Commission européenne, DG COMP MERGER REGISTRY, 1049 Bruxelles, BELGIQUE  
Europese Commissie, DG COMP MERGER REGISTRY, 1049 Brussel,   BELGIË  
 
Tel: +32 229 -91111. Fax: +32 229 -64301. E -mail: COMP -MERGER -REGISTRY@ec.europa.eu .  EUROPEAN COMMISSION  
Brussels, 01.12.2021  
C(2021 ) 8881 final  
PUBLIC VERSION  
 
ViacomCBS Inc.  
1515 Broadway  
10036 New York  
United States  of America  
 
Sky Limited  
Grant Way, Isleworth  
Middlesex TW7 5QD  
United Kingdom  
Subject : Case M. 10456 – SKY/ViacomCBS/JV  
Commission decision pursuant to Article 6(1)(b) of Council Regulation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 25 October 2021 , the European Commission received notifi cation of a proposed 
concentration pursuant to Article 4 of Council Regulation (EC) No 139/20043 by 
which Sky Limited (“ Sky”), part of Comcast Corporation ("Comcast ") (together, 
"Comcast/Sky "), and Paramount Pictures International Limited  (“Paramount ”), 
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the ’Merger Regulation’). With effect from 1 December 2009,  the Treaty on the 
Functioning of the European Union (‘TFEU’) has introduced certain changes, such as the replacement of 
‘Community’ by ‘Union’ and ‘common market’ by ‘internal market’. The terminology of the TFEU will 
be used throughout this decision.  
2  OJ L 1, 3.1.1994, p . 3 (the ‘EEA Agreement’).  
3  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).  
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and other  
confidential information. The omissions are 
shown thus […] . Where possible the 
information omitted has been replaced by 
ranges of figures or a general description.  
 
 
2 part of the group headed by ViacomCBS Inc. (together, " ViacomCBS ") will acquire 
joint control of a newly created JV (the “ JV”) within the meaning of Article 3(1)(b) 
and 3(4) of the Merger Regulation (the “ Transaction ”). Sky and ViacomCBS are 
together refer red to as the “ Notifying  Parties ” (together with the JV, the “Parties ”). 
1. THE  PARTIE S  
(2) Sky is the (indirect) holding company (UK) of a number of subsidiaries carrying on 
business across the audio -visual (“ AV”) value chain, predominantly in the UK, 
Ireland, G ermany, Austria and Italy. Sky is ultimately owned by Comcast , a global 
media, technology and entertainment company (US). Comcast is present in Europe 
almost entirely through Sky and NBCUniversal (“ NBCU ”). NBCU is a media and 
entertainment company active i n the AV sector as well as in the home entertainment 
sector through the direct to consumer (“ DTC ”) distribution of DVDs, Blu -rays and 
music discs.  
(3) ViacomCBS  is a global media and entertainment company (US) that creates AV 
content and experiences for audien ces worldwide. ViacomCBS's portfolio currently 
consists of three segments: TV Entertainment, Cable Networks, and Filmed 
Entertainment. ViacomCBS is controlled by National Amusements Inc (US).  
(4) The JV will establish and operat e a subscription video on deman d (“ SVOD ”) 
streaming service that comprises  AV content  and is distributed  DTC on an over the 
top (“ OTT ”)4 basis as well as  via third party platforms and connected devices . The 
JV will also  wholesal e some of ViacomCBS' and NBCU's linear pay TV channels 
via third party multichannel video programming distributors in 22 European 
countries, including the following 15 countries  within the EEA (the “ JV EEA 
Territories ”): Bulgaria, Croatia, Czech Republic, D enmark, Finland, Hungary, the 
Netherlands, Norway, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and 
Sweden.  
2. THE  CONCE NTRATION  
(5) The Transaction will be implemented by means of an agreement, entered into by Sky 
and Paramount on 16 August 2021  (the “ Investment Agreement ”). Subject to 
satisfaction of all the conditions precedent in the Investment Agreement, including 
receipt of regulatory approvals, Sky and Paramount will each purchase 50% of the 
shares in the newly created JV.5   
2.1. Joint control  
(6) Sky and ViacomCBS will each own 50% of the shares of the JV and have the ability 
to exercise decisive influence over the JV. In particular, the Notifying Parties will  
each appoint an equal number of directors in the JV’s board of directors, and will 
                                                 
4  I.e. the content is delivered via the internet.  
5  Form CO, paragraphs 91 – 93 and 96.  
 
 
3 also jointly a ppoint the JV’s Chief Executive Officer, Chief Financial Officer and 
Chief Operating Officer.6 
(7) The executive officers will have executive and day -to-day responsibility for the 
operation of the JV, except for the matters that must be referred to the JV’s board of 
directors and to the JV’s shareholders pursuant to the joint venture agreement that 
will be entered into upon completion of the Transaction.7 [Reference to the JV's 
corporate governance] . The approval of these matters requires a favourable vote by 
at least two appointed directors of each of the Notifying Parties or written consent of 
both sha reholders.8  
(8) Therefore, as a result of the Transaction, Sky and ViacomCBS will jointly control 
the JV within the meaning of Article 3(1)(b) of the Merger Regulation.  
2.2. Full-functionality  
(9) The JV will be fully functional. First, the JV will employ its own man agement 
dedicated to its day -to-day operations, and have access to sufficient resources, 
including finance, staff and assets that will enable it to operate independently on the 
market for the retail supply of AV services.9 10 [Reference to strategic decisio ns 
regarding the JV] . This will allow the JV to become (both financially and 
operationally) independent and self -financing.  
(10) Second, the JV is intended to operate as an autonomous entity with independent 
access to the market. Its activities will not be lim ited to the distribution or sale of its 
parent companies' products, as the JV will supply its own SVOD offering as a fully 
independent company with its own personnel  and dedicated management . Therefore, 
the JV will not rely on sales to its parents.11 In add ition, the JV has negotiated 
agreements with its parents on an arm’s length basis, reflecting normal market 
conditions.12 
(11) Third, the JV will not only purchase from its own parents. It will also source SVOD 
licenses to content from third party content provid ers and may also commission new 
content.13 
(12) Finally, the JV is intended to operate on a lasting basis.  [Reference to the JV's 
corporate strategy] .14  
                                                 
6  Form CO, paragraphs 97 – 98.  
7  The Notifying Parties have already agreed on th e terms of such joint venture agreements (the “ Agreed 
Form Joint Venture Agreement ”). Other agreements that the Notifying Parties will enter into  upon 
completion of the Transaction includ e the Initial Annual Business Plan and the Initial Annual Budget. See 
Form CO, paragraph 94.  
8  Form CO, paragraphs 99 – 103.  
9  Form CO, paragraph 111.  
10  Form CO, paragraphs 114, 118 and 120 – 125. 
11  Form CO, paragraph 126 – 127.  
12  Form CO, paragrap hs 117, 119, 121, 123 and 125.  
13  Form CO, paras. 73 and 178. The Notifying Parties estimate that spend on third party content will 
represent up to [proportion] of all spend on content whereas content acquired from the parents would 
account for between ap proximately [proportion] and [proportion] of the overall spend value . These 
percentages will be reviewed periodically as part of the budget review and may vary year on year based on 
the specific content output of each of the parents.  
 
 
4 (13) Therefore, the Transaction will lead to the creation of a full -function joint venture 
within the meaning of Article 3(4) of the Merger Regulation.  
3. UNION DIME NSION  
(14) In the last financial year, Comcast/Sky and ViacomCBS achieved a combined 
aggregate worldwide turnover of more than EUR 5 000 million .15 Each of the 
undertakings concerned achieved an EU -wide turnover i n excess of EUR 250 
million, but they did not achieve more than two -thirds of their aggregate EU -wide 
turnover within one and the same Member State. The Transaction therefore has an 
EU dimension within the meaning of Article 1(2) of the Merger Regulation.  
4. RE LE VANT MARKE TS  
(15) This Transaction concerns all three levels of the AV value chain (from upstream to 
downstream):  
a) The production and supply of AV conten t (including the supply of pre -produced 
AV content and commissioned AV content), where Comcast/Sky and 
ViacomCBS are active on the demand - and supply -side of the market, and the JV 
will be active on the demand -side of the market only;  
b) The wholesale supply of TV channels , where Comcast/ Sky, ViacomCBS and the 
JV16 will be active mainly on the supply -side of the  market; and  
c) The retail supply of AV services to end customers , where the JV will be active 
both (i) DTC, and (ii) via third -party multichannel video programming 
distribution (“MVPD”) platforms, and Sky and ViacomCBS will also remain 
independently active ( mostly) outside the territories where the JV will operate.  
(16) In addition, the Transaction concerns the sale of advertising  on TV channels, where 
both Comcast/Sky and ViacomCBS will remain independently active from the JV, 
while the JV will not be active in the supply of advertising space.  
4.1. Production and supply of AV content  
4.1.1.  Relevant product market  
4.1.1.1.  The Commission’s previous practice  
(17) In previous decisions, the Commission has concluded that there are separate markets 
for: (i) the production and supply of commis sioned AV content (also referred to as 
                                                                                                                                                      
14  Form CO, paragraph s 136 – 137.  
15  Turnover calculated in accordance with Article 5 of the Merger Regulation.  
16  Form CO, paras. 213 -215. The JV will distribute ViacomCBS's and NBCU's linear pay TV channels to 
third party multichannel video programming distribution  platform s. In the Nordics, the JV will 
complement its on -demand offer with two linear TV channels on its own retail service to promote movies 
and series with the potential for further TV channels to be added to the service and made available in other 
JV Territorie s in future. The JV will also wholesale its SVOD offering to other retailers.  
 
 
5 ad hoc  or new content); and (ii) the licensing of broadcasting rights for pre -produced 
AV content (available off -the-shelf).17 
(18) With regard to the market for the production of commissioned AV content , the 
Commission has  found the product market to be limited to non -captive AV 
production, thereby excluding captive AV production ( i.e., AV content produced by 
broadcasters for use on their own TV channels), as this AV content is not offered on 
the market.18 
(19) With regard to the  market for the licensing of pre -produced AV content , the 
Commission has considered that it may be subdivided by content type, in particular: 
(i) films , (ii) sports , and (iii) other AV content ( i.e., all non -sport, non -film content) , 
but ultimately left th e market definition open .19 In addition, t he Commission had 
assessed  whether AV content could be further sub -divided by distinguishing 
between : (i) US and non -US films; (ii) premium and non -premium content; or (iii) 
scripted and non -scripted content . This sub-segmentation  has been  left open in 
previous decisions.20 
(20) The Commission has also considered further sub -dividing the market for the 
licensing of pre -produced AV content  by exhibition window :21 (i) SVOD; (ii) 
transactional video on demand (“TVOD “);22 (iii) pay-per-view (“ PPV”);23 (iv) first 
pay TV  window ; (v) second pay TV  window ; and (vi) free-to-air (“ FTA ”), but has 
ultimately left this question  open.24 
4.1.1.2.  The Notifying Parties’ view  
(21) The Notifying  Parties  agree with the Commission’s previous practice that the m arket 
for the production and supply of AV content should be segmented between (i) the 
production and supply of commissioned AV content, and (ii) the licensing of 
exploitation rights for pre -produced AV content.25  
(22) However, t he Notifying  Parties  do not consi der it appropriate to further segment 
these relevant markets, in particular by: (i) content type, (ii) scripted vs non -scripted 
                                                 
17 Commission decision of 7 April 2017 in Case M.8354 – Fox / Sky , para. 54 ; Commission decision of 24 
February 2015 in Case M.7194 – Liberty Global/Corelio / W&W / De Vijver Med ia, para. 69 ; Commission 
decision of 6 November 2018 in Case M.8785 - The Walt Disney Company / Twenty -First Century Fox , 
para. 67; Commission decision of 26 August 2020 in Case M.9299 – Discovery / Polsat / JV , para. 50.  
18 Commission decision of 22 Septem ber 2006 in Case M.4353 – Permira  / All3Media Group , paras. 11 -12; 
Commission decision of 9 October 2014 in Case M.7360 - 21st Century Fox/Apollo  / JV, para. 36; 
Commission decision of 20 June 2016 in Case M.7865 – Lov Group  / De Agostini  / JV, para. 18; M.9299 
– Discovery / Polsat / JV , para. 50.  
19  Commission decision of 21 December 2011 in Case M.6369 HBO  / Ziggo  / HBO Nederland .   
20 M.8354 – Fox / Sky , para. 55; M.6369 – HBO / Ziggo / HBO Nederland , para. 18; M.7194 – Liberty 
Global / Corel io / W&W / De Vijver Media , para. 52; M.8785 - The Walt Disney Company / Twenty -First 
Century Fox , para. 68.  
21  The use of the term exhibition windows is not applicable to non -film AV content. Non -film AV content 
may be broadcast through different exploita tion fields ( e.g. pay TV, FTA) but the rights do not pass 
through each method in the same way a newly released film does.  
22   TVOD designates a product where a consumer obtains the right to watch a single title within a designated 
time frame (for example 48 hours) through a single payment.  
23 PPV designates a product where a consumer obtains the right to watch a single title during a specific time 
frame (for example Sunday between 2.00 pm and 3.45 pm) through a single payment.  
24 M.8354 – Fox / Sky , para. 56; M.8785 - The Walt Disney Company / Twenty -First Century Fox , para. 68.  
25  Form CO, paragraph 194.  
 
