Database

Newspaper Publishers"",......' TV channel controllers

Radio station controlJers

LEGEND

DENMARKoJOBELGIU""'~EMJSH...........

100

100

GERMANY (OLD LANDER),f". BELG1UM-FRENCH

to ..

4()

30
20

so .

...."'""",......."",.,. ,.............."'..-GREECEFRANCE

90
so
.
70
,
60 ,
1CO

'0/0

100

.." '0/0

CUMULATIVE SHARE (%) OF CONSUMPTIONBY TOP RADIO STATIONIT'! CHANNEL CONTROLLERS
AND NEWSPAPER PUBLISHERS

",--

10

30

60

50
40

70

20

Source: Project Database

Newspaper Publishers".......... TV channel controllers

Radio station controllers

LEGEND

0 "'j,..
..,.."(%)...
....,..
....."'.............................
"...........................

SPAIN

rTAL Y

100
00
80 ..

100

10 $

PORTUGAL.,/'". .

100

60'

100

OF CONSUMPTIONCUMULATIVE SHAREBY TOP RADIO STATIONrrV CHANNEL CONTROLLERS
AND NEWSPAPER PUBLISHERS

20 !

30

40

50

60 . !

70

80

100
00

100

IRELANDTAB III (suite),....""".."'.......................................................

9201. FFDO17.

NETHERLANDS

13 (DNA) FA

1%1%

Source: CARAT International 1990

Spain

12%

I1\
E..%

NeIhGi'lands .

Italy

IrelandGermany (Old li1nder)

FranceOenmCJk

Belgium

980/0

92%

83%

90%

87%

$60/0

69%

53%

31% I

dHARE Of' TOTAL TITLESBY TOP 2 PUBLISHERS

76%

65%

67%

67%

42%

52"/0

54%

60%

24% I

SHARE OF TOTAL CIRCULATIONSBY TOP 2 PUBUSHERS. CONCENTRA110N' lN "DAll Y -NaWSp APERSJN" E~MPtE'"Et~' COUNTAt1:S

THERE APPEAR TO BE SIZEABLE INCENTIVES FOR SCALE IN NEWSPAPERSTAB IV., ", '" , "'~~~92'31. ::rOcn 7.

03,.

TAB V.-""""...

..."...
""""""'".-..."............... ..-AVERAGE55.

Unl1oo Kinadom

10.

PortuaaJ

37.

14.

Netherlands

Soain

57.

61.4

56.

!taN

Ireland

GreeceGermany (Old lander)

Denmark

France

Belaium - Flemish

3.4

POP.ULATION(MillIon)

100

Radio

NaWSP80&fS% SHARE OF CONSUMPTION BY TOP I.W.Q MEDIACONTROI.LERS""'r"'."-

THE' EC... MEDIA , EO.OT.PJUNTSANALYSIS OF CONSUMPTION-BASED CONCENTRATION

Belaium. French soeaklna

CONSUMPTIONFOOTPRINTSIS INCLUDED'" ...., ........". ,."9111.ff'DO17.e.cI.

Weighted 79, 6-8,

reoiOns

ITV should perhaps be split into

broadcas1ers

ARO is composoo of 7
independent regional

NOTES

MEDIA CONCENTRATION IN THE COMMUNITY IS HIGH IF GOVERNEMENT- OWNERSHIP.. . ,- , ....., " . - , '" -T AS V I

, . , , ,.."-,.."

y', ."., ,.
y',
, "

,.,
~",._

;.".
. ,

Sou rea: Booz. Allen' s Media Databank

Figures In bracxets indicate acquisitions Within the $eeIO'

by

cofTllJ'lnles 0/ the same sector)t\\~~t\~~;U!\j

NUMBER OF MERGERS AND ACQUISITIONS IN THE EC BY SECTOR
d- ":I'\tlbIiC'J' . " it...,nl\' if'based on an ' na- r sis of " the" d"' cr"
- -r"s. ~JO_,.
-", t9,8~_ 990.)
e,e..
.Jlt':;,Jt"...
~v,... ;tf."",-..,,-,..~IN ADDITION TO CONSOLIDATION , TV BROADCASTERS ALSO ACQUIRED TO INTEGRATE INTOPRODUCTION

,.

. "

c;:)

Source: Booz'Alien M&A Database 9202.

FFOO19-. One main deal involving MCA/Universal and a British consortium for an investment in studio facilities at Aainham Marshes in the UK accounts for mostof the 2. 6BECU (frOm U. S. to the EO)
Note: Value of declared bids equivalent to indicative fig utes onlyc5'

J (0. 7 BECU)

3 (5. 3 BECU)NUMBER AND VALUE OF M&A TRANSACTIONS IN THE MEDIA INDUSTRY 1990

ITIS DWARFED (IN VALUE) BY THAT FROM THEUS AND JAPAN

WHilE THE lEVEL OF ACQUISITION ACTIVITY INITIATED IN EUROPE HAS BEEN SIGNIFICANT,TAB VI (suite)

.,).

O2 FR

T'

BRT 1, TV 2 (100%)

Tele21 (100%)

Flemmlsh authority

Nelwork2

Stateseveral UK mecHa

Tele 5 (45%)
Pro 7 (51%)

ERT11, 2&3

Megachannel
Antenna

Tele Muuchen
G. Ackerman

State
Teletypos

groups)Independents (Inc!.

La Vanguardia
Havas
Flnlnvest

RTL Plus (46. 1 %)& 2.

BBC & 2
ITV regional channels

Tele 5 (25O/~)

Canal Plus (25%)

Antenna 3

33, TM3, TV Murcia

Canal 9, Canal Sur , Canal

2&3
TVF
TV3, TVGa, ETB.

State
Regional authorities

RTP

Nederland 1, 2 & 3

Indeoendents

Odeon

RAI 1 , 2 & 3
Canale 5, Halia 1 , Rete 4
TMC

RTE
TV.3

ChannelsStatetimeshare basis)

L. Kirch
CLT

Sat 1 (40%)

ARD I, ARD 111(100%)

Regional authorities(9)

ZDF (100%)

State

CLT

Hersant

Canal Plus (25%). La Clnq (25%). M6 (25O/~)

TF1 (25%)

Havas

Stale (with several
broadC"aslers on

Antenne 2, FR3 (100%)

nalia

State
Bouygues

Flninvest
Globo
ParretlVParinl

Stale

TVS

State

990

Controllers

TV 1 & 2 (100%)

S P

Country

State

VTM

CLT

Canal Plus

RTBF1

Channels

RTL. TVi (100%)
Q~nal Plus. (33%)

French authority

1990

Controllers

Source: Carat International(Flemmlsh)(French)Country

CURRENTLY, THERE ARE ONLY A FEW ESTABLISHED CROSS- BORDER TV CHANNEL. AND FININVEST)CONTROLLERS (THESE ARE HA VAS, CL

T AS V I I

:':

1980

END 1990...-.::r...-.::r...-.::r...-.::r...-.::rTREND

3. NL - several broadcasler$ on dme share basis on the stale-owned channel

2. While II is recognlsed !hal each regional channel has a separalEl oonlr'oller (In UK, Gennany and Spain) . one controller is assumed for !hese netWork as consumers in each region are
only exposed 10 !heir main regional channEll

Note: 1. Regional returns are considered as one channel

Start-ups In 1981.85
Start.ups In 1986.90

TV channels In

8 (Flemish)

8 (Flemish)CJ

8 (French)

1980

CONTROLLER TO CHANNEL RATIO

8 (French)

NUMBER OF MAJOR CHANNELS

THE ENTRY OF NEW - MOSTLY- PRrVATE~ CHANNELS HAS IMPROVED THE CONTROLLER TOCHANNEL RATIO, IN MOST COUNTRIESTAB VII I(':!.

- 37 -

P a

r t

hr e

OF MEASURES TAKENREVI

NAT IONAL LEVEL

The measures taken by Member states to promote or safeguard p Iura Iism takevarious forms and have various objectives. A distinction can be madebetween measures which are spec I fica II Y Intended to promote divers I ty

with a wider
the .media in view ofobjective, such as assistance for the sector (aid for production,
distribution) or journalistic independence. The latter are of particular
Importance for the press sector since they can either facilitate theconcentrations andrelated measures

activities o.f media companies or guarantee certain editorial standards but

do not In themselves ensure diversity in the media when mergers occur.

Measures specifically intended to safeguard pluralism may be aimed ateitherthecontentofor the ownersh I p structure of thebroadcasts

companies. The rules on programme content applicable in the broadcasting

sector are not intended to restr ict mergers but to ensure that there is adegree of divers i ty of informat ion wi th in a part icular medium, whether or
not it is the result of a merger.

Finally, a dist Inction should be made between ant i-concentrat ion rules
plural ism anddIscrImInatory rules

by other Community nationals

which restrict access to media ownership(sti II to be found in B, GR, P).

The purposeof these rules, which are in breach of Community law (Articles 59 and 221of the EEC Treaty), has no connection with the objective of safeguarding
plural ism.

- 38 I.

SITUATION IN EACH COUNTRY

The following tables have been drawn UP on the basis of the study appended

and are designed to give an overvlew 16 of the main features of nationallaws on company ownership.

16 These tables attempt to describe the main features of the legislative
provisions but display certain inaccuracies inherent in this type ofpresentation and due also, in some cases, to the difficulty of obtaining

or interpret ing certain laws.

RADIOPRESSMEDIUM

amended,
Articles 14, 18

Decree of 17/7/1987

as amended by

Decree of 19/7/1991

Constitution of
7/2/1831,

as amended

Article 14

Law of 6/2/1987

300
Law of 19/7/1979

7/2/1831, as

and 98

Penal

299 paragraph I, andConstitution ofIndividual or Cie which holds directly or indirectly::'

two persons oflicence to besigned at least by. Public administrations and public interest

Community. Exception for distributors andfor public broadcasting bodies whose

capital participation in private TV stations
does not exceed 24%.

of capital in a private

broadcasting body, nOr. A local and Community TV station must
be incorporated in confonnity with Belgianthese does not exceed 24 %.

French Community if their capital participation incapital/tnanagement bodies of private TV stations oflaws.

Capital.

Communitylbilingual regions of Brossel$-station.

Public broadcasting bodies can only participate in

TV station of FrenchofCommunity.

local and Community

single area so that they will not be covered by :;. 1

broadcasting body or a
local/Community TV

Community must have its Cie seat and its
centre of operations in French
management bodies , nor
be a manager or director
privatemore than 1/3 inhave a participation of. A private TV station of Frenchof private TV stations of French

tnanager cannot holdtogether more than 24%

indirectly in capital or management bodies

bodies cannot participate directly orDistributor and his

the broadcastingzone of the radio
station concerned.

directly or indirectly one or several private
radio stationa, nor their information content

Public administrations cannot control

Private radio station must be independent ofbodies representing employers, workers or
a political party.

OTHER OWNERSmp RESTRICTIONS

characteristics, the Executive may treat them as aarea. Where 2 adjacent areas have common cultural

In principle only 1 public local and Community TV
station may be authorised within same administrative

Community cannot hold directly or indirectly:;' 24%
of capital in another private TV station of French
Community.

than 5 private radio
stations.
Cable - TVindirectly more than
24% of capital in morecannot hold directly or

French Community

station, nor be a manager/director of :;'1 private radio
station.

24 % of capital in a private TV station of French

Application for
private radio

indirectly more than Belgian
24% of capital in a nationality whose
private TV station of domicile is withinholds directly or

Individual or Cie which

TV: - Radio

of:;' 1/3 in management bodies of:;. 1 private radio

zone, hold directly or indirectly:;' 24% of capital in:;. 1 private radio station, nor participate to the extent. Individual or Cie cannot, within same geographicalexceptional circumstanceS.

manager/director of :;. 5 private radio stations. The
ExecutiVe may derogate from this principle inparticipate to the extent of :;'1/3 in tnanagement
bodies of :;. 5 private radio stations , nor be a

, nor:;.24% of capital in :;. 5 private radio stations. Individual/Cie cannot hold directly or indirectly

RESTRICT.

OWNERSmp

RESTRICTIONSRESTRIctiONS

PRovISIoNSPROVISIONS

Code , Articles

FOREIGNCROSS MEDIAMONOMEDIA

KEY LEGISLATIVECoNSTrrur .

BELGIUM (French Community)
TRANSP.

Community
must benominativeof French

All sharesin private
TV station

All sharesin private
radio
stationmust benominative

RF.QtJIREMENI'S

(CABLE)

Decree of 6/5/82
Lawof 6/2/87

Constitution of
7/2/1831; as amended
Article 14

RADIO

Decree of23/10/91

Decree of 12/6/91

Law of 6/2/87

Decree of 28/1187

Law of 17/7/79
Article 299
paragraph 1 of
Penal CodePROVISIONSPROVISONS

Constitution of
7/2/1831, as amended,
Articles 14, 18 and 98

KEY LEGISLATIVECoNSTrrurlONAL

PRESS

MEDIUM

3. Only one private regional
company may broadcast
within each zone.

2. Same as for radio.

company may broadcast towhole Flemish Community.

1. Only one private

advertisements.

Community can broadcast

serving whole Flemish

Only one broadcaster

RESTRlcnONS

20%.

is restricted to less thanwhole Flemish Community

private TV Cie serving

operators in capital of

TV-Press 51 % restriction.

Participation by cable See Cross Media Restrictions:

TRANsPARENCY

commercialorganisation.

group,

anypolitical or professionalor

Flemish Community

regional TV selVice;
4. be independent of any

the lel/islation.

they have complied withmunity must submit
aMual report to the
Executive, indicating
the maMer in which.. Private TV cies serving
regionalllocal Com-

must be nominative.

Cie serving wholelegislation.
.. All shares in private TV
sive object;

3. operate a single

has complied with thebroadcasting as exclu-

Executive, indicating
the znIIMer in which it

2. have regional TV

must:
1. be non-profit making;presented to the.. Annual report to be

RegIOnal private TV cies

can broadcast.

Excecutive of any
changes in its capital
structure.

munity to notify thewhole Flemish Com-.. Private TV cie ser\Ting

REQUIREMENTS

region of Brussels-Capital

Community or bilingual

Only private cies

REmuCTIONSOTHER OwNERSIUP

established in Flemish

REmuCTIONSFOREIGN OwNERSIUP

TV - Cable o erators

newspapers in Flemish
language, established in
Flemish Community or inbilingual region of BrusselsCapital.

of daily and weekly

its shares held by publishera

must have a min. of 51% ofwhole Flemish Community

Pri\Tate TV company serving

TV-Press

CROSS MEDIAMONOMEDIA

REmucnoNSBELGIUM (Flemish Community)

RESTRICTIONSRESTRICI'IONS

LIMITSRESTRICT.

REsTRICT.

PROVISIONSSMATVIMATV systems
only to :- regional PTl"
- non-profit antennasocieties- local gov t bodies- owners of appartment
blocksof 22/5/90

of 22/9/86

Order No. 651

of 23/10/87

Order No. 678

Licences granted fortion of national

and TV ONllnisations.

ers
new
may not have a .decisive
in-fluence . in local radio

and loca

the exc

the local authority.
3. Commercial entitie s (withinfonnation concerningavailable production andbroadcasting facilities for
citizens or to provide

activities is solely to makeengaging in programme

vided that their purpose into local authorities pro-

Order No. 339

2. Licenees may be granted

must be resident in thelocality.

local radio or TV licence,association which hasboard of a company or

CABLE RELAY

1. Licences granted only toCies or associations whichhave radio or TV activities
as their sole object.

A majority of members ofmust print publisher'

533 of 1986

editor s name and place
where printed.

contain details ofname. Periodicals must

All Danish publications

Law No.

See Other Ownership
Restrictions, point 3.

TRANSPARENCY

REQVlREMENI'SOTHER OWNERSIDPFOREIGN OWNERSIDP

CAPITAL P ARTIClPATIONMULTIMEDIAMONOMEDIA

KEY LEGISL.

Order No. 339
of 22/5/90

Constitution of
5/6/1953,
Article 77

PROVISIONSTIONALCONSTITU-LOCALRADIO /
LOCAL TVPRESS

MEDIUM

DENMARK11 ofor control of in excess of 30 % of diftUsion in

1110/1986
completed byNET.

More than 1 autho. possible where co-verage
not ;::.8 mio

then can hold no more than a 5 % in others.

- 2 authorisations only
If holds ;::. 33% and'::: 50% in one
society can hold up to 33 % in a second
Ifholds ;::.5% and'::: 33% in 2 societies

modified by
law n : 89of the 17/01189

1 authorisation only at the !!!!J2D!! level(;::'30 Mio inhabitants)cumulable with:
1 or several authorisations where population
served remains'::: 15 Mio

Law of the

30/09/1986 as

only Cies

obtainauthoris.
orlven zone

inhabitants

Companies only

cable (s)foreign managers. Associations +Companies only

associatio
ns onlyspecifiedcertainlIS, andCies
foundatio

REsTR.

OTHER
OWNER
SIDP

networks in

Up to 50% of social
capitaU voting right

any Cie.

than 50% interest in.::: 6 Mio no morehertz TV ;::. 200. 000

holderof shares in non
French hands.

. Cie with majority. individual of foreign
nationality

Cannot hold morethan 25 % of social
capital- /voting rights
of national TV licence

Foreil!11 national:

National Hertzian TV;::.6Miorights ofCie
publishing a paper in
French lan........e
Save for international
undertakill!!s: noforeign national (nonEC citizen) can makeacquisiton bringing
total capital held bystrangera tomore than
20% of social capitalor votin!! ri!!hts in a
Cie with author. forhertzian radio + TV
service in Frenchlanguage

capital or voting

above 20% of social

foreigners cannot
acquire shares if itbrings holdins
directly orindirectly

undertakiDl!ssave for mtem. orreci rocit

FOREIGNPARTICIPATION
LIMITS;::. 6 mioin the gIvenzone

not national

whether or

1 or more
terr. TV

that ZOne

which
potential
audience ingIven zone is;::. 10% of
potential
audience forsimilarservIce inor not, ofchannels nat.

LIMITSCAPITAL
PARTiCIPATION

cable net

television
serving;:. 4 mio
inhabitants

Terr.

