COMMISSION DECISION of 21/12/1999 declaring a concentration to be compatible with the common market (Case No IV/M.0025 - * SONY / TIME WARNER / CDNOW) according to Council Regulation (EEC) No 4064/89 (Only the English text is authentic)

Brussels, 21.12.1999

To the notifying parties

Dear Sirs,

Subject: Case No COMP/JV.25 - Time Warner, Sony/CDnow

Notification of 19.11.1999 pursuant to Article 4 of Council Regulation (EEC) No 4064/89

On 19.11.1999, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EEC) No 4064/89 [1]. Time Warner Inc ("Time Warner") and the Sony Corporation of America, Inc. ("Sony") will acquire, through a new corporation "Holdco", joint control of CDnow Inc. ("CDnow").

[1] OJ L 395 p. 1; corrigendum: OJ L 257 of 21.9.1990, p. 13; as last amended by Regulation (EC) No 1310/97, OJ L 180 of 9.7.1997, p.1; corrigendum: OJ L 40 of 13.2.1998, p. 17.

After examination of the notification, the Commission has concluded that the notified operation falls within the scope of Council Regulation (EEC) No 4064/89 and does not raise serious doubts as to its compatibility with the common market.

I. THE PARTIES

Time Warner is a Delaware corporation, which is engaged in the media and entertainment industries. Time Warner classifies its business interests into four fundamental areas: Entertainment, Publishing, Cable Networks and Cable. The Entertainment Group consists principally of interests in filmed entertainment, television production, television broadcasting, recorded music and music publishing; the Publishing Group consists principally of interests in magazine publishing, book publishing and direct marketing; the Cable Networks Group consists principally of interests in cable television programming; and the Cable Group consists principally of interests in television systems.

Sony is a New York corporation which is an indirect subsidiary of Sony Corporation, headquartered in Tokyo, Japan. Sony Corporation is an entertainment and consumer electronics company, providing entertainment and electronic products and services to consumers around the world. Sony's principal US businesses include Sony Electronics Inc., Sony Pictures Entertainment, Sony Music Entertainment Inc. and Sony Online Entertainment Inc.

CDnow is an on-line retailer of music, home video and other entertainment-related products.

Columbia House is a US based retailers, through direct mail, of music products and home video products to end-consumers

II. THE OPERATION

The basic structure of the proposed transaction can be described as follows:

CDnow and Columbia House will become subsidiaries of Holdco. Under the Proposed Transaction, Holdco will be owned as follows: the current stockholders of CDnow will acquire a 26% equity interest in the new corporation, and affiliates of Time Warner and affiliates of Sony, each of which now indirectly owns a 50% stake in Columbia House, will each acquire a 37% equity interest in the new corporation.

Pursuant to the Merger and Contribution Agreement, dated 12th July 1999 Time Warner and affiliates of Sony will receive special rights and interests as "class B" shareholders in Holdco. No special rights amounting to control will attach to any of the shares held by the former shareholders of CDnow. In addition, pursuant to Article 1.4 of a Governance Agreement to be entered into upon the completion of the Proposed Transaction, the consent of both Time Warner and affiliates of Sony will be required before Holdco can take strategic decisions. If Holdco does not obtain the required consent from Time Warner and Sony, then any unauthorised decision or action will be considered void ab initio under the terms of the Governance Agreement ((1.4(a)). Such a decision or action would have to be re-submitted to Time Warner and Sony for their consent.

III.

CONCENTRATION

The proposed operation constitutes a concentration within the meaning of Article 3(1)(b) of the Merger Regulation as it results in a change in control over CDnow.

CDnow, through its holding company Holdco, will be jointly controlled by Time Warner and Sony. CD Now will however have all necessary tangible and intangible assets to perform all functions required for an autonomous economic entity active in on-line retailing of music products and home video products. Both Time Warner and Sony are committed to making CDnow the primary, although not exclusive, vehicle for each of them to pursue the packaged music e-commerce business. CD Now, through Holdco, will purchase music and home video products from wholesalers throughout the world and will set the price at which these products are sold to end-consumers. It will therefore be able to perform on a lasting basis all the functions of an autonomous economic entity.

The diminution of Time Warner and Sony shareholding in Columbia House does not lead to a change in control and therefore is not a concentration for the purposes of the Merger Regulation.

IV. COMMUNITY DIMENSION

The combined world-wide turnover of the undertakings concerned is more than EUR 5 000 million (Time Warner: EUR 23,939 million; Sony: EUR 47,099 million; CDnow EUR 50.3 million).

The aggregate Community-wide turnover of each of at least two of the undertakings concerned is more than EUR 250 million (Time Warner: EUR [...]; Sony Corporation : [...]), but they do not achieve more than two-thirds of their aggregate Community-wide turnover within one and the same Member State. The notified operation therefore has a Community dimension.

