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, 12.8.2020 
C(2020)  5643 final  
PUBLIC VERSION 
 
To the notifying parties  
Subject : Case M. 9802 – Liberty Global / DPG Media / 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 7 July 2020, the European Commission received notification of a proposed 
concentration pursuant to Article 4 of the Merger Regulation by which Liberty 
Global plc (‘Liberty Global’, Unit ed Kingdom ) and DPG Media NV (‘DPG Media’ , 
Belgium ) acquire within the meaning of Articles 3(1)(b) and 3(4) of the Merger 
Regulation joint control of  a newly created joint venture (‘JV’, Belgium ) (the 
“Transaction”).3 Liberty Global and DPG Media  are desig nated hereinafter as the 
“Notifying Parties” and each individually as “Notifying Party”. The Notifying 
Parties together with the JV are designated hereinafter as the “Parties”.  
                                                 
1  OJ L 24, 29.1.2004, p. 1 (the “Merger Regulation ”). With effect from 1 December 2009,  the Treaty on the 
Functioning of the European Union ( “TFEU ”) has introduced certain changes, such as the replacement of  
“Community ” by “Union ” and “common market ” by “internal market ”. The terminology of the TFEU will 
be used throughout this decision.  
2  OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).  
3  Publication in the Official Journal of the European Union No C 233 , 15.07.2020 , p. 5. 

 
2 1. THE PARTIES  
(2) Liberty Global , through its subsidiary Telenet, is a cable and mobi le network 
operator in Belgium and parts of Luxembourg. Telenet supplies broadband internet, 
fixed telephony services and cable television (“TV”) primarily in Flanders and parts 
of Brussels, as well as mobile telecommunications services in the whole of Bel gium. 
In addition, Telenet operates (i) Dutch -language pay TV channels and video- on-
demand services ( Play, Play More and Play Sports ), free -to-air TV channels ( Vier, 
Vijf, Zes), and a radio station (NRJ Vlaanderen), (ii) the advertising sales house SBS 
Sales Belgium, and (iii) the production company Woestijnvis.  
(3) DPG Media belongs to DPG Media Group, which operates media companies in 
Belgium, the Netherlands and Denmark. The activities of DPG Media are, in 
Belgium: (i) the supply of Dutch- language daily news papers (Het Laatste Nieuws, 
De Morgen) and magazines (e.g. Dag Allemaal, Goed Gevoel, Humo), (ii) the 
operation of TV channels (VTM, Q2, Vitaya, CAZ, and VTM Kids), an advertising-
based video on demand service (VTM Go) and radio stations (Q -music and Joe),  and 
(iii) the operation of a telecom mobile virtual network (Mobile Vikings).  
(4) The JV will provide a subscription video on demand (“SVOD”) service  in Belgium 
under a new and independent brand focused on Dutch- speaking consumers  (i) 
directly to customers in  Belgium via an over the top (“ OTT ”) platform (including 
website and  smart phone app) and (ii) on an exclusive wholesale basis to Telenet, for 
distribution by Telenet through its cable platform (integrated in Telenet’s channel 
packages and/or set top box i nterface). The JV will acquire content from the 
Notifying Parties, third parties, and will also commission new original content for its 
SVOD service. The JV’s offering will primarily consist of local and international 
films and series. It will neither include (i) sports or adult content, nor (ii) linear 
channels (of Telenet and/or DPG Media and/or of third parties)4 and ancillary 
services linked thereto (e.g. catch up services).  
2. THE OPERATION  AND THE CONCENTRATI ON 
(5) The Transaction will take place pursuant to a binding Memorandum of 
Understanding (“MoU”) concluded by DPG Media and Telenet on 12 February 
2020. 
2.1. Joint control  
(6) Telenet and DPG Media will each own 50 % of the shares of the JV, and have the 
ability to exercise decisive influence over the JV . In partic ular, the Notifying Parties 
will each appoint an equal number of directors. An independent (non- executive) 
chairman of the board will be appointed by unanimity. The board will decide by 
simple majority, except for specific items for which approval of each 
shareholder/director is required (but not of the independent chairman). These include 
inter alia [ Details of the JV agreement] .5 
                                                 
4  Form CO, paragraph 372.  
5  Form CO, Annex 5.1.a, MoU, Annex 3  
 
3 (7) Therefore, as a result of the Transaction, Liberty Global and DPG Media will jointly 
control the JV within the meaning of Artic le 3(1)(b) of the Merger Regulation. 
2.2. Full-functionality  
(8) The JV will be fully functional. First, the JV will employ its own management 
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 audiovisual (“ AV”) services, performing the functions 
normally carried out by undertakings operating on the same market. In particular, 
both Parties will contribute to the JV  certain content agreements and staff so as to 
allow the JV to be (both financially and operationally) self -sustaining (through the 
revenues deriving from its operations with third parties and its own borrowing 
capacity on  the market).  
(9) Second, the JV is intended to operate as an autonomous entity and will have its own, 
independent access to and presence on the markets for (wholesale and retail) supply 
of SVOD services.  Its activities will not be limited to the distribution or sale of its 
parent companies' prod ucts, as the JV will supply its own SVOD offering to end 
customers, as a fully independent company with its own personnel (20- 25 
employees). In addition, the JV has negotiated and/or will negotiate agreements with 
its parents (e.g. a wholesale agreement an d IT/back- end services agreement with 
Telenet; and a long -form video platform agreement with DPG Media) on an arm’s 
length basis, reflecting the normal market conditions  it practices with third parties . 
(10) Third, the JV and will not only purchase from and/or supply to its own parents. It 
will have direct contractual relationships with third party licensors and will not be 
reliant on its parents for licensing relationships. It will also commission original 
productions from TV production studios, the majority of  which will be sourced from 
third party TV production studios. In addition, the JV will source additional and new 
SVOD licenses to content mainly from third party content providers.6 
(11) Finally, the JV is intended to operate on a lasting basis. Due to applica ble corporate 
law restrictions, the shareholders agreement currently has a duration of [ Details of 
the JV shareholder agreement ]. 
(12) Therefore, the Transaction will lead to the creation of a full -function joint venture 
within the meaning of Article 3(4) of th e Merger Regulation.   
3. EU DIMENSION  
(13) The undertakings concerned have a combined aggregate worldwide turnover of more 
than EUR 5 000 million ( Liberty Global : EUR 12,277 million; DPG Media : EUR 
1,601 million; combined: EUR 13,878 million). Each of them has an EU -wide 
turnover in excess of EUR 250 million ( Liberty Global: EUR 11,082 million; DPG 
Media: EUR 1,601 million), but they do not achieve more  than two- thirds of their 
aggregate EU -wide turnover within  one and the same Member State.  
                                                 
6  The Notifying  Parties estimate that the accounting value of individual content licensed from the parents 
will represent [JV’s content portfolio]  of the accounting value of the JV’s total content por tfolio.  
 
4 (14) The Transaction therefo re has a Union dimension pursuant to Article 1(2) of the 
Merger Regulation.  
4. RELEVANT MARKETS  
4.1. Introduction 
(15) The Transaction concerns  all the levels of the AV value chain, namely: (i) the 
production of AV content; (ii) the licensing of broadcasting rights for  individual AV 
content ; (iii) the wholesale sup ply of TV channels ; and (iv) the retail supply of AV 
services .  
(16) Providers of retail A V services offer end users packag es of linear and/or non- linear 
AV services. Linear services are services that broadcast sch eduled programs, not 
streamed by a specific user. Non -linear services, or video -on-demand (“VOD”) 
services, are services provided for the viewing of programmes at the moment chosen 
by the users and at their individual request, on the basis of a catalogue o f 
programmes.  A V services may be offered either on a free- to-air (“FTA”) or pay -TV 
basis. Providers of retail A V services deliver their content to end customers via a 
number of technical means: (i) traditional networks, such as cable, satellite (“direct -
to-home” or “DTH”), internet protocol television (“IPTV”), and to a lesser extent, 
digital terrestrial TV (“DTT”) and/or (ii) the “Over- The-Top” (“OTT”) distribution 
technology which allows A V content to be delivered through the use of open 
internet.  
(17) In addition, the Transaction concerns: (v) the retail supply of fixed intern et access 
services;  (vi) the retail supply of mobile telecommunications serv ices; (vii) the retail 
supply of mult iple play services; and (viii) the sale of advertising spa ce. 
4.2. The AV valu e chain  
(18) In previous cases, the Commission set out the different levels of the AV value chain 
as follows: (i) the (upstream) markets for the production and the licensing of AV 
content, (ii) the (intermediate) market for the wholesale supply of TV channels, and 
(iii) the (downstream) market for the retail supply of AV services.7 
(19) The market investigation confirmed that this three -layer classification with regard to 
the chain of supply of AV content  is still applicable today .8 
4.3. Market for the production of AV co ntent  
(20) This part of the value chain concerns the production of new AV content. The supply 
side of the market comprises A V production companies while the demand side 
                                                 
7  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 113; of 6 February 2018 in case M.8665 - Discovery/Scripps, recital 12.  
8  Responses to questionnaires Q1 to content providers, question 5 ; and Q2 to AV market participants, 
question 7.  
 
5 comprises companies (TV broadcasters or content platform operators) that can 
commission the  production of AV content or hire AV production services.9 
(21) The Parties’ activities and those of the JV overlap on the demand side of the market 
only. On the supply side, while Telenet is active in the production of content through 
its subsidiary Woestijnvis, and DPG Media is active but exclusively for captive use. 
DPG Media has no plans to enter the merchant market for the production of TV 
content in the near future. T he JV will not produce any AV content . 
4.3.1. Product market definition 
4.3.1.1. Previous Commission decis ions 
(22) The Commission has consistently considered that the production of AV content 
should be distinguished from the licensing of broadcasting rights for AV content.10 
The Commission has also found the product market for the production of TV content 
to be lim ited to non -captive TV production, thereby excluding content produced by 
TV broadcasters for use on their own channels.11 
(23) In addition, in its 2015 case  Liberty Global/Corelio/W&W/De Vijver Media , the 
Commission considered that the market for the production of TV content could be 
further segmented depending on the type of TV content ( that is films, sports or 
other) or exhibition window  (namely  SVOD, transaction -based VOD (“ TVOD”) , 
Pay Per View (“ PPV”), Fist pay TV window, Second pay TV window, FTA) , but 
ultim ately left those possible segmentations open.12 In subsequent cases, the 
Commission either did not consider further segmentations or left open the question 
whether the market for the production of AV content should be further segmented. In 
particular, the question was left open whether the market for production of general 
entertainment TV content should be further segmented: (i) by genre; (ii) between 
scripted and non- scripted content; and (iii) between commissioned TV production or 
TV production for -hire.13 
                                                 
9  In most cases, TV pr oduction companies produce TV content tailored to the needs of their customers. 
However, in some instances, TV production companies are hired by TV broadcasters or content platform 
operators to simply provide the technical production means and deliver the finished programme based on 
a TV format owned or acquired by the hiring company (so -called ‘production for -hire’).  
10 Commission decisions of 12 November 2019 in case M.9064 –  Telia Company/Bonnier Broadcasting 
Holding, recital 121; of 6 November 2018 in ca se M.8785 –  Disney/Fox, recital 70; of 7 April 2017 in 
case M.8354 –  Fox/Sky, recital 62; of 24 February 2015 in case M.7194 – Liberty 
Global/Corelio/W&W/De Vijver Media, recital 60.  
11 Commission decisions of 20 June 2016 in case M.7865 – Lov Group/De Agos tini/JV, recital 18; ; of 9 
October 2014 in case M.7360 - 21st Century Fox/Apollo/JV, recital 36; of 22 September 2006 in case 
M.4353 - Permira/All3Media Group, recitals 11 –12. 
12  Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Core lio/W&W/De Vijver 
Media, recital 69. See also Commission decision of 23 November 2018 in case M.8944 - Liberty Global / 
De Vijver Media and Liberty Global (SBS) / Mediahuis / JV , recital 53.  
13  Com mission d ecision of 20 January 2016 in case M.7865 Lov Group Invest /De Agostini/ JV, recital  31. 
 
6 4.3.1.2. Notifying Parties’ view  
(24) The Notifying Parties submit, in accordance with the Commission’s position in case 
Liberty Global/Corelio/W&W/De Vijver Media , that the precise product market 
definition for the production of AV content  can be left open.14 
4.3.1.3. Commission ’s assessment  
(25) A majority  of respondents to the market investigation indicated that , in Belgium, the 
distinction between the market for the production of AV content on the one hand, 
and the market for the licensing of broadcasting rights for pre -existing in dividual  AV 
content on the other hand is at present  appropriate .15 In addition, nothing in the 
Commission’s file gives reasons to depart from the previous approach of considering 
that the product market for the production of A V content is limited to non -captive 
AV production. Further, t he results of the market investigation were mixed a s to 
whether the market for the production of AV content needs to be subdivided by 
content  type16 or exhibition window .17 Last, nothing in the Commission’s file gives 
reasons to  depart from the previous approach that  the question whether  the market 
should be further segmented (i) between scripted and non- scripted  content; and (ii) 
between commissioned AV production or AV production for -hire is to be left 
open. 
(26) In light of the above, the Commission concludes  that, for the purpose of this decision  
and in line with its previous practice , it is appropriate to consider as   relevant the 
market for the non- captive production of AV content, while the question whether 
that relevant product  marked needs to be further s ub-segmented on the basis of 
content type  or exhibition windows, or between scripted and non- scripted content, 
and between commissioned AV production or AV production for -hire can be left 
open, since the Transaction does not ra ise serious doubts as to its compatibility with 
the internal market or the functioning of the EEA Agreement under any such 
plausible product market definitions . 
4.3.2. Geographic market definition  
4.3.2.1. Previous Commission decisions  
(27) In previous cases, t he Commission co nsidered that the question whether the 
geographic scope of the market for the production of TV content was national or 
regional (the Flemish Region or the combination of the Flemish Region and the 
Brussels Cap ital Region) could be left open.18 The Belgian C ompetition Authority  
(“BCA”)  has either previously considered that the geographic market for the 
                                                 
14  Form CO, paragraph 275.  
15  Responses to questionnaires Q1 to content providers, question 6; and Q2 to AV market participants, 
question 8.  
16  Responses to questionnaires Q1 to content providers, question 7.1; and Q2 t o AV market participants, 
question 9.1.  
17  Responses to questionnaires Q1 to content providers, question 8 .1; and Q2 to AV market participants, 
question 10.1.  
18  Commission decisions of 23 November 2018 in case M.8944 - Liberty Global / De Vijver Media and  
Liberty Global (SBS) / Mediahuis / JV , recital 75; of 24 February 2015 in case M.7194 –  Liberty 
Global/Corelio/W&W/De Vijver Media, recital 76.  
 
7 production of Dutch- language TV content was (i) national,19 or (ii) Telenet’s 
footprint,20 or (iii) left the exact geographic scope of the market open.21 
4.3.2.2. Notifyin g Parties’ view  
(28) The Notifying Parties submit, in accordance with the Commission’s position in case 
Liberty Global/Corelio/W&W/De Vijver Media , that the precise geographic  market 
definition can be left open.22 
4.3.2.3. Commission’s assessment  
(29) The results of the market investigation were mixed as to whether the geographic 
scope of the  market for the production of AV content  is national or by linguistic 
area.23 
(30) In light of the above, the Commission considers that,  for the purpose of this decision  
and in line with its pre vious practice , the question whether the relevant geographic 
market for the  production of AV content, including all the possible sub- segments , is 
national or by linguistic area (the Dutch -speaking areas of Belgium ), 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 geographic  market definition s. 
4.4. Market for the licensing of broadcasting rights of pre-existing individual AV 
content  
(31) The Notifying Parties’ activities overlap on both the demand and supply side of the 
market. The JV will be active on the demand side , and have minimal activities on the 
supply side of the market .24 
4.4.1. Product market definition 
(32) This part of the value chai n concerns the licensing of (i) broadcasting rights relating 
to pre -existing individual AV content, which is made available ‘off -the-shelf’ by the 
rights holder, and (ii) broadcasting rights for sports events. The broadcasting rights 
can belong to either ( or a combination of) the rights holder to the A V format, the 
production company that produced the content, the company that commissioned the 
production of the content, or a third party distributor to which the rights were 
licensed by the original owner. The rights holders license rights to AV broadcasters, 
or content platform operators which retail the content to end -users on a non- linear 
basis (e.g., SVOD service providers).  
                                                 
19  BCA decision of 7 Sep tember 2011 in case 2011- C/C- 24 - De Vijver Media.  
20  BCA decision of 13 May 2019 in ca se BMA -2019- C/C- 16 – Telenet/DVM.  
21  BCA decision of 6 March 2018 in case BMA- 2018 -C/C- 07 – Mediafin.  
22  Form CO, paragraph 275.  
23  Responses to questionnaires Q1 to conte nt providers, question 15; and Q2 to AV m arket participants, 
question 34.  
24  The JV’s  activities as a supplier of individual content will be limited to the supply of rights in its original 
TV productions, in other windows (e.g. FTA), which according to the business plan will translate into a 
market share of less than [0-5]%. 
 
8 4.4.1.1. Previous Commission decisions  
(33) In its 2015 case  Liberty Global/Corelio/W&W/De Vijve r Media , the Commission 
considered that the market for the licensing of broadcasting rights to TV content 
could be further segmented depending on the type of TV content or exhibition 
window, but ultimately left the question open.25 In subsequent cases, the 
Commission again considered a further segmentation of the market according to (i) 
content type (films, sports, other AV content),26 and (ii) exhibition window,27 and 
left the exact market definition open. The question whether AV content could be 
further sub -divided by distinguishing premium and non- premium content , or scripted 
and non- scripted content was also left open.28 
4.4.1.2. Notifying Parties’ view  
(34) The Notifying Parties submit that the question whether the market for the licensing 
of individual AV content should be sub- segmented by exhibition window can be left 
open. However, they submit that this market should be sub- segmented (i) by content 
type, distinguishing between at least sports rights and other types of content, given -  
inter alia -  the different competi tive dynami cs of the sale of sports rights, and (ii) 
according to premium vs. non- premium , given that premium and non- premium 
content have different economic values and that these types of content are generally 
offered and negot iated separately by licensor s. As to the distinction between scripte d 
and non- scripted content, they s ubmit that it can be left open, in particular since the 
JV will primarily focus on scripted content.29 
4.4.1.3. Commission’s assessment  
(35) The results of the market investigation were mixed as to  whether the market for the 
licensing of broadcasting rights for pre -existing  individual  AV content needs to be 
subdivided by content type  (films, sports, other),30 or exhibition windows.31 In 
addition, nothing in the Commission’s file provided reasons to de part from its 
previous approach as to whether the market should be further segmented: (i) between 
scripted and non- scripted content; and (ii) between premium and non- premium 
content . 
                                                 
25  Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver 
Media, recital 69. See also Commission decision of 23 November 2018 in case M.8944 -  Liberty 
Global/ De Vijver  Media and Liberty Global (SBS) /Mediahuis/JV , recital 53.  
26  Com mission decisions of 13 November 2019 in case M.9064 - Telia/Bonnier, recital 125, of 6 November 
2018 in case M.8785 - The Walt Disney Company/Twenty -First Century Fox, recital 68; of 15 June 2018 
in case M.8861 - Comcast/Sky , recitals 38-39. 
27  Commission  decisions of 5 September 2019 in c ase M.9416 - Bollor é Group/M7 Group, recials  32-33; of 
6 November 2018 in c ase M.8785  - The Walt Disney Company/Twenty -First Century Fox, recitals 68 -71; 
of 30 May 2018 in c ase M.7000 -  Liberty Global/ Ziggo, recital 79; o f 7 April 2017 in c ase M.8354 - 
Fox/Sky, recitals 67 -68; of 20 January 2016 in case M.7865 -  Lov Group Invest /De Agostini/ JV, recitals 
40 and 43. The BCA also left this segmentation open ( BCA decision of 13 May 2019 in case BMA- 2019 -
C/C- 16 – Telenet/DVM ). 
28  Commission decisions of 6 November 2018 in case M.8785 The Walt Disney Company/Twenty -First 
Century Fox, recital 68; of 7 April 2017 in case M.8354 - Fox/Sky , recitals 65 -66. 
29  Form CO, paragraphs 307 -310. 
30  Responses to questionnaires Q1 to content providers, question 7.2; and Q2 to AV  market participants, 
question 9.2.  
31  Responses to questionnaires Q1 to content providers, question 8.2; and Q2 to AV  market participants, 
question 10.2.  
 