;::'30,r.iu

Radioserving

1 or moresion ofsimilar publications

27/1111986

on national
territorY

given zone

or more of
total diftU-

national or

1210 ofFrance of all daily papera of same type

SAT ELL.

CABLE

R..n01l8l

1 or moredailynewspapera

law n : 86-

daily
political +genetalnewsp~perwith 20%

Nati01l8l

holdiDgs (by oolUDID)

more than 2 of following

Authorl88tion for terr.
radiolTV/cable Det. given if

CROSS MEDIA REsTR.

not, distributed in theof theNo acquisition/taking control ofa daily
political or general newspaper when thisgives ~n entity or group of entities possession

MONOMEDIA
REsTRICTIONS

Law n O : 86897

KEY
LEGISLATIVEPROVISIONS

level- 1 authorisation only ~t the(;::'6 Mio inhabi-tsnts) or not cumulable
several authorisations at re ional level solong as service zone does not eXceed 6 Mio
inhabitants + only if in distinct zones- If holds 15% and'::: 25% shareholdings/voting rights in 1 Cie cannot hold
15% in a second.
15% in 21icensed Cies
If holds ;::'5% +then can hold nO more than 5% in others.

audiovisual
sectors

the press andconStitutional
value, both inobjective ofas anconstitutionalrecognised by
the Conseil

Pluralism

declaration

the 1789

ArticleSIONS

PRoV!-

CONSTITU-TIONALTERR.

RAD IOPRESSMEDIUM

FRANCE

share c~pital or voting rights
in authorised society must
inform C. A. within amonth of exceeding thethreshold. all entities holdins20% of

provided by the firm

- list of publications ediledby
the entelprise + othercommunication servicesof publication + editor

represent. + 3 principal
associates- name of director

available for public:- name of Cie owner/- name , objects, seat, legal. Auth. Cie must havemust be nominative

Provisions relating to all auth.
services. Prohibited lend nameto ~pplicant for authorisation. Shares in authorised society

transfer of titles

4. Readers to be informed oftranafers involving 1/3
share or voting capital +representative, objects

1. Forbidden to lend name inobtaining shares
2. All shares to be nominative
3. Must print in all publications: name of owner +editor, Cie seat, legal

REQUIREMENl'S

TRANSPARENCYCABLERELAY

BROADCASTINGRADIOBROADCASTINGPRESSMEDIUM~21 Abs. 3 RuStV

transmission oblil!8torv

Licence for cablebroadcasting laws

see the Linderu. d); 36 RuStV~~ 34 Abs. 3 Buchstabe c)

Procedure for distributionof vacant satellite
channels:~21 Abs. l RuStV

Competence of

the Linder

1991

progranune with less than 25 %and no important influence

infonnation " progranune can holdinterest only in 2 other corresp.

25 % but less than 50 % of a fullprogranune or " specialized- Shareholders owning more than

Linder - Broadcasting Laws.

- Operator may disseminate
throughout the entire federal area 2
TV- progranunes . Of these 2 only
one may be a " full programme" ora "specialised progranune " withpiority in infonnation (morespecific restrictions in several

No share-of social capitalora " fullprogranune " orspecialised
infonnation
progranune

50 % or moreallowed to ownholder is

influence

to be free of state

Broadcasting has

a licence.

Linder Broadcasting-Law
also:publicbroadcasters or
their employees
cannot be granted

political parties

granted to local,
public authorities,

press sector.

1986, 1987,

priority in mfonnation

cannot be

Court) of 1961,

position in the daily

Licence forBroadcasting

may not be granted if
applicant for a ' fullprogranune " withintransmission area

broadcasting licence

Operator may dissenunate
throughout the entire federal area 2
radio progranunes. Of these 2 only
one may be a " full progranune " ora "specialised programme " withholds a dominant

Linder,(RuStY) 31, 1991
Treaty between all the 16

Rund funkstaatsvertragCan only be a
private company

1971, 1981,

6 nliings of theBundesverfassungsgericht(Constitutionaland:(Basic Law) of
23. 1949

Article 5 Abs.
Satz 2 of theGrondgesetz

no roles in the RuStV.

publishing, production or
distribution of newspapers andmagazmes can be prohibited when
their turnover together is morethan 25 Mio DM and the dangerof a donunant position arises

against restraint ofcompetition(competence of Federal
Government)

But the Linder
broadcasting laws e.
in Bavaria, SchleswigHolstein, Hessen haveintroduced provisions
to prevent " double
monopolies . The

Press - Audiovisual:

Mergers ofCies dealing with

REsTRlC-

LIMITS

REsTRlCf.

PROVISIONSPROVISONS~ 22; 23; 24 of the Law

REsTRlCfIONSOWNER.

TIONAL

TIONS

OTHER

OWNEaswp

FOREIGN

CAPITALPARTIClPA-TiON

MULTI
MEDIA

MONOMEDIA

REsTRlCfIONSKEY
LEGISL.

CONSTITU-GERMANY

Satellite-TV:
The Linder institutions for the media
have to be infonned about vacantsatellite channels

Requirements in economic (federal)
law: like press (see above)
Requirements in broadcast (Linder-)law: Every change in capital
participation has to be pennitted by the
Linder institutions for the media

comnanies- between international media

Obligatory regular report of the Linder
institutions for the media on theconcentration tendencies:- between broadcasting and Press
companies- between broadcasting companies

If the press company is a limited one,
it ia governed by the general provisionsof the corporation Act (Aktiengesetz)

TRANSPARENCY REQUlREMENl'Sfacilities

May covercable +
satellite. transmission

BROADCASTINGRADIOBROADCASTINGPRESSMEDIUM

1988:

constitUtion

1866/1989

1806/1988

1730/1987
1746/1988

Laws n1746 of 1988

Laws n1806 ofl988

Presidential

decree n ' 25 of

Article 15 of

the 1975

constitUtion

the 1975

cannotIndividual/Cie
oarticioate in more than one
local TV station whether as" owner" shareholder or as memberof the administration or
manager

Individual/Cie not in receiptof radio licence ean holdshares/act as manager ormember of administration of
only one licence holder orapplicant

One local radio licence for agiven individual or Cie.

LEGISLATION

Law n
1806/1988
1746/1988

TlONALPROVISONS

Article 14 of

Cl'CIIMediaMONOMEDIA

RESTRlcrJONSKEYAPPLICABLECONSTrru-

TVchannel.

Totality of shares held bypersons
related to the fourth
degree cannot exceed 25 % ofsocial capital

local

than 25% of social caoital of a

No shareholder can own more

LIMITSCAPITAL PARTICIPATIONGREECE

Foreign capital eannot amountin total to more than 25 % ofsooial capital

Greek citizens

licellSes can only be grantedto:a) Individuals ofGreek
nationalitvb) Legal entities controlled by

REstRlcnONS

special media service.

there has been an unauthoriscd
regroupment. The Inspection is tobe carried out by the commissioner
for accOUnts.

whether there is a concentration incontrol of local radio statiOns by asingle individual or Cie, or whether

2. The national radio + TV council,
substitUted by the 89 legislation forcommission for local radio canorder an examination to establish

covered by station and copy toliability CO'

participate in presslradiorrY
entemrise
RADIO
I. Publication of annual acounts~uired in 2 daily papers, one ofwhich must be published in area

financeS which have been used toannllally the origin of their

4) The entities in 3 above must declaresocial capital

individuals hold at least 20% of the

TV stations, !!!!!: by Cies in which
the above-mentioned Cies Or

which have as their object !!!!
daily periodical papers or
the creationlnlllni of radio andTV sta.tiona, !!!!!: by individllalsl-

editors and directors ofdaily/periodieal papers, radio andcertain key administrative fil!llres.

PRESSIRADIOrrY
1) Cie shared must be named andtranafers notified.
2) Bank of Greece and deputy of theattorney of the high court can
examine the finances of daily andperiodical, press radio and TV Cies.
3) Principal of banking confidentiality cannot be called in aid by

TRANSPARENCY REQUIREMENTSb) localcollectivitiesa) limited

Local TVstationa
held by:

REstRlcr.

OrHER
OWNERSIUP

FOREIGN OWNERSIUP

I. n o 39
of1989RELAY

SERVICEMICROWAVE

TV Act 1988

1988/ Radio andBroadoasting andWireless
Telegraphy Aol

17 of 1979

Act 1987 S. I. n

(Control) Act
1987 Restriotive
Praotices(Amendment)

Broadcasting andWireless
Telegl'8phy Act
1988 / Radio andTV Aot 1988

Artiole 40. 1.iof the 1937
Irish
Constitution

l!'Ood"Minister in awarding lioenoes
renrd to d esirability of allowing aperson, or group, to have oontrol of, or
substantial interests in, an undue numberof programme retransmission systems;
multiole holdilU!s have been allowed

Same restriotion as for radio above.

1 TV lioence only to be awarded.

broadoast services.

IRTC in awarding sound broadoasting
licences " have regard' to desirability ofallowing any person, or group of
persons, to have substantialot controllinginterest in an undue number of sOund

contraotin the area of thetion media

attlOUnt ofcommunioa-

of, or substantial
interest in, an undue

persons, to have control

to have regard" to thedesirability of allowing
any person, or group of

I'8dio and TV contraots

Sound and TV oontraots
IRTC in granting !!.2!!!.

must be obtained.

material changes
in ownership; or,if noneCommission
prior oonsent

assignmenl or

prohibiting

Lioences may
contain conditiollll

inspeotion of records.

may require and allow

Must fUrnish suchinfonnation relating to theservice as the Minister+IRTC has power toinvestigate financial orother affairs of radiotrVcontraotor+ Licenoe issued by
Minister to be open for
publio inspection at
IRTC' s registered offices.

RESTR.

REsnUcnONS

LIMn'SPROVISIONSAll mergers/takeovers involving Cies atleast one of whioh is involved inprinling/publishing newspapers must be
notified to the Minister for Irtdustty and
CollU11eroe who may call on the Directorof Fair Trade to report on merger. The
Minister may also oall on the Direotor of
Fair Trade oommission to investigate
apparent monopolies + report onwhether these are against the " common

REsnUcnONS

LIi:GISLATIVE

TlONALPROVISIONS

Mergers,
Takeovers andMonopolies

TRANsPARENCY

REQtJIREMENTS

OnmR
OWNER.

FOREICN

OwNERSIDPCAP1T AL

PAlmClPATlONMULTIMEDIA

REsnUcnONS

MONOMEDIA

KEY

CONST1TV-

NATIONAL

RADIO

PRESS

MEDIUM:IRELANDRADIOPRESSMEDIUM

control" of finn publishing

Dominance occurs where finn

control" of firm publishingin Italy.

The

newspapers.
same

total of 7

in totalb..in' : tolaI of 3 concesaio1l8 pouible for- See nOle C Multimedia Reslr.

contiguous): in tolat basins must bave no
more tban 10 mill. inbabll8n1B (4contiguous ' b..ins' pouible in soUthem
region).

differ=1 ' basins" (which may be3) For local 'IV: only I co_ion in any

Law n o 223 of
6/8/90basins " must have no more than
10 mill. inhabitants.
4) See note C, MultimediaRestr.

contiguous " basinsconcessions possible forin any " basincannot be owned

between Cies active in mass

Limit raised to 25 % wheresector.

revenues from mass media

person raises at least 2/3 of his

procal rights.

offer Italy reci-

countries which

for nationals of

Exception madeCommunity
nationals.

directly/indirectly give to one
person;::' 20 % oftotal revenues
in mass media sector.

by non-European

media sector are void if

contracts, transfers of shares etc.

Transfers, hire/management

Majorityshareholdings orcontrollinginterests in radio+ TV licencee orin Cie controlling
licence holder

C) Global Mediaobtained within same zone under
the same conditions.

additional licence may be3) For local rsdio: only I concessIOnnational and local level.

thosemunit nationalit

within same " basin " demands forradio frequencies are fewer thanavailable. Secondcase can be no moremust be of !!!!i!nor Eu ron ean com-

Holder of local TV licence canobtain local radio licence only if

Holders
commercial radio+ TV licences

B) Local TV . Local Radio

serve such ends.

groups, and cooperatives seeking to. Commercial national radio + TV
licences can only be granted to Cies orcooperatives having a specified min.
capital.
dio + TV licences. Por local
similar roles apply. These can be held
also by individuals.
. Communit radio licences only
granted 10 foundations, associations ofcultural, ethnic, political or relgious

tros..e Cies.

interest in radiorrv licencec (orcontrolling Cie) cannot be held by. Majority shareholding/controlling5) persons convicted under generallaw;6) pesons from whom licence has been
withdrawn.

3) Cills having majority public
shareholding;4) credit institutiona;private radiorrv licence:I) Cies not having as corporate object
radio + TV broadcasting, publishingof information or activity relating to
information + visual arts;
2) public Cies;

serVed.

notified.
TV and radio neWs servIces
must register under tenns of1948 Press Act with
Chancellor of Tribune in area

(2 % for listed Cies) must be

Share transfers of over 10 %be notified.

individual shareholdings must

Ownership + extent of

National re ister kept of rsdio+ TV firma:(2% if listed)- share transfers of ;::'10%

indirectly control

the publishing Cie

dell' editoria - of:re~ister + details of owner,
legal representative, otherpapers edited by firm + placeof publication.
Notification to theinscribed in national ress

press agencies must be

reviews (not foreign language,
monthlies or with less thsn 12
issues a year) and national

Daily papers, periodicals +TRANSPARENCYREQUIREMEI'mI- shareholders ' names + n o ofshares held

directlyin Italy.

3) max. two national TV
concessions if "control" of finD
publishing daily papers whose
total circulation does not exceed
8 % of total circ. of daily papers

2) Cannot obtain licences at both!b!.!!.1.

and in an

given entity cannot exceed 25 % of
number of national channels
foreseen in overall frequency planI) National concessions granted to A

B) See note C MultimediA Restt.

area.

published in same inter regional

total circulat. of daily papers. Persona disqualified from obtaining

Object must not be other than editing,publishing or activities relating to
information.

publishing

Trostee Cies prohibited from holding
majority/controlling interest in finns
publishing daily newspapers.

OTHER OWNllasmp REsTRicnoNS

holding in Cie

controllingmajoritycannot2) ;::. 50% of titles edited in a given daily papers whose circulat. restriction applies
exceeds 8% of total circulat. of to shareholding inregion.
finns which
3) Circulation in excess of 50% of Italian daily papers.

of total circulation for all ItaliAndaily newspapers.

I) Same.. for Radio I above.
2) Same as for Radio 2 above.

14/4175

circulat. in the last year exceeds
16% of total daily paper circulat.

I) Circulation in excess of 20% 2) One nat. concession only if

publicAtions attain:

newspaper publishing Cie whose

owns or controls dAily daily papers whose annual

dominance " held to be null.

A) Dail newSll ers - Nat. TVI) No concession for nat. TV if

FOREIGN

OwNEasmp
REsnucnONS
firms
Forei
hold

MULTIMEDIA

REsnucnONSA) Transactions gIving rise to

Law n o 103 of

Law n o 223 of
6/8/90Law n o 103 of
14/4/75

o 67 of25/2/87
and Law n o 223
of 6/8/90

Amended by Law

the 1948

constitution

Law n o 416 of

5/8/81 as

43, and 42 of

MONOMEDIA

REsnucrlONS

KEY

LEGISLATIVE
PRoVIsIONS

Articles 21, 41,

CONSTITUTIONALPROVISIONSITALYBROADCASTINGRADIOBROADCASTINGPRESSMEDIUM

Articles 19 andas amended

October 1868

Constitutionof30th July1991

Law of 30th July

1991

Law

- local radio: I authorisation- regional radio:share only
in one company.

LEGISLATIONTIONALPROVISONSRESTRIcr.

MULTI
MEDIA

MONOMEDIA

RESTRIcrlONS

KEY

CONSTITU-APPLICABLE

25 %- local radio:only nonprofit making association- regional radio: only
company

REsTR.

REsTRlcrlONS

regional radio: no one
can hold more thanOTHER

OwNERSIUP

FOREIGN

OwNERSIUP

CAPITALPARTICIPATION LIMITSLUXEMBOURG

commission.

Control right ofgovernment.

the Luxembourg

an independent

without the consent of

70% ofsharesinC. T. must be
nominative and cannot be transferred

TRANSPARENCY REQUlREMENrSRADIOPRESSMEDIUM

REmt

PRoV1U6

l'RovIsIoNiI

same as forradio

Article 7 (2).

In particular

Constitution

theand 90-95 of

Articles 7

the Constitution of
19/1/1983
Article 7(1)in particularand 90-95 of

18/12/91

exceptiona.

provide programmes for broadcasting by cable. Limited(excl. religious and philosophical associations), ownenloperators of cable netwo1'ka and NOB are not authorised to

Public institutions, bodies having broadcasting time

ublic - nvate broadcasters.. Decree of
09/07/91

Cable:

gramme. Exception for government institutions, religiousorganisations, political parties and groups, and spiritualorganisations. Restriction inapplicable to privatecommercial broadcasters.

groups, and broadcasting organisations

4. Institutions having broadcastingtime.. Same restrietion as for radio above.

netwo1'ka

3. Ownenloperators of cable

2. Public authorities.. Disqualified persons for private TV:
1. NL' s Broadcasting Production Cie

studios on 1512/85.

which owned radio broadcastingownership of staff

Institutions having broadcasting time must not engage incasting time cannot acquire theInstitutions having national broad-and equipment
required for programme production.
Exceptiollll: religious and spiritualorganisatiOIl$, political parties andany activities other than provision of their pro-.. Law of

Owner.
Restric.
REsnucnONS

OnmR
OwNERSmp

Foreip(i) Commercisl broadcaster holds directly/indirectly total
share of 25 % or more of daily newspaper market during
2 consecutive calendar years; or(ii) same as 1) (ii) above.

2) Private commercisl broadcasting licence revoked where:

13/12/90.. Law ofas amended by:.. Decree of
19/11/87

Boat'll/Commissioners of applicant.

meeting of shareholdel's in applicant 2!: canappoint/discharge more than 1/3 of Members of

can .ei!!w: control more than 1/3 of voting rights at

daily newspaper market; or(ii) Legal person holds directly/indirectly 25% or more ofdaily newspaper market!!!4, individually/collectively,
with/without agreement with others having voting rights,(21st April

1987)(i) Applicant holds directly/indirectly 25% or more oflimitspartie.