 
6 content, (iii) premium vs non -premium conten t, or (iv)  exhibition window. In this 
regard, the Notifying Parties submit that the above distinctions do not reflect the 
economic reality of competition in the AV sector.26 
(23) More specifically, with reference to content type, the Notifying Parties argue that 
production companies are active in the production of content across different types  
and genres. Furthermore, a producer that supplies only one type of content could 
start supplying content of a different type swiftly and at no significant costs. The 
Notifying  Parties also argue that, from a demand -side perspective, there is no 
material d ifference between content of different types and genres, as they all 
compete to attract the same audience.27 
(24) With reference to scripted and non -scripted content, the Notifying Parties submit 
that, from a supply -side perspective, production companies produce both scripted 
and non -scripted content based on demand and, if they are specialised in the supply 
of either of the two, they could in any case start producing the other type of content 
timely and at no significant costs.  Moreover, from a demand side, content acquirers 
do not target scripted or non -scripted content in particular, but source content based 
on its attractiveness to their audience, regardless of the type.28 
(25) Moreover , the Notifying  Parties argue that a segmentation between premium and 
non-premium content would be artificial, as it is not clear what constitutes premium 
and non -premium content , and the success  and commercial value  of any specific 
content is not dependen t on the production budget, nor can it be predicted.29 
(26) Finally, with reference to the different exhibition windows, the Notifying Parties 
note that suppliers of AV content do not produce different types of AV content 
designed for different exhibition window s. Moreover, the Notifying  Parties argue 
that the distinction between exhibition windows has become increasingly blurred due 
to the uptake of OTT VOD platforms and non -linear services.30 
(27) In any event, the Notifying  Parties consider that, for the purpose of this decision, it is 
not necessary to reach a conclusion as to the exact product market definition of the 
market for the production and supply of AV content, as the Transaction does not 
raise competition concerns regardless of how such market is defined .31   
4.1.1.3.  The Commission’s assessment  
(28) The Commission focused its investigation in relation to this market on Spain , given 
that only the Spanish production and supply of AV content market is affected (see 
below Section 5.2). Respondents to the market investigation agree that there is a 
relevant product market for the production and supply of AV content.32  
                                                 
26  Form CO, paragraph 195.  
27  Form CO, paragraph 196.  
28  Form CO, paragraph 197 . 
29  Form CO, paragraphs 199 – 200.  
30  Form CO, paragraph 201.  
31  Form CO, paragraph 202.  
32  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 6.  
 
 
7 (29) However, the results of the market investigation are inconclusive as to the 
identification of two separate relevant product markets for (i) the production and 
supply of commissioned AV content  and (ii) the licensing of broadcasting rights 
for pre -produced AV content , with only a slight majority of respondents 
considering that such separation  is accurate.33 In this regard, some respondents 
pointed out that these activities are not always clearly distinguishable, as production 
costs are similar and they repres ent alternative options for  customers to source  
content.  
(30) With reference to a distinction of pre -produced AV content by content type , in 
particular (i) films; (ii) sports; and (iii) other AV content, the majority of respondents 
to the market investigation c onsider such differentiation  not accurate, as different 
content types compete with each other for viewers’ attention. A few respondents also 
suggested alternative separations , taking into account, for example, TV series or 
general entertainment.34  
(31) As regar ds pre -produced film content, the results of the market investigation are 
overall inconclusive as to whether separate relevant product markets exist for (i) US 
and (ii) non-US film content . A small majority of respondents consider that this 
distinction is not accurate because different types of AV content, including US and 
non-US films, compete for viewership, and because the geographic origin of a 
production does not determine per se the quality or the success of a film. However, 
other respondents stress t hat US films have an important value for attracting viewers, 
and should be distinguished from other films on grounds of volume and general 
quality.35 
(32) With reference to other AV content (i.e. excluding films and sports), the market 
investigation is inconclus ive as to whether a separation between (i) scripted  and (ii) 
unscripted AV content  is appropriate. According to a number of respondents, the 
argument that different types of AV content all compete for viewership applies to 
scripted and unscripted content a s well. However, on the other hand, a similar 
number of respondents believes that scripted and unscripted content should form 
separate relevant product markets and note that AV content producers usually 
specialize in either type of content.36  
(33) Similarly, th e market investigation yi eld no clear results as to whether other AV 
content should be separated between (i) premium  and (ii) non-premium content . 
However, a small majority of respondents consider that the production of premium 
and non -premium content do not form separate relevant product markets as they both 
compete for viewership and are substitutable from a consumers’ perspective.37 
(34) With reference to a distinction of the possible relevant market s for the production 
and licensing of pre -produced AV conten t according to exhibition windows , the 
results of the market investigation are overall inconclusive.38 A small majority of 
                                                 
33  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 7.  
34  Q1 – Questionnaire to market particip ants in the AV sector (Spain), replies to question 8.1.  
35  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 8.2.  
36  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 8.3.  
37  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 8.4.  
38  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 9.1.  
 
 
8 respondents is of the opinion that such separation  would not be relevant for the 
market for the production and supply of commissioned AV content in Spain .39 
Market participants provided different views as regards possible distinctions  they 
consider appropriate. For instance, a few market participants submit that there is a 
single market for AV services in Spain and that customers may use pay TV 
channels, FTA TV channels and SVOD services as a complementary source.40 
(35) Market participants that provide both linear and non -linear services at retail level 
usually acquire the broadcasting rights for such services together when it comes to 
tailor -made content, but replies by market participants are mixed in relation to pre -
produced content.41 Furthermore, a small majority of respondents considers that 
there are differences in terms of content, pricing or contract terms when content is 
licensed to pur e OTT providers compared to other licensees , although most 
respondents answered that they do not know. However, explanations provided do not 
allow to clearly identify such differences .42 
(36) In light of the above, the Commission concludes, for the purpose of th is decision, 
that the production and supply of AV content forms a relevant product market. The 
Commission also considers that, for the purpose of this decision, the question 
whether within this product market further distinctions could be made (i) between 
commissioned and pre -produced AV content; ( ii) between different content types; 
and (iii) based on the exhibition window, can be left open, since the Transaction 
does not raise serious doubts as to its compatibility with the internal market or the 
functioning of the EEA Agreement under any such plausible product market 
definitions.  
4.1.2.  Relevant geographic market  
4.1.2.1.  The Commission’s previous practice  
(37) In past decisions, the Commission has defined the market for the production and 
supply of AV content ( and it s relevant segments ) to be either national or regional, 
based on linguistically homogeneous areas.43 
4.1.2.2.  The Notifying Parties’ view  
(38) The Notifying  Parties consider that the appropriate geographic market is national or 
regional in scope, given that the majority of content is licensed on that  geographic  
basis. While it is not uncommon to conclude deals that span multiple territories, 
there would usually be different terms for different territories ( e.g., with respect to 
titles, licence period, price, etc.) .44 
(39) In an y event, the Notifying  Parties submit that it is not necessary for the Commission 
to reach a conclusion as to the precise geographic market definition for the 
                                                 
39  Q1 – Questionnaire to market participants in the AV sector (Spain), r eplies to question 9.2.  
40  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 9.3.  
41  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 10.  
42  Q1 – Questionnaire to market participa nts in the AV sector (Spain), replies to question 10.  
43 M.8354 – Fox / Sky , para. 69; M.9299 – Discovery / Polsat / JV , para. 54.  
44  Form CO, paragraphs 204 – 205.  
 
 
9 production and supply of AV content, as the Transaction would not raise any 
competition concern u nder any plausible market segmentation.45 
4.1.2.3.  The Commission’s assessment  
(40) Almost all suppliers of AV content in Spain licence their content on a national basis. 
Some respondents pointed out that, in some cases, they also license content on a 
regional basis. One  respondent replied that it is active in the licencing at all 
geographic levels, from national to worldwide.46 
(41) In light of the above, for the purpose of this decision, the Commission concludes that 
in Spain the relevant geographic market for the production and supply of AV 
content, including all its possible sub -segments, is national in scope.  
4.2. Wholesale supply of TV channels  
4.2.1.  Relevant product market  
4.2.1.1.  The Commission’s previous practice  
(42) In previous decisions, the Commission has identified a wholesale market for  the 
supply of TV channels. Within that market, in certain decisions, the Commission has 
further identified two separate product markets for: (i) FTA TV channels , and (ii) 
pay TV  channels.47 The Commission further stated that , within the pay TV  channels 
market, a further distinction could be made between : (i) basic pay TV  channels, 
which are included in the basic subscription fee, and (ii) premium pay TV  
channels,48 for which end customers pay a premium in addition to their basic 
subscription fee.  
(43) In Liberty  Global  / Coreli o / W&W  / De Vijver Media , the Commission concluded 
that, at the level of the wholesale supply of TV channels , there were two separate 
product markets, one consisting of the wholesale supply of premium pay TV  
channels and one consisting of t he wholesale supply of basic pay TV /FTA channels . 
The Commission also considered that there was no need to draw a distinction 
between linear TV channels and their non-linear ancillary services .49 
(44) Further, in previous decisions, the Commission examined a num ber of other 
potential additional differentiations , including genre or thematic content (such as 
sports, films, general entertainment, news, youth, and others), and ultimately left the 
market definition open in these regards.50   
                                                 
45  Form CO, paragraph 209.   
46  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 18.  
47 M.7194 - Liberty Global / Corelio / W&W / De Vijver Media , paras. 90-91. 
48 M.8785 – The Walt Disney Company / Twenty -First Century Fox , para. 77; Commission decision of 15 
June 2018 in Case M.8861 – Comcast  / Sky, para. 50; Commission decision of 6 February 2018 in Case 
M.8665 – Discovery  / Scripps , paras. 19- 20; M.8354 – Fox / Sky , paras. 80 - 81. 
49 M.7194 - Liberty Global / Corelio / W&W / De Vijver Media , paras. 93 -94. 
50 M.7194 - Liberty Global / Corelio / W&W / De Vijver Media , para. 98; Commission decision of 18 July 
2007 in Case M.4504 – SFR / Télé 2 France , para. 44; Commission decision of 26 August 2008 in Case 
M.5121 - News Corp  / Premiere , para. 22.  
 
 
10 (45) Last, i n the recent Telia Company  / Bonnier  Broadcasting Holding decision, the 
Commission considered that the market for the wholesale supply of TV channels 
should not be further segmented according to the type of infrastructure used for the 
delivery to the consumer  (such as cable,  satellite, DTH, digital terrestrial TV  and 
IPTV) since the competitive condition in the market for the wholesale supply of TV 
channels, and any possible segmentation, would be similar irrespective of the 
distribution technology and type of infrastructure used for the distribution of the TV 
channels.51 
4.2.1.2.  The Notifying Parties’ view  
(46) The Notifying  Parties  do not consider it appropriate to make any further distinctions 
within  the market for the wholesale supply of TV channels, be it between FTA and 
pay TV, betwee n linear TV channels and non -linear ancillary services, by genre, or 
by means of transmission.52 Regardless, the Notifying Parties submit that it is not 
necessary for the Commission to reach a conclusion  on this , as the Transaction 
would not raise any compe tition concern under any plausible market definition .53 
4.2.1.3.  The Commission’s assessment  
(47) The Commission focused its investigation in relation to this market on Denmark , 
given that only the Danish wholesale supply of TV channels market is affected (see 
below Sect ion 5.2). With reference to whether FTA TV and pay TV channels form 
separate relevant product markets, respondents to the market investigation provided 
a mixed reply.54 In particular, some respondents noted that there is no real FTA TV 
market in Denmark, with only the public service broadcaster still offering FTA TV 
channels.  
(48) Similarly, w ithin pay TV channels, t he results of the market investigation are 
inconclusive reg arding whether it remains appropriate to segment the wholesale 
supply of TV channels between FTA and basic pay  TV channels on the one hand, 
and premium pay TV channels on the other hand in Denmark.55 In particular, o ne 
respondent remarks that “premium” pay TV channels only have a minor presence in 
Denmark, with a decreasing value in a TV market affected by streaming services 
such as Netflix and HBO.  
(49) With reference to a segmentation by genre , including the specific genre of kids’ TV 
channels ,56 the results we re similarly inconclusive. While a number of respondents 
considered that thematic pay TV channels of a given genre could be alternatives 
(rather than complements) to thematic pay TV channels of a different genre, 
respondents also indicated that they did no t consider a market segmentation by genre 
                                                 
51 Commission decision of 12 November 2019 in Case M.9064 - Telia Company  / Bonnier Broadcasting 
Holding,  para. 162.  
52  Form CO, para. 222.  
53  Form CO, para. 228.  
54  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 7.  
55  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 8.  
56  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 10.  
 