9 (36) In light of the above, the Commission considers that, for the purpose of this decision  
and in line with the previous practice , a relevant market for the licensing of 
broadcasting rights for pre -existing  individual  AV content has to be considered, 
while the question whether this relevant product marked needs to be further sub-
segmented on the basis of content type  or exhibition windows, or between scripted 
and non- scripted content, and between premium and non- premium content  can be 
left open, since  the Transaction does not raise serious doubts as to its compatibility 
with the int ernal market or the functioning of the EEA Agreement under any such 
plausible product market definitions.  
4.4.2. Geographic market definition  
4.4.2.1. Previous Commission decisions  
(37) In previous cases, the Commission left open  the question whether the geographic 
scope of the market for the licensing of broadcasting rights for TV content was 
national or regional (the Flemish Region or the combination of the Flemish Region 
and the Brussels Capital Region) left open.32 
(38) The BCA has either previously (i) decided that the markets f or the licensing of 
premium film or sports content in Belgium had to be divided by language group,33 
(ii) decided that this market was national,34 or (iii)  delineated the geographic mar ket 
to the footprint of Telenet .35 
4.4.2.2. Notifying Parties’ view  
(39) The Notifying P arties submit that the precise scope of the geographic market can be 
left open.36 
4.4.2.3. Commission’s assessment  
(40) According to a majority of respondents to the market investigation, the geographic 
scope of agreements for the licensing of individual broadcasting rig hts for AV 
content is either national or by linguistic area.37 
(41) In light of the above, the Commission considers that, for the purpose of this decision  
and in line with its precedents , the question whether the relevant geographic market 
for the  licensing of i ndividual broadcasting rights for AV content, including all the 
possible sub -segments, is national or by linguistic area (the Dutch -speaking areas of 
Belgium), 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 geographic  market definition s. 
                                                 
32  Commission decision of 23 November 2018 in case M.8944 - Liber ty Global/De Vijver Media and 
Liberty Global (SBS)/Mediahuis/ JV, recital  75; of 24 February 2015 in case M.7194 – Liberty 
Global/Corelio/W&W/De Vijver Media, recital 76  
33  BCA decision of 12 November 2003 in case n°2003 -C/C- 89 N.V. Telenet Bidco - N.V. Can al+. 
34  BCA decision of 31 October 2008 in case n° 2008- C/C- 57 Tecteo - BeTV / ACM . 
35  BCA decision of 13 May 2019 in case BMA- 2019- C/C- 16 – Telenet/DVM.  
36  Form CO, paragraph 313.  
37  Responses to questionnaires Q1 to conte nt providers, question 15; and Q2  to AV m arket participants, 
question 34.  
 
10 4.5. Wholesale supply of TV channels  
(42) The Notifying Parties both supply TV channels. Telenet and DPG Media (through its 
retail OTT service Stie vie, which will be discontinued as of 1 September 202038) are 
also purchasers of TV channels for their activities on the market for the retail supply 
of AV services.39 The JV will not offer or purchase TV channels.  
4.5.1. Product market definition 
(43) TV broadcasters package the AV content and broadcasting rights for AV content that 
they have produced in -house or acquired into linear TV channels, which are 
broadcast to end users either on a FTA basis or on a pay TV basis. Ancillary services 
have gradually been associat ed to TV channels in order to complement the TV 
offering and enhance the viewer experience of traditional linear TV channels.  
4.5.1.1. Previous Commission decisions  
(44) In its past decisional practice, the Commission identified a wholesale market for the 
supply of TV c hannels. Within that market, in certain decisions, the Commission 
further identified two separate product markets for (i) FTA TV channels, and (ii) pay 
TV channels.40 The Commission further stated that within the pay TV channels 
market, there could be diffe rent segments for (i) basic pay TV channels; and (ii) 
premium pay TV channels,41 for which end customers pay a premium in addition to 
their basic subscription fee.  
(45) In other decisions, 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 the 
wholesale supply of FTA and basic pay TV channels.42 In its decision of 24 
February 2015 in case M.7194 – Liberty G lobal/Corelio/W&W/De Vijver Media , the 
Commission has considered that, given that (i) FTA channels were mostly supplied 
together with basic pay TV channels , and (ii) the competitive assessment would 
remain the same even if FTA channels were regarded as bel onging to a separate 
product market from that of basic pay TV, it was not necessary to make a distinction 
                                                 
38  Form CO, paragraph 372.  
39  VTM Go only includes DPG Media’s TV channels. Through this free AVOD platform, DPG Media offers 
live access to its own linear TV channels and its radio channel Qmusic, as well as review ing on demand 
until approx. 30 days after the linear broadcast. In addition, there is a catalogue with popular, older AV 
content which can be reviewed, as well as a Kids Corner with content targeted at the younger population. 
In cooperation with Walter Pre sents, VTM Go offers a number of international series (Form CO, 
paragraph 102).  
40  Commission decisions of 20 September 2013 in case M.6990 –  Vodafone/Kabel Deutschland, recital  41 
(identifying separate markets); of 30 May 2018 in case M.7000 Liberty Globa l/Ziggo, recital  111 (leaving 
open the question as to whether FTA and Pay TV belong to separate markets, because of peculiarities of 
the Dutch TV market); of 7 April 2017 in case M.8354 –  Fox / Sky, recital  85 (leaving open the question 
whether the market for the wholesale supply of TV channels should be further segmented among FTA, 
basic pay TV and premium pay TV).  
41  Commission decisions of 6 November 2018 in case M.8785 – Disney/Fox, recital 77; of 15 June 2018 in 
case M.8861 –  Comcast/Sky, recital 50; o f 6 February 2018 in case M.8665 - Discovery/Scripps, recitals 
19- 20; of 7 April 2017 in case M.8354 - Fox/Sky, recitals 80 - 81. 
42  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 157; of 24 Fe bruary 2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver 
Media, recitals 90 and 91.  
 
11 between FTA and basic pay TV channels on the market for wholesale supply of TV 
channels in that case.  
(46) In addition, in previous decisions including its  recent decision of 12 November 2019 
in case M.9064 – Telia Company/Bonnier Broadcasting Holding, the Commission 
considered that there was no need to draw a distinction between linear TV channels 
and their ancillary services, which are licensed by TV broad casters to TV 
distributors along with, or in addition to those linear TV channels.43 
(47) Further, in previous decisions, the Commission examined a number of other 
potential additional segmentations, including genre or thematic content (such as 
sports, films, ge neral entertainment, news, youth, and others), and ultimately left the 
market definition open, in these regards.44 
(48) Last, in its recent decision of 12 November 2019 in case M.9064 – Telia 
Company/Bonnier Broadcasting Holding, the Commission considered that t he 
market for wholesale supply of TV channels, and any other possible segmentation, 
should not be further segmented according to the type of infrastructure used for the 
delivery to the viewer (cable, satellite, terrestrial TV and IPTV).45 
4.5.1.2. Notifying Parties’ view  
(49) The Notifying Parties submit that the precise product market definition can be left 
open, since the JV will not be active in the wholesale supply of TV channels.46 
4.5.1.3. Commission’s assessment  
(50) A majority of respondents to the market investigation indicated that it remains 
appropriate to segment the whol esale 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 Belgium .47 
(51) In addition, the results of the market investigation indicated tha t the wholesale 
supply of pay TV channels could be further divided according to genre  (e.g., films, 
sports, youth, general entertainment, news).48 Indeed, most respondents stressed that 
distributors would seek to offer a variety of genres to end- customers.  
(52) 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 
                                                 
43  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 163; of 24 February 2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver 
Media, recital 94.  
44  Commission decisions of 7 April 2017 in case M.8354 – Fox/Sky, recital 82 -83; of 24 February 2015 in 
case M.7194 - Liberty Global/Corelio/W&W/De Vijver Media, recital 92; of 2 April 2003 in case M.2876 
- Newscorp/Telepiù, 2 April 2003, recital 76; of 18 July 2007 in case M.4504 - SFR/Télé 2 France, 
recitals 41 –42; of 26 August 2008 in case M.5121 -  News Corp/Premiere, recital 35; of 21 December 
2010 in case M.5932 -  News Corp/BskyB, recital 81; of 10 Octobe r 2014 in case M.7000 - Liberty 
Global/Ziggo, recital 89.  
45  Commission decision of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 162.  
46  Form CO, paragraph 361.  
47  Responses to questionnaire Q2 to AV market particip ants, question 13. 
48  Responses to questionnaire Q2 to AV market participants, question 14. 
 
12 from the Commission's previous  approach, as t he results of the market investigation 
indicated that ancillary services (e.g., TVE, catch -up, PVR, etc.) are associated to 
TV channels  in Belgium  in order to complement the TV offering and enhance the 
viewer experience of traditional linear channels.49 
(53) With regard to  distribution technologies , a majority of respondents to the market 
investigation considered that the market for the wholesale supply of TV  channels  
should not be further segmented according to distribution forms.50 
(54) In light of the above, the Commission concludes that, for the purpose of this d ecision  
and in line with its precdents , the wholesale supply of FTA/basic pay TV channels , 
and of premium pay TV channels should be considered as constituting  two separate 
product markets , each including its ancillary services. The Commission also 
considers that each of these markets should not be further segmented  based on the 
distribution technology of the channel  in question. In that respect, t he question 
whether these markets can be further segmented by genre  can be left open, since the 
Transact ion 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 definition s. 
4.5.2. Geographic market definition  
4.5.2.1. Previous Commission decisions  
(55) The Commission recent ly considered that the geographic market for the wholesale 
supply of TV channels might remain the footprint of Telenet's cable network  as in 
the 2015 case Liberty Global/Corelio/W&W/De Vijver Media , but that it also might 
be enlarged to a regional or national scope. The exact geographic delineation of the 
market (i.e. whether it corresponds to Telenet's footprint, is regional or national) was  
left open.51 
4.5.2.2. Notifying Parties’ view  
(56) The Notifying Parties submit that the geographic market for the wholesale supply of 
TV channels could be Telenet’s footprint, or alternatively regional or national in 
scope, and that the precise geographic market definition can be left open, since the 
JV will not be active in the wholesale supply of TV channels.52 
4.5.2.3. Commission’s assessme nt 
(57) The results of the market investigation indicate d that it is still relevant to consider 
that the relevant geographic markets for both (i) the wholesale supply of FTA/basic 
                                                 
49  Responses to questionnaires Q1 to content providers, question 11; and Q2 to AV market participants, 
question 18.  
50  Responses to questionnaires Q1 to content pro viders, question 14; and Q2 to AV market participants, 
question 21.  
51  Commission of 23 November 2018 in case M.8944 - Liberty Global / De Vijver Media and Liberty Global 
(SBS) / Mediahuis / JV , recital 82.  
52  Form CO, paragraphs 366 -368. 
 
13 pay TV channels, and (ii) the wholesale supply of premium pay TV channels m ight 
be Telenet's footprint, or  enlarged to a regional or national scope .53 
(58) In light of the above, the Commission concludes that, for the purpose of this decision  
and in light of its previous practice , the relevant geographic market for the  wholesale 
supply of TV  channels, including all the possible sub- segments, is either  the local 
footprint of Telenet's cable network, or its enlarged regional or national scope s. In 
that respect, the Commission considers that  the exact geographic market definition 
(i.e. whether i t corresponds to Telenet's footprint, is regional or national) 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 geographi c market definition s. 
4.6. Retail supply of AV services  
(59) The Notifying Parties and the JV supply AV services to end customers. 
4.6.1. Product market definition 
(60) Retail providers of AV services offer packages of linear AV services and/or non -
linear AV services to end cus tomers. Such linear and non- linear AV services can be 
augmented with ancillary services, such as catch -up TV or TV everywhere. Retail 
AV services can be delivered to end- users though a number of technical m eans 
including cable, satellite, IPTV  and OTT . 
4.6.1.1. Previous Commission decisions  
(61) In its past decisional practice, the Commission considered the retail supply of FTA 
TV and pay TV as separate markets, but ultimately left open the product market 
definition.54 The Commission also considered whether pay TV could b e segmented 
further according to: (i) linear vs non -linear pay TV services;55 (ii) premium vs basic 
pay TV services.56 However, the Commission left open the market definition with 
regard to each of these potential sub -segments.  
                                                 
53  Responses to q uestionnaire Q2  to AV market participants, question 36 . 
54  Commission decisions; of 6 November 2018 in case M.8785 - Disney/Fox, recital 98; of 8 October 2018 
in case M.8842 – Tele2/ComHem, recital 37; of 30 May 2018 in case M.7000 –  Liberty Global/Ziggo, 
recital 137; of 6 February 2018 in case M.8665 -  Discovery/Scripps, recital 33; of 7 April 2017 in case 
M.8354 – Fox/Sky, recital 101; of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, 
recital 56; of 24 February 2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver Media, recital 
152. 
55  Commission decisions of 18 July 2019 in case M.8864 -  Vodafone/certain Liberty Global assets, recitals 
79 and 83; of 6 November 2018 in case M.8785 - Disney/Fox, recital 98; of 8 October 2018 in case 
M.8842 – Tele2/ComHem, recital 37; of 15 June 2018 in case M. 8861 - Comcast/Sky, recital 59; of 30 
May 2018 in case M.7000 – Liberty Global/Ziggo, recital 137; of 6 February 2018 in case M.8665 - 
Discovery/Scripps, recital 32; of 7 April 2017 in case M.83 54 – Fox/Sky, recitals 98 and 101; of 3 August 
2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 58; of 24 February 2015 in case 
M.7194 - Liberty Global/Corelio/W&W/De Vijver Media, recital 124.  
56  Commission decisions of 18 July 2019 in case  M.8864 - Vodafone/certain Liberty Global assets, recitals 
79 and 83; of 6 November 2018 in case M.8785 -  Disney/Fox, recitals 94 and 98; of 15 June 2018 in case 
M. 8861 - Comcast/Sky, recital 59. of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, recit als 135 
and 137; of 6 February 2018 in case M.8665 - Discovery/Scripps, recital 33; of 7 April 2017 in case 
M.8354 - Fox/Sky, recitals 100 -101; of 24 February 2015 in case M.7194 - Liberty 
Global/Corelio/W&W/De Vijver Media, recital 119.  
 
14 (62) In addition, the Commission considered a possible segmentation of the market for 
the retail supply of AV services according to distribution technology (for example, 
cable, OTT, satellite, IPTV or terrestrial). In its decisions of 12 November 2019 in 
case M.9064 – Telia Company/Bonnier Broadcasting Holding, and of 30 May 2018 
in case M.7000 – Liberty Global/Ziggo, the Commission considered that all the 
different distribution technologies were part of the same product market,57 while 
leaving the exact product market definition open in a number of other decisions.58 
4.6.1.2. Notifying Parties’ view  
(63) The Notifying Parties submit that the relevant product market should include all 
distribution technologies including OTT.59 In addition, they submit that the question 
whether the relevant product market should (i) be further segmented between the 
retail supply of basic pay and premium pay TV channels, and (ii) include non- linear 
services, can be left open.60 The Notifying Parties also submit that if linear and non-
linear AV services are not regarded as part of  the same market, non- linear offers do 
at least exert some competitive pressure on more traditional AV offers.61 
4.6.1.3. Commission’s assessment  
(64) A majority of respondents to the market investigation indicated that the retail 
provision of FTA/basic pay AV services currently constitutes a market separate 
from the retail provision of premium pay AV services in Belgium.62 
(65) The results of the market investigation were mixed a s regards a possible 
segmentation between linear and non- linear pay AV services.63 Indeed, some 
respondents  indicated  that the market for the retail supply of AV services should be 
further segmented between linear services (namely TV channels) and non -linear 
services, such as SVOD , as pure OTT non- linear offers are an alternative to linear 
offers for a l imited, bespoke group of customers only, and the SVOD success is 
more like ly to become an alternative to p remium pay AV service while 
complement ing basic p ay AV services. One other  respondent  claime d that linear and 
non-linear services are part of the same markets given that both types of services 
provide access to identical programming, and compete for viewing time.  
(66) As regards distribution technologies , a majority of respondents to the market 
investigation considered that end customers perceive  the distrib ution forms (e.g. 
                                                 
57  Com mission deci sions of 12 November  2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 200; of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, recital 137. See also 
Commission decision of 21 December 2010 in case M.5932 - News Corp/BskyB, recita l 105.  
58  Commission decisions of 18 July 2019 in case M.8864 -  Vodafone/certain Liberty Global assets, recitals 
80, 81 and 83; of 6 November 2018 in case M.8785 -  Disney/Fox, recital 98; of 8 October 2018 in case 
M.8842 – Tele2/ComHem, recital 37; of 6 Fe bruary 2018 in case M.8665 -  Discovery/Scripps, recital 33; 
of 7 April 2017 in case M.8354 –  Fox/Sky, recitals 99 and 101; of 3 August 2016 in case M.7978 – 
Vodafone/Liberty Global/Dutch JV, recital 62.  
59  Form CO, paragraph 384.  
60  Form CO, paragraphs 386  and 390.  
61  Form CO, paragraph 392.  
62  Responses to questionnaire Q2 to AV market participants, questions 22 and 23.  
63  Responses to questionnaire Q2 to AV market participants, questions 25 and 30.  
 
15 cable, IPTV, satellite, terrestrial, or OTT) throug h which they access AV content in 
Belgium as alternative to each other .64 
(67) In light of the foregoing, the Commission concludes  that, for the purpose of this 
decision  and in light of its pre vious practice , the relevant product market at retail 
level is to be considered the market for the retail supply of AV services 
encompassing  all distribution technologies . Moreover, the Commission considers 
that, in any case, t he question whether the retai l supply of AV services should be 
further segmented between (i) FTA and pay AV services can be left open, as well as 
also the question whether in turn the retail supply of pay AV services should be 
segmented according to (ii) linear and non- linear pay AV services, and (iii) premium 
and basic pay AV services 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 defi nitions . 
4.6.2. Geographic market definition  
4.6.2.1. Previous Commission decisions  
(68) In previous decisions, t he Commission considered that the relevant geographic 
market for the retail provision of TV services to end users was  the footprint of 
Telenet’s cable network.65 
4.6.2.2. Notifying Parties’ view  
(69) The Notifying Parties consider that there are strong indicators for a national 
geographic market , since cable operators such as Telenet compete with retail AV 
providers such as Proximus and Orange , which are active nationally and apply 
uniform pricing across all regions of Belgium .66 
4.6.2.3. Commission’s assessment  
(70) The results of the market investigation indicated that it is still relevant to consider 
that the relevant geographic market  for the retail supply of A V services to end users 
is Telenet's footprint.67 
(71) In light of the foregoing, the Commission concludes  that, for the purpose of this 
decision and account taken of its previous decisional practice , the relevant  
geographic market  for the retail supply of AV  services, including all possible sub -
segments, is the one encompassing Telenet’s footprint.  
4.7. Retail supply of fixed internet access services  
(72) Only Telenet is active as a retail supplier of fixed internet access services.  
                                                 
64  Responses to questionnaire Q2 to AV market participant s, question 31. 
65  Commission decisions  of 23 November 2018 in case M.8944 - Liberty Global / De Vijver Media and 
Liberty Global (SBS) / Mediahuis / JV , paragraph 86 ; of 24 F ebruary 2015 in c ase M.7194 Liberty 
Global/Corelio/W&W/De Vijver Media, paragraph 139.  
66  Form CO, paragraph 395.  
67  Responses to questionnaire Q2 to AV market participants, question 38.  
 
16 4.7.1. Product market definition 
4.7.1.1. Previous Commission decisions  
(73) In recent cases,  the Commission considered but ultimately left open possible 
segmentations according to (i) product type (distinguishing narrowband, broadband, 
and dedicated access), and (ii) distribution technology (distinguishing xDSL, fibre, 
cable). Moreover, the Commi ssion acknowledged that the retail market for fixed 
internet access services should not be divided according to download speed.68 
(74) The Commission also considered, but ultimately left open,  possible segmentations as 
to customer type, distinguishing between re sidential and small business customers, 
on the one hand, and larger business and public authorities, on the other hand.69 
4.7.1.2. Notifying Party’s view  
(75) The Notifying Parties do not provide any views as to the relevant product market 
definition.  
4.7.1.3. Commission’s assessment  
(76) With regard to a possible segmentation of the market for the retail provision of fixed 
internet access services according to product and customer type or according to 
distribution technology (that is to say, xDSL, cable or f ibre), nothing in the 
Commission’s file provided reason to depart from its approach in previous cases.  
(77) In light of the foregoing, the Commission does not depart from its previous 
assessment, and concludes, for the purposes of this Decision, that the exact scope of 
the product market  definition in relation to the provision of retail fixed internet 
access services can be left open, as the Transaction does not raise serious doubts as 
to its compatibility with the internal market or the functioning of the EEA 
Agreement under any plausibl e product market definition.  
4.7.2. Geographic market definition  
4.7.2.1. Previous Commission decisions  
(78) In its previous decisions, the Commission concluded that the retail market for the 
provision of fixed internet services was national in scope.70 
                                                 
68 Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 218; of 8 October 2018 in case M.8842 – Tele2/Com Hem, paragraph 26; of 
3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 38; of 20  September  2013 in 
case M.6990 -  Vodafone/Kabel Deutschland, recital 194.  
69 Commission decision s of 8 October 2018 in case M.8842  - Tele2/Com  Hem, paragraph 26; of 
7 October  2016 in case M.8131 - Tele2 Sverige/TDC Sverige, recital 32 ; of 19 May 2015 in case M.7421 
- Orange/Jazztel, recital 42; of 10 October 2014 in case M.7000 - Liberty Global/Ziggo, recital 132 . 
70 Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 239 ; of 8 October 2018 in case M.8842 –  Tele2/Com Hem; of 3  August  2016 in case 
M.7978 – Vodafone/Liberty Global/Dutch JV, recital 40 ; of 20 September 2013 in case M.6990 - 
Vodafone/ Kabel Deutschland, recital 197 . 
 