REsnucnoNS

Private commercial broadcasting licence refused where

Press- Audiovisual

Capital

MULTI-MEDIAMedia Act

The
Netherlands

TIONAL

Articles 7

MoroD
MEDIA

KEY

lB&A'm'E

CoNmro-THE NETHERLANDS
TltANSP ARENCY

must infonn the Media
AuthoriN

ted broadcasting time

which has been alloca-

broadcaster, a body

private commercial

private broadcasting licence or participating in

Before applying for a

REQIJlREMI!N'I's

BROADCASTING

RADIO

PRESS

MEDIUM

87/88

Law n 58190
TV Broadcastillg
may be by meansof bertzian waves
or cable networks:
Art. 3-4

338188Decree law

Law n

one candidate society

of25% of capital ofactivities

society.

The sole object ofmore than One candidate

IndividualslCies cannot
participate in capital ofIndividuals orcompanies cannot
hold shares in excess

vears standing

Comoanv can only
hold shares in one
radio broadcasting
Cie. and thisparticipation cannot
exceed 30% of social
capitala licence company
must be: "broadcasting Cie.

factor for awardof licence applicant is not
an existing radio licenceholder.
IndividuallCie can only
hold capital in one radio

legislation on this point.

but lIB yet !!2 specificPositive factor for
licellce award
1) Majority sharebolding by professionals incommunication
field.
Company
owning regional
journal of at least 3aliI)'. residing orwith Cie aoat ill
Portugal can own
periodicals.

collcelltration in the press

Licences awarded tocompallies ollly

Licences granted ollly
to Portuguese
companies with head
office in Portugal.
Foreign capital participation in a TV
operator cannot exceed
15% of total social
capital- ttade unions

Such activities cannot be
per- fomted Or financedby:- political parties or
associations- local authorities

Licencca ollly awarded to
Cie with lIB sole object
TV activities

producer and director- Director General for social communication isto keep records of TV operators: Inter alia Cie
statute, capital participation in other mass
media OrganisatiODS and identities or persons
responsible for programming- TV bromcasten ate to record + malee public
time allowccl for reply + for political response. TV operators to publish in a national paper
each year Cie report and accounts. indicating
origin of fusanco either from own operationsof from extemal sources.

responsible person. cast, author s name,- Shares mullt be nominative. Programmca to include indication of title

inter alia names of director owner + seat

. Periodicals mullt have printed(applies also to partner companies). Shares in preas eies must be nomInative.

owned by the Cie in question

state of Portuguese preas. ShareholdeR + their holdings to be
published each April ill all periodicals

Portuguese. Preas council to provide annual report on

Cies must be

3. National preas agencies
4. Editing houses + various details as to seatmanagement etc.
5. Fomgn press agencies and seat ,constitution + tcaponsible person in
Portugal
6. loumalillts of the foreign press

2. Preas CiCIo. Minister for social communication is to keep
re2isters
following
1. Periodical publications + title, ileAt.
OWDC1'. direction and management

n1IIl18gers of preasrights3) Directorsl-

not give voting

2) Foreign sharein preas Cies limited
to 10% and mustor complementary
objects to their princIpal
objectPreas agencies!publisheR. editing houiICAcan only have " inherent

portuguese nation-I) Only entities ofcondemnation ofGeneralised legislative

REsTRlcrlONS
Owners mullt have fullcivil and political rights

RESTRIC1'IONS

LIMmi

REsTRlCI'.

Articles 37
38, 39 (asrevised)REsrRlCl'IONSLEGISLATIVEPROVIsPROVISIONS
Law n : 85- C175

TRANSPARENCYREQUIREMENTSOTHEROWNEIISIUPFOREIGN
0wNE1IS1lt1'

CAPITALPARTICIPATION

CROSS

MEnIA

MONOMEDIAAPPLICABLECONSTIT.

PORTUGALRADIOPRESSMEDIUM

1978

128 snd 149

Articles 20,

Law n

31/1987of 18th December
Law n 10/1988
of3rd May

Decemberof the 18th

Law n : 3111987

2nd August

TV service

managementof a publictheconcessionary.

a concessionary.

EEC citizens).

(Restrictions not applicable to

Holders of concessions musthave Spanish nationality andbe domiciled in Spain.
Total foreign participation
cannot exceed 25 % of sharecapital.

Ci~;; cannot hold more

to EEC citizens)

notified to special register.
management of

Desetasadministrative authorisation.

All share transfers must have priorobject thea public TV
service
Min. capital of000 miostatUte and administration must be

have as solesocieties established under Ministry oftransport, tourism and communications ('lTC). All changes to Cie

Cies which

granted only to

All shares must be nominative.

Special register of concessionary

administration

previous authorisaIion from theexisting ownership balance must obtain

increase in Cie capital which changes

the concessionary.

those of companies owning shares in

All shares must be nominative, as must

All alterations in shareholding

than 25% of the capital ofsole object

1'RANsPAlU!NCY

REQVIREMENTS(Restrictions not applicable

ConcessIonsOTHER
OWNERSHIP
RESTRICT.

to 25% of total capital2) Foreign investment limited

Spanish nationality

1) Concessionary must have

REsTIucnoNS

FOREIGN OwNERSmp

Licensed C:e

LIMITS

must have

CAPITAL PAIITICIPATION

MULTI

Media
Restric.

in more than I- 1 licence only.
- No Cie can hold shares

more than 1 station if
substantial overlap in zoneof service.

majority participation in

A Cie can only hold1) 1 radio concession for
medium wave
2) No more than 2 forfrequency modulation
stations. Cie cannot hold

PROVISIoNS

Law n : 2111984

PROVISONSConsUIution of

MONOMEDIA

REs'l'RlCfIONS

MAIN

LEGISLATIVE

MAIN

CONSTIT.

SPAIN

- 1 national radio licence. 20 local radio licences

Fair Trading
Act 1973, as
amended.

also vice-versa.

B) Holder of " domestic " satelliteTV)satel1.

regional Channel 3TV

reception in UK cannot holdinterest ina~categorica 1. and 2. holding

vice-vena.

licence. Provision applies also

satellite broadcaster with aervice
intended for general reception in
UK cannot hold;:. 20 % intorcst
in Cie holding domestic aatcllite

satellite licence or foreignC) Holder of non-dolllClltic

vena.

applies vice vena to limit

cannot hold;:' 20% interest in
Cie holding satellite radio
licence. Provision applies also
vice-vena.

2. national radio

I. regional or nal.Channel3
or ChannelS; orC) Holder of licence for:Cie.

;:. 20 % in a local newspaperof zones.

cannot hold;:. 20% interest in
Cie holding licence for eitherof the other 2 categories if
there is a significant overlap

1. local delivery aerYicca; or
2. local radio; or
3. regional Channel 3

thoae with licencca in D) Holder of licence for:domestic " satellite radio licence.
Provision applica also vice-overlap of zonca. Provisionholding licence to provide:
1. local radio aervice
2. local dc1ivery aerYice
where there is a significant

than a 20% interest in Cie

cannot hold more

Proprietor ofB) Rcatriction
accumulations

local

licence for any of categories A
2 or 3 above. Provisionapplies also vice-vena.

Provision applica also viceversa.

;:. 20% interest in Cie holding

8I1Y other such Cie .

cannot hold;:' S%

aervice intended for general

2. national radio licence,

regdlhCl!d office or principal- additional servicco.

iletVicea;

Disqualification doca not
apply to licences for:- local delivery servicco(cable and MVDS)- nondolDcatic satell' radio
satell. TV services;. licensable programme(i. non-TV) and licensable sound programme

wholly/mainly of religious

or more of 1 or 2 above.

intcrcat.

bodies.

operators + certaio related

diaqua1ify nat. public telecoms

8) Secretary of State may

which they hltve::oS%

certain related bodies; Cie in

7) Advertising agencies andcertain related bodies.

6) BBC, Welsh Authority andin 1) above.

applies also where 81Ich " undue
influence" is exerted by bodies

For radio: diaqua1ification

deems this to be appropriate.
S)
Person subject to "undue
influence " of local authority orpolitical body and certain related
bodics where ITC/RA deems thiscontrary to " public intcrcat

radio aerYlce where ITCIRA

and non-national independent

domClltic aatclite service;licensable programme service;

not apply to licence for non-iotcrcat. Disqualification docs

Cie in which th~ hltve ::0

nature; certain related bodies;4) body whose objects a:rc

interest.

nature; certain related bodics;
Cie in which th~ have ::0

which it has ::0 S% interest.
3) body whoae objects a:rc
wholly/mainly of a political2) local authority &. Cie in

3. body controlled by 8I1Y one

Isle of ManlChannellslands.

nor incorporated under law ofplace of business within BC;

satellite liccncc 2!: foreignsatell. broadcaatcr withlicence.

2. Cie: not formed under law

intcrcat.

Cies in which they have;:'Ii-.

proposals affecting
ahardtoldings or directors.

May also impoae conditions
requiring notification or

obtain information from it5

RA also has wide powers tolUnda; certain related bodies;

resident in UKIIale of ManI
Channel Islands.

affecting aha1c-holdings ordirectors.

financial year from publicadvance notice of proposals

requiring licencees to give

may impoae a liccncc condition

within BC; nor ordinarilyof its income in last

ITC has wide powers to obtain

information from licencees. It::oSO%of Be Member State with

1. Channel 3 or

: body (otherthan local authority) receiving

1) For radio onl

from

TRANSPARENCYREQUIREMENI'S

national ordinarily resident

Individual: not being BC

Holder of non-domClltic

B)interest (and up to
20% interest) in Cie holding:than a S%

catcgorica.

either of the other 2cannol hold;:' 20% interest in
Cie holding licence for2. domClltic satellite; or
3. national radio1.

1. regional/oat. ChaJiDel
3 or ChannelS;

Persona disqualified
holding ITC/RA liceDCC8:

Persons diaqualified fromholding ITC/RA liccncca:

A) Holder of licence fornational
Proprietor of
who holds morenational or local paper.

intcrcat in Cie running aaerYice where no significant
overlap in aerYice area.
Provision applies vice versa tolimit thoae with licencco infromcategorica 1 andholding more than a 20%

radio licence cannot hold;:' 20% interest in Cie holding " non-interest in Cie holding national
radio licence. Provision applica

licence cannot hold;:. 20

service =A) Holder of satellite radio;:. 20 % interest in Cie
which holds licence for either ofthe other two categories.

- ChannelS, cannot hold

. Holder of licence for:- regional Channel 3; or- national Channel3; ormax. of:- 2 regional OIannel 3
licences- 1 national Channel 3
licencelicence.
- 1 OIannel. AIiy one person call. hold ato satellite below.

- 6 restricted radio licencco.
. See provisions A &B relatingmax. of:. AIiy one person can hold apublic intcrcat" of transfer

reference to MMC to report on

Doca not apply to local papers

2. national radio licenceof SecrcUuy of
requires COl1llC11t
State. Provision made forhave an average daily eirculat.
ofSOO, OOO or more copies

papers plus the transfer paper

local QCwooaoc r cannot
hold more than a 20%
intcrcat in Cie holding:
1. Channel 3 or licenceA) Proprietor ofnational orto newspaper proprictar whoae

as-

REsTIucrIONS

REsTIucnoNS

IN THE AVDIOVISUAL FiELD

Transfer of newspaper or

OrHEit OWNERSfDP

FOREIGN OwNERSfDP

MULTIMEDIA REsTIucrlONS

OWNl!RSIttP REsTIucnONS

REsTIucrlONS

UNITED KINGDOMPREss - AtJDIOVISUAL CROSSMONOMEDIA

Act 1990.

Broadwting

KEY
LItGISLAT.
PROVIS.

SATELL.
TV/radio(000 dom/
domestic

RADIO

PRESS

MEDIUM

- 52 -II.

OVERVI

The position regarding national laws on media ownership may be summed UP as

follows:

1.

Aim of the measures: to reaulate access to the caD Ita I

of media

comDanl es

There are four types of restrictions on media ownership.

(a)Restrictions on multiple ownership In the same medium (monomedla)

In order to prevent a situation where a single business controls or

influences several media of the same category (newspapers, radio.
television) certain national laws prohibit the cumu. lation of radio (D. F
GR. I. L) or television CD, E. F. GR. I. UK) broadcasting licences.
holdings in other broadcasters (D . E . F. I . P. UK). or circulation

excess of a certain market share for all dai Iy newspapers (F, I) or requirethat prior consent be obtained before a particular circulation figure isexceeded (UK).

(b)

Restriction on multiple ownership across several media (multimedia)

In order to prevent the same operator from control I ing or influencing

several media of different types . certain national laws prohibit thepossibility of having a broadcasting licence or acquiring holdings in
broadcasting company If the applicant exceeds a certain press circulation
figure (D . E. F. I. L . NL . UK). These restrictions also exist between

television and radio In some countries (DK. B Fr. +FI. E. F . I . P . UK).

- 53 -

(c)

Restriction to a fixed I113xllnum levelof the first holding In a

broadcast I ng company

Some laws restr ict the max I mum stake of one shareholder In a television (E.
F. GR , P. D) or radio (D , GR, P) broadcasting company or prevent an

operator fr()/l1 having a decisive Influence (DK). This type of provisionseeks to dilute the influence that a major ity shareholder could have and topromote a diversity of shareholders which could be reflected at the
programming level by a diversity of programme content.

(d)Restr I ctlon on he I dings I n a broadcastl ng COIIIPany because of thenature of the activities of certain licence app. llcantsSome laws (B Fr. ,, NL. P . UK) do not allow holdings in broadcasting

comp-an i-es by app I i cants whose act I v It i es coul d give rise to prob I ems fromthe point of view of diversity of Information or editor lal

independence(e. g. political parties).
(0)

Measures aiming to ensure transparency

To complement these measures and ensure that they are properly applied,requirements regarding the identification of all the operators involved andof their activities are laid down, to varying extents, In most
Member states.

- 54 Tvoe of measures: reQ41 at Ions and DOWers of d I scret Ion

The anti-concentration regulations may either lay down maximum limits or

speCific conditions. or establish very broad criteria which leavewide-ranging powers of discretion to the authorities responsible for
applying them. The latter type of regulation can be found in Ireland(press: " common good" radio: " undue number of radio contracts
multimedia: " undue amount of communication media" ). In the United Kingdom(press: " pub Ilc Interest" ) and in Denmark (radio/TV; " decisive Inf luence
Outside those countries. the regulations lay down fairly specific rules.

even If they leave a not Insignificant role to the authorities responsiblefor interpret ing them.

Moreover . more specific action on the part of the supervisory authorities
may in some cases be aimed at finding an ad hoc solution to the question

the ownership structure of a company. For example. In the United Kingdom.
the IBA and the ITC (I ts successor) Intervened In December 1990, following

the BSkyB merger (wh i ch const I tuted a breach of BSB' sprogramme contract)..

calling for the setting-up of

specific decislon-making structure

consisting of two independent directors, one apPointed by ass , and theother by News International. who wi II have to be approved by ITC and will

have a right of veto

In the " Compliance Committee of the Board"

Similarly. when the Hachette group acquired control of the French channel

La Clnq . the Consell Superieur de l' Audlovlsuel gave Its accord to thecapital restructuring plan on 23 October 1990 subject to certain
conditions. Including an obi igation to seek Its authorization for any
holding acquired in a radio station and to Inform it in advance of any
proposed holdings In companies In the communications sector.

- 55 - 56 -The dlsDarltv of the measures: differences In SCODe and In the degree of3.

the restr Ictlons
considerable extent (see table)

The legislative provisions vary to
typeparticularly as regards the
restrIctIonsofrestrIctIon

of

scope

(see section 1), theon media ownership (particularly for the monomedia press orfor the multimedia), thedegreeofconstraInt(number of licences or

holdings that may be cumulated, possible
the reference basis (TVsuchapplyIng thesatellite/terrestrial (F, UK), general/specialized information programmeasrestrictIons

methods

percentages), the(D). national/regional (F, I, UK)) or assessment criteria other than thepercentage I eve I s (see sect ion 2 above).
4.

Origin of the measures: a recent lealslatlve develooment

Laws on media ownership are a fairly recent phenomenon, their adoption
having coincided with the Ilberalizat Ion of the audiovisual sector.

This

new generation of laws can be dated fairly definitely to the second half of

the 80s (86: F; 88: E, GR; 90: I, UK, DK, P; 91: D. B, FR, L) and isstili

expanding (92: NL). wi th some Member states taking advantage of theamendments to their legislation on the audiovisual sector required by thetransposition of the Council Directive 89/552/EEC of 3 October 1989 on theregulation orprovisions laid down by
coordination ofcertainlaw,administrative action In Member States concerning the pursuit of television
broadcast i ng act i v i ties.
In the case of the press, the rules on the multimedia belong to this samelegislative movement, whi Ie the monomedia provisions specific to it cannot

be attributed to a definite period: UK: 73; IRL: 78 (+ 87); D: 80 (+I: 81 (+87.

90), F:

phase In this sector.

85);

86. This is because there was no " liberalization

- 57 5.

cases
circumstances
Soecsens itiv

llt I

aws

resoondlna

to so~c lfl

These regulatory measures often display the common feature of having been

adopted In a politically charged context (asthedebates In national
parliaments reveal) and having been conceived in response to national
circumstances of the moment. This clearly appl ies, for example, in theCase of the French , Ita I ian , United Kingdom or German laws which have been

tailored to the circumstances of the main operators in those countries.
The effect of this political dimension Is to create regulatory frameworks
which are sometimes difficult to administer, because of the very del icate

and vulnerable balances which have been achieved, which are not always
attuned to changes In the sector and differ significantly from one anotherbecause each deals with a specific situation.

Conclusion
Since

the

8Id-80s~ llellber

restricting ownership
typlcal01' these

States
01' thewholehave adopted
8edla

111

order

to

restrlctlons~ which should

which dlscrl8/fJate against f.::o88unlty .fJatlona/s. thatrlJJ'l(Je01'regulations

saFeguard pluralls8. It Isnot

be conFused with those
they

diFFer widely.