V. COMPETITIVE ASSESSMENT

A. The relevant market

The parties submit that retail sale to end-consumers of music products and the retail sale and rental to end-consumers of home video products include all forms of retail distribution, such as conventional "bricks and mortar" music and video stores, department stores, discount stores, consumer electronics stores, book stores, and "big box" retailers; Internet services (for the retail of both packaged and digitally-downloaded product); record clubs; direct mail; telephone sales; and "hybrid" retailers. Their definition reflects the fact that products and retailers using one method of distribution compete with products and retailers using other methods of distribution. Moreover, according to the parties, consumers who purchase products through clubs and the Internet also actively purchase such products from over-the-counter stores, and that Internet stores compete with in-store sales and clubs for consumer sales. The parties further submit that the geographic market is at least Community-wide.

For the purposes of the present assessment the precise scope of the relevant product and geographical market can however be left open since, on the basis of all plausible market definitions considered, the operation will not lead to the creation or strengthening of a dominant position.

B. Dominance

There are no plausible markets, product or geographic, within the EEA in which CDnow's sales of music or video products constituted more than [...] of the market; indeed on most definitions of the market its share is [...] . As to Columbia House, it has no sales within the EEA. Furthermore in none of the activities mentioned above do the parents have any significant presence. In addition barriers to entry into the retail of products through the Internet are low, since modest capital commitments enable undertakings to set up and run a Web site within a very short space of time; there is no need, unlike in the case of "bricks and mortar" retailers, for example, for undertakings to build, rent, maintain and manage a network of physical retail outlets in which to sell the products, or to maintain stocks, which, in the case of Internet retailers, can be supplied by third parties in response to individual orders as required. In addition, evolving technology will provide consumers with an additional means of acquiring recordings of music. Digital technology permits customers to download music tracks directly to their hard drives or to a "writeable" CD-ROM or to a floppy disc and contributes to an overall situation in which the retail sale of music products is increasingly giving consumers expanded access to music.

At the horizontal level, the operation will therefore not lead to the creation or strengthening of a dominant position. It will also not alter the competitive situation from vertical perspective as Time Warner and Sony will need to continue to sell music and home video products through other third party distributors and retailers in the EEA and world-wide, including all types of traditional "bricks and mortar" stores, direct mail retailers, Internet retailers, and hybrid retailers (which sell by a variety of means). In addition, CDnow will continue to purchase and then re-sell music and home video products from companies other than Time Warner and Sony, in order to offer customers a full repertoire and to maximise sales.

C. Coordination of competitive behaviour

Pursuant to Article 2(4) of the Merger Regulation a joint venture having as its object or effect the co-ordination of the competitive behaviour of (at least two of) its parents companies has to be appraised in accordance with the criteria of Article 81(1) and 81(3) of the EC Treaty. In order to establish a restriction of competition in the sense of Article 81(1) the EC Treaty, it is necessary that the co-ordination of the parent companies' competitive behaviour is likely and appreciable and that it results from the creation of the joint venture, be it as its object or its effect.

According to Article 2(4) second sub-paragraph of the Merger Regulation, the Commission shall, when making this appraisal take into account in particular 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 to this market.

Time Warner made less than EUR [...] of direct mail sales of music products in 1998. Through the one store it owns in the EEA in which music products are sold, it made approximately EUR [...] of such sales to end consumers in 1998. Time Warner does not own or operate any Internet sites that sell music products in the EEA. Thus there is no plausible product or geographical market within the EEA in which Time Warner makes retail sales of music products which account for more than [...] of the market. The situation is almost identical for home video products, except in [...] where it has a market share of [...].

In Europe Sony make no sales direct to consumers on the Internet. Consumers who visit Internet sites of Sony artists in Europe and who wish to purchase records of those artists on the Internet are referred to an independent Internet site which sells and ships records to consumers. Sony does not sell music or home video products direct to consumers through conventional retail outlets or through direct mail operations.

Sony and Time Warner therefore do not retain to a significant extent activities in the same market as the joint venture.

The only market on which the operation could potentially the effect of co-ordinating the competitive behaviour of the parents is the upstream market for the sale of CDs by manufactures to retailers.

2. Assessment under Article 2(4)

The world-wide recording and distribution industry is characterised by the presence of five major international companies Universal Music Group, Sony, Warner, BMG and EMI/Virgin. In 1997 those companies accounted for approximately 75% of global world-wide retail sales. The remaining market share is in the hands of a number of independent labels.

However the European industry has experienced a steady increase in sales over the last years (volume of album sales increased from 736.2m in 1992 to 865.3m in 1996 in Europe). New entry is frequent. A dynamic competitive force is represented by the independent labels, which may bring their product to the market through independent distribution, contracts with the vertically integrated distributors and emerging channels of distribution such as Internet. Therefore, besides competing among themselves the major companies face competition from the well established and emerging independent labels. Competition takes place in the upstream market of discovering and signing new talents and securing and attracting existing artists and the downstream market of distribution. The joint control of a retailer which has almost no sales in the EEA is unlikely to lead to co-ordination of the parties activities with regard to any of these activities.

VI. CONCLUSION

For the above reasons, the Commission has decided not to oppose the notified operation and to declare it compatible with the common market and with the EEA Agreement. This decision is adopted in application of Article 6(1)(b) of Council Regulation (EEC) No 4064/89.

For the Commission,