17 4.7.2.2. Notifying Party’s view  
(79) The Notifying Parties submit that the market for the retail supply of fixed internet 
access services should be regarded as national.71 
4.7.2.3. Commission’s assessment  
(80) The market investigation did not provide any indication that the Commission should 
depart from its findings in previous cases, according to which the geographic market 
should be national.  
(81) In light of the foregoing, the Commission concludes that it is appropriate not to 
depart from its previous practice, and considers that , for the purpose of this decisi on, 
the relevant market for the provision of fixed internet services is national in scope . 
4.8. Retail supply of mobile telecommunication services  
(82) Both Telenet and DPG Media are active as suppliers of retail mobile 
telecommunication services. Telenet operates a mobile telecommunication network 
covering the entire territory of Belgium, and DPG Media operates as a  Mobile 
Virtual Network Operator (“ MVNO”)  under the brand Mobile Vikings . MVNOs are 
operators without their own network, which require  access to a networ k of a Mobile 
Network Operator (“ MNO ”) in order to provide retail mobile services to end 
customers. 
4.8.1. Product market definition 
4.8.1.1. Previous Commission decisions  
(83) The Commission has  previously considered that there is an overall retail market for 
mobile telecommu nications services constituting a separate market from retail fixed 
telecommunication services.72 The Commission did not further segment the overall 
retail mobile market based on the type of service (voice calls, SMS, MMS, mobile 
internet data services), or the type of network technology (for example, 2G/3G/4G). 
The Commission considered distinctions within the overall retail market for mobile 
telecommunication services between pre- paid or post -paid services and private 
customers or business customers, concl uding that these did not constitute separate 
product markets but represent rather market segments within an overall retail 
market.73 
                                                 
71  Form CO, paragraph 437.  
72 Commission decisions of 8 October 2018 in case M.8842 –  Tele2/Com Hem, paragraph  10; of 
11 May 2016 in case M.7612 –  Hutchison 3G UK/Telefónica UK, recital 252; of 10 October 2014 in case 
M.7000 – Liberty Global/Ziggo, recital 141; of 2 July 2014 in case M.7018 – Telefónica Deutschland/E -
Plus, recital 64.  
73 Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital  47; of 
1 September  2016 in case M.7758 – Hutchison 3G It aly/Wind/JV, recitals 149 and 161; of 3 August 2016 
in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital  74; of 11 May 2016 in case M.7612 – 
Hutchison 3G UK/Telefónica UK, recitals 255, 261, 270, 279, 287; of 2 July 2014 in case M.7018 –  
Telefónica D eutschland/E -Plus, recitals 31 to 55; of 10 October 2014 in case M.7000 – Liberty 
Global/Ziggo, recital 141; of 28 May 2014 in case M.6992 –  Hutchison 3G UK/Telefónica Ireland, 
recital  141; of 12  December  2012 in case M.6497 – Hutchison 3G Austria/Orange A ustria, recital 58.  
 
18 4.8.1.2. Notifying Parties’ view  
(84) The Notifying Parties do not provide any views as to the relevant product market 
definition.  
4.8.1.3. Commiss ion’s assessment  
(85) Nothing in the Commission's file indicated that the market for retail supply of 
mobile telecommunications services should be further segmented according to the 
type of services, the type of customers or the network technology used.  
(86) In lig ht of the foregoing, the Commission concludes that it is appropriate to  not 
depart from its previous practice, and considers  that, for the purpose of this decision, 
the relevant product market is the overall  retail market for mobile 
telecommunications serv ices without any further segmentations . 
4.8.2. Geographic market definition  
4.8.2.1. Previous Commission decisions  
(87) In its previous decisions, the Commission concluded that the retail market for the 
provision of mobile telecommunications services was national in scope.74 
4.8.2.2. Notifying Parties’ view  
(88) The Notifying Parties do not provide any views as to the relevant geographic market 
definition . 
4.8.2.3. Commission’s assessment  
(89) The market investigation in the present case did not provide any indication that the 
Commission should depart from  its previous findings. 
(90) In light of the foregoing, the Commission concludes that it is appropriate to not 
depart from its previous practice, and considers that , for the purpose of this decision, 
the relevant market for the retail provision of mobile teleco mmunications services is 
national in scope. 
4.9. Retail supply of multiple play bundles  
(91) Only Telenet is active as a provider of multiple play bundles.  
4.9.1. Product market definition 
(92) The term "multiple play" relates to offers comprising two or more of the following 
services provided to retail consumers: mobile telecommunication services, fixed 
                                                 
74 Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital  49; of 
1 September  2016 in case M.7758 –  Hutchison 3G Italy/Wind/JV, recital 166; of 3 August 2016 in 
case M.7978 – Vodafone/Liberty Global/Dutch JV, recit al 76; of 11 May 2016 in case M.7612 – 
Hutchison 3G UK/Telefónica UK, recital 293; of 10 October 2014 in case M.7000 – Liberty 
Global/Ziggo, recital 143; of 2 July 2014 in case M.7018 – Telefónica Deutschland/E -Plus, recital 74; in 
case M.6497 –  Hutchison 3G Austria/Orange Austria, recital 73; in case M.5650 –  T Mobile/Orange UK, 
recitals 25 -26; of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland, recital 164.  
 
19 telephony, fixed internet access and TV services. Multiple play comprising two, 
three or four of these services is referred to as dual play ("2P"), triple play ("3P") and 
quadruple play ("4P") respectively.  
4.9.1.1. Previous Commission decisions  
(93) In previous decisions, the Commission has considered but ultimately left open the 
question as to whether there exist one or more multiple play markets, which are 
distinct from each of the underlyi ng individual telecommunication services.75 
Moreover, in previous decisions, the Commission has noted that due to different 
services, delivered over different infrastructures (fixed for dual play and triple play 
or fixed and mobile for quadruple play), that  are included in the different multiple 
play bundles, instead of one possible market for multiple play, there could be several 
possible multiple play markets: a market for fixed bundles (dual play, and triple 
play) and another separate market for fixed -mobile convergence bundles. The 
Commission has also noted that the possibility for several mobile subscriptions to be 
included in a quadruple play bundle further complicates the picture.76 
4.9.1.2. Notifying Parties’ view  
(94) The Notifying Parties submit that the question whether a separate market for 
multiple play bundles including retail TV services exist s can be left open, as (i) t he 
JV will not be active on any pos sible multiple play markets, and  (ii) with a few 
exceptions,77 Telenet does not include SVOD services in its multiple play bundles 
with a  TV component in Belgium, and has no immediate plan s to change the bundle 
line up.78 
4.9.1.3. Commission’s assessment  
(95) The market investigation in the case at hand provided no clear evidence as to the 
substitutability between multiple pla y services on the one hand and combinations of 
standalone services on the other hand. 
(96) In light of the foregoing, the Commission concludes that it is appropriate not to 
depart from its previous decisional practice , and considers that , for the purpose of 
this decision, the question as to whether there exist one or more multiple play 
markets which are distinct from each of the underlying individual 
telecommunications services can be left open, since  the Transaction does not raise 
serious doubts as to its compa tibility with the internal market or the functioning of 
the EEA Agreement under any such plausible product market definitions . 
                                                 
75 Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital  60; of 3 August 2016 
in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital  108; of 4 February 2016 in case M.7637 – 
Liberty Global/BASE Belgium, recital 96; of 19 May 2015 in case M.7421 – Orange/Jazztel, recitals 86 
and 91.  
76 Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital ; of 3 August 2016 in 
case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 107. 
77  Telenet has historically not included its SVOD offerings in its multiple play bundles. Play and Play More 
are offered as additional paid options to Telenet’s retail AV subscribers. The only exception is Yugo, a 
bundle consisting of a fixed internet subscription, a number of linear TV channels and the SVOD service 
Play. [number of Yugo subscribers in 2019] (Form CO, paragraph 658 and footnote 517).  
78  Form CO, paragraph 417.  
 
20 4.9.2. Geographic market definition  
4.9.2.1. Previous Commission decisions  
(97) In previous decisions, the Commission considered that the geographic s cope of any 
possible retail market for multiple play services would be national since the 
components of the multiple play offers are offered individually at a national level, 
and the bundling of the services would not change the geographic scope of the 
components.79 
4.9.2.2. Notifying Pa rties’ view  
(98) The Notifying Parties submit that  the question whether a separate market for 
multiple play bundles including retail TV services exists in Belgium can be left 
open.80 
4.9.2.3. Commission’s assessment  
(99) The market investigation in the present case did not provide any indication that the 
Commission should depart from its findings in previous cases. 
(100)  In light of the foregoing, the Commission concludes that it is appropriate not to  
depart from its previous decisional practice , and considers  that, for the purpose of 
this d ecision, any possible market for the retail supply of multiple play services 
would be national in scope . 
4.10. Supply of advertising: (i) TV advertising,  (ii) radio advertising and (iii) online 
advertising  
(101)  The Notifying Parties a re both active in the supply of TV advertising on the Dutch-
language TV channels in Flanders. Both Telenet and DPG Media sell advertising 
space on their  own FT A TV channels (Vier, Vijf, Zes for Telenet and  VTM, Q2, 
Vitaya, CAZ, CAZ 2 and VTM Kids for DPG M edia). Both of them act as sales 
representatives for third party TV channels. Both parties are active in the selling of 
online advertising space, namely on websites related to their TV channels and 
publications.  In addition, DPG Media is active in the supply of radio advertising 
space. It sells advertising space on its own traditional radio channels (mainly Qmusic 
and Joe, and , to a  more limited extent, on the digital radio channels it operates).  The 
Notifying Parties and the JV will also be active as purchasers of such advertising 
space.  
                                                 
79 Commission decisions of 3 August 2016 in case M.7978 –  Vodafone/Liberty Global/Dutch JV, 
paragraphs  112; of 19 May 2015 in case M.7421 - Orange/Jazztel, recitals 89 -90; of 10 October 2014 in 
case M.70 00 - Liberty Global/Ziggo, recitals 152 -153; of 20 September 2013 in case M.6990 -  
Vodafone/Kabel Deutschland, paragraphs  263-265; of 16 June 2011 in case M.5900 -  LGI/KBW, 
paragraphs  183-186. 
80  Form CO, paragraph 417.  
 
21 4.10.1. Product market definitions  
4.10.1.1. Previous Commission decisions  
(102)  The Commission has previously defined the sale of advertising space on TV, the sale 
of advertising space on radio and the sale of advertising space on websites as di stinct 
product markets, rather than forming part of a wider advertising market 
(incorporating, among others, also print advertising).81  
(103)  With respect to the market for TV advertising, the Commission has also considered 
whether sales of advertising space on pay TV and FTA TV channels are part of the 
same market, and whether the sale of advertising space on AVOD services is part of 
the same market as the sale of advertising space on TV channels. It ultimately left 
this question open.82 
(104)  The BCA has previously de fined a separate market for the sale of advertising space 
on national TV channels and a separate market for the sale of advertising space on 
national radio channels, i.e. covering the entire Belgian territory. In these decisions, 
it also limited the markets to Dutch -language advertisements.83 In 2018, the BCA 
also found strong indications to conclude that a separate market for onli ne 
adverisements may exist  and conducted its analysis on that basis.84 
4.10.1.2. Notifying Parties’ view  
(105)  The Notifying Parties submit that t he fact that the Commission has defined radio 
advertising and TV advertising as separate product markets does not mean that they 
are not subject to competitive pressures from advertising on other media, notably 
online advertising.85 They consider that the m arket has evolved significantly towards 
online advertising (leading to an erosion of the importance of traditional media for 
advertising), and that a separate market for the sale of online advertising space 
should be determined.86 
(106)  In addition, t he Notifying  Parties consider that the market for TV advertising should 
not be further segmented between the sale of advertising space on P ay and FTA TV 
channels. Furthermore , the Parties believe that the sale of advertising space on 
                                                 
81  Commission decisions of 24 Februa ry 2015 in Case M.7194 Liberty Global/Corelio/W&W/De Vijver 
Media, paragraph 143; of 21 December 2016 in Case M.8180 Verizon/Yahoo, paragraphs 22 and 25; of 7 
April 2017 in Case M/8354 Fox/Sky, paragraph 114; of 12 November 2019 in Case M.9064 Telia 
Company/Bonnier Broadcasting Holding, paragraph 276; of 6 February 2018 in Case M.8665 
Discovery/Stripps, paragraphs 39 -40. 
82  Commission Decision of 12 November 2019 in Case M.9064 Telia Company/Bonnier Broadcasting 
Holding, paragraph 276.  
83  BCA decision of 7 September 2011 in Case 2011- C/C- 24, De Vijver Media NV/Waterman&Waterman 
Comm.VA, Corelio NV, Sanoma Corporation, paragraph 30; BCA Decision of 28 January 2016 in Case 
2016 -C/C- 03, Jim Mobile/Medialaan; BCA Decision of 26 April 2017 in Case 2017 -C/C-14, Me diahuis 
3.0, paragraph 23; BCA Decision of 13 May 2019 in Case 2019- C/C- 16, Telenet Group BVBA/De Vijver 
Media NV, paragraph 219.  
84  BCA Decision of 6 March 2018 in case BMA -C/C- 07, Mediafin , paragraphs 192- 193. 
85  Form CO, paragraphs 499 and 530.  
86  Form CO, paragraph 515.  
 
22 AVOD services should be considered  as part of the online advertising market (for 
sale of advertising space on Dutch- language websites ).87 
4.10.1.3. Commission’s assessment  
(107)  The market investigation in the present case did not provide any indication that the 
Commission should depart from its findings i n previous cases.  The majority of 
respondents responding to this  question indicated that these findings (distinction of 
online vs. offline  advertising and segmentation of advertising market by media 
channel ) are still accurate in Belgium today.88 
(108)  In light o f the foregoing, the Commission concludes that, for the purpose of this 
decision  and to follow its previous decisional practice , the market for TV 
advertising,  the market for r adio advertising and the market for online advertising 
constitute separate markets . The Commission also concludes that the  question 
whether the market for TV advertising includes both Pay and FTA TV channels 
and/or AVOD services or whether it can be divided into those two segments 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 . 
4.10.2. Geographic market definitions  
4.10.2.1. Previous Commission decisions  
(109)  The Commission previously considered t hat the geographic market s for (i) TV 
advertising,  (ii) radio advertising and (iii) online advertising are either national or 
regional ( along linguistic lines; in Belgium concerning the Flemish region, 
potentially including the Brussels -capital region).89 The BCA has previously 
determined the geographic scope of the  TV and radio  advertising markets as 
comprising the Flemish Community (and left open the exact geographic scope of the 
online advertising market) .90 
4.10.2.2. Notifying Pa rties’ view  
(110)  The Notifying Partie s did not provide any views on the geographic scope of these 
advertising markets.  
                                                 
87  Form CO, paragraph 500.  
88  Responses to Questionnaire Q2 to AV market participants, questions 32 -33 ; Responses to Questionnaire 
Q3 to purchasers of advertising space, questions 5 -6. 
89  Commission Decision of 14 June 2013 in Case M.6866 Time Warner/CME, paragraph 63; Commission 
Decision of 24 February 2015 in Case M.7194 Liberty Global/Corelio/W&W/De Vijver Media, paragraph 
147; Commission Decision of 21 December 2016 in Case M.8180 Verizon/Yahoo, paragraph 27; 
Commission Decision of 6  February 2018 in Case M.8665 Discovery/Scripps, paragraph 43.  
90  BCA Decision of 7 September 2011 in Case n°2011- C/C- 24, De Vijver Media NV/Waterman &Waterman 
Comm. VA, Corelio NV, Sanoma Corporation, paragraph 30; BCA Decision of 28 January 2016 in Case 
BMA -2016- C/C-03 Jim Mobile/Medialaan , paragraphs 81 to 84 and 88 to 90; BCA Decision of 26 April 
2017 in Case BMA -2017- C/C-14 Mediahuis 3.0 , paragraph 23 ; BCA Decision of 6 March 2018 in case 
BMA -C/C- 07, Mediafin , paragraph 197.  
 
23 4.10.2.3. Commission’s assessment  
(111)  The majority of respondents responding to the  question indicated that they 
sell/purchase advertising on the basis of the linguistic region.91 One market 
respondent indicated that “ in practice suppliers of advertising space generally focuss 
on respectively the Dutch speaking market or the French speaking market ”, while 
another responded that “[l]anguage is the first criteria when choosing a media 
channel .”92 One other  market responde nt stated that “[t] his is the most logical 
approach to try to get the broadest advertising reach.”93 
(112)  In light of the foregoing, the Commission concludes that, for the purpose of this 
decision, the relevant market for TV , radio  and online  advertising, including all the 
possible sub -segments, is regional in scope encompassing the Flemish region and 
possibly also the Brussels- capital region .  
(113)  Consequently, the Commission considers it appropriate to assess the possible  effects 
of the Transaction on the markets for the sale of advertising spaces  on (i) Dutch 
language TV channels, (ii) Dutch language radio channels and (iii) Dutch language 
websites in Belgium, which correspond to the two regional delinations indicated 
above (Flemish region or the Flemish region and the Brussels -capital region) .  
5. COMPETITIVE ASSESSMEN T 
(114)  As explained in paragraph 4, the only activity of the JV will be  to provide a SVOD  
service in Belgium .  
(115)  In order to provide its SVOD service, the JV will acquire content from [ JV’s 
commercial strategy ]. The JV will not acquire linear channels and ancillary services 
of the Notifying Parties  and/or of third parties.  
(116)  In order to market its SVOD service , the JV will  acquire advertising space  from a 
series of sup pliers, [JV’s commerci al strategy ]. The JV’s SVOD service will not 
carry advertising.   
(117)  The stated rationale of the transaction is to create a local SVOD player that can 
locally  compete with interna tional established players like Netflix and  Amazon as 
well as with future entran ts in the SVOD market  like Disney and HBO.94  
5.1. Identification of the affected markets  
(118)  The Transaction gives rise to the following horizontally  affected markets:  
i. the market for th e production of AV content in Flanders  (demand side)95 and 
possibly more narrow ly defined markets;96  
                                                 
91  Responses to Questionnai re Q2 to AV market participants, question 3 9 ; Responses to Questionnaire Q3 
to purchasers of a dvertising space, question 7.  
92  Responses to Questionnaire Q3 to purchasers of advertising space, question 7 .1. 
93  Responses to Questionnaire Q2 to AV market pa rticipants, question 39.1.  
94  Form CO, paragraphs 30 -31. 
 
24 ii. the market for the licensing of broadcasting rights  for pre-existing individual 
AV content in Flanders  (demand side)97 and possibly more narrowly defined 
markets;98 and  
iii. the market for the retail supply of AV services (including SVOD ser vices) in 
Telenet’s footprint and possibly more  narrowly defined markets.99  
(119)  The markets under i)  and ii), including the possible narrower markets,  would also be 
affected if the geographic market was defined as a) Flanders and the Brussels Capital 
Region together or as b ) Telenet’s footprint, both of which largely correspond to the 
Dutch -speaking part of Belgium. In addition, some of the narrower product markets 
                                                                                                                                                      
95  There is no affected market for the supply of production of AV content. Telenet has a share of [5- 10]% by 
value (2019), DPG Media’s entire AV content production is captive, and the JV will not be active.  
96  Such narrower markets include A) markets based on a segmentation by content type (i.e. i) the market for 
the production of films in Flanders (demand side) ii) the market for the production of sport content in 
Flanders (demand side) iii) the market for the production of other AV content in Flanders (demand side) 
B) markets based on a segmentation by exhibition window (i.e. i) the market for the production of AV 
content for TVOD in Flanders (demand side) ii) the market for the production of AV cont ent for 
SVOD/first pay TV window in Flanders (demand side) iii) the market for the production of AV content 
for SVOD library in Flanders (demand side) iv) the market for the production of AV content for FTA 
window in  Flanders (demand side), v) the market for the production of AV content for the premium 
sports window; C) markets based on the distinction between scripted and non- scripted content (i.e. i) the 
market for the production of scripted AV content in Flanders (demand side) and the ii) the market for  the 
production of non -scripted AV content in Flanders (demand side); D) markets based on commissioned AV 
content versus AV content production for hire (i.e. i) the market for the production of commissioned AV 
content in Flanders (demand side) and the ii) market for the production of AV content for hire in Flanders 
(demand side); and any combination of the segmentations in A) B) C) or D).  
97  There is no affected market for the supply of  licensing of individual AV content. Telenet and DPG Media 
have respect ive market shares of [0-5]% and [0 -5]% by value (2019). For 2023, the following provisional 
market shares were provided by the Parties: Telenet: [0-5]%, DPG Media: [0-5]%, JV: [0-5]%. 
98  Such narrower markets include A) markets based on a segmentation by c ontent type (i.e. i) the market for 
the licensing of broadcasting rights for films in Flanders (demand side) ii) the market for the licensing of 
broadcasting rights for sport content in Flanders (demand side) iii) the market for the licensing of 
broadcasti ng rights for  other content in Flanders (demand side); B) out of the markets based on a 
segmentation by exhibition window, the i) market for the licenseing of broadcasting rights for content in 
the SVOD/First pay TV window in Flanders (demand side), the i i) market for the licenseing of 
broadcasting rights for content in the SVOD library window in Flanders (demand side), and the iii) market 
for the licenseing of broadcasting rights for content in the FTA window in Flanders (demand side); C) 
markets based on  the distinction between scripted and non -scripted content (i.e. i) the market for the 
licensing of broadcasting rights for scripted content in Flanders (demand side) and the ii) the market for 
the licensing of broadcasting rights for non -scripted content in Flanders (demand side); D) markets based 
premium vs non -premium content (i.e. i) the market for the licensing of broadcasting rights for premium 
content in Flanders (demand side) and the ii) the market for the licensing of broadcasting righst for non-
premium content in Flanders (demand side); and any combination of the segmentations in A) B) C) or D).  
99  Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s 
footprint, distinct from the market for the retail su pply of FTA AV services, which is not affected; B) 
markets based on a segmentation of the retail pay AV services between basic pay and premium pay AV 
services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii)  the 
market for the retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a 
segmentation of the retail pay AV services between linear and non -linear pay AV services (i.e. i) the 
market for the retail supply of linear AV serv ices in Telenet’s footprint and ii) the market for the retail 
suplly of non -linear AV services in Telenet’s footprint). In addition, if both segmentations B) and C) 
apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of 
linear basic pay AV services in Telenet’s footprint and the ii) market for the retail supply of non -linear 
premium pay AV services in Telenet’s footprint.  
 