 
11 appropriate. Respondents noted that TV distributors tend to demand a variety of 
genres to ensure an attractive global offering .57  
(50) With regard to a possible distinction between linear TV channels and their ancillary  
services , the results of the market investigation did not provide reasons to depart 
from the Commission's previous approach, as the results of the market investigation 
indicated that ancillary services ( e.g., TVE, catch -up, PVR, etc.) are associated to 
TV channels in Denmark in order to complement the TV offering and enhance the 
viewer experience of traditional linear channels.58 
(51) Most of the respondents consider that the market for the wholesale supply of TV 
channels should not be further segmented according to the distribution forms  (e.g., 
cable, IPTV, satellite, terrestrial, or OTT).59 
(52) In light of the above, the Commission considers that, for the purpose of this decision 
and in line with its decisional practic e, the relevant product market is the market for 
the wholesale supply of TV channels, including their ancillary services and covering 
all types of infrastructure. The question whether this product market can be further 
distinguished (i) by genre, (ii) by d istribution technology, or between (iii) FTA and 
pay TV channels, and in turn whether pay TV channels can be further split into basic 
pay and premium pay TV channels, or (iv) FTA and basic pay TV channels on the 
one hand, and premium pay TV channels on the  other hand can be left open since the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement under any such plausible product 
market definitions.  
4.2.2.  Relevant geographic market  
4.2.2.1.  The Co mmission’s previous practice  
(53) In previous decisions, the Commission found the market for the wholesale supply of 
TV channels to be either national in scope,60 sub-national,61 or delineated by 
linguistically homogeneous areas encompassing more than one EU Memb er State.62 
4.2.2.2.  The Notifying Parties’ view  
(54) The Notifying  Parties consider that the appropriate geographic market is national in 
scope, given that the majority of wholesale supply relationships are concluded at the 
national level, with some exceptions in which  the retail AV service provider obtains 
broadcasting rights to multiple countries/regions with a common language.63 
Regardless, the Notifying Parties submit that it is not necessary for the Commission 
                                                 
57  Q2 – Questionnaire to market participants in the AV sector ( Denmark), replies to question 9.  
58  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to questions 13 -14-15. 
59  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 16.  
60 M.6369 – HBO  / Ziggo  / HBO Nederland , para. 39; Commission decision of 15 April 2013 in Case 
M.6880 – Liberty Global  / Virgin Media , para. 41; Commission decision of 10 October 2014 in Case 
M.7000 – Liberty Global  / Ziggo , para. 98; M.9299 – Discovery / Polsat / JV , para. 70.  
61 M.7194 Liberty Global / Corelio / W&W / De Vijver Media , para. 106 onwards . 
62 M.8354 – Fox / Sky , para. 90 onwards.  
63  Form CO, para. 230.  
 
 
12 to reach a conclusion, as the Transaction will not raise  any competition concern 
under any plausible geographic market definition .64  
4.2.2.3.  The Commission’s assessment  
(55) All respondents to the market investigation distribute their wholesale TV channels to 
retail RV/AV service providers in Denmark on a national  basis. One respondent 
clarifies that this reflects the retailers’ scope of operations and the homogenous 
linguistic region.65 
(56) In light of the above, for the purpose of this decision, the Commission concludes that 
in Denmark the relevant geographic market f or the wholesale supply of TV channels, 
including all its possible sub -segments, is national in scope.  
4.3. Retail supply of AV services to end customers  
4.3.1.  Relevant product market  
4.3.1.1.  The Commission’s previous practice  
(57) The Commis sion has in previous cases identified  two relevant product markets 
within  the retail supply of AV services , namely (i)  FTA TV services  and (ii) pay TV  
services ,66 but in other more recent cases has ultimately left open the product market 
definition .67 The Commission has also considered whether  the market for  retail pay 
TV services should be distinguished  further  according to : (i) premium pay TV  vs. 
basic pay TV  services;68 (ii) distribution technologies ( e.g. cable, satellite, or 
terrestrial);69 and (iii) linear vs non -linear AV services ;70 but ultimately left the 
market definition open.71 
(58) With reference to distribution technologies,  in Liberty Global / Corelio / W&W / De 
Vijver Media  the Commission recogni sed that at least retail AV services offered over 
cable and IPTV form part of the same relevant product market .72 In the recent case of 
Telia Company  / Bonnier Broadcasting Holding ,73 the Commission conclude d that 
all the different distribution technologies are part of the same product market .   
                                                 
64  Form CO, para. 233.  
65  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to questio n 16. 
66 M.4504 – SFR/Télé 2 France , para. 45. 
67 M.8785 - The Walt Disney Company / Twenty -First Century Fox , para. 98; Commission decision of 8 
October 2018 in Case M.8842 – Tele2  / ComHem , para. 37; M.7000 – Liberty Global  / Ziggo , para. 137; 
M.8665 – Discovery  / Scripps , para. 33; M.8354 – Fox / Sky, para. 101; Commission decision of 3 August 
2016 in Case M.7978 – Vodafone  / Liberty Global  / Dutch JV , para. 56; M.7194 - Liberty Global / Corelio 
/ W&W / De Vijver Media , para. 152.  
68 M.7194 - Liberty Glo bal / Corelio / W&W / De Vijver Media , para. 119.  
69 M.7194 - Liberty Global / Corelio / W&W / De Vijver Media , para. 127; M.5121 - News Corp  / Premiere , 
para. 22; Commission decision of 21 December 2010 in Case M.5932 - News Corp  / BskyB , para. 105; 
M.7000 - Liberty Global / Ziggo , para. 113.  
70 M.7194 - Liberty Global / Corelio / W&W / De Vijver Media , para. 124; M.5121 - News Corp  / Premiere , 
para. 21; M.7000 - Liberty Global  / Ziggo , paras. 109 –110. 
71 M.8785 - The Walt Disney Company / Twenty -First Century Fox, para. 93 and case law cited; M.9299 – 
Discovery / Polsat / JV , para. 82.  
72 M.7194 – Liberty Global / Corelio / W&W / De Vijver Media , para. 126.  
73 M.9064 - Telia Company  / Bonnier Broadcasting Holding,  para. 195.  
 
 
13 (59) With reference to linear and non -linear services , in the past the Commission noted 
that non -linear services have gradually been integrated to complement TV 
broadcasters ' and retail AV service providers'  offering s and enhance the consumer's  
experience of linear TV channel s. Most recently, in NENT  / Telenor , the 
Commission indicated that linear and non -linear AV services are increasingly 
regarded as substitutable.74   
(60) Furthermore,  the question whether premium and basic  pay TV  services constitute 
separate product markets has ultimately been left open  in recent cases.75   
4.3.1.2.  The Notifying Parties’ view  
(61) The Notifying  Parties consider that t he Transaction should be assessed on the basis 
of a single market for the retail supply of AV services, which encompasses all AV 
services (including linear and non -linear, F TA and pay TV, basic and premium), 
delivered through all distribution technologies, including OTT.76 
(62) More specifically, as regards linear and non -linear services, the Notifying Parties 
submit that customers view these services as substitutable and that data  demonstrate s 
that viewing time is shifting from linear to non -linear services , especially in 
countries with the highest levels of penetration of OTT platforms. Furthermore, 
linear and non -linear services are being made available to consumers under a singl e 
subscription, and much of the content available on linear TV channels is also 
available on VOD services.77 
(63) As regards the distribution technology, the Notifying Parties submit that content 
distributed via different retail infrastructures is broadly substi tutable from a 
consumer perspective. The Notifying  Parties point out that distribution technologies 
are increasingly converging given the rapid development of internet that enables 
consumers to receive video signal of comparable quality to satellite or cab le service 
via OTT platforms.78 
(64) Furthermore, with reference to premium and basic pay TV services, the Notifying 
Parties consider that there is no relevant difference between basic and premium 
content, regardless of the type of retail AV service of the commissioning/acquiring 
service provider.79  
(65) In any case, the Notifying  Parties submit that, for the purpose of this case, it is not 
necessary for the Commission to reach a conclusion on the precise product market 
definition for the retail supply of AV serv ices, as the Transaction will not raise any 
competition concerns under any plausible market segmentation.80 
                                                 
74  Commission decision of  30 April 2020 in Case M.9604 – NENT / Telenor / JV , para. 184.  
75  See e.g. M.9799 – Discovery / Polsat / JV , para. 82.  
76  Form CO, paragraph 254.  
77  Form CO, paragraphs 257 – 259.  
78  Form CO, paragraph 255.  
79  Form CO, paragraph 260.  
80  Form CO, paragraph 261.  
 
 
14 4.3.1.3.  The Commission’s assessment  
(66) The Commission focused its investigation in relation to this market on Denmark and 
Spain given that both the Danish and S panish retail supply of AV services markets 
are relevant  (see below Section 5.2). Respondents to the market investigation agree 
that there is a relevant product marke t for the retail supply of AV content.81  
(67) With refere nce to the segmentation between FTA TV  channels and pay TV 
channels , the majority of respondents to the market investigation consider that the 
retail supply of FTA TV cha nnels and the retail supply of p ay TV channels do not 
form separate product markets. Respondents point ed out that FTA channels, pay TV 
channels and internet platforms compete with each o ther in the eyes of consumers 
and o ne respondent specified  that differences in revenue models between FT A 
channels, pay TV channels but also internet subscription platforms are blurring. One 
respondent submitted that t he distinction between FTA and p ay TV channels is 
relevant in the case of sports content.82 
(68) The majority of respondents consider that the possi ble market for the retail supply of 
pay TV channels should not be separated between basic pay TV  and premium pay 
TV channels . More specifically, all respondents in Denmark replied that basic and 
premium pay TV chan nels are seen as an alternative , although a number of 
respondents answered that they do not know .83 Replies by market participants in 
Spain are less clear -cut, as the majority replied that these channels are actually 
complements. However, most of the explanations provided suggest that ba sic and 
premium pay TV channels do not form separate product markets, and that the 
difference between the two has been blurring. One respondent  argued that whether a 
difference exists depends on how retail suppliers package their channels , as premium 
chann els need to be  offered in addition to  a basic p ay TV channel subscription .84 All 
respondents submit that it would not be accurate to distinguish between the retail 
supply of (i) FTA channels and basic TV channels on the one hand and (ii) premium 
pay TV chan nels on the other.85 
(69) With reference to a distinction within  pay TV channels between linear  and non-
linear pay TV channels , the majority of respondents to the market investigation 
consider that this segmentation is not accurate. More specifically, the majori ty of 
respondents in Denmark replied that linear and non -linear pay TV channels do not 
form separate product markets.86 In Spain, however, only a small majority of 
respondents believe that linear and non -linear TV channels compete with each other 
for consum ers’ viewership. In this regard, one respondent pointed out that pay TV 
providers increasingly integrate non -linear elements alongside linear services, and 
                                                 
81  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 6; Q2 – 
Questionnaire to market participants in the AV sector (Denmark), replies to question 6.  
82  Q1 – Questionnaire to market participants  in the AV sector (Spain), replies to question 12; Q2 – 
Questionnaire to market participants in the AV sector (Denmark), replies to question 31.  
83  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 18.  
84  Q1 – Questi onnaire to market participants in the AV sector (Spain), replies to questions 13.  
85  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 13.2 ; Q2 – 
Questionnaire to market participants in the AV sector (Denmark), replies  to question 18.2 . 
86  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 19.  
 
 
15 that pay TV services commonly acquire linear and non -linear content rights together 
and incorporate them into the same subscription service.87 
(70) All respondents to the market investigation consider that non -linear pay AV services 
offered by local OTT  SVOD  platforms  and by international OTT SVOD 
platforms  are alternatives and therefore do not form separate product markets.88 
Overall, respondents pointed to the fact that there is intense competition between 
local and international VOD platforms, as they both contend for the same local 
audiences to which they  tailor their content.  
(71) Similarly, all respondents to the market investigation submit that, with reference to 
advertising founded AV services, FTA linear channels  and VOD non -linear 
services  do not form separate product markets. In general, respondents subm it that 
consumers do not differentiate on this basis and that the content on FTA channels 
and VOD platforms is equivalent.89  
(72) With reference to the different distribution technologies , the majority of 
respondents to the market investigation consider differe nt distribution technologies 
for AV content as alternative to each other, although many respondents answered 
that they do not know.90 In this regard, the majority of respondent s are generally 
aligned in considering that, from a demand -side perspective, cons umers view 
different transmission technologies as substitutable. Furthermore, one respondent 
specified that, from a supply -side perspective, certain retailers use multiple 
distribution technologies to provide services to consumers.  
(73) In light of the above, the Commission considers that, for the purpose of this decision, 
there exists a relevant product market for the retail supply of AV services, separate 
from the production and supply of AV content and the wholesale supply of TV 
channels. However, the Commis sion considers that the question whether within this 
product market a further distinction can be made (i) between FTA TV channels and 
pay TV channels; (ii) between basic and premium pay TV channels; (iii) between 
linear and non -linear TV channels (and furt her sub -segmentations thereof); or (iv) 
between different distribution technologies, can be left open, since the Transaction 
does not raise serious doubts as to its compatibility with the internal market or the 
functioning of the EEA Agreement under any su ch plausible product market 
definitions.  
4.3.2.  Relevant geographic market  
4.3.2.1.  The Commission’s previous practice  
(74) The Commission has in the past considered that the geographic scope of the market 
for the retail provision of AV services could be either (i) national, s ince providers of 
                                                 
87  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to questions 14.  
88  Q1 – Questionnaire to market participants  in the AV sector (Spain), replies to question 15; Q2 – 
Questionnaire to market participants in the AV sector (Denmark), replies to question 20.  
89  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 16; Q2 – 
Questionnai re to market participants in the AV sector (Denmark), replies to question 21.  
90  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 17; Q2 – 
Questionnaire to market participants in the AV sector (Denmark), replies to qu estion 22.  
 