PRESS

L,nderNo r..trlctlona

Satellite:

L,nderNo re.trlctlona

Satellite:

Terre.trlal: 1

No relIt rI ct Ion.

Channel 3 and 5: No

Satellite:

prograrme)(of which only one generalor specialized Information

No re.trlctlon.

Sotelll to: 2

TerrestrIal: 1

No rutrlctlona

Channe I 3: 2

TELEVISION

poulble combinations, particularly at local level, and which relat.. only to restrictions

L,nderNo reatrlctlona

No r..trlctlona

No restrlctlona

Chonne I 3 and 5: No

Satellite:

Sotelll te:)025")0 20%PRESS
CI rculat Ion

PRESS
CI rculatlon

Channel 3 and 5: No)0 8%

Circulation'" Simplified presentation which do.. not toke account of all theon control (licence) and not to those on minority holdings.

Ge rmany

Netherland.

F'rance

Italy

Kingdom

Un I ted

company

Acqul ring

Exanples of dltparltl.s:
posslbll Itl.s of controllIng a Televl,lon Channel deRendlng on
the characterIstics of the acqul ring c~any.... 59

PaJ'

Fou

ASS E S S YEN T 0 F THE NEE

F OR ACT ION

The need for act ion by the Community has to be assessed In the light ofCommunity objectives, the requirements flowing from them, and theprinciples of subsidiarity and proportionality.

Chapter I.

(X)NMtJNITY OBJECTIVESThe sole object Ive of safeguarding the plural ism of the media, as such, Is
neither a Community objective nor a matter coming within Community

jurisdlct Ion as laid down In the Treaty of Rome or the Treaty on European
Union. This situation does not, however, affect the other existing
Community objectives and powers. A look therefore needs to be taken at
those Commun I ty object I ves wh I ch might be affected by quest ionsplural ism.

I.

Th~~

~et

One objective

Ion and functioning of the Internal market

In this category is that of e stabllshlng the internalmarket, set out in Art icle 8a of the EEC Treaty and Art icle G ~ B 30f theTreaty on European Union, since, in the media sector , it could be affectedby national regulations brought in to safeguard pluralism of the media.
the Parliament resolution ofThis aspect was stressedin

16 September 1992. 17 Moreover, the achievement of this objective could

help to Increase plural ism by providing opportunities for media companies.

17 Resolution on media concentration and diversity of opinions, paragraphW:

whereas differ I ng nat lonal

I aws

media

on

the single

concent rat Ion

canthis creates theofcompetition between
the law and distortion
of
risk
of
circumvention
wellas
different start-up
asmedia. companies In various Member StatesconditIons for those embarking dn activitIes In the media;

disadvantage the operationofmarket,as

- 60 -

II.

Industrial oollcy

The object Ive of strengthening the compet It I venessof Communi ty Industry

was the subject of a Commission communication of 26 NOvember 1991 on

Industrial policy and Is expressly laid down in Article G f B 3 of theTreaty on European Union. In the case of the audiovisual sector , thisobjective Is also referred to In the Commission communication of
21 February 1990 on audiovisual policy.

This objective Is affected since the national regulatory framework formergers influences the competitiveness of media companies.

Moreover , theachievement of this objective can also contribute to pluralism in the media

by fostering the competitiveness of media companies. In this respect,
Parliament , in l ts resolution of 16 September, stressed the importance ofan economically viable media sector. permitting the format Ion andhavingofdevelopment
facilitating
level

varietyofthe formation and development

soasInformat 10n

18 Paragraph K
19 Paragraph M.

toofmedia companies

ofall s/zes

18 and ofmedia companies at European

promote pluralism by Increasing the provision

- 61 -

III. Audiovisual oollcy

In its communication on audiovisual pollcy 20 the Commission expressly
stated that " the establishment of the European audiovisual space does not
derlvt't merely from Its wish to promote the aUdiovisual industry but a.lso
from the importance attached by the Community to tht't requirements ofdemocratic society, such as, notably, the respect for plural ism in the
media and for freedom of expression. The Community

audiovisual pOlicy

seeks therefore, also, to ensure that the audiovisual sector Is notdeveloped at the expense of pluralism ...

audiovisual policy therefore requires

The objective of implementingthat plural ism should notaffected. Pari iament focused on this objective of safeguarding pluralism

both In Its resolut Ion of 15 February 199021 and In that
16 September 1992.
IV.

Respect of fundament a I r I ahts

Respect of fundamental rights is essent

ial to the way in which theCommunity works. Article F(2) of the Treaty on European Union reaffirmed
the case- law of the Court on fundamental rights In which respect for
fundamental rights forms an Integral part of the general principles of law

which the court of Justice ensures are respected. The COurt has thus

explicitly ruled that fundamental rights must be protected within theframework of the structure and object ives of the Communi ty .

23 Given theclose links between the question of protecting pluralism and freedom of
expresSlon, 24 it Is, then , an obligation which embraces the three previous
objectives and which determines how they are defined and achieved.

20 COM(90)78 f i na I.

21 Resolut ion on media takeovers and mergers, OJ C 68. 19. 1990; seeparagraph B: " whereas restrictions on concentration are essential in the
med i a sector , not on I Y for econom I c reasons but a I so, and above a II , asa means of guaranteeing a variety of sources of information and freedomof the press

22 Resolution on media concentration and diversity of opinions,paragraph C.
23 Case 11/1970

Internatlonale Handelsaesellschaft

24 See Par t One above.

(ECR) 1970 1125.

- 62 -

Chapter II.

NEED

IN

THE LIGHT OF COMMUNITY OBJECTIVES

The need for act Ion must be assessed In the light of the object Ives set out
above. These ob j ect I ves can be grouped around, first I y, comp I et Ion of theinternal market (which Includes Industrial POlicy) and secondly,
audiovisual policy which seeks to ensure that the sector does not develop
at the expense of pluralism.

The nature of these objectives differs: those associated with the single

market, expressly set out In the Treaty on European Union

involve an

obllgat ion to eliminate obstacles to the establ ishment or funct loning of

the single marlcet and to strengthen the competitiveness of Industry in theCommunity; the object Ive I inked to the safeguarding of pluralism, which Is

not . mentloned as such In the Treaty on European Union, requires theCommunity to ensure,within the limItsofIts powers.

that such pluralism

snot undermined or indeed is promoted.
The distinction between these two types of objective does not, however,mean that they are necessarily conflicting. On the contrary, they may
complement each other since the sing. le market and Industrial policy may

contribute to plural ism by promot Ing the economic development of the media
sector.
Making this dlst Inct ion enables us to tackle the two Quest ions that have to

be answered I n order to determl ne what act ion I s needed at Communi ty level:to what extent do media mergers and the regulatory framework governingthem at national level have negative effects on the functioning of thesingle market?

to what extent are there risks to plural ism which could be dealt with atCommunity level in the framework of Community objectives and powers?

This second Question wi II be looked into first , given that it is the one ofmost concern to Par II ament .

- 63 sect Ion 1. IDENTIFICATION OF NEEDSIN THE LIGHT OF THE OBJECTIVE OF

PLURAL I SM .

In order to Identify what measures might be needed , the present methods oflimiting the effects of mergers on pluralism have to be assessed to see
whether they show any Shortcomings In terms of the Community framework. It

is not a Question of assessing

in abstracto the QUalities of protective

systems but of determining to what extent the Community environment has an
impact on their effectiveness In terms of safeguarding pluralism and could
affect them.

To this end , the two existing levels of action to control mergers will belooked at: at national level, competition law and the anti-concentration
rules specific to the media; at Community level, Community competition law.

Subsect Ion 1.

Effect I veness of nat tonal safeauards

A distinction has to be made between needs arising from any deficiencies In

a national system for safeguarding pluralism and those arising from thefact that national systems cannot cover situations with a Community
dimension. In the former case, the deficienCies are attributable to the

choices which have been made by the national authorities themselves,

whereas In theoutsidelatter, the deficiencies could be due to circumstances

the nat lona I

author I ties

control.

Only

the

latter willcons I dered here.

25 Thus, the example occasionally referred to of the BskyB merger falls
Into the first category, since th is merger Is not In breach of the UK

system i ntroduced by the Broadcast i ng Act and . cannot be . cons i dered as an

example of the I imits of the application of a national law alone. The
recent dispute between Mr Berlusconl and Mr Benedetti also comes into
the first category.

- 64 -

The commission has not so far come across any obvious case where theapplication of national rules alone has not been sufficient to protect

plural ism because of their purely nat lonal scope. However, reference
generally made to certain aspects to under11ne thevirtual limits ofnational systems set UP to safeguard pluralism In the face ofconcentration: the risks of circumvention , the Imposslbll ity of controllingmergers at the national level and the problem of transparency.

I.

Rlslcs of circumvention

The prOOI_. It Is theoretically poSsible that a media company would seek
to cl.rcumvent the ant I-concentrat Ion law ofMember Stateone

establishing itself In another Member state and broadcasting programmes
from there to an audience in the first State. To this end, It could Invoke
the principles of free movement of s.ervlces and , in the case of television,the " Television without frontiers " Directive.

Itself

For example, a broadcaster

there

are
anti-concentration rules In order to broadcast by satellite to anothercould

establ ish

countrywhichcountry in which it would not have obtained a licence, had It requested

one, because it would have exceeded thelimit for cumulating licences.

Although such a case has never ar Isen, it is often referred to to under line

the Inadequacies of the protection granted by , national laws. The press
sector is less affected since the restr ict ions generally regulate thegr ant i ng of broadcast I ng licenses.
Legal assessment. The situation in question must be assessed In the I ightof the principle of free movement of services laid down in Article 59 of

the Treaty and In Directive 89/5521EEC " Television without frontiers
Television broadcasts from another Member State must be regarded asservices normally provided for remuneration within the meaning of theTreaty.

26 See " Television without frontiers, Green Paper on the estab.llshment of acommon market in broadcast i ng, espec i a II y by sate II i te and cab I e
COM(84) 300 final, part 5, A,
Bond van Adveteerders
and Case 352/85
et al . 26 April 1988 (ECRJ 2085.

I;- 65 -

measure aimed at prevent ing

the recept Ion or retransmission ofbroadcast originating from another Member State because It would be

breach of laws on plural Ism would constitute a restriction on the freemovement of serv

Ices. I t is therefore necessary to determ I ne to what

extent a Member state may restrict the free movement of services on grounds

relating to pluralism. For this purpose. a dlst inct Ion needs to be madebetween a discriminatory restriction. I. e. discrimination against theperson providing the service on the grounds of his nationality or the factthat " he Is established In a Member State other than that In which theservice Is provided. and a restriction applied without distinction to bothnationals and persons from other Community countries. The measure wo~Jd be

discriminatory if.

for example. it restricted shareholdings by

non-nationals or non-residents. The restriction would be appl ied without
distinction If, for example. the limit on the shareholdlng applied to bothnationals and foreigners.

11.

Dlscr 1m

I natory restr let IonsIn

terms ofMember State may Impose a discriminatory restriction
nat lonallty reasons only on one of the referred to In Art icle 56 of theTreaty (pUb I ic policy, public security or pUb I ic health) and even thensubject to checks of its proportionallty.

Leclerc (ECR) 1985. paragraph 30. The Court has already had
229/83
occasion to rule, in relation to Article 36 of the Treaty, that " since
It derogates from a f~ndamental rule of the Treaty, Article 36 must be

27 CaseInterpreted str Ict Iy and cannot be extended to .cov-er object ives not

expressly enumerated therein

. "- 66 -

PlurallSll could not be InvOIced as a reason for dlscr IlIlnat Ion. since itcannot be associated with any of these threereasons.

In Its Groppera
28
theEuropean
Court
of
Human
Rightslinkedpluralism not to the
Judgment .

requ i rements of pUb I i c order or pub I I c secur I ty but to respect for therights of others. which Is not mentioned In Article 56 of the Treaty. As

the Court of Just ice stated In I ts judgment of 18 June 1991 theIlmltat Ions Imposed on the power of the Member States to apply theprovisions referred to In Art Icle 66 and 56 of the Treaty on grounds ofpublic order . public security and public health must ba appraised in the

I ight of the general principle of freedom of expression embodied in
Article 10 of the European COnvention on Human Rights" (Case 260/89.
paragraph 45). This means that Member states cannot Invoke grounds which
would go beyond what Is permitted by paragraph 2 of Art Icle 10 and. in thiscase. cou I d not therefore I nvoke pub II c order wh I ch was not used by theEuropean COur t of Human R i gh t s .

12.

Indlstincly applied restrictions

In the absence of any harmonization of laws. a Member State could restrict
a television broadcast from another Member State which would not conform to

its rules on pluralism only If such a restriction Is appl led without
distinction and if the following conditions are observed: the restrl.ction
is justified on Imperative public interest grounds; the requirements which

the relevant law meets are not already satisfied by the rules imposed on
the provider of the services in his own state; and therestriction Is notl ikely to
ect i ve Is ach I eved and does not go beyond what Is

disproportionate to the objective sought (since the measure Is

ensure that the obstrictly necessary to that end).

In orderassess whether

restrictions which

are applied without

distinction can satisfy these conditions. the measures giving rise to therestr ict Ion must be divided into those relat ing to the services themselves
and those appl i.ed to the provider of the service.

28 See Part One above.

67 -Measures relatlna to the Drov~der of the service(a) Restr Ict Ion

The restriction would

consist in applying to a broadcaster from anotherMember State the regulat ions on media ownership appl icable to nat lonalbroadcasters and preventing the retransmission of Its broadcasts sincedoes not satisfy the conditions laid down bythat legislation. For the

purposes of measuring the level of concentration

the laws of someMember states put fore Ign broadcasters whose broadcasts are rece I ved
their territory on a par with national broadcasters.

In

Gar_any.

Article 21 of the Treaty of August 1991 concluded between the

L!nder on broadcast i ng I n the un I fled Germany restr i cts to two the numberof national programmes (of which only one general or special

interest); It

prov Ides to th Is end that the other German- language programmes from thesame broadcaster which can be received in the entire Federal area must be

I nc luded I n the count. Thus an Austr I an broadcaster a I so broadcast I ng In
Germany, without intending to circumvent German legislation (the programmes

have an " Austr ian" content for example). wi I I none the less be counted forthe purposes of monitor ing ,compliance with Art icle 21 and. for example.
wi II not therefore be able to have a second general channel retransmitted
I n Germany (w I th " German " content). Shou I d a channe I be i nvo I ved wh I ch
comes under the rules of a Member state and circumvention covered by the

Van B i nsbergen judgment does not occur . th i s prov i s Ion might give rise to a
restriction of the freedom to provide services.

In

France.

Article 41(3)the Law of

30 September 1986

operator of a sate I I ite television channel

treats thebroadcast from abroad andnormally received in French on French territory in the same way as alicence- holder.

This rule could possibly be

invokedto restr jct theretransmission of such channels where the position of the broadcaster wasincompat ible wi th ant i-concentrat ion rules such as those restr ict ing the

maximum shareho I d i ng by one person to 50% or limiting the number oflicences forsatellite channels to two. Similarly, the system ofagreements set up for the cable retransmission of channels enables the CSA
to impose obi igat ions to safeguard plural ism.

- 68 In the

UnitedK.lngdoiI,

the 1990 Broadcast ing Act29 subjects persons who

have a satellite television channel broadcast on a frequency which has notbeen allocated by the United Kingdom and which according to the ITC
Intended for general reception In the United Kingdom (even

If It is also

intended for reception elsewhere) to the same restrictions on the ownershipof other channels as those applicable to " non-domestic satell ite services

The channels of the other Member states could therefore be affected by theappl icat Ion of such a provision.
Apart fro. thesecases, it is reasonable to assume that where there Is no

specific provision to thiseffect, "the licensing authorities use theirdlscret ionary powers to take account of the appl icant. s posit Ion In respectof concentration. This might go as far as including media holdings . andcontrol in other States even if the media are not broadcast or circulated

in the terr i"tory of the State grant ing the I icence. 30 In this respect, an
Improvement In the exchange of Informat ion on cross-border concentrat ion as
call.ed for by the Counci I of Europe 31 for example could assi. suchstassessment.
(b)Absence of similar rules In the Member State of origin

This condition would probably be met in most cases because the laws on thismatter differ and because national laws usually deal only with nationalsituations.

29 Schedule 2, Part III . paragraph 6(2).

30 This case does not appear to exist,

at least not explicitly.

anti-concentration laws since they refer In most cases either explicitly
In ItalY , for example)
to the country (" total print run of newspapers
or to a reference area (local , for example) or, again, to the " national"
character of the channel or distribution network.
31 Resolution adopted at the third European Ministerial Conference on masscommunications policy, Nicosia, 9 and 10 October 1991.

- 69 -(c)

Imperat Ive reasonsof public Interest

The objective of safeguarding pluralism may be one of

the Imperative

reasons of publiC interest jUstifying restrictions applied without
distinction. This may

be deduced from the case-law of the Court

Strasbourg on Art icle 10(2) of the Convention for the protect ion of humanrights and fundamental freedoms which includes plural ism among thelegitimate objectives that may justify derogations to the principle of10(1). Moreover. in the two

freedom of expression contained In Article

judgments of 25 July 199132 the Court of Justice of

the European

cultural poliCy might afford an Imperative reason ofCommunities held thatprovidethepublicservices. Indeed. the preservation of pluralism which the Netherlands
topoliCY sought Is relatedofas

freedom of expression.

Convention for the protection

the-freedomonrestriction

Interest Justifying

toupheld by Article

human rights and fundamentalof

freedoms
In the case in Quest ion the Court did not accept the grounds invoked by the

Nether lands Government not because of the object Ive pursued but because of

the condition of proportional ity. 34 Conversely. this means that theobject Ive

safeguard i ng

plural ism

mayjust i fy

non-dlscr iminatory

restrictions on the free movement of services as long as the measures whichseekachi evethat

object Ive

do notcreatedisproport lonately

restr ict lYe effect.
(d)

Proport ionallty of the restr Ict Ion

In order to be justified, the restrictive measure must be appropriate to

the purpose of achieving the obje.ctlve sought and not exceed what

str ictly necessary to that end.