25 under ii) would also be affected if the geographic market was defined as c) the whole 
of Belgium.100 
(120)  In each of these horizontally affected markets, the Notifying Parties will also remain 
active independently.  
(121)  The Transaction also gives rise to the following non- horizontally affected markets:  
i. The upstream market  for AV content production in Flanders (s upply side), 
and possible narrower  markets,101 where Telenet is active, due to the 
combined share of both Notifying Parties and the JV on the downstream 
market for AV content production in Flanders (demand side) and possible 
narrower  markets102 (customer foreclosure ). The upstream product markets, 
including the potential narrower markets, would also be affected if the 
geographic scope of the downstream markets were defined as a) Flanders and 
                                                 
100  These markets include A) out of the markets based on a segmentation by content t ype i) the market for the 
licensing of broadcasting rights for films (demand side) ii) the market for the licensing of broadcasting 
rights for sport content (demand side) B) out of the markets based on a segmentation by exhibition 
window, the i) market for the licenseing of broadcasting rights for content in the FTA window C) markets 
based on the distinction between scripted and non -scripted conten t (i.e. i) the market for the licensing of 
broadcasting rights for scripted content (demand side), and the ii) the market for the licensing of 
broadcasting rights for non -scripted content (demand side); D ) markets based on the distinction between 
premium and  non-premium content (i.e. i) the market for the licensing of broadcasting rights for premium 
content  (demand  side) and the ii) ) the market for the licensing of broadcasting rights for non- premium 
content (demand side) ; and any combination of the  segmentations in A) B) C) and D) . 
101  These markets include A) markets based on a segmentation by content type (i.e. i ) the market for the 
production of films in Flanders (supply side), ii) the market for the production of sport content in Flanders 
(supply side), iii) the market for the production of other AV content in Flanders (supply side); B) markets 
based on a segmen tation by exhibition window (i.e. i) the market for the production of AV content for the 
TVOD window in Flanders (suuply side), ii) the market for the production of AV content for the 
SVOD/first pay TV window in Flanders (supply side), iii) the market for the production of AV content for 
SVOD library window in Flanders (supply side), iv) the market for the production of AV content for FTA 
AV window in Flanders (supply side); C) markets based on the distinction between scripted and non -
scripted content (i.e.  i) the market for the production of scripted AV content in Flanders (supply side) and 
the ii) the market for the production of non -scripted AV content in Flanders (supply side); D) markets 
based on commissioned AV content versus AV content production for hire (i.e. i) the market for the 
production of commissioned AV content in Flanders (supply side) and the ii) market for the production of 
AV content for hire in Flanders (supply side); and any combination of the segmentations in A) B) C) or 
D). 
102   These n arrower markets include: A) markets based on a segmentation by content type (i.e. i) the market 
for the production of films in Flanders (demand side) ii) the market for the production of sport content in 
Flanders (demand side) iii) the market for the production of other AV content in Flanders (demand side); 
B) markets based on a segmentation by exhibition window (i.e. i) the market for the production of AV 
content for the TVOD window in Flanders (demand side), ii) the market for the production of AV content  
for SVOD/first pay TV window in Flanders (demand side), iii) the market for the production of AV 
content for SVOD library in Flanders (demand side), iv) the market for the production of AV content for 
FTA window in  Flanders (demand side); C) markets base d on the distinction between scripted and non -
scripted content (i.e. i) the market for the production of scripted AV content in Flanders (demand side) 
and the ii) the market for the production of non- scripted AV content in Flanders (demand side); D) 
market s based on commissioned AV content versus AV content production for hire (i.e. i) the market for 
the production of commissioned AV content in Flanders (demand side) and the ii) market for the 
production of AV content for hire in Flanders (demand side); and  any combination of the segmentations in 
A) B) C) or D).  
 
26 the Brussels Capital Region together or as b) Telenet’s footprint, bot h of 
which largely correspond to the  Dutch -speaking part of Belgium.103 
ii. The upstream market for the licensing of broadcasting rights for  pre-existing 
individual AV content in Flanders (supply side), and possibly  more narrowly  
defined markets,104 where both Not ifying Parties are active,  due to the 
individual or combined share of the  Notifying Parties and the JV on the 
downstream market for the licensing  of broadcasting rights for  pre-existing 
individual AV content in Flanders (demand side ), or possibly more  narrowly 
defined markets105 (customer foreclosure) . The upstream product markets, 
including the potential narrower markets, would also be affected if the 
geographic scope of the downstream markets were defined as a) Flanders and 
the Brussels Capital Region toge ther or as b) Telenet’s footprint, both of 
which largely correspond to the Dutch- speaking part of Belgium. If the 
geographic scope of the downstream markets were defined as c) the whole of 
Belgium,  only some of the more narrowly defined upstream markets106 
would be affected .107  
                                                 
103  The geographic market of the upstream markets may also be different, i.e. it could be a) Flanders and the 
Brussels Capital Region and b) Telenet’s footprint; however, this would have no bearing o n the fact that 
they are affected.  
104  Such narrower markets include A) markets based on a segmentation by content type (i.e. i) the market for 
the licensing of broadcasting rights for films in Flanders (supply side) ii) the market for the licensing of 
broadcasting rights for sport content in Flanders (supply side) iii) the market for the licensing of 
broadcasting rights for other content in Flanders (supply side); B) markets based on a segmentation by 
exhibition window (i.e. i) market for the licensing of broadcasting rights for the TVOD window in 
Flanders (supply side), ii) market for the licensing of broadcasting rights for the SVOD/First pay TV 
window in Flanders (supply side), iii) market for the licensing of broadcasting rights for the SVOD library 
window in Flanders (supply side), iv) market for the licensing of broadcasting rights for the FTA window 
in Flanders (supply side), v) market for the licensing of broadcasting rights for the premium sports 
window in Flanders (supply side); C) markets based on  the distinction between scripted and non -scripted 
content (i.e. i) the market for the licensing of broadcasting rights for scripted content in Flanders (supply 
side) and the ii) the market for the licensing of broadcasting rights for non -scripted content in Flanders 
(supply side); D) markets based on premium vs non -premium content (i.e. i) the market for licensing of 
broadcasting rights for premium content in Flanders (supply side) and ii) the market for licensing of 
broadcasting rights for non- premium con tent in Flanders (supply side); and any combination of the 
segmentations in A) B) C) or D).  
105  Such narrower markets include A) markets based on a segmentation by content type (i.e. i) the market for 
the licensing of broadcasting rights for films in Fland ers (demand side) ii) the market for the licensing of 
broadcasting rights for sport content in Flanders (demand side) iii) the market for the licensing of 
broadcasting rights for  other content in Flanders (demand side); B) markets based on a segmentation by 
exhibition window i.e. the i) market for the licenseing of broadcasting rights for content in the TVOD 
window in Flanders (demand side), ii) market for the licenseing of broadcasting rights for content in the 
SVOD/First pay TV window in Flanders (demand  side), iii) market for the licenseing of broadcasting 
rights for content in the SVOD library window in Flanders (demand side), iv) market for the licenseing of 
broadcasting rights for content in the FTA window in Flanders (demand side), v) market for the licenseing 
of broadcasting rights for content in the premium sports window in Flanders (demand side); C) markets 
based on the distinction between scripted and non -scripted content (i.e. i) the market for the licensing of 
broadcasting rights for scripted co ntent in Flanders (demand side) and the ii) the market for the licensing 
of broadcasting rights for non- scripted content in Flanders (demand side); D) markets based premium vs 
non-premium content (i.e. i) the market for the licensing of broadcasting righst  for premium content in 
Flanders (demand side) and the ii) the market for the licensing of broadcasting righst for non- premium 
content in Flanders (demand side); and any combination of the segmentations in A) B) C) or D).  
106  These markets include A) out of the markets based on a segmentation by content type i) the market for the 
licensing of broadcasting rights for films (supply side) ii) the market for the licensing of broadcasting 
rights for sport content (supply side); B) out of the markets based on the  distinction based on exhibition 
 
 
27 iii. The downstream market for the retail supply of AV services (including 
SVOD services)  in Telenet’s footprint , and possibly more narro wly defined  
markets,108 (where both the JV and the Notifying Parties will be active), due 
to the the Not ifying Parties’ upstream activities on the market for wholesale 
supply of FTA/basic pay TV channels, and possible narrower markets,109 in 
Telenet’s footprint (input foreclosure).  The downstream product markets, 
including the potential narrower markets, would  also be affected if the  
geographic scope of the upstream market were defined as a) Flanders and the 
Brussels Capital Region tog ether, as b) Flanders or as c) the whole of 
Belgium.  
iv. The market for the retail supply of mobile telecommunication, fixed inter net 
and multiple play services  in Belgium , and possibly more narrowly defined 
markets,110 where Telenet is active, due to the Parties’ strong presence in the 
market for the retail supply of AV services (including SVOD services) in 
Telenet’s footprint,  and possible narrower markets111 (conglomerate effects) .  
                                                                                                                                                      
windows, the i) market for the licenseing of broadcasting rights for content in the TVOD window (supply 
side), ii) market for the licenseing of broadcasting rights for content in the FTA window in (supply side), 
v) market f or the licenseing of broadcasting rights for content in the premium sports window (supply 
side); C) out of the markets based on the distinction between scripted and non -scripted content, the market 
for the licensing of broadcasting rights for non -scripted content  (supply side); D ) out of the markets based 
on the distinction between premium a nd non -premium content, the market for the licensing of 
broadcasting rights fo r premium content (supply side); and any combination of the segmentations in A)  B) 
C) and D) .  
107  The geographic market of the affected upstream markets may also be different, i.e. it could be a) Flanders 
and the Brussels Capital Region and b) Telenet’s footprint; however, this would have no bearing on the 
fact that they are affected.  
108  Such narrower markets include i) the market for the retail supply of pay AV services in Telenet’s 
footprint, distinct from the market for the retail supply of FTA AV services, which is not affected. If pay 
AV retail services are further segmented between basic p ay and premim pay retail AV services, or 
between linear and non -linear basic pay AV services, then ii) the market for the retail supply of basic pay 
AV services in Telenet’s footprint and the iii)   market for the retail supply of linear pay AV services in 
Telenet’s footprint are also affected. In addition, if both of these segmentations apply, then the iv) market 
for the retail supply of linear basic pay AV services in Telenet’s footprint will be affected and the v)  
109  The narrower market would be based on a segmentation by genre. Under such segmenatation the 
Notifying Parties would have presumptive market power on the market for the wholesale supply of 
FTA/basic pay general entertainment channels in Telenet’s footprint.  
110  As the market for the retail sup ply of mobile telecommunication services is not segmented further,  
narrower markets include the possible segmentation of fixed internet services according to product type 
(i.e. i) the market for the retail supply of narrowband fixed internet services in B elgium, ii) the market for 
the retail supply of broadband fixed internet services in Belgium and iii) the market for the retail supply of 
dedicated fixed internet services in Belgium) or distribution technology (i.e. the iv) market for the retail 
supply of  fixed internet services via xDSL in Belgium, the v) market for the retail supply of fixed internet 
services via fibre in Belgium and the vi) market for the retail supply of fixed internet services over cable 
in Belgium), as well as the possible combinatio ns of these segments (i.e. all combinations narrowband 
over fibre or cable). Provided multiple play telecommunications markets exist, they can be potentially 
segmented to the narrower markets of vii) fixed bundles in Belgium and viii) fixed- mobile bundles in 
Belgium.  
111  Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s 
footprint, distinct from the market for the retail supply of FTA AV services, which is not affected; B) 
markets based on a segmentation of the  retail pay AV services between basic pay and premium pay AV 
services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii) the 
market for the retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a 
segmentation of the retail pay AV services between linear and non -linear pay AV services (i.e. i) the 
market for the retail supply of linear AV services in Telenet’s footprint and ii) the market for the retail 
 
 
28 v. The market for the the retail supply of AV services (including SVOD 
services) in Telenet’s footprint, and possibly more narrowly defined 
markets,112 where Telenet and the JV are active, due to Telenet’s stron g 
presence in the retail supply of mobile telecommunication, fixed internet 
access and multiple play services, and possible narrower markets.113 
(conglomerate effects)  
vi. The downstream  market for the retail supply of AV services (including 
SVOD services) in T elenet’s footprint , and possibly more narrowly defined 
markets,114 where the JV and both Notifying Parties are active, due to the 
Notifying Parties’ upstream activities on the market for the sale of TV 
advertising s pace on TV channels in Flanders, as well as the possibly more 
narrowly defined markets,115 and DPG Media’s upstream activities on the 
market for the sale of radio advertising space in Flanders (input foreclosure). 
The downstream product markets, including the potential narrower markets, 
                                                                                                                                                      
suplly of non -linear AV ser vices in Telenet’s footprint). In addition, if both segmentations B) and C) 
apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of 
linear basic pay AV services in Telenet’s footprint and the ii) market f or the retail supply of non -linear 
premium pay AV services in Telenet’s footprint.   
112  Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s 
footprint, distinct from the market for the retail supply of FTA AV se rvices, which is not affected; B) 
markets based on a segmentation of the retail pay AV services between basic pay and premium pay AV 
services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii) the 
market for t he retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a 
segmentation of the retail pay AV services between linear and non -linear pay AV services (i.e. i) the 
market for the retail supply of linear AV services in Telenet’s  footprint and ii) the market for the retail 
suplly of non -linear AV services in Telenet’s footprint). In addition, if both segmentations B) and C) 
apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of 
linear basic pay AV services in Telenet’s footprint and the ii) market for the retail supply of non -linear 
premium pay AV services in Telenet’s footprint.   
113  As the market for the retail supply of mobile telecommunication services is not segmented furthe r,  
narrower markets include the possible segmentation of fixed internet services according to product type 
(i.e. i) the market for the retail supply of narrowband fixed internet services in Belgium, ii) the market for 
the retail supply of broadband fixed internet services in Belgium and iii) the market for the retail supply of 
dedicated fixed internet services in Belgium) or distribution technology (i.e. the iv) market for the retail 
supply of fixed internet services via xDSL in Belgium, the v) market for the retail supply of fixed internet 
services via fibre in Belgium and the vi) market for the retail supply of fixed internet services over cable 
in Belgium), as well as the possible combinations of these segments (i.e. all combinations narrowband 
over fibr e or cable). Provided multiple play telecommunications markets exist, they can be potentially 
segmented to the narrower markets of vii) fixed bundles in Belgium and viii) fixed- mobile bundles in 
Belgium.  
114  Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s 
footprint, distinct from the market for the retail supply of FTA AV services, which is not affected; B) 
markets based on a segmentation of the retail pay AV services between basic pay and premium pay AV 
services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii) the 
market for the retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a 
segmentation of the retail pay AV services between linear and non -linear pay AV services (i.e. i) the 
market for the retail supply of linear AV services in Telenet’s footprint and ii) the market for the retail 
suplly of non -linear AV services in Telenet’s footprint). In addition, if both segmentation s B) and C) 
apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of 
linear basic pay AV services in Telenet’s footprint and the ii) market for the retail supply of non -linear 
premium pay AV services in Telenet’s footprint.  
115  Such markets include the potential subsegments of the market for TV advertising where one or more of 
the Notifying Parties has a strong presence, i.e. i) the market for the supply of TV advertising space on 
FTA channels in Flanders in cluding AVOD and ii) the market for the supply of TV advertising space on 
FTA channels in Flanders excluding AVOD.  
 
29 would also be  affected if the  geographic scope of the upstream markets were 
defined as Flanders and the Brussels Capital Region together, given that in 
both cases the geographic market corresponds to the Dutch linguistic area in 
Belgium.  
(122)  None of these vertical links is newly created by the Transac tion since  the Notifying 
Parties are autonomously active in the downstream market s where the JV will be 
active. The JV will  merely give rise to an increase of the combined market share 
downstream .  
(123)  The Notifying Parties will remain independently active in a number of the same 
markets as the JV, notably: (i) the production of AV content (demand side)116, in 
particular in the segment for production for hire; (ii) the licensing of individual  AV 
content  (supply and demand side), in particular in the first PayTV and library SVOD 
exhibition window segments; and (iii) the retail supply of  AV services, in particular 
in the  non-linear segments.  The Notifying Parties will also remain independently 
active in a number of markets closely rela ted to the activities of the JV, notably: (i) 
the licensing of individual AV content (supply and demand side), in particular in the 
FTA, TVOD, Premium Sports and series SVOD segments; (ii ) the retail supply of 
AV services, in particular in the linear segme nts117; (iii) the sale of advertising space 
on Dutch language TV channels and websites; (iv ) the wholesale supply of TV 
channels; and (v)  the retail supply of mobile communications services .  
(124)  Each of these potential effects is separately discussed in the fol lowing sections. After 
setting out the market shares in the relevant markets and possible sub -segments 
(section 5 .2), the Commission will first assess the potential horizontal non -
coordinated effects stemming  from the Transaction (section 5 .3). Then the 
Commission will assess the potential non- horizontal  effects stemming  from the 
Transaction (section 5 .4). Finally, the Commission will assess the potential 
cooperative effects of the Transaction (section 5 .5). 
5.2. Market shares  
(125)  According to the Horizontal  Merger  Guidelines and the Non- Horizontal Merger 
Guidelines,118 in the assessment of the effects of a merger, market shares constitute a 
useful first indication of the structure of the markets at stake and of the competitive 
importance of the relevant market player s.  
                                                 
116  On the supply side of this market, DPG Media is only active for captive use and the JV is not active.  
117  Including the supply of library SVOD content.  
118 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Horizontal Merger Guidelines"), OJ C 31, 05.02.2004, paragraph 
14; 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, 
paragraph  24. 
 