 
16 retail AV services compete on a nation -wide basis; or (ii) limited to the coverage 
area of each respective cable operator .91 
4.3.2.2.  The Notifying Parties’ view  
(75) The Notifying  Parties consider that the geographic scope of the market for the retail 
provision of AV services is national . According to the Notifying  Parties, the 
Commission's previous findings regarding the geographic market for retail AV 
services on the basis of the "coverage area of each cable operator" have been based 
on the premise that the distributor was acting via its regional infrastructure, e.g., a 
cable network. For content delivered directly to consumers over the open internet, 
these restrictions of coverage area are not applicable. In this regard, the Notifying  
Parties note that t here is an increasing number of SVOD players such as Disney+,  
Netflix and Amazon Prime  Video , which are providing their retail services on a 
national basis.92 
(76) In any case, the Notifying  Parties consider that, for the purpose of this case, it is not 
necessary for the Commission to reach a conclusion as to the precise geographic 
scope of the market for the provision of retail AV services, as the Transaction would 
not result in a significant impediment of effective competition under any possible 
geographic market definition.93 
4.3.2.3.  The Commission’s assessment  
(77) Almost all respondents to the market investigation consider that the relevant 
geographic  market  for the retail supply of AV services is national  in scope.94 One 
respondent submitted that, although some OTT broadcasters are present on a 
worldwide basis, content license d for a specific country can ’t be broadcasted outside 
of such country.  
(78) In light of the above, for the purpose of this decision, the Commission concludes that 
in Spain and Denmark the relevant geographic market for the retail supply of AV 
services, includin g all its possible sub -segments, is national in scope.  
4.4. Sale of advertising space  
4.4.1.  Relevant product market  
4.4.1.1.  The Commission’s previous practice  
(79) The Commission has in previous cases established a distinction between (i) online 
and (ii) offline advertising, on t he basis of specificity (i.e. the ability to reach a more 
targeted audience) and pricing model.95 Within offline advertising, the Commission 
                                                 
91 M.8785 - The Walt Disney Company / Twenty -First Century Fox, para. 100; M.9799 – Discovery / Polsat 
/ JV, para. 86.  
92  Form CO, paragraphs 263 – 265. 
93  Form CO, paragraph 266.  
94  Q1 – Questionnaire to market participants in the AV sector (Spa in), replies to question 19; Q2 – 
Questionnaire to market participants in the AV sector (Denmark), replies to question 32.  
95  Commission decision of 9 September 2014 in Case M.7288 – Viacom  / Channel 5Broadcasting, para. 35.  
 
 
17 has distinguished separate markets for (i) the sale of advertising on TV channels and 
(ii) for the sale of advertising in newspapers.96 
(80) However, in the market investigation in Viacom  / Channel 5 respondents  pointed out 
that the line between online advertising and TV advertising is becoming increasingly 
blurred.97 The Commission has never assessed  whether advertis ing placed on OTT 
and VOD services belongs to the market for online or offline advertising.  
4.4.1.2.  The Notifying Parties’ view  
(81) The Notifying  Parties consider that there is only on e market for all TV advertising. 
In this regard, the Parties submit that online adv ertising exercises an increasing 
competitive constrain on advertising through OTT VOD platforms and linear TV 
channels.98  
(82) Further, the Notifying  Parties consider that advertising on OTT VOD platforms 
forms part of the same market as advertising via linear TV channels, and that there is 
no need to distinguish between advertising on FTA and pay TV channels.99  
(83) In any case , the Notifying  Parties submit that, for the purpose of this case, the exact 
product market definition  for the sale of advertising space  can be left open  as the 
Transaction would not resul t in a significant impediment to  effective competition 
under any possible product market definition .100 
4.4.1.3.  The Commission’s assessment  
(84) The Commission focused its investigation in relation to this market on Denmark 
given that only the Danish advertising market is relevant (see below Section 5.2). 
The majority of respondents to the market investigation submit that online  and 
offline  advertising do not form separate relevant product markets.101 In this regard, 
some respondent s consider that the advertising market is converging and such 
distinction is no longer relevant as it no longer reflects the mechanisms of the 
market. Anothe r respondent submits that offline and online advertising are very 
similar from a customer perspective . Along the same lines, a respondent specified 
that the rise of non -linear VOD viewing is making the boundaries between online 
and offline advertising more  blurred and that constraint from online advertising is 
increasing across all form s of advertising media. However,  on the other hand,  one 
respondent considers that TV and digital advertising have different pricing 
mechanisms and different levels of reach.102 
(85) As regards the possible market for online advertising, a limited number of 
respondents  consider that advertising placed on OTT VOD platforms  would 
                                                 
96  Commission decision of 7 Jul y 2005 in Case M.3817 – Wegener  / PCM  / JV, para. 27; Commission 
decision of 1 February 1999 in Case M.1401 – Recoletos  / Unedisa , paras. 26 -28; M.5932 - News Corp  / 
BSkyB , paras. 265 and 266; M.8665 - Discovery / Scripps , para. 40.  
97  M.7288 – Viacom  / Channel 5Broadcasting, paras. 38 and 40.  
98  Form CO, paragraph 283.  
99  Form CO, paragraph 284.  
100  Form CO, paragraph 287.  
101  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 24.  
102  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 24. 1. 
 
 
18 belong to the market for online advertising, assuming that such a market exists as a 
distinct product market , although many respondents answered that they do not 
know .103 
(86) With reference to a separation  of advertising according to the media channel , all 
respondents consider that it is not appropriate to distinguish the market for the 
supply of advertising spaces ac cording to the media channel used ( e.g., newspapers, 
radio, TV, Internet). Respondents consider that historic segmentations on the market 
are no longer accurate as today consumers allocate their attention across different 
digital media platforms on the bas is of the type of content made available to them.104  
(87) With reference to both offline TV advertising and online advertising, all respondents 
consider that advertising space sold directly by the publisher  (e.g., the OTT 
platform or the TV channel) and advertising space sold through an intermediary  
do not form separate product markets, although many respondents answered that 
they do not know.105 
(88) Finally, the results of the market investigation are inconclusive as to  whether, within 
online advertising, search  and non-search  advertising form separate relevant 
product markets,106 although all respondents consider that, should non -search 
advertising form a separate relevant product market, it would not be appropriate to 
further distinguish  between non -search video advertising and other types of non -
search advertising.107 
(89) The Commission considers that, for the purpose of this decision, the question 
whether within the relevant product market for the sale of advertising space sh ould 
be a further distinction should be made between: (i) online and offline advertising; 
(ii) the different media channels; (iii) advertising sold directly by the publisher or 
through an intermediary; and (iv) online search and non -search advertising, can  be 
left open, since the Transaction does not raise serious doubts as to its compatibility 
with the internal market or the functioning of the EEA Agreement under any such 
plausible product market definitions.  
4.4.2.  Relevant geographic market  
4.4.2.1.  The Commission’s pre vious practice  
(90) In previous decision s, the Commission has considered that the market for the supply 
of TV advertising, including the possible separate markets outlined above, is 
national in scope.108 
4.4.2.2.  The Notifying Parties’ view  
(91) The Notifying  Parties agree wit h previous Commission’s decisions and consider that 
the market for the supply of TV advertising is national in scope.109 In any case, the 
                                                 
103  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 25.  
104  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question  24. 
105  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to questions 26 and 27.  
106  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 28.  
107  Q2 – Questionnaire to market participants in t he AV sector (Denmark), replies to question 29.  
108  Among other cases, M.7288 – Viacom  / Channel 5Broadcasting, para. 45.  
 
 
19 Notifying Parties consider that, for the  purpose of this case , it is not necessary for the 
Commission to reach a conclus ion as to the precise geographic scope of the market 
for the sale of advertising space, as the Transaction would not result in a significant 
impediment of effective competition under any possible geographic market 
definitions.  
4.4.2.3.  The Commission’s assessment  
(92) The majority of respondents to the market investigation submit that they buy/sell TV 
advertising space on a national basis. In general, respondents submit that they 
operate advertising specifically targeted at the audience of the relevant country.110 
(93) In light  of the above, for the purpose of this decision, the Commission considers that 
the relevant geographic market for the sale of advertising space, including all its 
possible sub -segments, is national in scope.  
5. COMPE TITIVE ASSE SSME N T 
5.1. Analytical framework  
(94) Article 2 of the Merger Regulation requires the Commission to examine whether 
notified concentrations are compatible with the internal market, by assessing whether 
they would significantly impede effective competition in the internal market or in a 
substantial  part of it, in particular through the creation or strengthening of a 
dominant position.111 
(95) In this respect, a merger may entail horizontal and/or non -horizontal ( i.e., vertical or 
conglomerate) effects. Horizontal effects are those deriving from a concentra tion 
where the undertakings concerned are actual or potential competitors of each other in 
one or more of the relevant markets concerned. Non-horizontal effects are those 
deriving from a concentration where the undertakings concerned are active in 
differen t relevant markets. In a case where a merger entails horizontal or non-
horizontal effects, the Commission will appraise these effects in accordance with the 
guidance set out in the relevant notices.112 
(96) Horizontal mergers involve companies which are actual or  potential competitors of 
each other in one or more of the relevant markets concerned. The Horizontal Merger 
Guidelines list a number of factors which may influence whether or not significant 
horizontal non -coordinated effects are likely to result from a m erger, such as the 
large market shares of the merging firms, the fact that the merging firms are close 
                                                                                                                                                      
109  Form CO, paragraphs 289 – 290.  
110  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 33.  
111  With regard to the application of the Merger Regulation in the EEA, see Annex XIV to the EEA 
Agreement.  
112  Guidelines on the assessment of non -horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Non -Horizontal Merger Guidelines"), OJ C  265, 18.10.2008 ; 
Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Horizontal Merger Guidelines"), OJ C  31, 5.2.2004.  
 
 
20 competitors, the limited possibilities for customers to switch suppliers, or the fact 
that the merger would eliminate an important competitive force.113 
(97) Vertical mergers involve companies operating at different levels of the supply chain. 
There are two main ways in which vertical mergers may significantly impede 
effective competition: input foreclosure and customer foreclosure.  
(98) Input foreclosure may raise co mpetition problems only if it concerns an important 
input for the downstream market, and if the combined entity has a significant de gree 
of market power upstream.114 In assessing the likelihood of an anticompetitive input 
foreclosure strategy, the Commission  examines: (i) whether the combined entity 
would have the ability to substantially foreclose access to inputs; (ii) whether it 
would have the incentive to do so; and (iii) whether a foreclosure strategy would 
have a significant detrimental effect on compet ition downstream.115 
(99) For a transaction to raise customer foreclosure competition concerns, the combined 
entity must be an important customer with a significant degree of market power in 
the downstream market.116 In assessing the likelihood of an anticompetitiv e customer 
foreclosure strategy, the Commission examines: (i) whether the combined entity 
would have the ability to foreclose access to downstream markets by reducing its 
purchases from upstream rivals; (ii) whether it would have the incentive to do so; 
and (iii) whether a foreclosure strategy would have a significant detrimental effect 
on consumers in the downstream market.117  
(100)  In relation to potential cooperative effects, under Article 2(5) of the Merger 
Regulation, the Commission takes into account in part icular: (i) whether two or more 
parent companies retain, to a significant extent, activities in the same market as the 
joint venture or in a market which is downstream or upstream from that of the joint 
venture or in a neighbouring market closely related t o this market; and (ii) whether 
the coordination which is the direct consequence of the creation of the joint venture 
affords the undertakings concerned the possibility of eliminating competition in 
respect of a substantial part of the products or services  in question.  
5.2. Identification of affected markets  
(101)  Comcast/ Sky and ViacomCBS are active: (i) in the production and supply of 
commissioned AV content and in the licensing of pre -produced AV content; (ii) in 
the wholesale supply of TV channels; and (iii) in t he retail supply of AV services to 
end customers. Moreover, Comcast/ Sky and ViacomCBS are also active in the sale 
of TV advertising space.118 
(102)  The JV will be active: (i) in the market for the wholesale supply of TV channels, 
where it will wholesale supply Com cast/Sky and ViacomCBS’ TV channels to 
MVPD platforms; and (ii) in the market for the retail supply of AV services, where it 
                                                 
113  Horizontal Merge r Guidelines, paragraphs 27 and following.  
114  Non-Horizontal Merger Guidelines, paragraphs 34 -35.   
115  Non-Horizontal Merger Guidelines, paragraph 32.  
116  Non-Horizontal Merger Guidelines, paragraph 58.   
117  Non-Horizontal Merger Guidelines, paragraph 59.  
118  Form CO, Table 3.  
 