32 Judgments of 25.

91 inCases 288/89 and 353/89. not yet repor ted.

33 Case 353/89, paragraph 30. The wording used by the court might be taken

protection of
to suggest that It Is more cultural POliCY than the next
paragraphplural ism which constitutes the PUblic Interest. Yet theremoves the ambiguity by stating that the measure in Question " exceeds
Its aim of protecting freedom of expression " (paragraph 31).

34 See below.

).
- 70 -

Case- law of the Courtof
Justice. The two judgments of 25 Ju I y 1991 on the
Dutch I aw on the med! a const I tute, SO far , the on I y cases exam I ned by the

Court In which pluralism was Invoked to justify a restriction. In these
two judgments the COurt ruled that the condition of proportionality was not

met because one of the provlsions 35 subject to complaint exceeded theobjective sought36 and the other 37 was not appropriate to theobjectlve.
It Is not possible to deduce from this particular case that

restriction on the free movementa Drlori , any

services with plural ism as its

objective would be disproportionate and thus unjustified. In this case,the provisions In question were not specific to the preservation of
piurallsm (as on the ownership of the media. for example) but were rules

on advertising aimed at preserving the non-commercial character ofbroadcasters. It was therefore difficult to claim that appl icatlon ofthese provisions was appropriate to the object Ive of preserving pluralism.
The case where the restriction consisted in applying a provision specificto pluralism . such asthat restr Ict ing ownership of the media. to abroadcaster from another Member State has not yet been examined by the

COurt. Having regard to certain national provisions, 39 It is not.

however. impossible that such a case could one day be brought before theCOurt.

35 On the obligation to use the services of the Bedrljf for the productionof all, or part , of their radio or television broadcasts.
36 Since plural ism in the audiovisual sector of a Member state cannot
any way beenabl ing
national broadcastingorganizations to call upon the services provided by persons establ ished
In other Member States (paragraph 31).

affected by

the various

37 The conditions governing the structure of broadcasting organizations

estab I ished in other Member states.

38 " In order to guarantee pluralism in the audiovisual sector. it Is far

from essential for n~tional legislation to require broadcastingorganizations established In other Member States to conform to the Dutch
model (...
For the purpose of guaranteeing the pluralism which It
seeks to preserve the Netherlands Government could properly confine
Itself to formulating the Internal rules of its own organizations In an
appropr iate manner " (paragraph 42).
39 See above.

- 71 -

Using the yardstiCk of proportionality, the restrictive effect caused by
the application of national anti-concentration rules to a broadcaster fromanother Member State Is difficult to justify.

Proceeding on a case- by-case basis, It will be necessary to assess

whether the restr Ict ive measure Is - appropr iate to the object ive

pluralism. For example, this condition would be difficult to satisfY in acase where a Member State took account of the extent of ownersh I P of med I aother than those broadcast or circulated on its territory. A foreign
broadcaster would thus have his holdings In other Member States taken into

account in any check on whether the I imlts laid down in the receiving State
had been exceeded. Aggregat Ing such holdings would rapidly lead to as i tuat Ion where recept Ion of fore I gn broadcasters was prevented in aparticular State. Such a multlterritorial criterion should be regarded as
un just if led- s- Ince

It Is not apparent how the control of media In one State

could affect pluralism In another when those media do not operate there.

Similarly, the condition of appropriateness would not be satisfied whererestrictive measure preventing the reception of a broadcast by athebroadcaster estab II shed in another Member state a I so prevented thatbroadcaster from broadcasting programmes in the territory in which Itestabl ished or in that of other Member States. In such a case the measure

could have the effect of preventing . the broadcaster from contributing toplural ism in its own country orin others. Appl icatlon of the national law

is not, then, an appropriate means of preserving pluralism since it has theeffect of restricting it in another State.

It wi II also benecessary, sti li on a case-by-case basis, to assess

whether the restrictive measure does not exceed what is strictly necessary.

- 72 -

This condition would not be easy to meet In a case where a Member Stateappl ied Its rules to channels originating from other M$mber States which

did not really threaten plUral ism because of . for example, a very small
actual audience, because of the language (or languages) used, or b$cause ofa programme

content that Is not spec If Ically geared to

the generalpublic. In such a case the measur.e would not be "object ively necessary..40
to achieve the desired objective which Is not to apply national legislation
as such but to preserve pluralism.

In all these cases, the Member State of or igin would actually be attempt Ing

to give an extra territorial effect toIts conception of pluralism.

However, there Is no doubt that the monitoring of propOrtionality soon
becomes a very delicate exercise because of the subject Ive element in theassessment that It reqUires and the difficulty of distinguishing It fromcases which could be covered by case- law on circumvention In thestrictsense of the term.

(e)Case-law on circumvention of legislation

In the light of the so-called " van 8insb$rgen " judgment, 41 thecircumvent ion of ant i-concentrat Ion law could, subject to tt'3 condit Ions

laid down by the Court being satisfied , justify a restriction on the freemovement of services.

According to this judgment, theconditions necessary

for a restriction tobe justified are as follows: the activity In question must be entirely or
principally directed towards the territory of another Member State
professional rulesof conduct which would be appl icable In the Member State of origin(subjective condition), and the situation comes under the chapter relating(object ive condi tion), for the purpose of avoiding theto the right of establ ishment and not the one on the provision of services.

40 Judgment of 26.

1991 In Case 180/89

reported . paragraph 17.

Commission v ItalY , not yet

41 Case 33/74, (ECR) 1974, 1299. paragraph 13; see also the " co- insurance
judgment In Case 205/84 (ECR) 1986. 3755, paragraph 22.

- 73 The

legal basis

for this case- law IS not explicit apart from the fact that

It has to do with the dividing line between the right of establishment andfreedom to provide servlces. 42 The basis may 11$ In the Implementation ofa general principle which would prohibit the abuse of a right, but also In

the case- law on the actual definition of what is aservice. In the former

case, the basis would be purely Judicial, while in the latter It would reston the inapplicability of Article 59 of the Treaty since the situation
could not be described as a service within the meaning of Article 60 of theTreaty because the condit ion relat Ing to its cross-border character would

not be met. In certain instances of circumvention of legislation it would
be possibly necessary to consider that all the relevant elements had to be
43 which, as the court has rUled,confined within the same Member state,
free movement ofwould prevent the application of provisions ontheservices. Such an approach would moreover complement that of the actualand permanent establishment developed by the Court in Its Factortame
judgment on the right of establishment. However, as the Court , has not yet
appl ied this judgment to a specific case, this question remains open.

firstly, by the last part of that
fact
not

paragraph 13 of thein the same
judgment
and,secondly,bythevan Blnsbergen
judgments
its
pract
ice
in
subsequent(contrarytoJudgment the COurt
paragraphto thespecial,devote arelating to Article 59) did
Indeedaservicewithinthemeaningofquestion of whether there was
It
would
have
been
possible
to
if
this
had
been
the
case,
Article 60;

42 As is confirmed,

conclude that the question of circumvention Is quite separate from thatof the nature of the activity In Question (whether or not It Is across-border service).

43 Judgment of 18.

1992 In Case 52/79 (ECR1 833, paragraph 9.

44 idem and Judgment of 26.

1991 in Case 198/89,

Commission v ItalY . notyet r. eported, paragraph 9.

45 Case 221/89, not yet reported; paragraph 20 states that the concept ofet sea. of the Treaty,
establishment , within the meaning of Articles 52
aneconomicact
Ivi ty by means of a
imp lies the effect ive exercise of

fixed establishment In another tlember state for an unspecified period"

, .. .,. ,- 74 Theand applying this case- law are clear. The

dIffIcultIes of InterpretIng

objective and subjective conditions give the Court wide discretionary
powers. particularly the latter which requires the Identification of

intent. 46 I. e. the actual motive of the person providing the s~rvlces. It
would be necessary. In part Icular. to prove that the Intent Ion
circumvent anti-concentration rules. as such . and not other rules. 47 hadplayed a decisive role In the choice oflocation. Moreover, the appraisal

would have to take account of the fact that an operator may legitimately
attempt to use the opportunities provided by the single market in theCommunity. Rei iance on a set of Indices will not prevent this control frombeing very dlscret ionary in nature.

Measures relat Ina to services
Compared with the measures relating to the provider of the s~rvices (rules

on media ownership). those relating to the services themselves (rules on

the content of broadcasts), the application of which to broadcasts fromanother Member State would give rise to the restr ict ion . raise di fferent
qUest ions.

The " Television without. front iers

Direct iv~ alreadycoordinates those areas relating to the content of broadcasts whichaccordance with the Debauve Judgment. could have Justified restrictions on
the free movement of television broadcasts.

46 Even in a case wh ich would involve ident i fy Ing the cross-border natureof the service (and not abuse of a right) since the process ofdetermining the State in which the " relevant elements " of the activity
are conf ined or of- the " effect ive exercise(Factortame judgment.
00 clt. ) of the latter could also cover theintentions of theperson providing the services.

actual47 In particular If they do not pursue an objective in the public interest.
broadcaster whose aUdience was- entirely In the receiving country. whose programmes were prepared In thereceiving country. whose management bodies were also located there andwhich had no other simi jar channels broadcast to other countries from48 Apart perhaps from cases Involving

the same country of- origin. In this case one could dispute theexistence of a crosborder service since all

the relevant elements

would in reality be in one' and tHe saine Sta:te~ .

- 75 -

that provisions relating to pluralism such as obligations
concerning neutrality. objectivity. the sharing of air time. political

The fact

advert Ising. the ban on publiShing or broadcast Ing opinion polls. etc. doa or lor I they were not
not form part of these coord Inated areas means that

Identified as being likely to give rise In practice to risks ofrestr Ict ions on the free retransmission of broadcasts from anotherMember State which would have justified their harmonization.

However. this does not mean that these provisions could never justify
I ight of Community law. As with measurescertain restrictions In therelating to the provider of the services. the cond.lticn relating to the
pursuit of a public- Interest objective would be met. The condition
concerning the absence of a similar rule In the State would also be met inmost cases. The requirement that the measure must not be disproportionate
would however make It unl ilcely that the programmes of a particular channel
reasonably beobligations could
would be Interrupted.

49 Certain

not

Imposed (threatening a ban on retransmission) on a cross-border channel.
such as those requiring the various shades of opinion In society to bereflected. Moreover. only the particular programming complained of. suchlongadvertising cl ip regularly broadcast over afairlyas a political

period and aimed at a country in which it would be prohibited, could be thestre~sed that " circumventions
shou I
subJect of an i nterrupt Ion.

50 It

dbe
will be more blatant here than in cases involving rules on media

ownershlp 51 and therefore the control of proportionality should be lessdifficult and give rise to fewer conflicts and less legal uncertainty.

49 Article 10 of the European Convention on Human Rights would provide avery important framework

for

for

assessing the need

the restriction.

Is theleast stringent
50 It would stili be necessary to prove that thisinterest to be protected and that the samemeasure in re lat ion tomeasure would be applied to national broadcasters committing the samethat countryforInfringement. Moreover . If the cl ip was not IntendedtheIt would be disproportionate to prevent its retransmission whenbe authorized in the country at which it is aimed.

It could

adapted51 Since It will be easier to show that the particular programme Is
to the receiving country because o.f the national character of political

I ife in the Member States(pUblicity

fornational politicalexample) and therefore that only a restriction on the
personality
programme In question Is an appropriate means of putting an end to theforof rules on media ownership It will besituation. In the casethe
restriction is necessary to safeguard

difficult to prove thatpluralism (see above) since the incompatibility resides in capitalon the screen.

holdings and not in programming "- 76 -

However , In practice the risk of a circumvention- taking place Is not great
because the financial stakes are low52 and because operators ' strategy
would generally seem to be dictated by commercial rather than politicalobject ives.
CONCLUS ION

In

the

the

I Ight ofcert~/n condItIons are

leg~1

Mellber.se$SlIent.

re$trlct televls/onbroatlcasts frOll.et. toMeaber $t~te whIch would clrcu.vent .
and .wOUld thre~ten plur~1strictIs..

notchannel frOll another

rules

on

plur~/ls.. ~/belt

HOIJfelVer. givIng practicaltore$trlct

anothet's~fegu8.t'd plur~lIs.

of clrcu.ventlon In

was

Mellber$t~te which

theof proportIonal ItyJ.
theretrans./ss/on

In breach of n~tlon~1

IntentIonally.

notthis possIbility of re$trlctlng

effect tobroadcasts
dlffl.cult .atter
InvolVed and COJJ.ld gIVe
COJJ.ld be

rIse

needs tocases

Apart frOll

Mellber St~te'.posslble. forof

asse$slng

ton~tlon~1 rules

It wOUld be IIOre cllfflcu/t (control

sense.

althoughwould be able. If$t~te$

towhere rule$dIsputeson
beC~use8ed/~ O/Iffnershlp areof differences In

gIVen situation. In this connection. part/cu/~r ~ttentlon
be given

to twofactors:

52 Contrary to broadcasts such as commercial advertising, programmes of a
pol itlcal nature which circumvented national rules would probably not
generate enough revenue to make the risks worthwhile.
53 See " study on pluralism and concentration In media-economic evaluation"cited on p. 10 above.

- 77 -

The

definition of clrcuwent/on

theUncertainties reaardlna

application of COUrt ludgllents-lor problellS of

rise

to

seen

In different lights byplace.
should Inthat

the factthepluralls8.

Invoketobroadcaster

also

that Itthe fact

the

adopt

broadcaster s po$/tlon
clrcu..tVented

been

whOse legislation has

the state

the State of establlshaent.

process challenge

cancontest that clrcu.ventlon has taken

toThese other countries could

and contest

situation

SIJ.llethe states
the

give

the
In question. In particular. It

Interpretation. since'11111 always be po$slble forbroadcasts .to other countries

II!JiW '11111

Of theclrcwwentlons

onapproachthat broadcasting Is an activity which

MOreoVer. given

requires authorization by the PUblic authorities. the State which had

granted a I icencewould be indirect Iy lnvolved In the event of a dispute.
Therefore the discussion would concern the substance I. e. the abi I ity
This Ie-gal uncertainty
each system to genuinely protect plura- llsm.

54

not a theoretical problem because even in areas already coordinated by the

Television without frontiers" Directive, fears of circumvention are
sometimes invoked; 55 this wi II a fortiori happen even more frequently

areas of plural ism which are not coordinated by a directive.
The d i ff I cu I tv of tak I ng techn i ca I measures
activities were circumventing a

aga I nst an

operator whose

law. In the case of satellite

broadcasting this aspect should not be overlooked, even If it would mainlY

concern cases of Individual recept ion (cable networks being easier tothecontrol). It Is probable that In
been

whether legislation had

whose 1-

had beenthetoclrcuwented
to the State

direct representations

thus givebroadcaster would continue

It would be 8aterlally 18po$slble forbecauseIts activities

theclrcuwented.

dispute

stop

as to

prolonged dispute

event ofthell. The

responsible forlatter would havethethe State
to

8alee

broadcaster andpolitical dillension.

54 Why should the r. estr ict Ion of cumulat ion to one nat ional terrestr ial
channel as in France be more

three as in Italy?

(or less) legitimate than a limitation to

55 E. g. in the case of the plan to set up a Luxembourg French language film
channe I broadcasti ng by satell i te.

- 78 -II.

Uero~r control at the nat lonal level

In competition law

too. Member states are legal Iy entitled to defend

themselves against operations with a community dimension which may becovered by the community principles of free movement: the fact that amerger has a community dimension. and consequently fal Is within Community'

competition law rather than national competition law . does not prevent
Member States from taking measures to protect plural Ism at national level.

Article 21(3) of the Merger Control Regulation expressly allows
Member States to go on taking appropriate measures to protect " plurality ofthe media " even where the Commission does not act against a merger. If noprovision of this kind had been made. paragraphs 1 and 2 of the same
Article would have deprived the Member States of authority over any merger
within the scope of the Regulat Ion; suCh mergers would have become a matterexclusively for the Commission and the Court of Justice.

The

discretion given

the Member states

Article 21(3)notunlimlt.ed , however , as the measures they take must be " compatible with thegeneral principles and other provisions of Community law" (firstsubparagraph of Article 21(3)). This means in particular that the measures
must not be incompatible with the principle of free movement enshrined

Art icle 59 of the EEC Treaty and In the " Television without front lers
Directive. The reference to general princip1.es is important; In the lightof the case- law on fundamental rights developed by the COurt of Justice.

means that any restrictions those measures may impose, being in the natureof exceptions to general rule (Part One), cannot go beyond the exceptions
permitted by Article 10(1) of the European Convention on Human Rights.

ERT v OEP and Kouve I as , not yet

56 Judgment of 18 June 1991 in Case 260/89

reported. paragraphs 41

et sea- 79 -The measures talcen must be " appropriate measures to protect ... pluralityof the media . which would appear to exclude measures which are notdes I gned

specifically for that

that.

purpose.

while

rules

concentration which are I.ntended specifically to safeguard pluralism In the

media may provide a basis on which the national authorities may examine amerger which the Commission has found to be compatible with the common
market. general competition rules which are not specific to this area would
not do so.

Finally. It Is important to note that Member states cannot take advantage
In order to authorize anational merger
this possibll

ity ofofcontroltransaction which the Commission has declared Incompatible with the common
marlcet. Article 21(3) Is concerned only with the contrary case. that of atransact Ion which Is compat ible with the common market but Incompat Ible
with the national laws safeguarding pluralism.

III.

Transoarency

The need for transparency has been pointed out repeatedly. especially by
But it is by 00
theEuropean Parllament57 and the Council of Europe.

58

means clear that transparency as such raises problems which have to be

dealt

with
d ist Ingulshed.

Community

level.

Two

separatequest Ions

can

The collect Ion and exchange Of Infotmat Ion
the author.itles have access to certain kinds ofAt llellber State level.

Information either because they have been given investigative powers or

because cer ta I n c I asses of i nformat Ion have to be supp lied to sat i sfy I ega I

obi igat Ions. The volume of data collected and the amount of invest igat ion
which takes place vary from one Member State to another , depending

particular on whether there are authorities supervising the media andcompetition and what powers they have.