30 5.2.1. Production of AV content  (demand side)119 
5.2.1.1. Overall market in Flanders  
(126)  The Parties’ and their main competitors’ shares in the market for the acquisition of 
Dutch -language AV content production in Flanders  are summari sed in T able 1 
below.120 The Commission notes that the Parties have a significant presence in 
Belgium with combined market shares by value , exceeding [50-60]%. The Parties 
submit that the JV will have modest activities on the demand side, which will 
represent a market share of [5 -10]% in 2023. Thi s is also indicated in Table 1.  
Table 1: Market shares  in the market for the acquisition of AV content production by value  in Flanders  
Company  Overall market 2019  Overall market 2023   
Telenet  [20-30]% [10-20]% 
DPG Media  [30-40]% [30-40]% 
JV - [5-10]% 
Combined  [50-60]%  [60-70]% 
VRT  [40-50]% [40-50]% 
Source: Form CO table 6.1.3  
5.2.1.2. Alternative market definitions   
(127)  If the product market is unchanged but  the geographic scope of the market was 
defined as a) Flanders and Brussels Cap ital Region together or b) as Telenet’s 
footprint, the market shares indicated in Table 1 would not change materially. 121   
(128)  If the product market was defined more narrowly and separate markets were defined 
based on the distinction by exhibition window  (TVOD  window, SVOD/first pay TV 
window, SVOD library window, FTA window and premiums sports window), the 
market shares would be very similar to those in Table 1.122 This is because the party 
purchasing original AV content generally purchases the rights for all exhibition 
windows at the time of the production agreement. 
(129)  Likewise, market shares would be similar if separate markets were defined based on 
the distinction between commissioned AV production and AV production for hire , as 
purchasers are estimated to acqui re these types of contents in similar proportions. 123  
The only difference to Table 1 is that the JV will not be active in the market for the 
production of AV content for hire, i.e. it will not purchase such content.  
(130)  If the market was defined more narrowly and separate markets were defined based 
on the distinction between scripted and non- scripted AV production, the relevant 
market shares are indicated in Tables 2 and 3.  
                                                 
119  The supply side of AV content production is not affected horizontally. It is a ffected vertically as the 
Parties’ individual or combined downstream share is in excess of 30%. As such, the Notifying Parties 
individual or combined market shares are only relevant on the downstream, demand side of the AV 
content production market.   
120  The estimated market shares do not take into account the AV content production spend of Proximus, a 
number of smaller Flemish/Dutch language broadcasters active in Belgium and international OTT players 
such as Netflix (that are obliged to invest in AV productions on the basi s of the Flemish Media Decree) 
(Form CO, paragraph 295).  
121  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a). The shares 
would decrease somewhat as Telenet’s footprint and the Brussels Capital Region would also include 
French language content purchases, which would dilute slightly the shares indicated.  
122  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a)  
123  Notifying Parties response to the Commission’s  Request for Information RFI 12, question 1.a)  
 
31 Table 2 Market shares in the market for the acquisition 
of scripted AV content production in Flanders  
Company  Market share, 2019  
Telenet  [5-10]% 
DGP Media  [40-50]% 
Combined  [40-50]% 
VRT  [50-60]% 
Source: Notifying Parties response to the Commission’s 
Request for Information RFI 12, question 1.a)  
 
Table 3 Market shares in the market for the acquisition 
of non-scripted AV content production in Flanders  
Company  Market share, 2019  
Telenet  [20-30]% 
DGP Media  [30-40]% 
Combined  [50-60]% 
VRT  [40-50]% 
Source: Notifying Parties response to the Commission’s 
Request for Information RFI 12, question 1.a)  
(131)  Exact shares are not available for separate markets by content type  (i.e. separate 
markets for the production of film content, sport content and other content – demand 
side). However, given the concentrated nature of the market the combined share of 
the Notifying Parties are well in excess of 30% in Flanders.124 Likewise combined 
market share of the Notifying Parties would be in excess of 30% for any 
combinati on of the these segmentat ions.125 
(132)  In  the case of all the  alternative product market definitions, the market shares would 
not change materially if the geographic market was defined as a) Flanders and 
Brussels Capital Region together or b) as Telenet’s footprint.126   
5.2.2. Licensing of broadcasting r ights for  pre-existing individual A V content  (demand 
side)  
5.2.2.1. Overall market in Flanders  
(133)  The Parties’ and their main competitors’ shares in the market for the acquisition of 
individual AV content  in Flanders are summarised in T able 4 below. The 
Commission not es that the Parties have a significant presence in Belgium, with 
combined shares , by value , exceeding [50-60]%. The Parties submit that the JV wi ll 
have a share of around [10- 20]% in 2023. 
                                                 
124  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a)  
125  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a)  
126  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a). The shares 
would decrease somewhat as Telenet’s footprint and the Brussels Capital Region would also include 
French language content purchases, which would dilute slightly the shares indicated.  
 
32 Table 4 Market shares in t he market for the  licensing of broadcasting rights  for pre- existing individual AV 
conten t in F landers (demand side, by value ) 
Company  Overall market 2019  Overall market 2023  
Telenet  [40-50]% [20-30]% 
DPG Media  [10-20]% [10-20]% 
JV - [10-20]% 
Combined  [50-60]%  [50-60]% 
VRT  [5-10]% [5-10]% 
Proximus  [10-20]% [10-20]% 
OTT international  [10-20]% [20-30]%  
Other Dutch -language channels  [0-5]% [0-5]% 
Source : Table 6.1.9 of the Form CO   
5.2.2.2. Alternative market definitions  
(134)  If the product market is unchanged but  the geographi c scope of the market was 
defined as a) Flanders and Brussels Capital Region together or b) as Telenet’s 
footprint, the market shares indicated in Table 1 would not change materially. 127   
(135)  If the product market was defined more narrowly and separate markets were defined 
based on the distinction by content type (film, sport, other), the resulting market 
shares are indicated in Table 5. As indicated, market shares would exceed 30 % in all 
markets defined this way and would be particulary high in films and spor ts.   
Table 5: Market shares in t he market for the licensing of broadcasting rights  for pre -existing individual 
AV conten t by content type (film, sport, others) in Flanders (demand side, by value ) in 2019.  
 Film  Sport  Other  
Telene t  [30-40]% [50-60]% [20-30]% 
DPG  [20-30]% [5-10]% [10-20]% 
Combined  [50-60]% [60-70]% [30-40]% 
VRT  [5-10]% [10-20]% [10-20]% 
Proximus  [5-10]% [20-30]% [10-20]% 
Netflix  [20-30]% [0-5]% [30-40]% 
Amazon Prime  [0-5]% [0-5]% [0-5]% 
Other Dutch language  channels  [0-5]% [0-5]% [0-5]% 
Total  100%  100%  100%  
Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b)  
(136)  The market shares in Table 5 would not change materially if the geographic market 
was defined as a) Flanders and the Brussels Capital Region together or as b) 
Telenet’s footprint, both of which largely correspond to the Dutch- speaking part of 
Belgium. The market shares under a geographic scope corresponding to the whole of 
Belgium are indicated in Table 6. As indicated by Table 6, the market for film 
licensing (demand side) and the market for sport licensing (demand side) would still 
be horizontally affected and the corresponding upstream licensing markets (supply 
side) would be vertically affected. The m arket for the licensing of broadcast rights 
for “other” content would cease to be affected horizontally and the corresponding 
upstream supply side would also not be affected.  
                                                 
127  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b). The shares 
would decrease somewhat as Telenet’s footprint and the Brussels Capital Region would also include 
French language content purchas es, which would dilute slightly the shares indicated.  
 
33 Table 6: Market shares in t he market for the licensing of broadcasting rights  for pre -existing individual 
AV conten t by content type (film, sport, others) in Belgium (demand side, by value ) in 2019.  
 Film  Sport  Other  
Telenet  [20-30]% [30-40]% [10-20]% 
DPG  [10-20]% [0-5]% [5-10]% 
Combined  [30-40]% [40-50]% [10-20]% 
VRT  [0-5]% [5-10]% [5-10]% 
Proximus  [10-20]% [30-40]% [10-20]% 
Netflix  [20-30]% [0-5]% [30-40]% 
Amazon Prime  [0-5]% [0-5]% [0-5]% 
Other Dutch language channels  [0-5]% [0-5]% [0-5]% 
RTBF  [5-10]% [0-5]% [5-109% 
RTL  [5-10]% [0-5]% [5-109% 
AB Group  [0-5]% [0-5]%  [0-5]% 
VOO  [5-10]% [10-20]% [0-5]% 
Orange  [0-5]% [0-5]% [0-5]% 
Other French language channels  [0-5]% [0-5]% [0-5]% 
Other OTT (Canal+)  [0-5]%  [0-5]% [0-5]% 
Total  100%  100%  100%  
Source: Notifying Parties response to the Com mission’s Request for Information RFI 12, question 1.b)  
(137)  If the product market was defined more narrowly and separate markets were defined 
based on the distinction by exhibition window (TVOD window, SVOD/first pay TV 
window, SVOD library window, FTA window and premiums sports window), the 
resulting market shares are indicated in Table 7. As indicated in Section 5.1, under 
such definitions only the market for the licensing of broadcas ting rights for AV 
content in the  FTA window would be affected horizontally.  However, also as 
indicated Section 5.1, on the supply side the TVOD, First Pay TV/SVOD, SVOD 
library, FTA and premium sports windows would all be vertically affected (customer 
foreclosure).  
Table 7: Market shares in t he market for  the licensing of broadcasting rights  for pre -existing individual 
AV conten t in different exhibition window s in Flanders (demand side, by value ) in 2019.  
 Telenet  DPG  Combined  VRT  Proximus  International 
OTT 
purchasers  Other 
Dutch 
purchasers   
TVOD  [60-70]% [0-5]% [60-70]% [0-5]% [30-40]% [0-5]% [0-5]% 
First Pay TV  / 
SVOD  [30-40]% [0-5]% [30-40]% [0-5]% [10-20]% [50-60]% [0-5]% 
SVOD library  [30-40]% [0-5]% [30-40]% [0-5]% [10-20]% [50-60]% [0-5]%  
FTA  [20-30]% [40-
50]% [70-80]% [20-30]% [0-5]% [0-5]% [5-10]% 
Premium 
Sports  [60-70]% [0-5]% [60-70]% [0-5]% [30-40]% [0-5]% [0-5]% 
Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b)  
(138)  The market shares in Table 7 would not change materially if the geogra phic market 
was defined as a) Flanders and the Brussels Capital Region together or as b) 
Telenet’s footprint, both of which largely correspond to the Dutch- speaking part of 
Belgium. As indicated in Section 5.1. if the scope of the geographic mar ket was 
Belgium, only the market for licensing AV content in the FTA window would be 
horizontally affected  on the demand side and only the corresponding TVOD, FTA 
and premium sports licensing markets on the supply side would be vertically 
affected.  
(139)  If the product ma rket was defined more narrowly and separate markets were defined 
based on the distinction between scripted and non- scripted content , the resulting 
market shares are indicated in Table 8.  
 
34 Table 8 Market shares in t he market for the licensing of broadcasting rights  for pre- existing 
individual scripted and non-scripted AV conten t in Flanders (demand side, by value ) in 2019.  
 Scripted content  Non-scripted content  
Telenet  [30-40]% [40-50]% 
DPG Media  [10-20]% [5-10]% 
Combined  [40-50]% [50-60]% 
VRT  [5-10]% [10-20]% 
Proximus  [10-20]% [10-20]% 
Netflix  [20-30]% [5-10]% 
Amazon Prime  [0-5]% [0-5]% 
Other Ducth language channels  [0-5]% [0-5]% 
Total  100%  100%  
Source: Notifying Parties response to the Commission’s Request for Information RFI 
12, question 1.b)  
(140)  The market shares in Table 8 would not change materially if the geographic market 
was defined as a) Flanders and the Brussels Capital Region together or as b) 
Telenet’s footprint, both of which largely correspond to the Dutch- speaking part of 
Belgium. The market shares under a geographic scope corresponding to the whole of 
Belgium are indicated in Table 9. As indicated in Section 5.1. under this geographic 
market definition, both of these markets would still be horizontally affe cted. 
However, under this geographic market definition only the upstream market for the 
licensing of broadcasting rights for pre -existing individual non -scripted AV content  
(supply side) would still be vertically affected (customer foreclosure).  
Table 9 Market shares in t he market for the licensing of broadcasting rights  for pre- existing 
individual scripted and non-scripted AV conten t in Belgium (demand side, by value ) in 2019.  
 Scripted content  Non-scripted content  
Telenet  [10-20]% [20-30]% 
DPG Media  [5-10]% [5-10]% 
Combined  [20-30]% [30-40]% 
VRT  [0-5]% [5-10]% 
Proximus  [10-20]% [10-20]+[10-20]% 
Netflix  [20-30]% [5-10]+[5-10]% 
Amazon Prime  [0-5]% [0-5]% 
Other Ducth language channels  [0-5]% [0-5]% 
RTBF  [5-10]% [5-10]% 
RTL  [5-10]% [5-10]% 
Ab Groupe  [0-5]% [0-5]% 
VOO  [5-10]% [5-10]% 
Orange  [0-5]% [0-5]% 
Other French language channels  [0-5]% [0-5]% 
Other OTT (Canal+)  [0-5]% [0-5]% 
Total  100%  100%  
Source: Notifying Parties response to the Commission’s Request f or Information RFI 
12, question 1.b)  
(141)  If the product market was defined more narrowly and separate markets were defined 
based on the distinction between premium and non- premium  content , the resulting 
market shares are indicated in Table 10.  
 
35 Table 10 Market shares in the market for the licensing of broadcasting rights for pre -existing 
indiv idual premium and non- premium AV content in Flanders  (demand side, by value) in 2019.  
 Premium content  Non-premium content  
Telenet  [50-60]% [20-30]% 
DPG Media  [0-5]% [20-30]% 
Combined  [50-60]% [40-50]% 
VRT  [0-5]% [20-30]% 
Proximus  [10-20]% [10-20]% 
Netflix  [20-30]% [5-10]% 
Amazon Prime  [0-5]% [0-5]% 
Other Ducth language channels  [0-5]% [0-5]% 
Total  100%  100%  
Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b)  
(142)  The market shares in Table 10 would not change materially if the geographic market 
was defined as a) Flanders and the Brussels Capital Region together or as b) 
Telenet’s footprint, b oth of which largely correspond to the Dutch- speaking part of 
Belgium. The market shares under a geographic scope corresponding to the whole of 
Belgium are indicated in Table 11. As indicated in Section 5.1, under this geographic 
market definition  both of these markets would still be horizontally affected. 
However, under this geographic market definition only the upstream market for the 
licensing of broadcasting rights for pre -existing individual premium  AV content  
(supply side) would still be vertically af fected (customer foreclosure).  
Table 11 Market shares in the market for the licensing of broadcasting rights for pre -existing 
indiv idual premium and non- premium AV content in Belgium  (demand side, by value) in 2019.  
 Premium conten t Non-premium content  
Telenet  [30-40]% [10-20]% 
DPG Media  [0-5]% [10-20]% 
Combined  [30-40]% [20-30]% 
VRT  [0-5]% [10-20]% 
Proximus  [20-30]% [10-20]% 
Netflix  [20-30]% [5-10]% 
Amazon Prime  [0-5]% [0-5]% 
Other Ducth language channels  [0-5]% [0-5]% 
RTBF  [0-5]% [10-20]% 
RTL  [0-5]% [10-20]% 
Ab Groupe  [0-5]% [0-5]% 
VOO  [5-10]% [5-10]% 
Orange  [0-5]% [0-5]% 
Other French language channels  [0-5]% [0-5]% 
Other OTT (Canal+)  [0-5]% [0-5]% 
Total  100%  100%  
Source: Notifying Parties response to th e Commission’s Request for Information RFI 12, question 1.b  
5.2.3. Wholesale s upply of FTA/basic pay TV channels  
5.2.3.1. Overall market in Telenet’s footprint 
(143)  The Parties’ and their main competitors’ shares for the wholesale supply of 
FTA/basic pay TV channels by value i n Telenet’s footprint are summarised in T able 
12 below. The Commission notes that  the Parties have a market strong position with 
combined shares of [30 -40]%, by value. The only other significant competitor  is the 
public broadcaster VRT.  
 
36 Table 12 Market sheares in the market for the wholesale supply of TV channels (Telenet’s footprint 
by value)  
Company  Market share, 2019  
Telenet  [5-10]% 
DPG Media  [20-30]% 
Combined  [30-40]% 
VRT  [20-30]% 
Others  [30-40]%  
Total  100%  
Notify ing Parties response to the Commission’s Request for Information RFI 12, question 1.c ) 
5.2.3.2. Alternative market definitions  
(144)  Table 13 summarises the relevant market shares if the product market is unchanged 
but the geographic scope of the market was defined diffe rently. As shown by Table 
13, the market shares would not change materially relative to Telenet’s footprint if 
the geographic market is defined as a) Flanders or b) Flanders and Brussels Capital 
Region together  and all. The combined shares would be signifi cantly lower if the 
geographic market share was defined as c) Belgium.  
Table 13 Market shares  in the market for the wholesale supply of FTA/basic pay TV channels under 
different geographic market definitions by value  (2019)  
Company  Market share 
in Flanders  Market share in Flemish and Brussels 
Capital regions together  Market share  
Belgium  
Telenet  [5-10]% [5-10]% [5-10]% 
DPG 
Media  [20-30]% [20-30]% [10-20]% 
Combined  [30-40]% [30-40]% [20-30]% 
Others  [60-70]% [60-70]% [70-80]% 
Total  100%  100%  100%  
Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.c ) 
(145)  If the  market was defined more narrowly and separate markets were defined based 
on genre, the market shares in the general entertainment genre (i.e. in the market for 
the wholesale supply of FTA/basic pay general entertainment TV channels) would 
not be materially different from those indicated in Table 12 (for Telenet’s footprint) 
and Table 13 (for Flanders, the Flemish and Brussels Capi tal regions together and 
Belgium). This is because the Notifying Parties are either not present in other genres 
(news, sports or the residual “other” genres128) or have minimal viewership/presence 
(youth/kids genre).129 
5.2.4. Retail supply of AV services  
5.2.4.1. Overall mar ket 
(146)  The Parties’ and their main competitors’ shares in the overall market for the retail 
supply of AV services in Telenet’s footprint are included in T able 14 below. Based 
on the Parties’ business plan, in 2023 the JV is exp ected to  have a share of around 
[5-10]% by value, which is also indicated in Table 14. 
                                                 
128  The category of “other” genre consists primarily of music channels, see Notifying Parties response to the 
Commission’s Request for Information RFI 12, question 1.c)  
129  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.c)  
 
 
37 Table 14 Market shares in the market for the retail supply of AV services in Telenet’s footprint by value  
 Market share 2019  Market share 2023  
Telenet  [50-60]% [40-50]% 
DPG Media  [0-5]% [0-5]% 
JV - [5-10]% 
Combined  [50-60]% [50-60]% 
Proximus  [20-30]% [10-20]% 
Orange  [0-5]% [0-5]% 
Netflix  [10-20]% [10-20]% 
Amazon  [0-5]% [0-5]% 
Disney  [0-5]% [0-5]% 
Other  [5-10]% [5-10]% 
Source: Notifying Parties response to the Commiss ion’s Request for Information RFI 8 
5.2.4.2. Alternative market definitions  
(147)  If the market was defined more narrowly and separate markets were defined based 
on FTA AV and pay AV services, the Parties would only be active in the market for 
the retail supply of pay A V services . Their market share on this market would not be 
materially different from those indicated in Table 14 as only the French language 
public broadcaster supplies AV services on an FTA basis130 and its share in the 
Telenet’s footprint (which largely co rresponds to the Dutch speaking parts of 
Belgium) is necessarily modest.  
(148)  If the market for the retail supply of pay AV services was further segmented and 
separate markets were defined for basic pay AV and premium pay AV services, the 
resulting market shar es for both markets are included in Table 15 below.  
Table 15 - Market shares in the market for the retail supply of basic pay and premium pay AV services in 
Telenet’s footprint (by value)  
 Basic pay retail AV services  
2019  Premium pay retail AV services  
2019  
Telenet  [70-80]% [40-50]% 
DPG Media (Stievie)  [0-5]% - 
Combined  [70-80]% [40-50]% 
Proximus  [20-30]% [5-10]% 
Orange  [0-5]% [0-5]% 
Pay Sat  [0-5]% [0-5]% 
Netflix  [0-5]% [30-40]% 
Other OTT (Apple 
TV, Amazon Prime)  [0-5]% [5-10]% 
Total  100%  100%  
Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.d)  
 
(149)  The Commission notes that currently DPG Media’s presence in basic pay retail AV 
services (and indeed in any retail AV service s) is limited to Stievie, an OTT platform 
with very limited viewership, which will be discontinued as of 1 September 2020.131 
Thus, the horizontal overlap results entirely from the JV, which is not indicated in 
Table 15 in the absence of a forecast taking th ese narrower markets as a basis. The 
Commission also notes that the market shares assume that Netflix’s SVOD service is 
part of the premium pay retail AV services market, although this is not entirely clear 
on the basis of the market investigation as some respondents consider SVOD 
                                                 
130  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.d)  
131  Form CO, paragraph 372.  
 