 
21 will develop and operate a SVOD streaming service comprising AV services 
distributed both directly to consumers and via third -party  MVPD platforms.  
(103)  The Transaction gives rise to the following vertically affected markets.  
a) First, the production and supply of pre -produced US film content  in Spain119, 
where Comcast/Sky and ViacomCBS are active, which is upstream from the 
retail supply of AV services to end -customers in Spain, where the JV is active.  
b) Second, the wholesale supply of pay TV channels in the kids segment in 
Denmark, where ViacomCBS is active, which is upstream from the retail supply 
of AV services to end -customers in Denmark, w here the JV is active.  
5.3. Horizontal relationships  
(104)  The Transaction involves no significant horizontal overlaps between the Parties and 
the JV. At the retail  level  (i.e., the main focus of the JV), there is no horizontal 
overlap as Sky has no or minimal activi ties in the JV EEA Territories, ViacomCBS 
has only minor activities in the Nordics through Paramount+, and the JV will have a 
modest share of the retail market. At the wholesale  level , the JV will be supplying 
both Parents' TV channels to third parties in the JV Territories. While the Parties' 
activities do overlap in the supply of TV channels, their combined shares are modest, 
and in any event below 20%. Therefore, there are no horizontally affected markets.  
5.4. Vertical relationships  
(105)  The Transaction gives ris e to two vertically affected relationships, in which the 
affected markets are:  
c) Sky and ViacomCBS’ supply of pre -produced US film content in Spain 
(upstream) (Sky: [20-30]%, ViacomCBS: [5-10]%)120 for the JV’s retail supply 
of AV services in Spain (downstrea m) (JV: […]% in 2024121, Sky: [0-5]%, 
ViacomCBS: [0-5]%122); and  
d) ViacomCBS’s wholesale supply of pay TV channels in the kids segment in 
Denmark (upstream) (ViacomCBS: [60-70]%)123 for the JV’s retail supply of AV 
                                                 
119  The Commission considers that, for the purpose of this decision, the production and supply of US film 
content constitutes the narrowest possible segment in which the activities of the Notifying Parties overlap 
giving rise to affecte d markets. First, in relation to the distinction between premium and non -premium US 
film content, the Notifying Parties explained that whether specific content is “premium” or not, can’t be 
predicted when it is produced. It essentially depends on the succe ss with which a piece will have sold, and 
its commercial value will change over time. [Reference to the Parties’ commercial strategy] Second, in 
relation to the distinction between US film content based on the exhibition windows, the Notifying Parties 
explained that the film content that they license is the same regardless of which specific exhibition 
window it is licensed in (Form CO, paragraph 201).  
120  Form CO, Annex B.1.2.2., Table 14.5 (Spain, 2020 revenue shares for pre -produced US film content).  
121  Notifying Parties’ response to the Commission’s RFI No 5 of 29 October 2021. The JV will be a new 
entrant, but is expected to hold […]% in Spain and […]% across all JV territories in the total SVOD 
segment (the JV will be a SVOD only service) in 2024.  The No tifying Parties have estimated the projected 
total market and JV SVOD subscribers for Spain using data regarding the population for Spain.   
122  Form CO, Annex B.1.2.5, Table 14.1 (Spain, 2020 revenue shares for total pay  TV segment).  
123  Form CO, Annex B.1. 2.3., Table 4.7 (Denmark, 2020 revenue shares for pay  TV kids channels).  
 
 
22 services to end -customers in Denmark (downstream) (JV: […]% in 2024124, Sky: 
[0-5]%, ViacomCBS: [0-5]%125). 
(106)  The Notifying Parties’ combined market shares in the upstream market for the 
supply of pre -produced US film content in Spain are above 30% ( [30-40]%). 
Likewise, the Notifying Parties’ combined market shares in the upstream market for 
the supply of pay TV channels in the kids segment in Denmark are above 30% ( [60-
70]%).  
(107)  Therefore, the Commission has assessed the risk of (i) foreclosure of competing 
suppliers of retail AV services (downs tream) from accessing Comcast/Sky and 
ViacomCBS’ supply of pre -produced US film content in Spain (input foreclosure); 
and (ii) foreclosure of competing suppliers of retail AV services (downstream) from 
accessing ViacomCBS’s wholesale pay TV channels in the  kids segment in 
Denmark (input foreclosure).  
5.4.1.  Possible foreclosure of competing suppliers of retail AV services in Spain 
(downstream) from accessing Comcast/Sky and ViacomCBS’ pre -produced US film 
content in Spain (upstream)  
5.4.1.1.  The Notifying Parties’ views  
(108)  The Notifying Parties submit that, post -Transaction, the JV will not have the ability 
or incentive to foreclose competing retail suppliers of AV services from accessing 
Comcast/Sky and ViacomCBS’ pre -produced US film content in Spain.  
(A) Ability to engage in input foreclosure  
(109)  The Notifying Parties submit that the JV will not have the ability to engage in a 
successful input foreclosure strategy because Comcast/Sky and ViacomCBS do not 
have a significant degree of market power in the market for the supply of pre -
produced US film content in Spain.  
(110)  First, t he Notifying  Parties note that Comcast/Sky and ViacomCBS’ combined 
market share is only slightly  above 30%  in 2020 , and  that there are significant 
alternative suppliers  of US film content in Spain, including stu dios of a similar size 
such as Warner Bros, Walt Disney Studios/Twentieth Century Fox and Sony.  
Moreover, the Notifying  Parties point out that their combined market share in  2019 
and the first half of 2021 is substantially lower ( [10-20]% and [10-20]% 
respectively ).126 According to the Notifying Parties, this is due to the endemic 
volatility of revenue shares from year to year in the market at hand, which is 
inconsistent with a position of market power .127 Therefore, retailers of AV content 
                                                 
124  Notifying Parties’ response to the Commission’s RFI No 5 of 29 October 2021. See also footnote 38 
above. In Denmark, the JV is expected to hold […]% in the total SVOD segment in 20 24. The Notifying  
Parties have estimated the projected total market  and JV SVOD subscribers for Denmark using data 
regarding the number of br oadband households for Denmark.  
125  Form CO, Annex B.1.2.5, Table 4.1 (Denmark, 2020 revenue shares for total pay  TV segment).  
126  Form CO, paragraph 360.  
127  Form CO, paragraph 360 and footnote 275. The Notifying Parties submit that this volatility is due to 
different studios having successful film releases at different points in time.  
 
 
23 would continue to ha ve a wide variety of alternative choice for US film content  in 
Spain .  
(111)  Second, the Notifying  Parties submit that US film content would be an overly 
narrow segment to consider  for estimating whether the Parties enjoy a significant 
degree of market power. US  film content constitutes only one of the many content 
types that attract viewers , such that it plays a limited role in shaping end consumers’ 
choice. In this regard, the Notifying  Parties consider that they could not exploit their 
market position on US fi lm content , because it is not an important input for retailers 
of AV services in Spain  and it is not determinant of end -consumers’ choice of 
retailer .128  
(112)  Therefore, the Notifying Parties consider that the JV would not have the ability to 
foreclose Comcast/Sky and ViacomCBS’ pre -produced US film content in Spain.  
(B) Incentive to engage in input foreclosure  
(113)  As regards  the incentive  to engage in input foreclosure , the Notifying Parties note 
that, as part of the Transaction,  Comcast/Sky and ViacomCBS [details of licensing 
arrangements] .129 
(114)  Therefore, according to the Notifying Parties, there is no need to assess whether 
Comcast/Sky and ViacomCBS  would have the incentive to foreclose their pre -
produced US film content by rendering it unavailable to the JV’s c ompetitors.130 
(C) Impact on effective competition  
(115)  The Notifying Parties further submit that a foreclosure of their pre -produced US film 
content in Spain would not cause any anticompetitive effects vis-à-vis retail suppliers 
of AV content.  
(116)  First, the Notifying  Parties submit that attractiveness of film content for retail 
suppliers of AV services can be measured by box office success, which  solely 
depends on the particular films released in cinemas in the relevant year and  not on 
the identity of the producing  studio. The Notifying  Parties note that t here is n othing 
unique about their  US film content, or about Hollywood studios’ content  more 
generally , as any given year non -Hollywood studios produce films which are as 
popular or more popular than the content produc ed by Comcast/Sky or 
ViacomCBS .131  
(117)  Second, the  Parties  will face strong competition  in the downstream market for the 
retail supply of AV content  from vertically integrated players such as Disney+ , 
Amazon  Prime Video  and Netflix, who produce their own content and have 
committed significant resources to this end. Therefore, these players do not depend 
on the supply of pre -produced US film content by Comcast/Sky and ViacomCBS. 
Moreover, even downstream players that  acquire US film content from the Notifying 
                                                 
128  Form CO, paragraph 360.  
129  Form CO, paragraph 365.  
130  Form CO, paragraph 366.  
131  Form CO, paragraph 367.  
 
 
24 Parties do not depend on the ir input,  as Comcast/Sky and ViacomCBS’ US film 
content [scale of the Par ties' sales to their customers] .132 
(118)  Third, the Notifying Parties point out that exclusive licensing of US film content  is 
common practice by producing studios. [Details of licensing arrangements] . 
(119)  Fourth, the Notifying  Parties note that the increasing trend of multi -homing by 
consumers means that they would not cancel their subscription with a particular 
provider and dive rt their subscription to the JV’s offering simply because a certain 
proportion of US films are no longer available on the previous provider’s platform. 
On the contrary, consumers may continue their current subscription in addition to the 
subscription to th e JV’s offering.133 
(120)  Therefore, the Notifying Parties consider that, even if they were to engage in input 
foreclosure with regard to Comcast/Sky and ViacomCBS’ US film content, such 
practices would not have any impact on competition in the downstream market f or 
the retail supply of AV services.  
5.4.1.2.  Commission’s assessment  
(121)  For the reasons set out below, the Commission considers that the Transac tion does 
not lead to credible input foreclosure concerns in the downstream market for the 
retail supply of AV services in Spain, regardless of the precise product and 
geographic market definitions retained (see Sections 4.1 and 4.3 above).  
(A) Ability to engage in input foreclosure  
(122)  The Commission considers that, although Sky and ViacomCBS would be able to 
license their pre -produced US film content to the JV on an exclusive basis, post -
Transaction the Notifying Parties will not have the ability to engage in a successful 
input foreclos ure strategy in Spain, because they will not have a significant degree of 
market power upstream and their US film content does not represent a  sufficiently 
important input.  
(123)  First, the Commission notes that Comcast/Sky and ViacomCBS ’ 2020 combined 
market sh ares in the possible relevant market for the production and supply of pre -
produced US film content in Spain are just above 30% ( [30-40]%), with a modest 
increment of [5-10]%. Moreover, a number of alternative production studios offer 
pre-produced US film c ontent in competition with the Notifying P arties, including 
major Hollywood studios. In this regard, the majority of respondents to the market 
investigation indicate that the level of competition in the market for the production 
and licensing of AV content  in Spain is very high or high.134 Therefore, the 
Commission considers that, post -Transaction, competing retail suppliers of AV 
services in Spain would continue to have access to a variety of alternative choice s 
for pre -produced US film content.   
(124)  Second,  the Commission considers that pre -produced US film content offered by the 
Notifying Parties is not particularly s trategic for retail suppliers of AV services  as 
                                                 
132  Form CO, paragraph 367.  
133  Form CO, paragraph 367  
134  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 22.  
 
 
25 compared to the US film c ontent offered by other studios . Although the majority of 
respondents to the market investigation consider that US film content in general is 
relevant for the attractiveness of an AV offering to consumers135, the market 
investigation also in dicates  that the US film s library licensed by Comcast/Sky  and 
ViacomCBS is not particularly important  for the competitiveness of retail AV 
services .136  
(125)  In this regard, a small majority of respondents submit that, should the  Notifying  
Parties stop licensing their US film content, they would be able to license othe r US 
film content from alternative suppliers, but such alternative content would not 
entirely replicate the present arrangements.137 However, the Commission notes that , 
as explained by the Notifying Parties138, a number of retail suppliers of AV services 
are i ndependent from Comcast/Sky and ViacomCBS’ offering of US fi lms. 
Moreover,  retailers that purchase this content from the  Notifying  Parties are not 
reliant on them to an extent greater than their market share  in the possible market for 
the production and su pply of US film content139 (as indicated in paragraphs (105) -
(106) ), and woul d therefore be able to complement their retail offering with US films 
produced by other studios . Furthermore, the Commission notes that the success of 
even major studi os var ies and that market shares fluctuate as they  depend on the 
consumers’ reception of the particular films released  in the reference year .140 
(126)  Third, the Commission considers that the supply of pre -produced US film content 
amount s to a very narrow market representing only one of the different types of 
content that retail suppliers of AV services  offer in order to attract viewers to their 
platforms. In this regard, a number of respondents to the market investigation 
explained that US films usually contribute to build a successful portfolio of content, 
but retail providers of AV services se ek to secure a variety of different types of AV 
content in order to maximize the attractiveness of their platform vis-à-vis consumers 
and reach a wider audience.141 
(127)  [Confidential information from the Parties' internal  documents] .142 
(128)  Last, the Commission notes that exclusive licensing of US film content is common 
across suppliers of AV content in Spain, as indicated by all respondents to the 
market investigation.143 A number of attractive platforms  including  Netflix, Amazon 
Prime Video, HBO  and Disney+ compete  for consumers’ attention  in the 
                                                 
135  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 28.  
136  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 27.  
137  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 29. 
138  Form CO, paragraph 367.  
139  Form CO, paragraph 367.  
140 Form CO, paragraph 360 and footnote 275. The Notifying Parties explained that there is significant 
volatility in production studios’ revenue shares, as these studios release successful films at di fferent points 
in time. For example, Warner Bros’ share in the US films sub -segment jumped from approximately [20-
30]% in 2020 to approximately [40-50]% in the first half of 2021 due to successful releases such as 
Godzilla vs Kong , The Conjuring: The Devil  Made Me Do it , Wonder Woman 1984  and Mortal Kombat . 
141  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 28.1.  
142  Notifying Parties’ internal documents, [confidential reference to internal document] . 
143  Q1 – Questionn aire to market participants in the AV sector (Spain), replies to question 21.  
 