57 Resolution on media concentration and diversity of opinions,
16 September 1992.
58 Resolution adopted at the Third Ministerial Conference on Mass MediaPo I icy. he I d

in Cyprus.

'.

- 80 -

A dlst inct ion has to be drawn between broadcast ing and the press. The factthat broadcasters must have prior authorization puts the authorities In astrong posl t Ion to obtain the necessary informat ion (no Information. noauthorization). This is not so with the press. except in some merger cases
where the public authorities intervene on competition grounds.

The collect Ion of Informat Ion has also to be dlst.lngulshed from thedlvulgation of Information. Some data collected by competition authorities
are confident ial and are not accessible to the pub

I ic. It does not followthat the nat ional author i ties are unable to obtain such Informat Ion.

At European level

the quest ion of obtaining Informat Ion on an operator

another Member State has often been raised . particular Iy In the Councl I ofEurope. The Resolution adopted at the Counci I of Europe
Minister lal

Conference

proposesthat

mechan I sm

set

Third
for

consul tatlon between states.

It should be pointed out that the authorltie.

need to exchange Information

hinges In the first place on their capacity to obtain Information directfrom the companies involved. In the case of broadcasting the fact that acompany Is based abroad wi II

not necessar Ily be an obstacle, for thereasons a I ready out lined.

The exchange of information between authorities will ultimately be
restricted by the limits to their power to obtain the kind of information

which a foreign authority might want and their willingness to do so.
National authorities are likely to be Interested primarily in information

which Is specifically domestic and which may not necessari Iy meet therequirements of foreign authorities. A difficultyof that kind could beovercome on I Y by a I low I ng an author I ty to have direct access to sources of

relev. ant Information located In another Member State. without having topass through another authority. But the Commission has not been notified

of any obstacles In this respect. In any event , If the need arose for an

exchange of Informat ion between compet i t ion author It les, it appears thatthey would be able to make arrangements directly, w.lthout the need for any

lost Itut lonal mechanism.

- 81 -- The use and processing of Information

The purpose of the rules on transparency Is to allow it to be establ Ished
who controls what" . The real difficulty, then, is to define the concept

of control, and to establish suitable tests. The problem Is not speclf Ic
to the med I a; it ar I ses wherever there is any form of superv I s Ion

The task can be a de I I cate one, as account has to be taken

concentrat ion.

both of the Internal structure of the company and of shareholders ' outside

links.
Data may also be collected

In orderto monitor the development Of

concentration. With monitoring of this kind, which Is undertaken for
purposes of analysis, the question which arises Is one of processing and of

the establishment of a system of analysis suited to precise needs, rather

than a question of the actual collection of data. There are alreadyprivate firms, public authorities and Institutes special ized In this typeof activity. Lastly, monitoring the development o.f concentration does not
In itself provide a solution to any problem of pluralism which may arise In
the media.

as

In concll.lslon~ transparency

onwould Justify specific action
there areobstaclesnosuch Istoexchanges

present seen

not atofthe partofthe Co8aUnlty

Infor.atlon between

authorities. But It Is likely that the International dl8enSlon

additional toneed Which

as a
~ as

long

national
will bethe existing factors which sometimes make for lesstransparency.
SUbsection 2.

The effectiveness of community comoetltlon law

Specific action to guarantee plural i.sm at Community level will be necessary
only If the need to maintain pluralism cannot be met using Community
compet I tion law as it stands (Art Icle 85 and 86 of the EEC Treaty and theMerger Control Regulat ion).

- 82 -In I ts Resolution of 16 September 1992 Parliament took the view thatdiversity of opinion and pluralism In the media cannot be guaranteed bycurrent competition rules alone

The relationship between competition law and plural ism can be described asfollows.
I. Convergence between the maintenance of competition and the maintenanceof pluralism

A .compet I t I 'Ie environment and a proper I y working market are good forplural ism , because the market wi II be open to new entrants - In this casenew media enterpr ises - and because pub Iishers and broadcasters will be
encour aged
adopt di sti nct i ve approaches
ed I tor ial
content andquality, and thus to broaden the diversity of Information.

toThere is thus convergence between the object i ve of ma i nta i ni ng pi ura II sm

and the objective of maintaining competition. competition law, andparticular Council Regulation (EEC) No 4064/89 of 21 December 1989 on thecontrol of concentrat Ions between undertakings (the Merger Control
Regulation, hereinafter referred to as " the Regulation ), helps to provide

an environment favourable to pluralism by preventing transactions which
create or strengthen " a dominant position as a result of which effective

competition would be significantly Impeded in the common market or In a
substantial part of It" (Article 2(3) of the Regulation).

A transaction of this kind Is bad for competition, but it is also bad forplural ism. Indeed it is difficult to Imagine a case In which what is badfor competition would be good for pluralism. This means that a merger
which was found to be lncompat Ib Ie wi th the common market could not then be

exempted on the ground that it had positive implications for plural ism (seeabove).

- 83 -

raise quest Ions pluralism. therefore. can be
DurchJse of advertising
regulated by applying competition law.

Some mergers wh I ch~. f.

In theor example. a merger might leave the media heavily dependent on acentral buying agency. This could damage plural ism: by lowering the priceof advertising space It could limit market access by new media enterprises

by reduc I ng the revenue ava II ab Ie. and provoke a react Ion in the form offurther media concentration. Similarly. competition law might prevent aver t i ca I
between a broadcaster and a sate III te oDerator or a dea
I i nk-up

I inked to the appllcat Ion of a new technology (e. g. access control systems)

limiting access to the sate I I ite channel market. The same woUld apply
where an operator abused a dominant position on theaCQu I

sit Ion. of Droaramme r I ahts

II .

limits to the convergencemarlcet In the sale andCommuni ty compet i t ion law wi II serve the interests of plural ism only if thesituation raises problems which can be expressed In its terms.

But that is

not always the case.
~1 Pluralism and competition: different criteria

Although there Is convergence between them. compet it ion and plural ism arefundamentally different

things. Effective competition is concerned withthe economic behaviour of undertakings. whi Ie pluralism is concerned withthe diversity of information. Competition between undertakings may be

ref I ected in compet i t i on between ideas. but the two approaches work on
qU I te separate lines.
In order to apply the Regulation It has to be determined whether a dominantposition is being created or strengthened. and whether effective
competition would be significantly impeded.
An assessment of the effect on plural ism. on the other hand . has to be

based on an analysis of the diversity of information avai lab Ie to the
public affected . regardless of the competitive position of the undertakings

concerned.

~ 84 -

12.

The Impossibility of applying competition law In certain situations
where pluralism may be affected

Because of the difference In the nature of the two criteria, situations may

arise In which pluralism Is threatened without competition being
significantly impeded In the common market or In a substantial part ofIt.

- Multimedia mergers

Mul t Imedla mergers fall under the scope of the Regulat Ion only If theyraise a problem of competition on the relevant market or markets. Withmergers of th Is kind the def (nit ion of the relevant markets can be acomplex matter, and it appears difficult to focus on a multimedia market assuch , with the possible exception of the sale of multimedia advertl.slng
space. An analysis would more probably have to be based on the competition
problems arising within one of the submarkets, that Is to say one medium

alone. Thus a merger between a multimedia group and a monomedla group (atelevision group for example) might create a dominant position on the
broadcasting market or its submarkets. It Is the monomedia Impact rather

than the multimedia character of the group

Quest.ioned.

activities which would be

60 In terms of plural ism, on the other hand, multimedia

activity may raise difficulties even though it is compatible withcompetition law.

From the point of view of a media consumer who listened

to the radio in the morning, read the newspaper at lunchtime and watched
television In the evening, a multimedia merger might have the effect that
all the media he consumed would come to depend on the same controller eventhough the contro II er ' s market sharein each of

the media was not

60 This may reduce the scope for reference to a market in the sale ofmultimedia advertising space, since the creation or strengthening of adominant position will most often be more clearly vis.ible on a . monomedla

market. It appears very unlikely that a multimedia merger could create

or strengthen a dominant position on the market in the sale ofmultimedia advertising space without doing so on a monomedia market.

- 85 -

suff icient to Impede compet i t Ion.

Diversity of Information and of medi.

controllers has to be assessed not just within one medium but between
different media as well. and given media consumer practices the convergence

between the maintenance of competition and the maintenance of pluralism
weaker in the case of mul t imedia mergers than In the case of monomedla

mergers.
- Monomed I a mergers

Even a monomed i a merger where no dom I nant pos I t Ion I s created orstrengthened. and effective competition Is not Impeded, may endanger

plural ism nevertheless.

The Regulation applies only where a dominant position Is created orstrengthened . and it is probable that a situation where pluralism might beendangered wi II also involve a dominant position. However. the definitionof the relevant market might cause difficulty. as it might mean that a
considered asituation with implications for plural ism would notbe. In a merger between a group operating a terrestr lal
network and another group operat ing a non-specialized pay . channel. fordominant posit Ion.

example. the pay television market might be distinguished from the rest of
the television market, because of the different nature of Its resources.

leading to the conclusion that there was no dominant posit ion. But thesame controller would now have a general channel on both markets. which

seen from the Information consumer s point of view might limit plural ism.
The factors looked at for competition purposes may thus be different fromthose which are relevant for purposes of pluralism.

In particular . themore the markets are fragmented the less easy I t wi II be to take account ofaspects Involving plural ism.
Then there is the requirement that effective competition be significantly
impeded in the common market or a substantial part of it: it would appear
that this could I imit the scope for applying the Regulation in cases where
dominant position
pluralism is an issue, since the merefact that acreated or strengthened will usually be enough to raise a problem ofplural ism. even if competition is not impeded.

For purposes of plural ism.

therefore. control would be tighter than for purposes of compet I t ion.

- 86 -- The problem of thresholds

The . three thresholds laid down In Article 1(2) of the Regulation limit thescope for applying the Regulat

Ion to the media. To date two media cases

have been notified (Canal+/ESPN and Suhrlse). The Sky/BSB merger, on theother hand, fell outside the scope of the Regulation because each of theundertakings concerned achieved more than two thirdS of Its aggregate
Community-wide turnover within one and the same Member state.
But the high level Of the thresholds Is not a Justification for a specificCommunity measure; If the problem is one of thresholds, they could belowered under Art icle 1 (3) of the Regulat Ion.

13.

The difficulty of a broad Interpretation of competition law

It does not seem possible to overcome the difficulty of having two criteriaof a different nature by applying competition law' In a specific way.
the absence of any legal bas. is for doing so, an effect on pluralism cannot
in Itself be taken Into consideration in merger control. The references In

Article 2(1 b)to " the interests of the Intermediate and ultimate

consumers" and " the development of technical and economic progress provided
that is to consumers ' advantage" do not provide such a basis.

Article 21(3) expressly takes plurality of the media Into the nationalframework; atleast in spirit this runs counter to the idea ofinterpreting the Regulation broadly so as to include considerations ofpluralism.
The convergence of antitrust supervision and the monitoring of plural ism
thus goes no further than the positive effects which competition policy may

have on pluralism; competition poliCY cannot be made to include themaintenance of plural ism.

- 87 -

Potential limitsf4.

The limits which have been identified here .have not so far been tested
reality. This Is partly because the Ragulat Ion has entered Into force onlyofrecently, and partly because mergers

It Is difficult tothis kind have not arisen.

such cases occurlng In
real I ty. One factor wh Ich might I iml t the prospect Is that theofevaluate the posslbll ity

newanti-concentration laws specific to the media may prevent mergers which

would otherwise have been caught by the Regulation. It may be, therefore,

II ar Ise In the Member states which have not adopted

that any such cases wi
rules

of

this kind , or whose rules are not severe. As it Is mainly thesmall countries which havethe smallstrict rules, because

Is probable thatbroadcasters there,

pr I vateofnumberoflittle In the way

sensitive mer. gers affecting them would be a matter primarily for national

competition law rather than for Community competition law.

CONCLUSION OF SECTION

objectIve of lIiIalntalnlng plurallslIiI as It Is defIned

The

bodIes of national
ColllllUnlty

1-

does
Melllberaction. The

Is real clrcu.rventlon of

COIRpatible withof pfund IsII

the

In

orIginatingon

their I-s

thedealt with under

can beanother
plural IsIII.

MeJJberbfit

Merger Control Regulation

restricttolegally entitledStates are

retranslll/ssion of broadC8.sts

anynecessItate

see. toItselfnot InIn theState

VarIous

specIfIc
the
If thereareMergers whiCh

whiCh raise difficulties

national llleasures safeguarding

plural ISII.

Couunlty COIIIpetltlon 1.alntalnlng plural ISIII, evenIsnot enough tocreate a

need

does

not

thoUghforprovide a suitable
It lIay be

CoIIIllllunlty

ofSOllIeactIon.

for

InstrUlllef)t

assistance:

bfit

this

- 88 -

In practice. however.

run Into
givingcertaintheprob/easapplicationconseQlJ.ent possibility

of
of

on

national rules

legal uncertainty. dueoflegal definitionoftopllJ.rallsa

aay

the difficultywhat constitutes c/ramventlon and thenational authorities.

tension between

Section 2. IDENTIFICATION OF NEEDS LINKED TO THE PROPER FUNCTIONING OF THE
SiNGlE MARKET

National anti-concentration laws specific to the media are not neutral

their effects on the single market. The laws are different from one
country to another. The disparity itself is not necessarily a reason foraction at COmmunity level. But action would be needed if their effect wasto create real obstacles Interfering with the proper functioning of thesingle market as defined in Article 8a of the EEC Treaty and Article G ~ B

3 of the Treaty on European Union. Six classes of obstacle can be
identi f ied.
I.

Restrictions on free movement of services

oosed whcircumvention of legislation

The disparity of national laws may lead to cases of restriction on the freemovement of services which are justified in COmmunity law (a legal analysis

of cases In which the free movement of services Is restricted was carriedout In Section 1). This might happen especially where there

circumvention of national legislation on the ownership of the media, which
would be covered by the Judgment in

61 See above , sub-sect ion 1.

van Binsbergen

- 89 -

No such restrictions have been Imposed hitherto. The danger of such
restr Ict Ions ar Ising cannot be rUled out, however . given the regulatory
env I ronment I n the Commun I ty . An assessment of the danger of circumvent Ion

haslook at two factors: the difficultyentering the market

the market' s growth prospects

occasioned by anti-concentration rules andeconomic attractiveness(economies of scale) andof- the more access to apromising market is Impeded by str Ingent ant i-concentrat Ion rules. thegreater the danger of circumvention.

All the obstacles to market entry wh Ich are descr Ibed below are also
factors leading to a danger of circumvention. A system In which It Is very
difficult to obtain a l Icence (for a new channel, to renew an existing
licence or to take control of an existing licensee) automatically creates adanger of circumvention. But the danger seems a more real one inbroadcast Ing thanIn the press, becaUse restrictions on media
ownership are concerned not so much with the press as wi th radio and TV
broadcast Ing

and mul t imedia operat Ions, and because the movement ofbroadcast programmes Is more difficult to restrict than the movement ofnewspapers.
Ci rcumvent Ion

morelikelytake place ' by means

satellite

broadcasting than by terrestrial transmission. Countries which are heavily

cabled or which have a high level of satell ite dish ownership are most at
risk (B , NL, D. UK).

- 90 -

II.

Restrictions on the right of establishment

Constraints on media ownersh ip in a Member State have a restr Ict Ive effecton companies wishing to establ ish themselves there. This Is
part i cu I ar I y where the company is a I ready estab II shedin anotherMember State and the levels of the candidates ' holdings and control inother Member States are counted towards thelimits. as is the caseFrance or Germany. for example. 62 An appl icant forlicence who alreadyoperates a channel In another Member State which is retransmitted In thestate In which the I icence is appl ied forwill In that case reach theconcentrat ion thresholds. and consequentlY be refused it. more rapidly.
Appl icants without channels In other Member States wi II have an advantage.

Restrictions which apply without distinction to nationals of the country

and other community nationals. as the restrictions aimed at maintaining

plural ism do. are not in themselves incompatible with Art icle 52. The
Court of Justice has held . notably in Case 221/85

commission v Belaium

which concerned clinical biOlogy laboratories. that Article 52 requires

national treatment but nothingnationality

more;

only dIscrimination based on

and disguised discrimination areinccmpatible with It. unlessof course they ar.e justified under Article 56. 63 Restrictions which apply
without distinction to nationals of the country and to other community
nationals are not caught by Article 52 as the Court has Interpreted It.

62 See Sect ion 1.
63 The maintenance of plural ism is not a basis which can be invoked under
Art icle 56(1).

64 The Court has sometimes left aexample the judgment of 7 May 1991 in Case 340/89

2357.

ittle doubt on this point; see for
VlassoDoulou 1991 . I

- 91 -

Restrictions which are applicable without distinction are in themselves
legit imate for purposes of Art Icle 52 , but that does not mean that they canbe applied in order to restrict the movement of services originating
another Member State. As we have seen, 65 such a restr Ict ion would beincompatible with Article 59 since It dOes not satisfY the tests developedby the Court of Just ice, part Icular Iy the presence of Imperat Ive reasons in
the general interest and the requirement of proportionality.

III .

Restrictions on comDetltlon

There are some methods of I imlting concentration which might have theindirect effect of discouraging foreign investment In a Member State, andthus protecting operators already established In that state as comparedwith those from another Member State wishing to set up in the first state

In order to have access to Its market. Two examples may be given.

In broadcasting, there are rules in France, Greece, Portugal and Spain
restricting to 25% the maximum stake which can be ~eld by an operator In a

television channel; in Germany the ceiling Is 50%. 66 Foreign operators

may be reluctant to seek control of a televlslon channel with a holding of

only 25%, such fragmentat Ion
posi t Ion weak.

the capital making the management'

In these countr ies licensees have a measure of protect Ion

against takeovers. They are protected against both nationals andfore I gners, but perhaps those who fee I the effect most are operators In
Member States whose

legislation Imposes no such restriction. In suchcountries companies may be taken over by foreign firms which are not there

subject to any cei I ing on their holdings, whi Ie the target company would

65 Sect ion 1 above.

66 In Portugal there is a 30% restriction for raalo.

- 92 -

have great difficulty in doing the same thing in Member states which do

impose such cei I ings. Against the baclcground of current economic
strategies, Involving international cross-holdings between media, thisImbalance or absence of reciprocity could be a source of real difficulty,

and could upset the present

status auo

67 The ITV companies In Br i taln

recent I y expressed concern at the ownersh i p rest r I ctl.ons wh i ch ex I stsome countries at a time when a community operator can acquire 100% of an
ITV company in the United Kingdom.