38 services as a substitute for even basic pay retail AV services.132 The same applies to 
the JV’s SVOD service.  
(150)  If the market for the retail supply of pay AV services was further segmented and 
separate markets were defined for linear  and non- linear (e.g.SVOD)  retail AV 
services, the market shares in the market for the retail supply of linear  AV services 
would be similar to the shares in basic pay retail AV services in Table 15.133 The 
Commission notes again that this assumes that non -linear SVOD services do not 
compete with basic pay retail AV services, which is not certain. The market for the 
retail supply of non- linear AV services in Telenet’s footprint is indicated in Table 16 
below.  
Table 16 - Market shares i n the market for the retail supp ly of non -linear AV services in Telenet’s 
footprint (by value) 
Company  Market share, 2019  
Telenet  [30-40]% 
DPG Media (VTMGO)  [0-5]% 
Combined  [30-40]% 
Netflix   [50-60]% 
Amazon  [5-10]% 
Apple TV+  [0-5]%  
VRTNU  [0-5]% 
Total  100%  
Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.d)  
 
(151)  As regards Table 16, the Commission notes that the JV will add to the Parties’ 
market shares by 2023, even though this is not indicated in the table due to the 
absence of a forecast taking this hypothetical market as a basis. However, given that 
the size of this market is much smaller than the overall retail AV services market (in 
Telenet’s footprint), the increment brought about by the JV is  will be significantly 
more than [5 -10]% by 2023 if the business plan is realized.  
5.2.5. Retail supply of fixed internet services 
5.2.5.1. Overall market  
(152)  The Parties’ and their main competitors’ shares in the overall market for the retail 
supply of fixed internat servic es in Belgium is indicated in Table 17 below. These 
are volume shares (i.e. share of subscribers) but the Parties estimate that the value 
based market shares (i.e. market shares based on revenues ) for the retail supply of 
fixed internet access in Belgium are similar to the market shares based on 
subscribers134  
                                                 
132  See Section 4.6.  
133  Notifying Parties response to the Commission’ s Request for Information RFI 12, question 1.d)  
 
134  Form CO, paragraph 441.  
 
39 Table 17 Market shares  in the market for the retail supply of fixed internet access services in Belgium 
by volume   
Company  Market share, 2019  
Telenet  [30-40]% 
Proximus  [40-50]% 
Orange   [5-10]% 
Voo   [10-20]% 
Other  [0-5]%  
Total  100%  
Source: Form CO Table 6.1.22  
5.2.5.2. Alternative market definitions  
(153)  As discussed in Section 4.7., in the case of retail supply of fixed internet services, 
potentially separate markets could be di stinguished based on product type 
(narrowband, broadband, dedicated line), distribution technology (xDSL, cable or 
fibre) and customer types (residential, small businesses, large businesses, public 
authorities).  
(154)  Of these potential narrower markets, the No tifying Parties have only been able to 
submit market shares for the broadband segment (product type), the cable segment 
(distribution technology), and the residential and business customer segments 
(customer type). These market shares are indicated in Tabl es 18 and 19 below . 
Table 18 Market shares  in the market for the retail supply of broadband internet access services in 
Belgium and in the market for the retail supply of fixed internet via cable in Belgium (by volume)  
Company  Broa dband 2019  
(Belgium)  Cable 2019  
(Belgium)  
Telenet  [30-40]% [70-80]% 
Proximus  [40-50]% [0-5]% 
Orange  [5-10]% [10-20]% 
VOO  [10-20]% [10-20]% 
Other  [0-5]% [0-5]% 
Source: Form CO,  table 6.1.23  
 
Table 19 Market shares  in the marke t for the retail supply of fixed internet access services to 
residential customers and business customers in Belgium  (2019 by volume)  
Company  Residential customers 2019  
(Belgium)  Business customers 2019  
(Belgium)  
Telenet  [30-40]% [50-60]% 
Proximus  [40-50]% [30-40]% 
Orange  [5-10]% [5-10]% 
VOO  [0-5]% [0-5]% 
Other  [10-20]% [10-20]% 
Source: Form CO, tables 6.1.28 and 6.1.29   
5.2.6. Retail supply of mobile telecommunication services  
(155)  The Parties’ and their main competitors’ shares in the overall market for the retail 
supply of mobile telecommunications services in Belgium is indicated in Table 20 
below. 
 
40 Table 20 – Market shares in  the market for the retail supply of mobile telecommunication services in 
Belgium (by volume and by value)  
Company  Market s hare  2019  – 
Volume  Market s hare  2019 – Value  
 
Telenet (including wholesale)135 [20-30]% [20-30]% 
DPG Media  [0-5]% [0-5]% 
Combined  [30-40]%  [20-30]% 
Proximus  [30-40]% [40-50]% 
Orange  [20-30]% [20-30]% 
VOO  [0-5]% [0-5]% 
Source: Form CO, tables 6.1.34  
5.2.7. Retail supply of multiple play bundles 
(156)  Table 21 below contains the market shares, in Belgium, in the potential markets for 
i) all multiplay bundles ii) only fix bundles (i.e. double -play and triple play bundles 
together) and iii) fixed -mobile convergence bundles (quad-play bundles).  
Table 21 – Market shares in the potential markets for different multiplay bundles in Belgium (by 
volume, 2019)  
Company  All bundles  
Market share  
2019  Fix bundles only  
Mar ket share 2019 4-play (3P+M) bundles  
Market share ( 2019 
Telenet  [30-40]% [30-40]% [40-50]% 
Proximus  [40-50]% [40-50]% [50-60]% 
Orange  [5-10]% [0-5]% [0-5]% 
VOO  [10-20]% [10-20]% [5-10]% 
Form CO, figures 6.1.e and 6.1 f, Notifying Parties response to the Commission’s Request for Information RFI 
12, question 1.e ) 
5.2.8. Supply of advertising ( TV, radio and online advertising markets) 
5.2.8.1. TV advertising  
Overall market  
(157)  The Parties’ and their main competitors’ shares in the overall market for the sale of 
TV advertising space in F landers is indicated in Table 22  below. This overall market 
includes the sale of advertsing space from AVOD services.  
Table 22 Market share for the sale of TV advertising space in 
Flanders, including AVOD (2019) 
Company  Market share  
Telenet  [20-30]% 
DPG Media  [60-70]% 
Combined  [90-100]% 
VAR  [5-10]% 
Transfer  [0-5]% 
Source: Notifying Parties response to the Commission’s Request for 
Information RFI 12, question 1 f) 
 
Alternative market definitions  
(158)  If the product market is unchanged but but the geographic scope of the market was 
defined as a) Flanders and Brussels Capital Region together, the mar ket shares 
                                                 
135  “Other Telenet Wholesale” refers to the Mobile Virtual Network Operators (MVNOs), and more precisely LycaMobile, Destiny (Fuzer), Vectone, Effortel, United Telecom, Tellink and IP Nexia.  
 
41 indicated in Table 22  would not change materially as in both cases the market would 
roughly correspond to the Dutch linguistic area and advertising on Dutch language 
TV channels.  
(159)  If the product market is defined more narrowly such that the sale of advertising space on AVOD services is excluded, the resulting market  shares are included in 
Table 23. As shown by Table 23, the mark et shares do not change materially relative 
to the overall market.  
Table 23 Market share for the sale of TV advertis ing space in 
Flanders, excluding  AVOD (2019) 
Company  Market share  
Telenet  [20-30]% 
DPG Media  [60-70]% 
Combined  [90-100]% 
VAR  [5-10]% 
Transfer  [0-5]% 
Source: Notifying Parties response to the Commission’s Request for 
Information RFI 12, question 1 f) 
(160)  The product market could also be further segmented on the basis of FTA or pay TV 
channels, i.e. separate markets could be defined for the sale of TV advertising space on FTA channels and for the sale of advertising space on pay TV channels. If this segmentation is applied, the market for the sale of advertising space on pay TV channels is not significant as the content is financed mainly by subscription/license fees.
136 For example the Parties submitted that gross spending on advertsing space 
on pay TV channels amount to less than [ Parties’ advertising spend ] compared to the 
total spend on FTA advertising channels.137 By contrast FTA channels are mainly 
financed through advertising and thus advertisement spen t on these channels is much 
greater. It follows that the market shares on the market for the sale of TV advertising space on FTA channels is not materially different f rom the shares included in Table 
23 (excuding AVOD) and in Table 22 (including AVOD).  
(161)  The market shares on the alternative product markets would not change materially if the geographic scope of the market was Flanders and the Brussels Capital Region toget her
138 as in both cases the market would roughly correspond to the Dutch 
linguistic area and advertising on Dutch language TV channels.  
(162)  Thus under all possible market definitions the Parties’ combined market share is very high.  
5.2.8.2. Radio advertising  
(163)  Table 24 below presents the market shares on the market for the sale of radio 
advertising in Flanders.  
                                                 
136  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1 f)  
137  Notifying Parties response to the Commission’s Request for Information RFI 12, question 1 f)  
138  Notifying Parties response to the Commission’s Requ est for Information RFI 12, question 1 f)  
 
42 Table 24 Market share for the sale of radio advertis ing space in 
Flanders  
Company  Market share  
DPG Media  [40-50]% 
VAR  [50-60]% 
IP Bel gium  [5-10]% 
Source: Notifying Parties response to the Commission’s Request for 
Information RFI 12, question 1 f)  
(164)  If the product market is unchanged but but the geographic scope of the market was 
defined as a) Flanders and Brussels Capital Region together , the mar ket shares 
indicated in Table 24  would not change materially as in both cases the market would 
roughly correspond to the Dutch linguistic area in Belgum and advertising on Dutch language radio channels.  
5.2.8.3. Online advertising  
(165)  Table 25 below presents the market shares on the market for the sale of online 
advertising in Flanders.  
Table 25 Market shares in the market for online advertising in 
Flanders  
Company  Market share for the sale of 
advertising space on Dutch 
language websi tes in 
Belgium (2019)  
DPG Media  [5-10]% 
Telenet  [0-5]% 
Combined  [10-20]% 
Google  [40-50]% 
Facebook  [10-20]% 
Other  [20-30]% 
Source Form CO, tables 6.1.39-40. 
(166)  If the product market is unchanged but the geographic scope of the market was defined as a) F landers and Brussels Capital Region together, the mar ket shares 
indicated in Table 25  would not change materially as in both cases the market would 
roughly correspond to the Dutch linguistic area in Belgium and advertising on Dutch language websites.  
5.3. Hori zontal assessment  
5.3.1. Introduction 
(167)  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.  
(168)  The Commission Guidelines on the assessment of horizontal mergers under the Merger Regulation (the "Horizontal Merger Guidelines") distinguish between two main ways in which mergers between actual or potential competitors on the same relevant market may significantly impede effective competition, namely non -
coordinated effects and coordinated effects.  
(169)  Non-coordinated effects may sign ificantly impede effective competition by 
eliminating the competitive constraint imposed by each merging party on the other, 
 
43 as a result of which the Integrated Company would have increased market power 
without resorting to coordinated behaviour. The Horiz ontal Merger Guidelines list a 
number of factors139 which may influence whether or not significant non -
coordinated effects are likely to result from a merger, such as the large market shares 
of the merging firms, the fact that the merging firms are close com petitors, the 
limited possibilities for customers to switch suppliers, or the fact that the merger 
would eliminate an important competitive force. Not all of these factors need to be 
present for significant non- coordinated effects to be likely. The list of  factors, any 
one of which is not necessarily decisive, is also not an exhaustive list.  
5.3.2. Horizontal non- coordinated effects in the production of AV content  (demand side)140 
(170)  The Notifying Parties’ activities and those of the JV significantly overlap on the 
demand side of the market . The Parties have a 2019 comb ined market share by value 
of [50-60]% (Liberty Global: [20 -30]%; DPG Media: [30 -40]%), and expect to have 
a in 2023 combined market share by value of [60- 70]% (Liberty Global: [10 -20]%; 
DPG Media: [30 -40]%; JV: [5 -10]%), in the acquisition of Dutch -language AV 
content production in Belgium . 
5.3.2.1. Notifying Parties’ view  
(171)  The Notifying Parties submit that the Transaction does  not raise horizontal 
competition concerns on the basis of any plausible definition of t he relevant product 
and geographic market for the reasons set out below.141 
(172)  First, the Notifying Parties submit that the JV will have modest activities on the 
demand side of the AV content production market. Its market share would amount to 
approximately [5-10]% in 2023. Therefore, the scope of the agreements put in place 
regarding collaboration between the JV and each of its parents regarding AV content 
production would also be necessarily limited. In addition, [ JV’s commercial 
strategy ]. 
(173)  Second, the Notifyi ng Parties claim that Telenet and DPG Media’s activities on the 
AV content production market will continue to take place outside of the JV post -
Transaction, and that they will continue to be active as independent purchasers of 
AV content production service s.  
(174)  Third , the Notifying Parties submit that there will continue to be strong buyers on 
the demand side of the market, such as VRT , Proximus and international providers 
like Netflix.  
                                                 
139  Horizontal Merger Guidelines, paras 24 et seqq.  
140  With regard to horizontal coordinated effects, t he Notifying Parties claim that the Transaction will not 
give rise to any concerns because of the market condit ions on the demand side of the market for the 
production of  AV content, namely (i) heterogeneous services , (ii) confidential and bilateral negotiations of 
AV production agreements , (iii) entry of new buyers , (iv) presence of strong competing buyers, and (v ) 
countervailing bargaining power of some AV production companies which are part of larger international 
AV production groups (Form CO, paragraph 600). The Commission considers t hat coordinated effects on 
this market can be excluded for similar arguments a s why cooperative effects are excluded in this market 
in section 5.5.  
141  Form CO, paragraphs 594 -598. 
 
44 5.3.2.2. Commission’s assessment  
(175)  The Commission considers that the Transaction doe s not give rise to serious doubts 
as to its compatibility with the internal market as a result of horizontal effects on the 
market for the production of  AV content (demand side) , or any possible narrower 
affected markets,  regardless of precise market defin ition, for the following reasons.  
(176)  First, the JV will be  a new  additional  purchaser of AV content production. I n 2023, i t 
will only represent [5-10]% of the demand (by value) in the market for the 
production of Dutch -language AV content in Belgium . Therefor e, the merger 
specific change brought about by the Transaction will be limited.142 
(177)  Second, the results of the market investigation indicated that the JV  would have a 
positive impact on the market for the production of AV content  by increasing the 
demand for AV content .143 One content provider  contended that “ The whole sector, 
especially the producers,  […] are welcoming this JV . […] Non-linear platforms are 
growing. International players take over big chunks of the eyeball -market. 
Something has to be done locall y. The only way to stand up locally is by uniting 
forces. That is what Telenet and DPG are doing.”  Another one claimed that “ If the 
JV operates completely independently, there will be no increase in bargaining 
power. The buyer would provide us with an extr a opportunity and the sum of 
windows (JV + on air, in negotiation with producer) could even enable more 
expensive (mainly scripted) content.” Another respondent indicated that it hoped the 
Transaction would create more capacity to purchase AV content and a competitive 
platform that will attract the viewers.  
(178)  Third , both Telenet and DPG Media will retain activities on the demand side of the 
market for AV content production,  and will continue to be active as independent 
purchasers of AV content production servi ces post -Transaction  (except  for the pay 
TV and SVOD windows – see paragraph 180 below) . Consequently, the Parties’ 
(and the JV’s) market power cannot be simply aggregated.   
(179)  Fourth, the Commission notes that strong alternative  purchasers will remain activ e 
on the dema nd side of  the market.  Indeed, VRT currently represents [40 -50]% of the 
demand (by value ) in the market for the production of AV content  in Flanders . 
VRT’s market share and thus its  purchasing power remains strong under any of the 
alternative market definitions discussed in Section 5.1 and Section 5.2.1.  In addition, 
the market shares provided in Section 5.2.1 do not take into account the AV content 
production spend of Proximus, a number of smaller Flemish/Dutch language 
broadcasters active in Belgium and international OTT players such as Netflix (that 
are obliged to invest in AV productions on the basi s of the Flemish Media 
Decree).144 
(180)  The Commission notes that  most respondents to the market investigation indicated 
that post -Transaction, the barg aining power of the Parties on the demand side of  the 
market for the production of AV  content will significantly change vis -à-vis the 
                                                 
142  As the JV will purchase scripted conten t, the increment would be larger if the market was defined as the 
market for the acquisition of scripted AV cont ent production in Flanders . However, even in that case the 
market share increase is limited in size, gradual and only expected and not guaranteed.  
143  Responses to questionnaire Q1 to content providers, questions 17.1 and 29.  
144  Form CO, paragraph 295.  
 
45 supply side of that same market .145 In this  respect , the Commission considers it 
important  that the JV and the Notifiying Pa rties will be active as independent 
purchasers of AV content production services post -Transaction .146 The only situation 
where there may be a joint acquisition of AV content is in the situation where the JV 
will acquire both pay TV and SVOD rights and sublic ense, at arm’s length,  the pay 
TV rights to Telenet.147 Historically these two exhibition windows have been offered 
together. However, to the extent that this joint acquisition of rights could potentially 
lead to increased bargaining power vis -à-vis content providers, the  content providers 
could debundle the two exhibition windows to mitigate any potential increased 
bargaining power of the Parties .148  
(181)  In light of the above, t he Commission con cludes  that the Transaction does not give 
rise to serious doubts as t o its compatibility with the internal market as a result of 
horizontal effects on the market for the production of AV content in Flanders 
(demand side) or on any other alternative product or geographic market discussed in 
relation to AV content production in Section 5.1. and Section 5.2.1. 
5.3.3. Horizontal non- coordinated effects in the market for the licensing of broadcasting 
rights of pre -existing individual A V content  (demand side)149 
(182)  The Notifying Parties’ activities and those of the JV overlap on the demand si de of 
the market. The Parties have a 2019 comb ined market share by value of [50 -60]% 
(Liberty Global: [40 -50]%; DPG Media: [10 -20]%), and expect to have a in 2023 
combined market share by va lue of [50 -60]% (Liberty Global: [20 -30]%; DPG 
Media: [10-20]%; JV : [10-20]%), in the acquisition of broadcasting rights of pre -
existing individual AV content for a Dutch- language audience in Belgium . 
5.3.3.1. Notifying Parties’ view  
(183)  The Notifying Parties submit that the Transaction does  not raise horizontal 
competition concerns on the basis of any plausible definition of the relevant product 
and geographic market for the reasons set out below.150 
(184)  First, the Notifying Parties claim that Telenet’s market share of around [40-50]% on 
the demand side is for more than [ Parties’ sports co ntent spend]  determined by its 
spend on the acquisition of sports content. The JV will not offer any sports content. 
                                                 
145  Responses to questionnaires Q1 to content providers, question 17; and Q2 to AV market participants, 
questions 40 and 40.1.  
146  Cooperative effects are assessed in Section 5.5.  
147  Form CO, paragraph 610.  
148  Normally, content providers may also be interested in joint licensing. However, under the assumption that 
the buyers’ bargaining power increases because of joint purchasing, debundling would help counter such 
pressure.   
149  With regard to horizontal coordinated effects, t he Notifying Parties claim that the  Transaction will not 
give rise to any concerns because of the market conditions on the demand side of the market for the 
licensing of individual AV content, namely (i) heterogeneous products, (ii) confidential and bilateral 
negotiations of AV content lice nses, (iii) entry of new buyers, (iv) presence of strong competing buyers, 
and (v) strong bargaining power of licensors (in particular major Hollywood studios).(Form CO, 
paragraph 616).  The Commission considers that coordinated effects on this market can be excluded for 
similar arguments as why cooperative effects are excluded in this market in section 5.5.  
150  Form CO, paragraphs 614 -615. 
 