 
26 downstream market for the retail supply of AV services .144 Such platform s also rely 
on exclusive content to boost their competitiveness145, and no respondents to the 
market investigation indicated that this practice has led to the exit of competitors 
from the downstream market so far. Therefore, [Parties’ business strategy] , the 
Notifying Parties are unlikely to have the ability to successfully foreclose competing 
retail suppliers of AV services.  
(129)  Therefore, for the reasons set out a bove, the Commission considers that the Parties 
would not have the ability to engage in a successful input foreclosure strategy with 
regard to Comcast/Sky and ViacomCBS’ pre -produced US film content in Spain.  
(B) Incentive to engage in input foreclosure  
(130)  The Co mmission notes that the conditions for a successful input foreclosure strategy 
to occur are cumulative. Since  the Commission concluded that the Parties would not 
have the ability to engage in a successful input foreclosure, the Commission 
considers that th e Parties’ incentive to foreclose competing suppliers of retail AV 
services from accessing Comcast/Sky and ViacomCBS’ pre -produced US film 
content in Spain is not decisive. Therefore, the Commission does not have to take a 
position on the Parties’ incentiv e to engage in input foreclosure.  
(131)  For the sake of completeness , the Commission notes that the  JV will acquire 
broadcasting rights for pre -produced AV content from each of Comcast/Sky and 
ViacomCBS, [details of licensing arrangements] .146 [details of licensin g 
arrangements] .147 
(C) Impact on effective competition  
(132)  The Commission considers that the Parties will not have the ability to engage in a 
successful input foreclosure strategy. In any event, a  hypothetical input foreclosure 
strategy from the Parties , even if it  could impact some  retail suppliers of AV 
services , would not have a n overall  detrimental impact on effective competition in 
the market for the retail supply of AV services in Spain. The refore , even if the 
Parties were to foreclose some competing retail suppliers of AV content from 
accessing Comcast/Sky and ViacomCBS’ pre -produced US film content, this would 
not have a detrimental impact on effective competition in the downstream market for 
the retail supply of AV services in Spain.  
(133)  First, the Commission considers that there are sufficient alternative s for the supply 
of US film content in Spain. In particular, as indicated in paragraph (123)  above, a 
number of other US production studios offer US film content comparable to that of 
the Notifying Parties , including major Hollywood studios such as Warner Bros, Walt 
Disney Studios/Twentieth Century Fox and Sony.  
                                                 
144  Form CO, paragraph 367; see also Q1 – Questionnaire to market participants in the AV sector  (Spain), 
one competitor’s reply to question 32 . 
145  Form CO, paragraph 367: for example, Netflix has recently entered into a five -year streaming deal with 
Sony whereby it will acquire exclusive rights to Sony’s films once they leave theatres and premium VOD 
services.  
146  Form CO, paragraph 176.  
147  Form CO, paragraphs 358 and 367.  
 
 
27 (134)  Second, the Commission notes that a number o f competing retail providers of AV 
services such as Netflix, Amazon Prime Video, Disney+ and HBO do not depend on 
US film content supplied by the Notifying Parties, as they are vertically integrated 
players that produce their own US films.148  
(135)  Third , in any case,  while acknowledging that US film s in general  are important for 
the purpose of building an attractive AV offering vis-à-vis consumers, the 
Commission considers that US films do not constitute per se  a sufficiently important  
input for the competitivene ss of platforms offering AV services at retail level. In this 
regard, as noted  by the Notifying Parties149, non -Hollywood studios regularly 
produce film content that is very successful at the box office and that drives success 
throughout the  entire  AV chain , as also specifically pointed out by one respondent to 
the market investigation .150 
(136)  Therefore, the Commission notes that the Notifying Parties’ [details of licensing 
arrangements] licenses of their US film content to the JV is unlikely to have a 
significant effect on the ability of rival platforms (both vertically integrated and non -
vertically integrated) to compete.  
(137)  This conclusion is supported by the results of the market investigation. A  majority of 
respondents submit that the Transaction would have a neut ral impact on their 
company.151  Only one respondent expressed concerns about  the general trend of 
major producers of AV content creating their own OTT platforms and rendering 
access to their AV content, including US films, more difficult and expensive.152  
(138)  As regards the impact on the overall market for the retail supply of AV services in 
Spain, the results of the market investigation are inconclusive. Most respondents 
stated that they do not know what the overall impact will be. A few respondents 
consider  the impact to be neutral. A n equal number of  respondents  consider that the 
Transaction will have a negative impact on the overall market for the retail supply of 
AV content.153  
(139)  However, it was specified that , although a different alternative would not complete ly 
replicate the current arrangements, there would be alternative suppliers of US film 
content in Spain.154 In any case , as an additional element,  some respondents to the 
market investigation pointed out that  they source content across different genres and 
categories to stay attractive155 and that  therefore  the success of an AV platform 
would not depend solely on US films.  
(140)  For the reasons set out above, the Commission considers that, even if the Parties had 
the ability to engage in a successful input foreclosure strategy by ceasing to supply 
their US film content to third -party retail suppliers of AV content, such strategy 
                                                 
148  Form CO, paragraph 367.  
149  Form CO, paragraph 367.  
150  Q1 – Questionnaire to market participants in the AV sector (Spain), replies to question 8.2. 
151  Q1 – Questionnaire to market participants in the AV sector (Spain) , replies to question 38.  
152  Q1 – Questi onnaire to market participants in the AV sector (Spain) , replies to question 38.  
153  Q1 – Questionnaire to market participants in the AV sector (Spain) , replies to question 39.  
154  Q1 – Questionnaire to market participants in the AV sector (Spain) , replies to question 35.1 . 
155  Q1 – Questionnaire to market participants in the AV sector (Spain) , replies to question 27.  
 
 
28 would not have a detrimental impact on competition in the market for the retail 
supply of A V services.  
(D) Conclusion  
(141)  The potential market for the supply of pre -produced US films is the narrowest 
possible product market with the largest overlap between the Notifying Parties. 
Under any other potential market definition, their combined market shares w ould be 
considerably lower.  
(142)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to the compatibility with the internal market with respect to 
possible input foreclosure practices of retail AV services in Sp ain (downstream) 
from accessing Comcast/Sky and ViacomCBS’ AV content in Spain (upstream) 
under any of the alternative product markets for the supply of AV content in Spain.  
5.4.2.  Possible foreclosure of competing suppliers of retail AV services in Denmark 
(downstream) from accessing ViacomCBS’ wholesale pay TV channels in the kids’ 
segment in Denmark (upstream) (input foreclosure)  
(143)  Upstream, Comcast/Sky and ViacomCBS will both supp ly their current pay TV 
channels to the JV for wholesale supply in each of the JV EEA Territories. 
Downstream, the JV will become responsible for distributing these channels, and 
will also be active in the retail supply of AV services.  
(144)  [Parties' strategic  decisions with regard to the JV] . Comcast/Sky does not have any 
kids’ channels in Denmark.  
5.4.2.1.  The Notifying Parties’ views  
(145)  The Notifying Parties submit that post -Transaction, the Parties will not have the 
ability or incentive to foreclose some or all of Viac omCBS’ pay  TV kids’ channels 
in Denmark. Accordingly, the  Notifying  Parties also consider there would not be any 
plausible negative effect on competition in the downstream retail supply of AV 
services in Denmark.156  
(A) Ability to engage in input foreclosure  
(146)  The Notifying Parties submit that, post -Transaction, the Parties will not have the 
ability to engage in a successful input foreclosure strategy.  
(147)  First, the Notifying Parties submit that ViacomCBS’ market share results from an 
unduly narrow market segmentation, which consists only of kids’ pay TV channels 
in Denmark and is not a real indicator of market power.  
(148)  Second, the Notifying Parties consider  that kids’ pay TV channels are not an 
important input for a retail AV offering in Denmark. Kids’ pay TV channels would 
only account for 1% of the overall pay TV audience and would be considered one of 
the least important genres from the perspective of end -customers.  
                                                 
156  Form CO, paragraph 317.  
 
 
29 (149)  Third, pay TV retailers possess credible alternatives, including Disney ( e.g., Disney 
Channel, Disney Junior and Disney XD), WarnerMedia ( e.g., Cartoon Network and 
Boomerang) as well as FTA channels incorporating similar content.  
(150)  Therefore, th e Notifying Parties argue that the Parties would not have the ability to 
foreclose competing retail suppliers of AV services from accessing ViacomCBS’ 
wholesale kids’ pay TV channels in Denmark.  
(B) Incentive to engage in input foreclosure  
(151)  As regards incentive s, the Notifying Parties submit that, post -Transaction, there is no 
prospect that an input foreclosure strategy would be successful.  
(152)  First, even if pay TV retailers were no longer able to carry ViacomCBS’ kids’ pay 
TV channels, this is unlikely to result i n significant amounts of end -customers 
switching away from these retailers because: (i) kids’ pay TV channels do not play a 
significant role in shaping the end -customers’ choice at the retail level; (ii) retailers 
have credible alternative options ( e.g., Disney and Warner Media); and (iii) retailers 
can improve other aspects of their offerings ( e.g., content/channels carried, home 
broadband and telephone services).  
(153)  Second, other retailers (not the JV) would most likely capture any switching away 
from forec losed pay TV retailers. JV’s SVOD services will not be the closest 
competitors to those linear pay TV retailers that ViacomCBS currently supplies with 
kids’ channels.  
(154)  Third, there are a number of alternative significant suppliers in the SVOD segment 
in De nmark including Viasat's Viaplay, Netflix, WarnerMedia's HBO Max, TV2's 
TV2 Play, Discovery+, and Disney+.  
(155)  Fourth, the incentive for ViacomCBS to engage in foreclosure will be significantly 
dampened by its only partial stake in the JV ( i.e., 50%). [Viacom CBS' sales strategy 
and financial information] .  
(156)  Finally, this vertical relationship already exists before the Transaction as 
ViacomCBS’ has an existing retail business in Denmark, Paramount+, [Parties' 
strategic d ecisions with regard to the JV] .  
(157)  Therefor e, the Notifying Parties conclude that they will not have the incentive to 
foreclose competing retail suppliers of AV services from accessing ViacomCBS’ 
wholesale kids’ pay TV channels in Denmark.  
(C) Impact on effective competition  
(158)  The Notifying Parties submi t that, even if they had the ability and incentive to 
engage in a successful input foreclosure strategy with regard to ViacomCBS’ pay 
TV kids’ channels in Denmark, this would not have anticompetitive effects vis-à-vis 
retail suppliers of AV content.  
(159)  In this regard, as set out above, the Notifying Parties consider that downstream 
retailers would have recourse to other upstream providers of kids’ pay TV content if 
they wished to include this in their service.  Further, the inclusion of kids -specific TV 
channels would not be essential to the success of a downstream retail AV service.  
 