- Another example is provided by the legislation which takes into accountt he act I v it I esof foreign broadcasters for purposes of the control ofconcentration; this may also have the effect of protecting establishedfirms.

68 In Germany, fo.

r example, the Treaty between the

L:inder which

Includes foreign channels broadcasting in German on German territory in thecalculation could have the effect of preventing these channels fromestablishing another German-speaking channel specifically for the German
pUb I ic, and thus from compet ing direct Iy wi thdomestic German channels, as

the threshold of two channels would then be

exceeded. The same problem

could arise under French law, which contains a similar provision.

IV.

Distortion of comDetitlonlaws speci f ic to the media impose I imits on media
The d Ispar i ty
ownershi p wh I ch vary from one Member State to another.
Ant I-concentrat Ion

the ceilings imposed can have consequences of two kinds.

67 Par t Two above.
68 Above.

- 93 -

- It may produce a drain of Investment from countries with closed ownership

access to countr les wi th more open access. Concentrat Ion would thus rise

to a higher level in countries with open access than it would In countries
where access was relatively closed. Countries w. ith open access might thenreact by imposing more restrictive systems themselves. An Investment
drain of this kind might occur part icular Iy Inside an area In wh Ich thelanguage spoken Is

the same. always supposing that there Is a wide

disparity between the systems In operation. An investment drain Is thus
somet Imes

alleged In connect Ion wi th the Hersant group s holding In the

Belgian press.
It may simultaneously,

In the opposite direction, enable operators

established in an open-access country to build up a strong competitive
position before entering the market

in other countries. An example In

broadcast I ng is Fin Invest , wh i ch deve loped on an open domest i c market.
leaal uncertainty reaardlna circumvention

In theory the circumvention of national rules on plural ism could lead

Member States to Impose restrictions which would be justified underCommunity law. But as we have seen

70 I t will be very difficul tpractice to say whether a restriction on free movement Is Indeed justified

In the I ight of the case- law of the Court of Just ice. part Icular Iy theprinciple of proportional ity or the rules on what constitutes circumvention

for these purposes. In addition to the impl ications for Member States.
the consequence of this legal uncertainty as far as industry is concernedis that it const I tutes abarrier In the wayofCommunity Investment.

The

danger that a Member State might invoke the circumvention argument against

a firm which was in fact taking legitimate advantage of the opportunities

69 It Is argued that the cei I ing of 30% of the dally newspaper market laid
down by French I aw I ed the Hersant group to prefer a 42% ho I ding in the
Belgian newspaper

Le Solr.

Within the European Economic Area there could be an investment drain of
this kind between Germany and Austria.
70 See above.

- 94 -

offered by the single market, and the tisks of tension between
Member states which have already been described, are liable to deter firms

from entering the market, which they already regard as a risk area Quite

apart from this Question of plural ism. A situation of that kind could not
be reconci led with the Industr ial pol icy object Ive laid down in Art Icle 130of the Treaty on European Un I.on , which Is to encourage an environment
favourable to initiative and to the development of undertakings throughout
the Commun ity

VI.

Obstacles to access to media act Ivlty In the Community

These laws by nature I imit access to media ownership and thus restrict
entry to the broadcast ing and press market. Moreover, the d Ispar i ty
national laws on media ownership has the effect of limiting access to media
activity. In the . internal market such obstacles may be contrary to theIndustrial pol icy objectives set out in Article 130 of the Treaty on

European Union, whichalms, In accordance with a system of open andcompetitive markets, at encouraging an environment favourable to initiative
and to the development . of undertakings while maintaining an open approachto markets.

(a)Restrictions on media ownershlD at national levelThe

anti-concentration

rules

speci f ic

the

media

canst I tuteparticularly strong barr ler to entry, because they ate concerned wi th thevery principle of ownership, which is at the basis of all economic
activity, and not solely with limits on the way In which economic activity
Is to be undertaken.

Broadcast Ing. Hat lonal ant I-concentrat ion

laws wh ich are designed

specifically to ensure pluralism in the media place restrictions on both ofthe only two ways of entering the broadcasting market: obtaining a licencein one s own right or taking a stake in a broadcaster who already holds alicence. The restrictions Imposed weigh equally heavily on applicants forlicences and on those interested In acquiring shareholdlngs; they derivefrom the following factors.

- 95 -The limited number of licences Granted.
limited In all Member States. but It

The number of I icences Is

Is not necessarily set solely byreference to object ive cr Iter la. such as the shortage of frequencies. or on
the basis of an assessment of the market; there may also bea mea sure of

discretion which takes account .of the media policy followed by theMember State. Paradoxically. this I imitation is a factor which encourages
concentration. because where there are no new licences the only course open

to a new entrant is to take control of an ex ist ing I Icensee. Increasing

the number of I icences would reduce concentrat Ion by providing more
opportunities for new entrants.

The conditions to be met

in order to qualify forlicence or for aholding in the capital of a broadcaster. Examples are condit ionspreventing any sort of holding, even a minority one; rules disqual ifying

certain persons (UK. I); I imi ts on the mal imum holding allowed; andconditions preventing or limiting monomedla or multimedia holdings by al n another media enterprise. The conditions of access to themarket may vary according to the type of channel concerned (e. g. special
II censee

i.nterest. local or cable). Measures dealing with multimedia concentration
can produce greater obstac I es to market access. because they broaden thenumber of operators potent ially concerned.

Press. Accesspress

act i v it les

more

open

than

accessbroadcast I ng. because:monomedla ant I-concentrat Ion rules specif Ic to the press ex ist in only
five Member states;

those rules arelicensing;

not based on a system of prior author i zat Ion

- 96 -

they are for the most part concerned only .with dai Iy newspapers. andleave scope In respect of other products such as magazines (business andfinance. sport or women s magazines). It Is worth pointing out thatstatistics show that It is precisely the category of magazines whichmainly concerned In cross-border transactions;
except in France and Italy they are not based on automatic thresholds.
and thus leave greater scope for press PUb I ishing;

In the case of the press the obstacles are mainly due to multimedia

rules.
(b)

ConseQuences of the dlsoarlty between limits at COmmunity level

Apart from the restrict ions on compet it ion referred to under point III
above, the effect on the Industry will be to Increase costs.

There wi II be an

strategies.

Increase In thecost ofresearchneeded to deve lop

The disparity of laws makes strategic planning more complex

and r I sky, and thus requ i re$ substant i a I Investment.
There arethecosts of a constra/nt-based

strategy. The d Ispar i ty between

nat ional antl-concentrat ion rUles may force operators to adopt a strategy
which is not the most efficient one for the market, being to some extent
dictated by the scope for access to national markets left by restrictions

on media ownership.

The constraints Imposed by such restrictions may playa part in certain choices, such as:

71 .European Advertising and Media Forecast, June 1991. p. 23.

- 97 -

Among a media enterpr Ise

Establlshment/dlstrlbut Ion strategies.

different development options. the disparity of restrictions may
persuade it not to take the one of estab I ish i ng I tse I f

in anotherMember State but instead to supp I Y its serv ices from across the border.

even though this may be more costly and less selective. An operator
unable to establish Itself on certain closed nat ional markets may findItself compelled either to fall back on one market or to follow alarge-scale strategy. In the first case the scale effect of the single
market Is prevented; in the second case it would be difficult to exploit

the specific features of the various national or sub-national markets.

I f there Is open access to terrestr lal broadcast Ing In a Member State abroadcaster can follow a more finely- tuned and select ive strategy.
Monomedla/multlmedla strategies.

The limits to development on markets

In other Member States which are Imposed by restrictions on media
ownership might for example encourage monomedia companies to fall backon a multimedia strategy in their home country. This could beparticularly damaging to the market In special- interest channels; given

the limited pub I ic which will be available In any one country. their
viability depends to a great extent on the scope for development inother Member States.

(c)Comoatlbll ity of these obstacles with Community law

The simplest way of removing these obstacles would be to dismant Ie theat ional restr Ict Ions on media ownersh ip wh Ich cause them. As we haveseen. however. these restrictions are not In themselves incompatible with
Article 52. and cannot simply be removed.

Nor Is It possible to invoke the second paragraph of Article 57 in order tocontest the legitimacy of these restrictions. Article 57 states theobjective of facilitating the right to take up and pursue activities as
self-employed persons. but one cannot conclude

a contrarlo that measures

making such activities more difficult are necessari Iy incompatible with theTreaty.

- 98 -

Since the measures restricting media ownership cannot be removed , thedisparity can be ended only by harmonizing them.

CONCLUS ION OF CHAPTER II

In the light of the Objectives of the Community and of the analysis carriedout here the need for po$slble Community action can be described asfollows.
1. The objective of ensuring pluralism, as It Is understood and pUrsued by

the Uember States, does not as such create a need for Commun Ity
Intervention. The operation of the Community Is not In Itself a threat topluralism; quite the reverse, It may have a positive effect on two factors

which determine the level of pluralism: the number of broadcasters andnewspapers and the diversity of their controllers. Member States have thelegal capacity to safeguard pluralism. particularly where there Is realcircumvention. The only posslb. le sources of difficulty are tension between

national authorities regarding the definition of circumvention andquestions regarding the transparencyof media ownership and control.

2. Among the methods used by Member States to safeguard pluralism. thedisparity between the antl-concentratlon rules specific to the media

canst Itutes an obstacle to the funct lonlng of the single media marlcet:
It may result In restriction of the free movement of services where
there is circumvent Ion

I t may resul t In restr Ict Ions on freedom of estab Iishment
It I13Y produce

restrictions on competition

It may distort competition

It may cause legal uncertainty regarding the question of circumvention

It limits access to media activity.

- 99

Any need for action on the part of the COIInUnlty. then. has IIOre to do withensuring that the single It3rlcet functions properly than with IlUl.lntalnlng
plurallsaa as SUCh.

3. For the present the obstacles are for the IIOst part pOtentla.
obstacles. because the relevant laws are recent and the strategies adopted
by operators are often stili national.

4. Potential obstacles can be seen lIalnly In broadcasting. andparticularly television broadcasting. which has the highest measure of

regulation. The press Is affected essentially by IlUltlll8dla ownership
rules rather than IIiOnOIII8dla rules.

5. The restrictions on media ownership which underlie the obstacles
Identified are not InCOMpatible with Community law.

QUESTION

The

the

CoaII/sslon would welCOlle

for action. I!Jnd In particular

needs

any

cases

where

restrictions

becauseclrClJ.lNented orthelledlabeco8epluralls8 haveon:

COaaunlty dllMNtSlon of 8edla activity has

the

on

the

views of Interested parties regarding

ownership 18po$ed fortheIneffective. for ex_pie

lletmtthlJt

pUrpo$e of 8alntalnlng
becaUSe theyareof transparency Probleas;

thoseexistence of restrictions or restrictive effects other thanIdentified here;practical
theactually

Instances where ownership restrictions haVe

activity of ec0n081c operators In

the sector;

18peded- 100 -the sectors andareactivities which

affected by restr Ict Ions

especiallyon ownership (for example, Is the press subject to restrictive effects

not onlyin respect of multimedia aspects but also In respect ofmonomedla aspects?).

Chapter III.

NECESSITY FOR ACTION IN THE LIGHT OF NEEDS

ied above of suff icient Importance to just ify action,
particularly since the nature of the obstacles Is If anything potential?

Are the needs Ident I

FrOil

the

vle'lf

of

point

of

the

COIIpletlng

singleIIlVket. It should be notedthat the quest Ions ra I sed here are not among the obstac I es that were to be

removed under the 1985 White Paper on the subject. The body.of legislationthat produced the restrictive effects did not start to develop until themid- 1980s. Nevertheless, from the point of view of theof thefunctioning

single market, which the COmmission must also help to ensure, restrictive

effects have been identified which might affect the implementation of thesingle market In the media Industry. The task is therefore to determine
whether media enterprises are to benefit to the full from the opportunities

created by the single market or whether this Industry, like others,

shouldnot be the focus of specific measures.

Takingthesectoral policies launchedby thethe audiovisual

eo.-Iss/oo.

sector and the media in general have been given clear priority by theCommunity, as

is demonstrated by the " Television without Frontiers

Directive, the COmmission communication on audiovisual policy the MEDIA
act ionprogramme,theCounc I I

Directive

Broadc.asting of Television Signals and the proposals

Standards
forforSate I I ite

Directives in thefield of copyright. Newspaper pub I ishlng is an industry concerned more by
the application of general COmmunity law , In particular competition law
than by specific measures.

- 101 -thehorizontal policies.

the commission

Industr lal

policy as set

out in its communication of 16 November 1990 Is particularly relevant.

The

problems raised by concentration In the media are indeed typically problems

structural adlustment in an Industry. These problems are directlyoflinked to market structure because they relate to the very principle ofaccess to economic activities (media ownership) and not

to certain

secondary conditions governing the pur. suit of an economic activity, andbecause they are a ref I ecti on of r ad I ca I change in an I ndust ry in thethroes of liberalization. Against the background of liberalization, thedisparity of anti-concentration regulations may be perceived as a brake on

structural adjustment. An industrial policy approach requires that such
structural adjustment be launched, encouraged and accelerated and, to help

the process, that an enterprise- friendly, competitive and stableenvironment be created. Appl ied to the media industry, the Imp I ementat Ion
Industr ial pol icy might just i fy a dynamic approach to secure the speedyofel imlnation of obstacles to adjustment by harmonizing media-specific antl-

concentration laws. The prospect of structural adjUstment In theconditions governing access to media ownership . is not new In Itself sincethe 1984 White Paper " Television without Frontiers " explicitly provided forIt.
the light of both the needs which have been identified and thehorizontal and sectoral pol icies already launched by the commission, a caseis seen for action.

However , the more Important Quest Ion Is when any

action shOuld be talcen. Since the restrictions are merely potential,
measures adopted in anticipation might be premature or i II-suited because
enough. Conversely, asituation was stili

fluid or not clear

thewait-and-see attitude might cause the obstacles identified to become

entrenched. This might happen as a result of the following factors.

72 " Not unti I the provisions on right of establ ishment for broadcastingstations are made more flexible - for which Article 57(2) is of use as
will theensuring freedom to provide
we.ll asbroadcastingtaking-up
of
the
some
provisions
onharmonization ofservicesforessential.

In the Commission s opinion, this should
activities becomebe the second step towards achieving the framework legislation demanded
by Parliament. It is difficult to carry through before or at the sametime as the first step. This would be asking too much of both theMember States and the Community " (p. 181).

- 102 -National laws will probably go on expanding, particularly
Member States which as yet have no specific, or only lightanti-concentration rules and which will want to guard against a drain ofoperators from closed countries to open countries.

The

European

Par II ament 73

pressing for the formulation of

the Counc I I
Europeare also
national antt"-concentration rules.
andThe European activities of media operators are set to expand and may
call Into question the status qUO concerning foreigners ' holdings (usuallyminority, not controlling Interests). The liberalization sparked off by
the " Television without frontiers " Directive should strengthen the trend
towards the Europeanization of activities as well as the Europeanization of

economic activity and of the advertising industry.

The advantages and drawbacks of a wait-and-see aU itude are ana lysed below(Chapter V).

CONCLUS ION

the $Ingle

Given the objectivesofIndustrIal andaudIovisual polIcIes. there wouldofaarket andthe CO88/$s/on

see.w to

be a

case

for

actIon since needs such 11.$ those descrIbed above have been IdentifIed.
HOIfIfever. the tIllIngof anyactIon raises questions.

QUESTION

The CO88/s$lon would we/COBle the vIews
ofneed$ Identified are

objectIves.

toofInterested parties

suffIcIent laporta.nce. In thewhether the

on
light

require actIon In the Bledla Indu$try and. If

of

so.

CohUJ1lty
when

such

action should be taken.
73 Resolut ion of 15 February 1990 on media takeovers and mergers , point 4,
and Resolution of 16 September 1992 on media concentration and diversityof opinions, point 7.

74 Resolution No 1 " Media economics and pol itical and cultural pluralism
adopted at the Third Conference.

- 103 -Chapter I V.

NECESS ITV FOR ACT ION AT COMMON I TV LEVEL

Since there is no exclusive competence in the area of plural ism andconcentration of the media. the pr inciple of subsldiar Ity as set out inthe second paragraph of Article 3b of the Treaty on European Union needs tobe applied and hence the question asked at which level - MGmber stateCommunity - action must be taken to achieve the desired objectives. Thismeans deciding (i) whether the objectives of thecannot beactionsufficient Iv achieved bv the Member States and (Ii) if appropriate. whether
thev can be bet ter ach I eved at COmmun I tv I eve I
As the objective of possible action would be to remove the obstacles to thefunctioning of the Internal market created by the disparity ofpropernational laws. It could not be sufficiently achieved by action solely at

Member Statelevel. Harmonization of restrictions on media ownGrship which

would result from the purely voluntary amendment of Member stateslaws

seems unreal i st I c and Ineffective. Even if formal consu Itattons were to
take place between Member States In order to lay down common rules. theabsence of the . Instltutlonal and legal framework provided by the COmmunity
legal system would render it ineffective and would deprive the Industry
legal certainty. Therefore Community harmonization Is the only

sufficienteffective way of achieving the objective of coordinating national laws In
order to eliminate restrictive effects.

CONCLOS I ON

Since action

lledlaatownerhlp

toellllinate disparities between national
Seell$ necessary.

COUUnlty level.

lIaxlllUlfl

effectivenesscan only

restrictions
beachieved

- 104 -QUESTION 3

TheCoIIII/sslon wou.ld we/co.eeffectiveness. In

be taken

Chapter V.

thesolely

at

the
light

Ile8ber

of
State

views

the

Interested parties onof

CoIuIunlty obJectives.

of action

which would

level.