 
46 Therefore, the Transaction will not change anyt hing vis -à-vis providers of sports 
content.  
(185)  Second, the Notifying Parties submit that (i) s everal competitors (such as VRT and 
Proximus) will continue to be strong buyers of individual AV content in Belgium, 
and (ii) since 2015, additional buyers of individual content have entered or expanded 
their activities in the market, including Netflix and  Amazon , which negotiate multi -
country basis, and regularly outbid local players such as Telenet for the acquisition 
of rights in film and series . 
(186)  Third, the Notifying Parties claim that the licensors of AV content will continue to 
have strong bargaining p ower as far as premium content is concerned. For instance, 
the Belgian (let alone the Flemish) market would not have any real significance  for 
the major Hollywood studios, while retail suppliers of AV servic es would be  very 
keen on securing attractive cont ent such as the movies and series offered by the 
Hollywood majors . 
(187)  Fourth, the Notifying Parties submit that the Transaction will not lead to increased 
bargaining power of the Parties or the JV  on the market , given that (i) they will 
continue to be active as separate and independent purchasers of individual AV 
content post -Transaction, and the Parties will not overlap in the exhibition windows 
in which the JV will be acquiring individual AV content (i.e. the SVOD and pay TV 
windows); (ii) while rights in pa y TV and SVOD windows are generally negotiated 
together, any concerns regarding the bundling of negotiations for these rights are not 
merger -specific since Telenet already bundles its purchases in this respect and DPG 
Media is not active in these windows; and (iii) licenses for the FTA TV window and 
the pay TV/SVOD windows are generally negotiated separately, and rights in the 
FTA TV window will be acquired by the parents whereas rights in the SVOD and 
pay TV windows will be acquired by the JV. 
5.3.3.2. Commission’s  assessment  
(188)  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 horizontal effects on the 
market for the licensing of broadcasting rights for pre -existing indivi dual AV 
content (demand side) , or on any of the possible alternative affected markets  
discussed in Sections 5.1 and 5.2.2., for the following reasons . 
(189)  First, the JV will be a new licensee o f individual AV content . In 2023 i t will only 
represent [10-20]% of  the demand (by value) in the market for the licensing  of 
Dutch -language AV content in Belgium . Therefore, the merger specific increment 
brought about by the Transaction will be limited.151 
(190)  Second, both Telenet and DPG Media will retain activities on the dem and side of the 
market for the licensing of individual AV content , and will continue to be active as 
                                                 
151  As the JV will purchase mainly scripted conten t, film or content in the SVOD window, if the market was 
defined more narrowly along these lines (i.e. market for the licensing of broadcasting rights for scripted  
AV content  (demand side) ; market for the licensing of broadcasting rights for film content ( demand side) ; 
market for the licensing of broadcasting rights for content in the SVOD window  (demand side) ) the 
increment would be larger. However, even in that case the market share increase is limited in size, gradual 
and only expected and not guaranteed. In any event the parents and the JV will remain independent 
purchase rs. (see paragraph 191)   
 
47 independent licensees of individual AV content  post-Transaction .152 The only 
situation where there may be a joint licensing of AV content is in the situation  where 
the JV will acquire both pay TV and SVOD rights and sublicens e, at arm’s length, 
the pay TV rights to Telenet.153 Historically these two exhibition windows have been 
offered together. However, to the extent that this joint acquisition of rights could 
potentially lead to increased bargaining power vis -à-vis content providers, the  
content providers could debundle the two exhibition windows to mitigate any 
potential increased bargaining power of the Parties .154  
(191)  Third, the Commission notes that strong alter native licensees will remain active on 
the demand side of the market. Indeed, Proximus and the international OTT players 
respectively represent  [10-20]% and [10-20]% of the demand (by value) in the 
market for the licensing of broadcasting rights for indivi dual pre -exiting content in 
Flanders . The international OTT players  are expected to represent an increasing 
share of the demand in the coming years ([20-30]% in 2023). These players will be 
strong purchasers regardless of which of the alternative market definition discussed 
in Sections 5.1 and 5.2.2 is used.  
(192)  In light of the above considerations, t he Commission considers that the Transaction 
does not give rise to serious doubts as to its compatibility with the internal market as 
a result of horizontal effect s on the market for the licensing of individual AV content 
(demand side), or any possible narrower affected markets, regardless of its precise 
geographic scope . 
5.3.4. Horizontal non- coordinated effects in the retail supply of AV services155 
The Notifying Parties  and the JV’s activities overlap in the overall market for the 
retail supply of AV services (including SVOD services) in Telenet’s footprint and in 
a number of more narrowly defined product markets listed in Section 5.1. The 
geographic scope of all of these narrower product markets is also Telenet’s footprint.  
On the overall retail AV services market, t he Parties have a 2019 combined market 
share by value of [50 -60]% (Liberty Global: [50 -60]%; DPG Media: [0 -5]%) and 
expect to have a combined market share of [50 -60]% by 2023 (Liberty Global: [40 -
50]%, JV [5-10]% DPG Media [0 -5]%). When considering market shares by 
volume , the Parties have a 2019 combined market share of [40-50]% (Liberty 
Global: [40-50]%; DPG Media: [0 -5]%), and expect to have in 2023 a combin ed 
market share of [30-40]% (Liberty Global: [20-30]%; DPG Media: [0 -5]%; JV: [10 -
20]%), in the retail supply  of AV services in Telenet’s footprint .156  
                                                 
152  Cooperative effects are assessed in Section 5.5.  
153  Form CO, paragraph 610.  
154  Normally, content providers may also be interested in joint licensing. However, under the assumption that 
the buyers’ bargaining power increases beca use of joint purchasing, debundling would help counter such 
pressure.   
155  The Notifying Parties do not provide any specific views relating to horizontal coordinated effects in the 
retail supply of AV services. The Commission considers that that coordinate d effects on this market can 
be ex cluded for similar arguments as why cooperative effects are excluded in this market in section 5.5  
156  Excluding AVOD services but including SVOD services . The Commission notes that the Notifying 
Parties’ and the JV’s activ ities do not overlap if SVOD services  were excluded , as only Telenet is active 
in that market.  However, based on Section 4.6. both AVOD and SVOD services are part of the overall 
retail AV services market.   
 
48 5.3.4.1. Notifying Parties’ view  
(193)  The Notifying Parties submit that the Transaction does  not raise horizontal 
compe tition concerns on the basis of any plausible definition of the relevant product 
and geographic market for the reasons set out below.157 
(194)  First,  the Notifying Parties submit  that Telenet and DPG Media are not actual 
competitors in the market for the retail su pply of AV s ervices  because DPG Media is 
today not active in the market , but that DPG Media could be regarded as a potential 
competitor in respect of the retai l provision of SVOD services since it has 
contemplated the launch of its own SVOD service . 
(195)  Second, the merger with a potential competitor would not have any significant anti -
competitive effects, given that (i) in case of a standalone market entry, it would take 
DPG Media much longer to acquire the necessary scope and scale to become an 
effective competitive constraint, and (ii) there will be a sufficient number of actual 
or potential competitors, including Netflix, Amazon Prime, Apple+, Disney+, HBO 
Max, with far deeper pockets who will exercise significant competitive pressure on 
the JV post -Transacti on. 
5.3.4.2. Commission’s assessment  
(196)  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 horizontal effects on the 
market f or the retail supply of AV services  in Telenet’ s footprint , or any possible 
narrower affected markets,  for the following reasons . 
(197)  First,  the JV will be a new retail supplier of AV services . In 2023 i t will only have a 
market share of [5-10]% (by value) in the overall market for the retail supply of AV 
services in Telenet’s footprint. Therefore, the merger specific increment of the 
overlap brought about by the Transaction will be limited.158 
(198)  Second, both Telenet and DPG Media will retain activities in the overall market for 
the supply of AV services, but D PG Media’s activitie s will remain extremely 
limited. Indeed, as it will discontinue its linear FTA/basic pay OTT service “Stievie” 
as of 1 September 2020, DPG Media  will only be active through its AVOD offer 
VTMGO.  
(199)  Third, the Commission notes that strong players will remain active in the market for 
the supply of AV services. Indeed, Proximus and international OTT players (i.e. , 
Netflix and Amazon) have  respective market shares of  [20-30]% and [10-20]% (by 
value) in the overall market for the retail supply of AV services in Telenet’s 
footprint . The latter  are expected to represent an increasing share of the supply in the 
coming years ( [20-30]% in 2023).  In addition,  Disney has announced that it will 
                                                 
157  Form CO, paragraphs 630 -635 . 
158  As the JV’s service will be non -linear, if the market is defined as the market for the retail supply of non -
linear AV services, the increment will be higher. Likewise if the market is defined as the market for the 
retail supply of premium pay or basic pay AV services, the increment will be higher depending on 
whether SVOD service is a substitute of premium pay or basic pay retail AV services. However, even in 
that case the market share increase is limited in size, gradual and only expected and not guaranteed.  
 
49 launch its SVOD service “Disney+” in Belgium on 15 Septembe r 2020.159 These 
players are strong retail AV services suppliers under any of the alternative market 
definitions discussed i n Section 5.1. and Section 5.2.4. In addition, their market 
shares on some of these narrower markets (non -linear retail AV services, o r premium 
pay or basic pay retail services depending on whether SVOD is a substitute of 
premium pay or basic pay retail AV services) is much higher than [20 -30]% or [10 -
20]%.  
(200)  In light of the above consideration, t he Commission considers that the Transacti on 
does not give rise to serious doubts as to its compatibility with the internal market as 
a result of horizontal effects on the market f or the retail supply of AV services in 
Telenet’s footprint, or any pos sible narrower affected markets.  
5.4. Non-horizontal assessment  
5.4.1. Introduction  
(201)  A merger between companies which operate at different levels of the supply chain 
may significantly impede effective competition if such merger gives rise to 
foreclosure.160 Foreclosure occurs where actual or potential competitors' access to 
supplies or markets is hampered or eliminated as a result of the merger, thereby 
reducing those companies' ability and/or incentive to compete.161 Such foreclosure 
may discourage entry or expansion of competitors or encourage their exit.162 
(202)  The Non- Horizontal Merger Guidelines distinguishes between two forms of vertical 
foreclosure. Input foreclosure occurs where the merger is likely to raise the costs of 
downstream competitors by restricting their access to an important input. Customer 
foreclosure occur s where the merger is likely to foreclose upstream competitors by 
restricting their access to a sufficient customer base.163  
(203)  In addition, conglomerate mergers are mergers between firms that are in a 
relationship which is neither purely horizontal (as compet itors in the same relevant 
market) nor vertical (as supplier and customer). In practice, the focus is on mergers 
between companies that are active in closely related markets (e.g. mergers involving 
suppliers of complementary products or of products which belong to a range of 
products that is generally purchased by the same set of customers for the same end 
use).164 
5.4.1.1. Input foreclosure  
(204)  Pursuant to the Non- Horizontal Merger Guidelines, input foreclosure arises where, 
post-merger, the new entity would be likely to  restrict access to the products or 
services that it would have otherwise supplied absent the merger, thereby raising its 
                                                 
159  See Di sney’s website  : https://preview.disneyplus.com/lu?lang=fr -lu&cid=DTCI -Synergy -DDN -Site-
Awareness -Announce -BE-DisneyPlus -DisneyPlus -FR-NavLink -fr.disney.be_Announcement_navbar -NA 
160 Non-Horizontal Merger Guidelines, paragraphs 17 -18. 
161 Non-Horizontal Merger  Guidelines, paragraph 18.  
162 Non-Horizontal Merger Guidelines, paragraph 29.  
163 Non-Horizontal Merger Guidelines, paragraph 30.  
164  Non-Horizontal Merger Guidelines, paragraph 91.  
 
50 downstream rivals' costs by making it harder for them to obtain supplies of the input 
under similar prices and conditions as absent the merger.165 
(205)  For input foreclosure to be a concern, the vertically integrated firm should have a 
significant degree of market power in the upstream market. Only when the merged 
firm has such a significant degree of market power, can it be expected that it wi ll 
significantly influence the conditions of competition in the upstream market and 
thus, possibly, the prices and supply conditions in the downstream market.166 
(206)  In assessing the likelihood of an anticompetitive input foreclosure scenario, the 
Commission exa mines, first, whether the merged entity would have, post -merger, the 
ability to substantially foreclose access to inputs, second, whether it would have the 
incentive to do so, and third, whether a foreclosure strategy would have a significant 
detrimental e ffect on competition downstream.167 
5.4.1.2. Customer foreclosure  
(207)  Pursuant to the Non- Horizontal Merger Guidelines, customer foreclosure may occur 
when a supplier integrates with an important customer in the downstream market and 
because of this downstream presence, the merged entity may foreclose access to a 
sufficient customer base to its actual or potential rivals in the upstream market (the 
input market) and reduce their ability or incentive to compete, which in turn, may 
raise downstream rivals' costs by making i t harder for them to obtain supplies of the 
input under similar prices and conditions as absent the merger. This may allow the 
merged entity profitably to establish higher prices on the downstream market.168 
(208)  For customer foreclosure to be a concern, a vertic al merger must involve a company 
which is an important customer with a significant degree of market power in the 
downstream market. If, on the contrary, there is a sufficiently large customer base, at 
present or in the future, that is likely to turn to ind ependent suppliers, the 
Commission is unlikely to raise competition concerns on that ground.169 
(209)  In assessing the likelihood of an anticompetitive customer foreclosure scenario, the 
Commission examines, first, whether the merged entity would have the ability to 
foreclose access to downstream markets by reducing its purchases from its upstream 
rivals, second, whether it would have the incentive to reduce its purchases upstream, 
and third, whether a foreclosure strategy would have a significant detrimental effec t 
on consumers in the downstream market.170 
5.4.1.3. Conglomerate effects  
(210)  According to the Non- Horizontal Merger Guidelines, in most circumstances, 
conglomerate mergers do not lead to competition problems.171 
                                                 
165 Non-Horizontal Merger Guidelines, paragraph 31.  
166 Non-Horizontal Merger Guid elines, paragraph 35.  
167 Non-Horizontal Merger Guidelines, paragraph 32.  
168 Non-Horizontal Merger Guidelines, paragraph 58.  
169 Non-Horizontal Merger Guidelines, paragra ph 61.  
170 Non-Horizontal Merger Guidelines, paragraph 59.  
171  Non-Horizontal Merger Guideline s, paragraph 92.  
 
51 (211)  However, foreclosure effects may arise when the combination of products in related 
markets may confer on the merged entity the ability and incentive to leverage a 
strong market position from one market to another closely related market by means 
of tying or bundling or other exclusionary practices. The Non- Horizonta l Merger 
Guidelines distinguish between bundling, which usually refers to the way products 
are offered and priced by the merged entity172 and tying, usually referring to 
situations where customers that purchase one good (the tying good) are required to 
also purchase another good from the producer (the tied good).  
(212)  Tying and bundling as such are common practices that often have no anticompetitive 
consequences. Nevertheless, in certain circumstances, these practices may lead to a 
reduction in actual or potentia l rivals’ ability or incentive to compete. Foreclosure 
may also take more subtle forms, such as the degradation of the quality of the 
standalone product.173 This may reduce the competitive pressure on the merged 
entity allowing it to increase prices.174  
(213)  In as sessing the likelihood of such a scenario, the Commission examines, first, 
whether the merged firm would have the ability to foreclose its rivals,175 second, 
whether it would have the economic incentive to do so176 and, third, whether a 
foreclosure strategy wo uld have a significant detrimental effect on competition, thus 
causing harm to consumers.177 In practice, these factors are often examined together 
as they are closely intertwined.  
(214)  In order to be able to foreclose competitors, the merged entity must have a 
significant degree of market power, which does not necessarily amount to 
dominance, in one of the markets concerned. The effects of bundling or tying can 
only be expected to be substantial when at least one of the merging parties’ products 
is viewed by many customers as particularly important and there are few relevant 
alternatives for that product.178 Further, for foreclosure to be a potential concern, it 
must be the case that there is a large common pool of customers, which is more 
likely to be the case when the products are complementary.179 Finally, bundling is 
less likely to lead to foreclosure if rival firms are able to deploy effective and timely 
counter -strategies, such as single -product companies combining their offers.180 
(215)  The incentive to foreclose rivals  through bundling or tying depends on the degree to 
which this strategy is profitable.181 Bundling and tying may entail losses or foregone 
revenues for the merged entity.182 However, they may also allow the merged entity 
                                                 
172  Within bundling practices, the distinction is also made between pure bun dling and mixed bundling. In the 
case of pure bundling the products are only sold jointly in fixed proportions. With mixed bundling the 
products are also available separately, but the sum of the stand- alone prices is higher than the bundled 
price.  
173  Non-Horizontal Merger Guidelines, paragraph 33.  
174  Non-Horizontal Merger Guidelines, paragraph 93.  
175  Non-Horizontal Merger Guidelines, paragraphs 95 to 104.  
176  Non-Horizontal Merger Guidelines, paragraphs 105 to 110.  
177  Non-Horizontal Merger Guidelines, paragraphs 111 to 118.  
178  Non-Horizontal Merger Guidelines, paragraph 99.  
179  Non-Horizontal Merger Guidelines, paragraph 100.  
180  Non-Horizontal Merger Guidelines, paragra ph 103.  
181  Non-Horizontal Merger Guidelines, paragraph 105.  
182  Non-Horizontal Merger Guidelines, paragraph 106.  
 
52 to increase profits by gaining market power in the tied goods market, protecting 
market power in the tying good market, or a combination of the two.183   
(216)  It is only when a sufficiently large fraction of market output is affected by 
foreclosure resulting from the concentration that the concentrati on may significantly 
impede effective competition. If there remain effective single- product players in 
either market, competition is unlikely to deteriorate following a conglomerate 
concentration.184 The effect on competition needs to be assessed in light of  
countervailing factors such as the presence of countervailing buyer power or the 
likelihood that entry would maintain effective competition in the upstream or 
downstream markets.185  
5.4.2. Possible foreclosure of competing AV content production companies with respect to 
the acquisition of AV content production (customer foreclosure)  
(217)  Downstream, both Notifying Parties  and the JV  are active in the acquisition of AV 
content production. Upstream, only Telenet is active in the non- captive production of 
AV content. The merger specific change brought about by the Transaction is the 
addition of the JV ’s downstream activities as a purchaser of AV content production.  
(218)  Given that the individual or combined market share of the Parties on the demand 
side of the market for AV con tent production (i.e. downstream relative to the supply 
side of AV content production) is above  30%, the Commission has assessed the risk 
of customer foreclosure strategies in that market , as well as in all markets under any 
of the possible market definitions discussed i n Section 5.1. and Section 5.2.1.186 
5.4.2.1. Notifying Parties’ view  
(219)  The Notifying Parties submit that the Transaction will not lead to customer 
foreclosure, whereby the JV or its parents would potentially foreclose competing AV 
content production com panies  on the upstream market , given that (i) the JV will 
have modest activities on the demand side of the AV content production market; (ii) 
the JV’s parents will continue to be active as separate and independent purchasers of 
AV content post -Transaction, and are already currently vertically integrated with 
their own production units; (iii) the JV will have no incentive to purchase conte nt 
exclusively from its parents; and (iv) even in the unlikely hypothesis that the JV 
would exclusively source AV content  production services from its parents , 
competing AV content production companies would still have access to different 
alternative potential customers, including VRT and, increasingly, OTT players such 
as Netflix .187 
                                                 
183  Non-Horizontal Merger Guidelines, paragraph 108.  
184  Non-Horizontal Merger Guidelines, paragraph 113.  
185  Non-Horizontal Merger Guidelines, par agraph 114.  
186  Given th at the combined market share of the Parties in the upstream market for the production of AV 
content  is below 30%, including in all possible markets based on alternative market definitions , the 
Commission has not assessed the risk of input foreclosu re of competing purchasers of content AV 
production.  
187  Form CO, paragraphs 604 -607. 
 
53 5.4.2.2. Commission’s assessment  
(A) Ability to engage in foreclosure  
(220)  The Commission considers that the Parties will not have the ability to engage in 
customer forecl osure of the competing producers of AV content , for the following 
reasons.  
(221)  First, the merger specific change brought about by the Transaction on the 
downstream market will be limited. By 2023, t he JV will only represent [5-10]% of 
the demand (by value) of  the production of Dutch- language AV content in Flanders . 
The Transaction  will therefore not significantl y change the degree of  market power 
on the downstream market .188    
(222)  Second, t he Notifying Parties ’ activities on the demand side of the market for AV 
content production will continue  outside of the JV post -transaction. Therefore, since 
the Notifying Parties  will continue to  separately purchase  AV c ontent production 
services they will rely on such inputs, post-Transaction . The fact that the Notifying 
Parties remain independent applies regardless of which market definition is retained 
based on Section 5.1. and Section 5.2.1. 
(223)  Third , strong alternative purchasers will remain active on the demand side of the 
market. Indeed, VRT currently represents [40 -50]% of the demand (by value) in the 
market for the production of AV content  in Flanders . In addition, the market shares 
provided in T able 1 do not take in to account the AV content production spend of 
Proximus, a number of smaller Flemish/Dutch language broadcasters active in 
Belgium and international OTT players such as Netflix (that are obliged to invest in 
AV productions on the basi s of the Flemish Media Decree).  Strong players would 
remain on any of the alternative markets discussed in Section 5.1. and Section 5.2.1  
and due to the smaller market size, their share and strength would be greater.  
(B) Incentive to engage in foreclosure  
(224)  The Commission considers t hat the Parties will not have any  incentive to engage in 
customer foreclosure of competing producers of AV content, for the following 
reasons.  
(225)  First, Notifying Parties are already vertically integrated and purchase content from 
competing content providers.189 The limited  increment brought about by the 
Transaction on the downstream  market is unlikely to change the incentive . 190   
                                                 
188  If certain narrower product market definition applied on the downstream markets (e.g. market for film 
production (demand side); market for the acquisitio n of production in the SVOD/first pay TV window 
(demand side); the market for the acquisition of scripted content (demand side)) the increase in 
downstream market power would be greater. However, even in that case the market share increase is 
limited in si ze, gradual and only expected and not guaranteed.  
189  Form CO, paragraph 606.  
190  As discussed in footnote 188, if certain narrower product market definition appl ied on the downstream 
markets, (e.g. market for film production (demand side); market for the a cquisition of production in the 
SVOD/first pay TV window (demand side); the market for the acquisition of scripted content (demand 
side) the increase in downstream market power would be greater . However, the market share increase 
would be still limited in size, gradual and only expected and not guaranteed. In addition, the current 
 
 
54 (226)  Second, t he JV will have the interest to offer a wide variety of quality content . To 
achieve this objective, the JV is planning to wo rk with external production 
companies. The business plan confirms that  the JV is not planning to  purchase AV 
content production services from its parents exclusivel y. It is clearly spelled out in 
the JV’s business plan that the JV is planning to source con tent from all relevant 
stakeholders (including private and public broadcasters and production 
companies).191 The Notifying Parties  (as well as third party VRT ) currently also 
purchase external AV content production services from third parties notwithstanding 
their internal production capabilities.192 This reason applies regardless of which 
precise market definition is retained based on Section 5.1. and Section 5.2.1. 
(C) Impact on effective competition  
(227)  The Commission considers that due to the lack of ability and incentive, it is not 
needed to assess whether any foreclosure strategy would have a negative impact on 
effective competition , which can be presumed to be negligible . 
(228)  In any event , should the JV decide to exclusively source AV content production 
services from  the parent companies, competing AV content production companies 
would still have access to different alternative potential customers, including the 
Notifying Parties, VRT and increasingly also OTT players such as Netflix , which 
would limit the effects of that decision on competion.193  This applies regardless of 
which precise market definition is retained based o n Section 5.1. and Section 5.2.1. 
as there would be strong buyers in any hypothetical market.  
(D) Conclusion  
(229)  In light of the above considerations, t he Commission considers that the Transaction 
does not give rise to serious doubts as to its compatibility with the internal market as 
a result of possible strategies for customer foreclosure of competing AV content 
production companies with respect to the acquisition of AV content production, 
regard less of which product and geographic market definition discussed i n Section 
5.1. and Section 5.2.1. is retained.  
5.4.3. Possible foreclosure of competing AV content production companies with respect to 
the acquisition of the broadcasting rights for pre -existing individual AV content 
(customer foreclosure)  
(230)  Downstream, b oth Notifying Parties and the JV are active on the demand side of the 
market for the licensing of  broadcasting rights of pre -existing  individual AV content. 
                                                                                                                                                      
vertical integration of the Notifying Parties suggests that regardless of exact market definition, they would 
continue to purchase content from producers competing with their own upstream entities.  
191  Form CO, Annex 5.1.a . Annex 2 –  Business Plan  
192  Form CO, paragraph 606.  
193  Form CO, paragraph 607. In 2018, VRT purchased AV content production services from 61 different 
external AV content production companies and had a market sha re on the demand side of [40-50]%.   
Netflix co -produced the Dutch language series ‘Undercover’ with VRT and De Mensen . ‘Into the Night’, 
Netflix’s first Belgian Original series premiered on Netflix on 1 May 2020 .  Netflix is also currently 
working on the  co-production projects “The Liberation Route S2’ and ‘Twee Zomers’ which were 
approved by the Flemish Media Regulator VRM in September 2019 and April 2020 in the context of the 
regulatory investment obligations. Hence, any decision by the JV to only purchase AV content production 
services from the production units of its parents would not have a material impact on competition.  
 