 
30 (160)  Therefore, the Notifying Parties note that a potential input foreclosure strategy 
would not have any plausible negative effect on competition in the market for the 
retail supply  of AV services in Denmark.  
5.4.2.2.  Commission’s assessment  
(161)  For the reasons set out below, the Commission considers that the Transaction does 
not lead to credible input foreclosure concerns in the downstream markets for retail 
AV services with regard to the whole sale supply of TV channels, regardless of the 
precise product and geographic market definitions retained (see Sections 4.2 and 4.3 
above).  
(A) Ability to engage in input foreclosure  
(162)  While ViacomCBS would have the technical ability to implement an exclusivity 
strategy with regards  to kids’ pay TV channels vis-à-vis rival retail AV suppliers, the 
Commission considers that the JV will not have the ability to engage in a successful 
input foreclosure strategy.  
(163)  First, all respondents to the market investigation considered that competit ion in the 
upstream wholesale market for the supply of kids’ channels in Denmark, is indeed 
high or very high.157 ViacomCBS’s kids’ channels in Denmark face strong 
competition from at least two significant and credible competitors , i.e., Disney and 
WarnerMed ia. Disney’s kids’ channels ( i.e., Disney Channel, Disney Junior and 
Disney XD) account for a combined audience share of [50-60]% and Warner 
Media’s kids’ channels, ( i.e., Cartoon Network and Boomerang) account for a 
combined audience share of [10-20]%.158 Together, Disney and WarnerMedia also 
account for a combined revenue share of [40-50]%.159 The market investigation also 
showed  further credible alternatives to ViacomCBS’ kids’ channels in Denmark  
exists , including FTA TV channels, such as by the Danish public service 
broadcaster, Ramasjang .160 Ramasjang, in a hypothetical kids TV channel segment 
(comprising not only pay  TV but also FTA channels), would have an audience share 
of approx. [70-80]%.161 Even if the relevant market would  be defined a s kids’ pay 
TV channels, Ramasjang as FTA channel would therefore constitute an important 
out-of-market constraint.  
(164)  Second , a majority of respondents to the market investig ation explained that 
ViacomCBS’  kids’ channels (and kids’ channels more generally) a re unlikely to be a 
sufficiently important input for pay  TV retailers for there to exist an ability to 
successfully foreclose.162 One respondent clarified that kids ’ pay TV channels are 
not particularly important for the competitiveness of retail services in  Denmark, 
since retailers seek to build diverse bundles of attractive channels, regardless of their 
specific “genre”.163 In terms of audience share, kids ’ pay TV channels only account 
                                                 
157  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 35.  
158  Form CO, Table 5  and Annex D.7.  
159  Form CO, Table 4.  
160  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 45.1.  
161  Form CO, Annex D.7.  
162  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to question 44.  
163  Q2 – Questionnaire to market participants in the AV sector (Denmark), replies to questions 35.1, 44 and 
50.1. 
 
 
31 for approximately 1% of pay TV audience. Furthermore, viewership of kids ’ pay TV 
channels in Denmark has been declining significantly in recent years. Between 2015 
and 2020, there has been a 74% decline in viewership of kids ’ pay TV channels in 
Denmark.164 Ampere data also shows that kids’ channels are of limited importance to 
Danish end -customers, with only 1% of Danish consumers identifying “children and 
family” as their favourite genre, with this genre ranking last place amongst the 18 
genres listed.165 
(165)  Third, in the scenario that a separate market for the supply of kids’ pay TV c hannels 
would indeed exist, this market forms a very small part of overall pay TV channels. 
This is reflected in the difference in the Notifying Parties’ market shares: while the 
Notifying Parties’ combined market for kids’ pay TV channels amounts to [60-70]% 
by revenue, and [30-40]% by audience in 2020 in Denmark, the Notifying Parties’ 
combined market share by revenue for the wholesale supply of all pay TV channels 
in Denmark amounts to just [0-5]%, with a combined audience share of [0-5]%.166  
(166)  Therefore,  for the reasons set out above, the Commission concludes that the JV 
would not have the ability to foreclose rival retail AV suppliers by engaging in a 
total or partial input foreclosure strategy.  
(B) Incentive to engage in input foreclosure  
(167)  The Parties’ incen tive to foreclose rival retail AV suppliers depends on the balance 
between: (i) the losses from ceasing to supply (or increasing the carriage fees of) 
ViacomCBS’ kids’ channels in Denmark; and (ii) the higher profits obtained by the 
JV downstream from any switching by end -customers to the JV’s SVOD service. In 
light of this trade -off, the Commission concludes that the Parties would not have the 
incentive to engage in an input foreclosure strategy by refusing to supply 
ViacomCBS’ kids’ channels on other chan nels or degrading the terms under which 
these channels are made available.  
(168)  The Commission notes that an input foreclosure strategy would only be 
economically viable if ViacomCBS’ kids’ channels were able to attract a sufficiently 
high number of new end -customers to the JV’s SVOD service, and if ViacomCBS 
could profit enough from their viewership. However, such an outcome is unlikely.  
(169)  First, it should be taken into account that the vertical link between activities in the 
supply of kids’ pay TV channels in Denmark and SVOD services in Denmark exist 
already before the Transaction as ViacomCBS currently operates the SVOD 
platform Paramount+.167 Consequently, only one respondent to the market 
investigation  believes it is credible that ViacomCBS’ incentives to lic ense rights to 
its kids’ pay TV channels in Denmark would change as a result of the Transaction.168 
This respondent does not substantiate its concerns.169 
                                                 
164  Form CO, Annex D.7.  
165  Form CO, Annex C.15.1, Ampere analysis.  
166  Form CO, Tables 4 -5 and Annex D.7.   
167  Form CO, Annex D.7.  
168  Q2 – Ques tionnaire to market participants in the AV sector (Denmark) , replies to question 46.  
169  Q2 – Questionnaire to market participants in the AV sector (Denmark) , replies to question 46.1.  
 
 
32 (170)  In contrast, another respondent notes that it has no reason to expect that the 
Transaction would negative ly affect ViacomCBS’ incentive to license rights to its 
kids’ pay TV channels to broadcasters and streaming services in Denmark  due to the 
pre-existing vertical relationship . According to this respondent, the introduction of 
Paramount+ on the Danish market  did not affect its incentive to licence its kids’ pay 
TV channels . O n the contrary, in this respondent’s experience, ViacomCBS 
[customer strategy] .170   
(171)  Finally , the Commission recalls that the JV  is co -owned by Comcast/Sky  (50%) . 
This makes foreclosure less attractive for ViacomCBS  compared to the situation 
before the Transaction , given that it would need to forego its own upstream profit to 
benefit the JV at the downstream retail level, but after the Transaction it will not 
recapture the entire potentia l benefit, but only 50% of it.171  
(172)  Therefore, for the reasons set out above, the Commission concludes that the Parties 
would not have the incentive to foreclose rival AV suppliers by engaging in a total 
or partial input foreclosure strategy.  
(C) Impact on effec tive competition  
(173)  Even if the Parties were to engage in a (total or partial) input foreclosure strategy, 
the Commission considers that such a strategy would not have a material impact on 
competition in the EEA. Rival AV retailers would not be deprived of a  sufficiently 
important input, and could still rely on a large array of valuable kids’ channels 
content to attract viewers . Furthermore, as one respondent to the market 
investigation pointed out, the attractiveness of a retail offering is not based on kids’  
channels alone  (see paragraphs (163) -(164)  above ). 
(174)  This conclusion is consistent with the results of the market investigation. All 
respondents to the market investigation considered that , if ViacomCBS were to cease 
licensing its kids’ pay TV channels or degrade the terms on w hich it licenses these 
channels,  this would not have a n egative impact on their company .172 One 
respondent explained specifically that the kids’ content provided by Paramount+ is 
not of particular competitive importance to its SVOD service and it would have 
sufficient alternatives to Paramount+’ kids’ content.173 The majority of  respondents  
also i ndicated, more generally , that the Transaction  would have a  neutral  or positive  
impact on the retail supply  market .174  
(175)  In light of the above, the Commission finds that a potential (partial or total) input 
foreclosure strategy would not have a material negat ive impact on effective  
competition in Denmark.  
(D) Conclusion  
(176)  The potential market for the supply of kids’ pay TV channels in Denmark is the 
narrowest possible product market with the highest market shares of the Parties. 
                                                 
170  Q2 – Questionnaire to market participants in the AV sector (Denmark) , replies to question 48.1.  
171 [ViacomCBS' sales stra tegy and financial information] .  
172  Q2 – Questionnaire to market participants in the AV sector (Denmark) , replies to question 49.  
173  Q2 – Questionnaire to market participants in the AV sector (Denmark) , replies to question 49.1  
174  Q2 – Questionnaire to market participants in the AV sector (Denmark) , replies to question 53.  
 
 
33 Under any other potential market defi nition, their combined market shares would be 
considerably lower.  
(177)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to the compatibility with the internal market with respect to 
possible input foreclosure  practices concerning ViacomCBS’ kids’ channels in 
Denmark (upstream) under any of the alternative product markets for wholesale 
supply of TV channels.  
5.5. Cooperative effects  
(178)  Sky and ViacomCBS will remain independently active in the same product 
markets as the JV , i.e., the retail supply of AV services to end -customers, both 
within the JV EEA Territories  and outside the JV EEA Territories  (“Rest of the 
EEA”). ViacomCBS will remain active via the AVOD service Pluto TV. 
Comcast/Sky will remain active via the OTT service hayu, the AVOD service Xumo 
and very limited direct sales of the CNBC linear channel.  
(179)  Sky and ViacomCBS will also remain independently active in a number of markets 
closely related to the activities of the JV , notably: (a) within the JV EE A 
Territories : (i) the production and supply of AV content  (upstream) ; (ii) the 
wholesale supply of TV channels  (upstream) ; and (iii) the sale of advertising space  
(neighbouring)175; and (b) outside the JV EEA T erritories  (“Rest of EEA ”) in the 
wholesale sup ply of TV channels  (upstream) . 
5.5.1.  The Notifying Parties’ views  
(180)  The Notifying Parties submit that the creation of the JV will not lead to any 
coordination between them and the JV, or amongst themselves, because market 
conditions are not conducive to tacit coor dination , confidentiality obligations will be 
in place to limit the use by the Notifying Parties of confidential information obtained 
from the JV  and the JV will form only a small part of the Notifying Parties’ overall 
businesses.176  
5.5.2.  The Commission’s assessment  
(181)  The Commission considers that the Transaction does not give rise to serious doubts 
as to its compatibility with the internal market as a result of cooperative effects in the 
markets for (i) the production and supply of AV content ; (ii) the whole sale supply of 
TV channels; (iii) the retail supply of AV services to end -customers; and (iv) the sale 
of advertising space, both within and outside the JV EEA Territories , for the reasons 
set out below.177 
(182)  First, the Commission observes that the relevant ma rkets are not conducive to 
coordination between the Parties. The market shares of the Parties are low (see 
Tables 1 -3 below), the Transaction does not eliminate a market player, and several 
                                                 
175  Form CO, paragraph s 449 and 456 . While the JV will distribute the Parents' linear channels, [Parties' 
strategic d ecisions with regar d to the JV].  
176  Form CO, Section 10.  
177  Note that the analysis applies in respect of all JV EEA Territories and the Rest of the EEA and does not 
vary by individual country.   
 
 
34 competitors would remain post -Transaction, which would likely disr upt any attempts 
of the Notifying Parties to coordinate their activities on the relevant markets. 
Moreover, the JV will not become a vertically integrated player with its own active 
wholesale and retail services on the market.  
(183)  In relation to the market for  the production and supply of AV content , ViacomCBS's 
market shares for the licensing of all AV content is [5-10]% or  less in each of the JV 
EEA Territories . Similarly,  Comcast/Sky's market shares for the licensing of all 
AV content is less than [5-10]% in  each of the JV EEA Territories  (see Table 1 
below ).178 The JV will not be active in this market. Post-Transaction, the Notifying 
Parties will continue to face competitive constraints from a number of market 
participants, including large US movie studies ( e.g., Disney/Fox, Warner, and Sony), 
smaller players ( e.g., Lionsgate and MGM), certain suppliers or retail AV services 
(e.g., Netflix and Amazon Prime  Video ) and independent content producers.179 
Table 1: Production and supply of AV content (revenue, 2020)  
Country  ViacomCBS market share for the 
licensing of all AV content  Comcast /Sky market share for the 
licensing of all AV content  
Bulgaria  [0-5]% [0-5]% 
Croatia  [0-5]% [0-5]% 
Czech Republic  [0-5]% [0-5]% 
Denmark  [0-5]% [0-5]% 
Finland  [0-5]% [0-5]% 
Hungary  [5-10]% [0-5]% 
Netherlands  [0-5]% [0-5]% 
Norway  [0-5]% [0-5]% 
Poland  [0-5]% [0-5]% 
Portugal  [0-5]% [0-5]% 
Romania  [0-5]% [0-5]% 
Slovakia  [0-5]% [5-10]% 
Slovenia  [0-5]% [0-5]% 
Spain  [0-5]% [0-5]% 
Sweden  [0-5]% [5-10]% 
Source: […] 
                                                 
178  Form CO, paragraph 483. There are a few narrowly defined sub -segments  (see paragraph (36)) in which 
ViacomCBS’ share exceeds [5-10]% in certain JV EEA Territories, however, these shares never exceed 
[10-20]%. Similarly, there are a narrowly defined few sub -segments in which Comcast/Sky’s share 
exceeds [5-10]% in certain JV EEA Territories, however, these shares never exceed [20-30]%. The 
highest combined market share in these sub -segments is reached in the production and supply of US f ilm 
content in Spain ([30 -40]%).  See Form CO, paragraph 477 and Annex B.1.2.2.  
179  Form CO, paragraph 495 and Figure 4.   
 