THE TYPE OF ACTION

THE

LI

GUT

THE

PRI

IPLE

PROPORT 10NAL I TV

The object of the action must be based on the principle of proportionality.

as laid down In the last paragraph of Article 3b of the Treaty on European

Union, which specifies that any . act ion by the Community shall not go beyond
what is necessary to achieve the object ives of the Treaty.
In view of the needs identified and the proposals already made in othercontexts, the object of the actions which might be envisaged from the start
could be to resolve various questions.

I.

Harmonization of restrictions on media ownershlD

Ob Ject I ves of act ion

The general objective would be to enable media companies to benefit fully

from the opportunities provided by the Internal market. The sectoral
objective of harmonization would be(i) to facilitate access to media

activities and (II) to guarantee the diversity of media controllers.

The

aspects are inseparable: the first
I tse If,
would meanliberal Izatlon without a framework and would no doubt permit the emergencetwoof new media but ones which might be dependent on the same controller , adangerous situation from the point of view of pluralism.

The second, byitself , would guarantee the independence of a humber of media but would
I imlt the arrival of new entrants even though these are essential in order
to increase the diversity of controllers and therefore pluralism.

Ideally.

- 105 -harmonization should therefore seek to ensure that there Is the greatest
possible number of medi. a and that these are Independent of one another.

this way it would be possible both to remove the obstacles to the internalmarket and to promote pi ura I ism.

COmDetence

The legal basis of Article 57(2) seems appropriate since the intrinsic
object of harmonization Is to make It easier to take up media activities.
There is nothing on th is basis which would prevent harmonizat ion fromplacing limits on media ownership. As indicated in the 1984 Green Paper
Television without frontiers"

making It easler ' means eliminating

difficulties which arise from legal disparities, It means ' making such
safeguards equivalent'(see Article 54(3)(g)) in order to make possible andto promote the taking-up and pursuit of the relevant activities as selfemp loyedpersons throughout the Commun I t y under equ I va lent cond I t Ions

155). The legal basis of Aricle 57(2) would mean use of the directive asa harmon I zat Ion Instrument.

Another legal basis could be Article 100a given the objective of thefunctioning of the internal market. This would allow, if the situation
arose, for the adoption of a regulation as foreseen by certain members of
the Par I lament.

SCOPE

Substant Ive scope

Harmonization would focus on national, media-specific anti-concentration

rules and not on the plural ism rules relat ing to programme content. The
latter rules do not restrict the taking-up of media activities and could
therefore cont inue to app I y in the var lous Member states to broadcasters

within their jurisdiction and provided

Community law.

that they were compatible with

- 106 -Harmonl~atlon would cover both public and private broadcasters, since theformer have to be included in the general quest for diversity of media

controllers. However, th i swou I d have no effect on the principle of theexistence of a public broadcasting sector subject to specific rule.
Harmonl~atlon would cover all restrictions on media ownership. This does
not necessar Ily mean laying down restr Ict Ions of the same type as those

ex 1st ing at nat lonal level: these would be replaced by harmonlzat ion, even
If it used restrictions of a different kind.

Geoaraohlcal scooe

Harmonl~atlon would also coverwhether

In all activities of media companies,

local, national or transnational, since the anti-concentrationrUles cover them equally and therefore have Impl icat ions for the taking-up

of broadcasting activities. Local or regional activities, such as
Channel 3 licences in the United Kingdom, may be of Interest to operatorsfrom other Member states in the same . way as wider markets, and would
therefore need to be covered by harmon Izat ion.

Sectora I scooe

The media types covered by harmoni~ation could be defined pragmatically byreference to the restrictions existing In national laws. Harmonization
should cover only those media sUbject to ownership restrictions under
nat iona I laws.

Here two var iants may be envisaged.

- 107 -VARIANT It.

The scope of

harmonl:zation could be

IlIOnomedla television broadcasting,

The press

IlIOnomedla sound radio, and multimedia broadcasting/daily press.

sector would be dealt with only through the multimedia ownership rules, tothe exclusion of monomedla press aspects. The taklng-up of press
activities Is not as restricted as Is broadcasting since there Is no
I icenslng system and there are fewer ant i-concentrat Ion rules applicablethem than to broadcasting. Only two Member States (F,I) have automatic

ownership limits on newspaper publishers. Other Member states (D, UK) havespecific thresholds abOve which a merger or acquisition is subject togeneral compet It ion law and to the relevant supervisory mechanisms.
VARIANT B

In contrast wi th Var iant A the scope would be
dally press

extended to themonomedla

In order to cover the restrictions In countries which havethem.
General structure

In view of the principle of proportionality, the provisions of substantive
law should reflect abalance between the objective of guaranteeing minimum

media controller diversity and the objective of making it easier to take up

media activities. For harmonization to be of maximum effectiveness it isessential that both objectives be achieved.

The principle of harmonization would be that Member states could not grant
broadcasting licences or concessions if the harmonized conditions were notmet. In exchange, Member States could not Invoke other conditions relating
to plural ism75 in order to reject an appl

icant.

75 Provisions relating to the maintenance of plural ism In programme content
will always apply to broadcasting itself , but should not , prior to thatlevel, govern the award of a licence.

- 108 -The object of the substantive law provisions could be:concept of control I er ,(a)to def.i ne the(b)

In view of the balance which needs to be struck, as mentioned above,to establish rules limiting the cumulation of stakes or controllinginterests In several media at once; because of this bal.ance, rules

limiting the first holding in a medium (even

If there is no

cumuiat ion of interests in several media at once) seem unnecessary,(c)to specify the levels of media controller diversity, the chief pointof reference be i ng the serv I ce areas covered,number ofmedia audience which

controllers
they control,

present within those areas, and the(d)ident I fy

disqualified

persons

who

may

not

the

becomemedia

controllers,(e)to establ ish transparency rules,(f)

to make provision for changes in the situat Ion such as transfer ofInterests, change of controller, changes In diversity levels,

to provide, if necessary, for a common statistical methodology for

aud ience measurement.
Paragraph (b) proposes taking

the audience as the main criterion for

setting restriction thresholds. This method seems suitable because it
would have two advantages. First

It takes the consumer as the point ofreference and would therefore be of maximum effectiveness In relation to
one of the objectives sought , namely that of serving the Interests of themedia consumer. Second , it does not use abstract criteria which, because
they apply automatically and disregard the market , could penal ize economic

operators. Given the importance of audience measurement for other related
matters such as copyright or advertising, the Commission has alreadyI aunched a study programme on audi ence measurement in the Commun i ty .

- 109 -The relationship with general competition law will also have to beclarified. Since competition law and ownership restrictions do not serve

the same purpose, appl icat ion of the latter should be without prejudice tothe application of the former and vice versa.

QUESTION

The

CO88/sslon would we/COlle

possibleofaudienceII .

two variants for Its

areasdefining

efrVlsagedonof

the concept

tInY

other

tJJ1d In

above.
ofon the use

IJOSslble

content

theonpart lesbasis for setting thresho-Ids. on

as adistribution

views of InteresteKl
InstrUllel1t as

MrIlOl'lI%atlon

on theparticular

the

the

referencesthedell8rcatlon oftJJ1d

on wayscontroller

TransDarenCy

The ob j ecttransparency,

improvelevel could also be
act ionCommun ie. precise Information on media ownership and control.

Transparency rules are generally the corollary of the rules wh

Ich Ilml t

media ownership. So, if there were to be harmonization at Community levelIts Implementat Ion would require transparency measures.

But measures to promote transparency may also represent spec I f ic action Inthemselves, Independently of the restrict.lons on ownership.

In its Resolution of 16 September 1992 on media concentration and diversityofopinions theEuropean Parliamentemphasized the importance of thisobject Ive and called for this responslbi

I ity to be assigned to a European

Media Council.

the third Ministerial
Europe. the Resolut Ion
Council of
Conference on Mass Media Pol iCY also proposes that consideration be given
theto the establishment of a consultation mechanism providing for regular
reporting by the participating Member states on the evolution of media

concentrat ion.

- 110 -If there were really a need with regard to transparency. this would be to

make It eas i er for lnformat Ion to be gathered and exchanged between theauthorities concerned by means of a lega.1 obligation on media enterprises
to disclose Information (so that. where appropriate. control I ing Intereststocommunicate
can be ident If ied) and on the competent author It ies
information to other authorities. For th I s purpose a r.ecommendat ion cou I
be proposed 01". if necessary. a I ega I instrument. I ndeed act ion conf ined
to gathering Information on a purely voluntary basis might not give rise to
the required effects. Such an act Ion should be complementary to rather thanresearch Institutes or other institutions such as

trespass on the work of

the European Audiovisual Observatory.

However, such legal act ion on transparency would r.aise problems with regard
to the legal basis. It would be possible to rely on Article 57(2) or
Art Icle 100a of the Treaty only to the extent that the purpose of suchaction is to make It easier for persons to take up and pursue activities as

self-employed persons (Article 57(2)). or to ensure the establ ishment orfunct loning of the Internal market (Article 100a).

QUESTION

CoIIIIlsslon

The

des I rebllityof actInterested parties

on theprOllOte transparency which wou.ld beseoarate frOll

the

WQlJ.ld we/COE
Ion

to

views

of

har8Ol11zation InstrUllent.

III.

Establishment of a sDeclal body

The establishment of a special body is not. strictly speaking. a way oflimiting concentration but is sometimes envisaged. as Parliament or theCounci I of Europe have done. as a measure which could be taken.

- 111 -In its Resolut Ion of 16 September 1992 on media concentration and diversity

proposes the sett Ing-up of a European Media Council

Parl/lJIIentof opinions,which , In addition to ensuring transparency as mentioned above, would be
responsible for the submission of reports and opinions on propOsed mergers

with a community dimension and the submission of propOsals to theCOmmission on possible deconcentrat ion lI1easures.

thecouncilofEurope,the Resolut ion

thethird MlnlsterlaJ

Conference also refers to the establ ishment of a consultation mechanism,
wh I

ch, as i nd I cated above, wou I d have dutl.es re I at I ng to transparency ingeneral and toad hocconsultations on parti.cular situations raised by one

or more participating States.

The duties mentioned in these proposals lI1ay be summarized as the exchange
of Information between members of the body, the settlement of confl icts andthe provision of advice or opinions.

The case for . setting up such a body. Independently of a harmonization
InstrumAnt, may be contested In view of the pr Inclple of mal Imum
effectl'teness. Such a body would do nothing to resolve the difficulties
created by the disparity of national restrictions on media ownership.

76 For the time being, work: relating to this consultation mechanism does
not seem to be mov i ng towards the estab I i shment of a forma I body but
Council of Europe
Instead towards dut ies be ing handled byCommittee of Experts on media concentrat ions.

the- 112 -On the other hand . the establ ishment of a special body In the context of .

harmonization Instrument seems to be a possible option because It could

assist In the implementat Ion of harmonized provisions and would therefore
IndirectlY serve the objective of el imlnatlng obstacles to the functioningof the internal market. According to Pari iament' s resolution. such a bodyshould not be of the same type as the committees provided for under thecommittee procedure In COmmunity law. I. e. bodies consisting of government

representatives. but Instead should be of the " comml ttee of wise men " typewhich IS notable for the Independence of Its members. Such independentbodies are nevertheless not unknown to Community law . the proposal for a

Directive concerning the protection of Individuals in relation to theprocessing of per.sonal data being one example. The advantages anddrawbacks of such a commi ttee wi II be considered below in Chapter VI.

QUESTION

The

CO_/ss/on

deslrebl.llty

Chapter VI.

of

would
setting up

views

welCOlle theIt bodYwith

CO8petenceofInterested

PflTtleson thefor lledla concentration.

$tlAMARY Of POSSIBLE OPTIONSIn the light of the above analysis as a whole. the decision which theCOmmission might have to take after consult Ing the Interested part ies could

be on the I ines of one of the three opt Ions set out below.

- 113 -NO soec. lflc action at COmmunity level (OPTION

Presentat Ion

The Commission s position might be not to propose any specific action at

Community ievel at this stage. The objective of this position would be toleave it to Member States, In accordance with community law, to deal withthe subject of " plural ism and concentration of the media " either because

insufficient to justify action, or because It Is
soon to act now or becadSEf act ion does not have to'be taken atCommunity level , since the national leve'I' is sufficient.
the needs identified are
too

ArGuments In favour

This option would permit a better assessment of whether obstacles reallyex i sted and, if necessary, a more f i tt I ng response;

It would . enable an assessment to be made of whether disparity creates
obstacles to free movement or solely distortions of competition which, inthemselves, are notsufficient in all Instances to justify Community

act Ion;

It would allow each Member State to Impose its own

restrictions

keeping with its national situation.

This option would make It possible to wait for contentious cases which
demonstrated a real need for action.

Arguments aGa I nst
It would not reflect the wishes of the European Parliament.

It would make it Impossible to forestall any future difficulties due tosuch restrictions and to the malfunctioning of the internal market.

- 114 -In the meantime obstacles could harm this market and Influence thestrategy of operators who a I ready have to take account of the effects ofsuch rules.
Theobstac I es

could

becomeworse

Member States

mightIntroducing anddelJeloplng their national laws along dissimilar lines.

More and more obstacles will be put in the way of media companies, given

ctlvlt ies are set to expand.

that their European a_

Implementation of the " Television without frontiers " Directive could bemade more difficult.. It Is precisely because the Directive has entered
Into force that It might be preferable to act rapidly, without delay,order to make It easier to implement.

For an operator , the Community

regulatory framework: seems imbalanced because it favours the " services
approach (broadcast ing from one Member state to others) over theestabllshmenP approach (establishment in several Member States). In somecases, this Imbalance could therefore push the market into the artificial

and ex1:ensive use of the " services

approach as a subst Itute for an

establishment" approach , leading to border I iRe and confl ictual situations

such as the cl rcumvent ion of leg i s I at ion or moves to impose a system ofsupervision on broadcasts from another Member State.

- 115 -2. SpeCifiC act Ions that alght be envisaged

atCommunity level (OPTIONS

to V)

OPTION II.

Act Ion r~lat ing to transDarency

Presentat Ion

The Commission s posit Ion might be to propose cooperat Ive act Ion between

the Member states, the objective being to obtain greater transparency ofmedia ownership and control in the Community. This action would relatesolely to transparency and would be Independent of any act.lon to harmonize

national restrictions on media ownership. It would involve a
recommendation seeking to faci I itate the disclosure and exchange of certain

Information concerning media ownership. If this recommendation were not togive rise to

the sought effects, a legal Instrument could equally becontemp lated.

Arguments In favourThis

opt ioncould

facilitate the task

oat lona I

author I ties

responsible for monitoring the application of anti-concentration laws;

It could create a degree of solidarity between national authorities;

it would help to improve knowledge of the level of concentration In theCommunity;
It would be a first stage before other Community action is taken.

Arguments aga I nst
This type of action would not solve the problems created by the effectwhich restrictions on media ownership have on the functioning of thei nterna I market;

- 116 ~in the I Ight of the subsidiarity prinCiple It Is not certain that It Is
necessary because at the moment the Commission does not know of a casewhich It would have been Impossible for national authorities to exchange
information owing to the lack of a suitable Community Instrument.

OPTION III.

Act Ion to harmon I ze laws

Presentat Ion

The Commission s position might be to propose action with the objective of

eliminating differences In national restrictions on media ownership. To
th I s end three potent i a I approaches can be env i saged.
Sub--optlon A

co--ordinat Ion of nat ional leQislat ions by means of a Councl

direct I
A proposal for a directive harmonizing national laws on media ownership on

the basis of Art Icle 57(2).

The purpose of the direct Ive would be toestabl ish common rules which would replace the national restrictions of thetwelve Member States and which would strike a balance between the objectiveof guaranteeing ownership diversity and the objective of making It easier
to take up media activities.

Arauments In favour
This option would el Iminate the obstacles tothe functioning of theinternal market created by the differences In national restrictions on

media ownership;
it would

I eave Member States some rOOm for adjustment

to nat iona I

s i tuat ions;
it would facilitate the tackling of the transparency Question in termsof the legal basis.

- 117 -Arouments aGa i nst
Th Is option might be cons idered prematur.

It would not be effective enough because of the room for manoeuvre left
to Member states;+ it would be difficult to prepare, in particular to ensure that thecontent of the direct I ve was ba I anced.

SUb-ODtlon B

aDDroxlmatlon of the differinG laws by means of a Council

reGulation

The Commission

the

same
position might be to propose action withdifference that thepreceding option but with

objectives as thetheinstrument used would be a regulation and not a directive. The legal basis

woul d be Art ic Ie 10Qa.
ArGuments in favour (comDared with a directive)

Harmon I zat Ion wou I d .be more effect i ve because a regu I at Ion is direct I yapplicable in the Member States and does not have to be transposed into

national law;

the level of consumer protection would have to be high in accordance
wi th Art icle 100a(3).

ArGuments aGa I nst (comDared with ad I rect I ve)

The substantive content would have to be more precise for it to be

direct1yappl1cable.
+ the regulation would reduce the flexibi I ity for measures at the national

level.

- 118 -Sub-opt ion C : arox imat ion

islationstheaccompan i edestablishment of an independent committee

The Commission s position might be to propose action at Community level,

the objective being the same as under the last two options but with adifference, because
addition
harmonizat 100(by directive
regulat ion) a body would be set up.
It would consist of I ndependeot
authorities from each Member State and its task would be to assist in
implementing the harmonization instrument and to give opinions on questions
relat log to media conceotrat ion.

ArQumeots 10 favour
The national authorities would be in touch with one another and could

exchange informa t i on and exper i ence;
the know I edge and exper I ence poo I ed In th I sway wou I d be usefu I for theCommission in carrying out its task of guardian of Community law.

ArQuments aga lost
Under this option Member States would have to be asked to set up
independent author I ties competent for aud iovlsua I matters; these do notalways exist, and their creation would have far-reaching impl icatlons forthe structure of oat.ional audiovisual systems, going beyond the anxieties
connected with restrictions on media ownership;

the risk would be that the handling of questions which must be dealt

with at national level in accordance with the general principles for theappl Ication of Community law would be central ized atCommuni ty

leve I.

- 119 -QUEST ION

The CO",.'sslon would welcome the views

these foreseeable optionS.

ofInterested partiesoneach