 
35 (184)  In relation to the market for the wholesale supply of TV channels , the JV will be 
active in the market for the wholesale supply of TV cha nnels in the JV EEA 
Territories . The JV will  distribut e all of the  Notifying  Parties' channels in the JV 
EEA Territories, with the exception of [Parties' strategic d ecisions with regard to the 
JV],180 there is no overlap in the Parties’ activities in the wholesale supply of TV 
channels in the JV EEA Territories and therefore, no risk of cooperation between the 
Parties in respect of their retained activit ies in distinct JV EEA Territories.  
(185)  Outside the JV EEA Territories , in relation to the Rest of the EEA, the JV will not 
be active in the wholesale supply of TV channels.181 The Notifying Parties’ market 
share in the Rest of the EEA where both Notifying Parties will remain active, 
remain s limited.182 Overall, the Notifying Parties’ market share in the wholesale 
supply of TV channels , irrespective of the product market definition,  are below [0-
10]% for both Comcast/Sky and ViacomCBS.183  
(186)  In relation to the market for the retail supply of AV services to e nd customers , the 
JV will operate in the JV EEA Territories  as an SVOD streaming service 
comprising AV content distributed both: (i) DTC on a variety of consumer devices 
as well as via app stores, and (ii) via third party MVPD platforms. Each of the 
Notify ing Parties will retain certain very limited activities in the market for the 
provision of retail AV services. The Notifying Parties will continue to provide these 
limited retail AV services independently, and in competition with each other. W hile 
both Via comCBS and Comcast/Sky will continue to be active in this market, based 
on their 2020 revenues, their market shares are minimal. ViacomCBS’ market share 
in the total pay TV segment is less than [0-5]% of subscription revenues in each of 
the JV EEA Territor ies in which it provides retail AV services. The same applies in 
relation to the OTT sub -segment specifically .184 Similarly, Comcast/Sky’s market 
share in the total pay TV segment is less than [0-5]% in each of the JV EEA 
Territories in which it provides ret ail AV services. The same applies in relation to 
the OTT sub -segment specifically (see also Table 2 below) .185 The JV is expected to 
have […] market share across these Territories. [details of JV's projected market 
shares] .186  
                                                 
180  Form CO, paragraphs 499 -501.  
181  Form CO, paragraphs 533 -534.  
182  ViacomCBS is active in the wholesale supply of TV channels in eve ry country within the Rest of the 
EEA. Comcast/Sky is active in the wholesale supply of TV channels in almost every country within the 
Rest of the EEA, except in Latvia.   
183  Form CO, paragraph 536  and Notifying Parties’ Response to RFI 6, question 2 . Pleas e note that there are 
limited exceptions, where the Notifying Parties’ market share remains below  30% (e.g., Ireland (pay TV, 
other genres, basic pay TV and premium pay TV) - Comcast/Sky); and each EEA country which is not a 
JV EEA Territory (Rest of EEA) (kids’ channels, ViacomCBS)).   
184  Form CO, paragraph 508 (a) and Tables 15 -16.  
185  Form CO, paragraph 508 (b ) and Tables 17 -18. The same conclusions regarding ViacomCBS and 
Comcast/Sky’s market shares apply when considering the various sub -segments as set out in paragraph 
(78). See Form CO, Annex B.1.2.5.  
186  Notifying Parties’ Response to RFI 6, question 1. This statement does not apply in relation to  the 
Netherlands and Portug al, where the JV’s estimated projected 2024 and 2026 market shares  would be 
slightly higher ( i.e., [details of the JV's projected market shares ]). See also Form CO, footnote 79 , 
Notifying Parties Response to RFI 2 (question 1), RFI 3 (question 10), and RFI 5.  [Methodology to 
estimate th e JV's projected market shares].  
 
 
36 Table 2: Retail supply of AV services to end -customers (total pay TV and OTT segment) (revenue, 2020)  
Country  ViacomCBS market 
shares for the 
provision of retail AV 
services (total pay TV 
segment)  ViacomCBS market 
shares for the 
provision of retail 
AV services (OTT 
segment)  Comcast/Sky 
market shares 
for the provision 
of retail AV 
services (total 
pay TV segment)  Comcast/Sky 
market 
shares for the 
provision of 
retail AV 
services (OTT 
segment)  
Bulgaria  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [Comcast/Sky 
not active ] 
Croatia  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [Comcast/Sky 
not active ] 
Czech Republic  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [Comcast/Sky 
not active ] 
Denmark  [0-5]% [0-5]% [0-5]% [0-5]% 
Finland  [0-5]% [0-5]% [0-5]% [0-5]% 
Hungary  [0-5]% [0-5]% [0-5]% [Comcast/Sky 
not active ] 
Netherlands  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [0-5]% 
Norway  [0-5]% [0-5]% [0-5]% [0-5]% 
Poland  [0-5]% [0-5]% [0-5]% [Comcast/Sky 
not active ] 
Portugal  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [Comcast/Sky 
not active ] 
Romania  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [Comcast/Sky 
not active ] 
Slovakia  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [Comcast/Sky 
not active ] 
Slovenia  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [Comcast/Sky 
not active ] 
Spain  [ViacomCBS not 
active ] [ViacomCBS not 
active ] [0-5]% [0-5]% 
Sweden  [0-5]% [0-5]% [0-5]% [0-5]% 
Source: […]. 
 
 
37 (187)  Outside the JV EEA Territories , in relation to the Rest of the EEA,187 the JV will 
not be active in the retail supply of AV services. Comcast/Sky’s market share 
remains below  30%.188 ViacomCBS’ market share remains  between  0 and 5 %, as it 
is accounted for only by the provision of its AVOD Pluto TV service which  in 2020 
was available only in Austria and Germany .189 In any event, p ost-Transaction, the 
Notifying  Parties will continue to face competitive constraints from a number of 
market participants, including global competitors ( e.g., Netflix) and various recent 
entrants ( e.g., Disney+, Amazon Prime  Video , Apple TV, Facebook, etc.). 
(188)  In relation to the market for  the sale of advertising space , ViacomCBS’ market share 
is less than [5-10]% in each of the JV EEA Territories  in which it sells advertising 
airtime on its  TV channels  (Table 3 below) . ViacomCBS's market share for the 
supply of online advertising is less than [0-5]% in each of the JV EEA Territories in 
which it sells online advertising space.190 Comcast/Sky's market share for the supply 
of TV advertising is less than [0-5]% in each of the JV EEA Territories in which it 
sells advertising airtime on its TV channels. Comcast/Sky's market share for the 
supply of online advertising is less than [0-5]% in each of the JV EEA Territories in 
which it sells online advertising space  (see also Table 3 below ).191,192 The JV will 
not be active in this market. Post-Transaction, the Notifying Parties will continue to 
face competitive constraints from a number of market participants, including large  
global players ( e.g., Google and Facebook)193 and multiple other local competitors 
(e.g., TV2, NENT, SBS in Norway and Denmark, and SBS, NPO and RTL in the 
Netherlands).  
Table 3: Sale of TV advertising space (revenue, 2020)  
Country  ViacomCBS market shares for the 
sale of TV advertising  space  Comcast/Sky market shares for the 
sale of TV advertising  space  
Bulgaria  [0-5]% [0-5]% 
Croatia  […] […] 
Czech Republic  [0-5]% […] 
Denmark  [0-5]% […] 
                                                 
187  ViacomCBS and Comcast/Sky will,  in relation to the retail supply of AV services in the Rest of the EEA, 
only both be active in Austria and Germany. Therefore, this paragraph relates to Austria and Germany 
only. Furthermore, these market shares apply irrespective of the exact product mar ket definition.   
188  Notifying Partie s’ Response to RFI 6, question 3 . In relation to an FTA -services only segment, 
Comcast/Sky’s market share remains below [0 -5]% (both in Germany and Austria). Further, Comcast/Sky 
notes that the [20 -30]% figure is estimated conservatively, as it corresponds to the retail supply of pay TV 
services and not of all AV services (both FTA or pay -TV).  
189  Form CO, paragraph 538  and Notifying Partie s’ Response to RFI 6, question 3 .  
190  Form CO, paragraph 461 and Table 11.  
191  Form CO, paragraph 461 and Table 12.  
192  The same conclusion applies when considering the various sub -segments as set out in paragraph (89). See 
Form CO, Annex B.1.2.7.  
193  Form CO, paragraph 477. For instance, according to Salesforce Resea rch, Google Search, YouTube, 
Facebook and Instagram were responsible for 66% of global digital advertising in 2018. See Source: 
Salesforce research, 
https://www.salesforce.com/content/dam/web/en us/www/assets/pdf/datasheets/digital -advertising -
2020.pdf .  
 
 
38 Country  ViacomCBS market shares for the 
sale of TV advertising  space  Comcast/Sky market shares for the 
sale of TV advertising  space  
Finland  [0-5]% […] 
Hungary  [5-10]% […] 
Netherlands  [5-10]% [0-5]% 
Norway  [0-5]% [0-5]% 
Poland  [0-5]% [0-5]% 
Portugal  [0-5]% [0-5]% 
Romania  [0-5]% [0-5]% 
Slovakia  […] […] 
Slovenia  […] […] 
Spain  [0-5]% [0-5]% 
Sweden  [0-5]% [0-5]% 
Source: […]. 
(189)  Second, the small size of the JV relative to ViacomCBS’ and Sky/Comcast’s 
activities makes it unlikely that the Notifying Parties would have any incentive to 
coordinate their competitive behaviour. [Comparison between the Parties' and the 
JV's revenues]  (see also Table 4 below ).194 Based on the Commission’s decisional 
practice195, this suggests that the conduct of the Notifying Parties on the markets is 
unlikely to be influenced by their cooperation in the JV.  
Table 4: Ratio of expected turnover over Notifying Parties' estimated turnover (2022 -2024)  
 JV turnover (E UR 
million)196 %  of ViacomCBS total 
estimated turnover197 %  of Comcast /Sky  total 
estimated turnover198 
2022  [Turnover]  [Proportion]   [Proportion]  
2023  [Turnover]  [Proportion]  [Proportion]  
2024  [Turnover]  [Proportion]  [Proportion]  
 
(190)  Third, the Commission notes that  antitrust compliance protocols will be in place. 
These  include, inter alia , information  barriers  governing the relationship between the 
JV and its parents to prevent any illegitimate coordination between them in respect 
of activities outside the JV .199  
                                                 
194  Form CO, paragraphs 468, 489, 546 (in relation to the Rest of the EEA).  
195  M.9604 – NENT / Telenor / JV , para. 642 and Commission decision of 6 March 2020 in case M.9674 - 
Vodafone Italia / TIM / INWIT JV , para. 434.  
196  Form CO, Table 13 [referenc e to the transaction documents] .  
197  Based on median broker consensus estimates dated September 2021.  
198  Based on Comcas t/Sky's best estimates of its consolidated worldwide revenues in each of 2022, 2023 and 
2024.  
199  Form CO, paragraphs 470 -471, 491, 515, 549 (in relation to the Rest of the EEA), footnote 314 and 
Annex 19. [Referenc e to the transaction documents] . 
 
 
39 (191)  Fourth , the markets for the wholesale supply of TV channel s, and the retail supply of 
AV services to end customers, are national (see paragraphs (56) and (78) above).  
AV content and TV channels are primarily licensed on a national basis . Therefore , 
the respective agreements often contain different terms. The JV Territories in which 
the JV is active are therefore different markets than the territories where the 
activities of the Notifying Parties overlap. Therefore,  the JV is unlikely to  increase 
each Notifying Party’s visibility of the other Notifying Party’s activities in the Rest 
of the EEA.  
(192)  Fifth,  certain features of the relevant markets listed above ( paragraphs (178)  and 
(179) ) make it difficult to reach or sustain a tacit, or overt, coordinated outcome. The 
creation of the JV does not change any of these features of the markets and cannot 
therefore increase the likelihood of a coordinated  outcome on these markets.  These 
markets are complex and constantly evolving. E.g., in the retail supply of AV 
services, retailers adjust permanently to evolving demand patterns.200 Further, these 
markets lack transparency  as, e.g., negotiations are bilateral, and highly 
confidential.201 Last, these are highly competitive markets. Any potential 
coordination strategy could be  immediately undermined by competing firms.  
(193)  Finally, none of the respondents to the market investigation considered that the 
Transaction could give rise to cooperative effects.202  
5.5.3.  Conclusion  
(194)  In light of the above, the Commission concludes that the Transaction does not give 
rise to serious doubts as to its compatibility with the internal market in relation to 
cooperative effects i n the EEA in the markets for: (i) the production and supply of 
AV content; (ii) the wholesale supply of TV channels; (iii) the retail supply of AV 
services to end -customers; and (iv) the sale of advertising space.  
6. CONCLUSION  
(195)  For the above reasons, the Euro pean Commission has decided not to oppose the 
notified operation and to declare it compatible with the internal market and with the 
EEA Agreement. This decision is adopted in application of Article 6(1)(b) of the 
Merger Regulation and Article 57 of the EEA  Agreement.  
For the Commission  
 
 
(Signed)  
Margrethe VESTAGER  
Executive Vice -President  
                                                 
200  For th e Notifying Parties’ description of such evolving demand patterns, see Form CO, paragraph 552 (in 
relation to wholesale and retail supply of TV channels/AV services).  
201  Form CO, paragraphs 474 (between ad sales houses and their main customers) and 553 (be tween 
wholesale suppliers and their customers).  
202  Q2 – Questionnaire to market participants in the AV sector (Denmark) , replies to questions 51.1 -51.5.