55 Upstream, both Notifying Parties and the JV are active in the licensing of individual 
AV content  to license . The merger specific change brought about by the Transaction 
is limited to the increment of the JV’s (i) downstream activities as a licensee of 
individual AV content, and (ii) upstream activities as a licensor of such content.  
(231)  Given that the combined market share of the Parties on the demand side of the 
market for the licensing of the broadcasting rights for pre -existing individual 
individual AV content , as well as on a number of markets pursuant to alternative 
market definitions discussed in Section 5.1. and Section 5.2.2, is above 30%, the 
Commission has assessed the risk of custom er foreclosure strategies.194 
5.4.3.1. Notifying Parties’ view  
(232)  The Notifying Parti es submit that the Transaction will not lead to customer 
foreclosure, whereby the JV would potentially foreclose competing li censors of 
individual AV content, given that (i) the JV’s market share will amount  to around  
[10-20]% in 2023, and the JV would therefore lack the ability to foreclose access to 
customers, (ii) the JV will have no incentive to source exclusively from the its 
parents, and (iii) any attempted foreclosure strategy will have no material impact on 
competing providers of individual AV conte nt who can also set up their own video 
on demand platform (as VRT has done) or distribute content through competing 
SVOD platforms (e.g. Proximus or Netflix).195 
5.4.3.2. Commission’s assessment  
(A) Ability to engage in foreclosure  
(233)  The Commission considers that the Parti es will not have the ability to engage in 
customer foreclosure of competing licensors of individual AV content , for the 
following reasons.  
(234)  First, the merger specific change brought about by the Transaction on the 
downstream market will be limited. The JV will only represent  around [10-20]% of 
the demand (by value) in the market for the licensing of Dutch- language AV content 
in Belgium by 2023. The Transacti on will therefore not significantly change the 
degree of market power on the downstream market .196    
(235)  Second, the Notifying Parties’ activities on the demand side of the market for the 
licensing of AV content will continue to take place outside of the JV post -
transaction. Therefore, the Notifying Parties will continue to be active as separate 
                                                 
194  Given that the individual or combined market share of the Parties in the  upstream market for  the licensing  
of broadcasting right  for pre -existing  individual AV content  (i.e. on the supply side) is below 30% , 
including in any markets under any plausible market definition, the Commission has not assessed the risk 
of input foreclosu re of competing licensees of individual AV content.  
195  Form CO, paragraphs 623 -626. 
196  If certain narrower product market definition applied on the downstream markets (e.g. market for the 
licensing of broadcasting rights for fims (demand side); market for the licensing of broadcasting rights for 
content in t he SVOD/first pay TV window (demand side); the market for the licensing of broadcasting 
rights of scripted content (demand side)) the increase in downstream market power would be greater. 
However, even in that case the market share increase is limited in s ize, gradual and only expected and not 
guaranteed. Further, if the geographic market retained were Belgium, this would cause the increment to be 
smaller again.  
 
56 and independent  purchasers of AV content production services post -Transaction. 
The fact that the Notifying Parties remain independent applies regardless of which 
precise market definition is retained based on Section 5.1. and Section 5.2.2. 
(236)  Third, strong alternative lice nsors will remain active on the demand side of the 
market. Indeed, Proximus and the international OTT players respectively represent 
[10-20]% and [10 -20]% of the demand (by value) in the market for the licensing of 
Dutch -language AV content. The internatio nal OTT players are expected to 
represent an increasing share of the demand in the coming years ( [20-30]% in 2023).  
Strong players would remain on any of the alternative, narrower product markets 
discussed in Section 5.1. and Section 5.2.2.  
(B) Incentive to e ngage in foreclosure  
(237)  The Commission considers that the Parties will not have the incentive to engage in 
customer foreclosure of  competing licensors of individual AV content , for the 
following reasons.  
(238)  First, Notifying Parties are already vertically integra ted and license content from 
competing licensors.197 The limited  increment brought about by the Transaction on 
the downstream  market is unlikely to change the incentive .198 
(239)  Second, the JV plans to offer a wide variety of quality content. To achieve this 
object ive, the JV is planning to acquire content from many sources. The business 
plan confirms199 that the JV is not planning to license individual AV content from its 
parents exclusively , but intends to rely on other supply channels . This reason applies 
regardless of which precise market definition is retained based on Section 5.1. and 
Section 5.2.2. 
(240)  Third, as set out in annex 1 to the MoU ,200 the JV would be open to, [JV’s 
commercial strategy ], the possibility to enter into agreements with other content 
providers, such as VRT, to include some of their content on the JV’s SVOD 
platform . This reason also applies regardless of which precise market definition is 
retained based on Section 5.1. and Section 5.2.2.  
(C) Impact on effective competition  
(241)  The Commission considers th at due to the lack of ability and incentive, it is not 
needed to assess whether any foreclosure strategy would have a negative impact on 
effective competition.  
                                                 
197  Form CO, paragraph 606.  
198  As discussed in footnote 196 if certain narrower  product market definition appl ied on the downstream 
markets, (e.g. market for the licensing of broadcasting rights for fims (demand side); market for the 
licensing of broadcasting rights for content in the SVOD/first pay TV window (demand side); the market 
for the licensi ng of broadcasting rights of scripted content (demand side)) the increase in downstream 
market power would be greater . However, the market share increase would be still limited in size, gradual 
and only expected and not guaranteed. In addition, the current  vertical integration of the Notifying Parties 
suggests that regardless of exact market definition, they would continue to purchase content from 
licensors competing with their own upstream entities.  
199  Form CO, Annex 5.1.a. Annex 2 – Business Plan  
200  Form CO, Annex 5.1.a . See for example the statement on page 22 of the MoU: ” [Details of the JV 
agreement ]”. 
 
57 (242)  In any event , even if the JV were to exclusively license individual AV content from 
the parent c ompanies, competing AV content production companies would still have 
access to different alternative potential customers, including Proximus and the 
international OTT players respectively represent [10 -20]% and [10 -20]% of the 
demand (by value) in the market for the licensing of AV content  in Flanders 
(demand side) . The international OTT players  are expected to represent an 
increasing share of the demand in the coming years ( [20-30]% in 2023). The 
presence of other customers applies regardless of which precise market definition is 
retained based on Section 5.1. and Section 5.2.2. as there would be strong alternative 
buyers in any hypothetical market.  
(D) Conclusion  
(243)  In light of the above considerations, t he Commission considers that the Transaction 
does not give  rise to serious doubts as to its compatibility with the internal market as 
a result of possible strategies for customer foreclosure of competing licensors of 
individual AV content with respect to the acquisition of broadcasting rights to 
individual AV content , regardless of which precise product and geographic market 
definition  discussed in Section 5.1. and Section 5.2.2. applies.  
5.4.4. Possible foreclosure of competing suppliers of retail AV services from accessing the 
Notifying Parties ’ TV channels (input for eclosure)201 
(244)  Both Notifying Parties are active in the market for the wholesale supply of 
FTA/basic pay TV channels. This market is upstream of the overall market for retail 
AV services where the JV will be active. On the other hand, t he JV’s offering will be  
limited to a SVOD service and will not include the linear channels of the Notifying 
Parties and/or of third parties , nor it will include any ancillary services linked to the 
linear broadcasting of such channels (e.g. catch up services). The JV will theref ore 
not carry any TV channels.  
5.4.4.1. Notifying Parties view  
(245)  The Notifying Parties submit that the Transaction will not give rise to any vertical 
competition concerns , including input foreclosure concerns, on this ma rket for the 
following reasons.202 
(246)  First, the JV  will not be active as either a supplier or a purchaser of linear TV 
channels, and will thereby not carry any linear channels ( neither the channels of 
Telenet and DPG Media nor those of third parties) and it will also not carry any 
ancillary services which  are linked to the linear broadcast of such channels (e.g. 
catch up services) . The Notifying Parties have confirmed that they do not have the 
                                                 
201  Given that the combined market share of the Parties in the downstream market for the retail supply of AV 
services is above 30%, the Commission has als o considered the risk of  customer foreclosure strategies  in 
this market.  The Commission  considers that, given that the JV will not supply TV channels, there is no 
change to the incentive regarding any customer foreclosure strategy of competing wholesale su ppliers of 
TV channels with respect to the retail supply of AV services. Therefore, 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 customer foreclosure of c ompeting wholesale suppliers of TV channels with respect to the retail 
supply of AV services , regardless of the precise product and geographic market definition . 
202  Form CO, paragraphs 627 -629. 
 
58 intention to expand the scope of the JV to include such linear channels and/or 
ancillary ser vices within the next 10 years.  
(247)  Second, the Notifying Parties claim that Telenet and DPG Media will continue to 
exercise their respective activities as suppliers of linear TV channels and ancillary 
non-linear service s separately to their respective customers. 
(248)  Third, the Notifyi ng Parties draw the Commission’s attention onto the fact that, by 
virtue of Decision 19- CC-16 of the BCA in Telenet Group BVBA/De Vijver Media, 
Telenet is bound by a commitm ent to supply its linear basic p ay TV channels Vier, 
Vijf and Zes at FRAND terms to  competing suppliers  of retail AV se rvices, 
including OTT players. This commitment covers the linear channels and ancillary 
rights needed to offer linked services such as a Multiple Screen service, a Catch Up 
service, a PVR service, a broadcasting on deman d service and any other service or 
functionality offered to subscribers simultaneously with the linear transmission or 
shortly before or after such transmission (i.e., 7 days before or after or another short 
customary period) as par t of the same channel pa ckage. This commitment will 
rema in in effect until May 2026. 
5.4.4.2. Commission’s assessment  
(249)  The Commission considers there is no possibility, incentive or likely effects of a 
hypothetical  input  foreclosure strategy by Telenet or DPG media of other  suppliers 
of re tail AV services with regard to the wholesale supply of TV  channels, regardless 
of the precise product and geographic market definition s (discussed in Section 5.1 
and Section 5.2.3.) is retained, as the JV will not be active in the acquisition or 
supply of  TV channels . 
(250)  The Commission considers that there is nothing in the case file suggesting that the 
JV will include linear channels  in the future .203 The contractual documents as well as 
several  internal documents204 submitted by the Notifying Parties exclusivel y 
describe the JV’s offer as a SVOD service. They do not refer to the inclusion of 
linear channels.  
(251)  In particular, Annex 1 of the MoU205 and S chedule 1 of the Joint Venture 
Agreement206 describe the different building blocks of the JV’s SVOD offer.  Linear 
channels are not included as part of these building blocks.  
(252)  Also, t he Business Plan of the JV207 does not consider the inclusion of linear 
channels and/or ancillary services. The JV’s service is exclusively described as a 
                                                 
203  In any event, if the JV were to include linear channels at any point in the future, such an expansion of the 
scope of the JV’s activities would likely require a new notification as the JV would become active in the 
market for retail linear AV services and the JV would have to enter into linear carriage agreements with 
the parents  in light of paragraph 107 of the Commission’s Consolidated Jurisdictional Notice . The 
Notifying Parties confirm in paragraph 372 of the Form CO that they do not have the intention to expand 
to scope of the JV to include such linear channel s and/or ancillary services within the next 10 years  and 
should they in the future develop such intentions, they will discuss these intentions and their consequences 
with the Commission prior to their implementation.   
204  For instance Form CO, Annex 5.4.a.3, Annex 5.4.a.7, Annex 5.4.b.2 and Annex 5.4.b.10.  
205  Form CO, Annex 5.1.a.  
206  Form CO, Annex 5.1.c.  
207  Form CO, Annex 5.1.a . Annex 2 –  Business Plan  
 
59 subscription video on demand service. The competitors which are identified [ Details 
of the JV agreement ] are all SVOD services and do not include linear channels. 
[Details of the JV agreement ]. 
(253)  Moreover, Schedule 4 to the Joint Venture Agreement208 provides that the following 
constitutes a reser ved matter: “ [Details of the JV agreement ]”. Hence,  [Details of the 
JV agreement ]. However, Telenet does not have any incentive to accept such 
expansion, which would position the JV’s offer as a potential substitute rather than a 
complement to Telenet’s ex isting TV platforms and would encourage cord cutting 
behaviour.  
(254)  Finally, the Flemish Media Decree requires broadcasters to notify the Flemish 
Regulator for the Media at least 14 days in advance of the launch of their non- linear 
television services. Such notification should include a clear description of the 
services which will be provided. In the event of a future expansion of such services, 
a new notification will be required. The JV will be subject to this notification 
requirement and will, as soon as mer ger control clearance has been obtained and the 
JV has been launched, submit a notification for non- linear services. This supports the 
Parties’ intention not to include linear services in the offering of the JV.  
(255)  In any event, pre -Transaction the  Notifying Parties provide OTT rights to the TV 
channels to third parties. Given the JV will not purchase the TV channels, there is no 
change to the incentives. In addition, by virtue of Decision 19- CC-16 of the BCA in 
Telenet Group BVBA/De Vijver Media, Telenet is b ound by a commitment to 
supply its linear basic Pay TV channels  Vier, Vijf and Zes at FRAND terms to 
competing providers of retail AV services, including OTT players.  This 
commitment covers the linear channels and ancillary rights needed to offer linked 
services such as a Multiple Screen service, a Catch Up service, a PVR service, a 
broadcasting on demand service and any other service or functionality offered to 
subscribers simultaneously with the linear transmission or shortly before or after 
such transm ission (i.e., 7 days before or after or another short customary period) as 
part of the same channel package. This commitment will remain in effect until May 
2026.209 Therefore, not providing access to its linear channels would be a breach of 
its vis -à-vis th e BCA.  
(256)  In light of the above considerations, 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 possible strategies of input foreclosure of competi ng suppliers of retail 
AV services with regard to the wholesale supply of TV  channels, regardless of the 
precise product and geographic market definition retained for the upstream market . 
(as discussed in Section 5.1 and Section 5.2.3.)210 
5.4.5. Conglomerate non- coordinated ef fects relating to the Parties ’ activities in the retail 
supply of AV services, and Telenet’s activities in the retail supply of mobile  
                                                 
208  Form CO, Annex 5.1.c . 
209  Form CO, paragraph 629.  
210  This is because, in light of the considerati ons in Section 5.4.4.2, it is clear that the JV will not be active 
downstream relative to the wholesale supply of channels regardless of how the latter activity is defined, 
segmented and what geographic scope it has.  
 
60 telecommunication, fixed internet access and  multiple play services : Possible 
foreclosure of competing retail suppliers o f electronic communication services  
(257)  As explained in paragraph 4, the JV ’s SVOD service  will be provided (i) directly to 
customers in Belgium via an OTT platform (including website and smart phone app) 
and (ii) on an exclusive wholesale basis to Telenet, fo r distribution by Telenet 
through its cable platform (integrated in Telenet’s channel packages and/or set top 
box interface).  
(258)  The Transaction therefore creates a conglomerate relationship between the Parties’ 
activities in the retail supply of AV services , in particular the JV’s  activities as a 
supplier of  SVOD services,  and Telenet’s activities as a provider of multiple play 
bundles , fixed internet access and mobile telecommunication services.  
(259)  In the present section, the Commission analyses whether the Pa rties would have the 
ability and incentive to foreclose rival suppliers of electronic communication  
services by engaging in a tying or bundling strategy , then assesses whether such a  
foreclosure strategy would have an impact on effective competition in the  markets 
for the retail supply of fixed internet access, mobile telecommunication and multiple 
play services.  
5.4.5.1. Notifying Parties’ view  
(260)  The Notifying Parties submit that no conglomerate non -coordinated effects will arise 
from the potential bundling of the JV ’s SVOD service with Telenet’s retail multiple 
play, fixed internet access  or mobile telecommunication services, for the reasons set 
out below.211 
(261)  The Notif ying Parties contend that the y and the  JV will have no ability to foreclose 
competing suppliers of ele ctronic communications services . First, DPG Media, 
which is not active in the markets for retail AV services, fixed internet services or 
any possible multiple play markets, would have the ability to block any attempt by 
Telenet to tie the JV’s SVOD services exclusively to its retail AV platform and/or 
electronic communications services . The JV’s incentive would be to market its 
service as widely as possible within Belgium, in order to become a strong competitor 
to international SVOD services.  
(262)  Second, the No tifying Parties s ubmit that, even if the JV’s SVOD service would do 
so, the merger -specific change would be minimal, since Telenet is already vertically 
integrated with its own SVOD services, which are not available on other retail AV 
services platforms. F urther, the Notifying Parties contend that, if anything, the 
Transaction is reducing (in actual fact eliminating) Telenet’s ability to tie or bundle 
these SVOD services exclusively with its retail AV services or electronic 
communications services since it will no longer be vertically integrated in this 
respect and will need its JV partners’ consent with such strategy going forward.  
(263)  Third , the Notifying Parties claim  that the JV’s SVOD service will not be a “must -
have” for competing retail AV providers  given , that  (i) it will not include sports 
content or linear channels , (ii) competing providers of retail AV services or 
electronic communications services will not need access to the JV’s product to be 
                                                 
211  Form CO, paragraphs 651 -665. 
 
61 able to compete with Telenet’s bundles as they can set up their own competing films 
and series SVOD offer, or contract with one or several of the competing SVOD 
providers to be able to offer similar bundles.  
(264)  Fourt h, Telenet has historically not included its SVOD  offerings in its multiple play 
bundles, with the  exception of the Yugo offering. 
(265)  The Notifying Parties submit that the JV will have no incentive  to pursue a tying or 
bundling strategy, and that, even if it did, there would be no material impact on 
competition, since (i) Telenet currently does not offer its  SVOD services to rival 
providers of fixed internet services, mobile telecommunication services and/or 
multiple play services, which do not need access to Telenet’s SVOD offer to 
compete in the market; (ii) rivals’ customers will in any case have access to  the JV’s 
SVOD service OTT through the JV’s direct -to-consumer offering; (iii) rivals can 
launch their own SVOD offering; (iv) content is only one of the many factors of 
competition (among which price, speed, and reliability of internet connection) that 
customers take into account when purchasing bundled products, and (v) and 
consumers do not expect or need a one -stop-shop . 
5.4.5.2. Commission’s assessment  
(A) Ability to engage in foreclosure  
(266)  The Commission considers that the Parties will not have t he ability to engage in  any 
hypothetical  foreclosure strategy of competing providers of retail mobile 
telecommunication , fixed internet access and multiple play services  by bundling the 
JV’s SVOD with Telenet’s retail mobile telecommunication , fixed internet access or 
multiple  play servi ces, for the following reasons. 
(267)  First,  the ownership structure of the JV precludes the possibility that such 
foreclos ure strategy c ould be adopted. The JV will be controlled jointly by Telenet 
and DPG Media , with the latter not being active on t he markets for fixed internet 
services or any notional multiple play market. Moreover,  DPG Media has a very 
limited presence on the market for mobile telecommunications services with a 
market share of [0 -5]%. 
(268)  The business plan agreed upon between the Parti es,212 explicitly provides that, while 
Telenet will have the exclusivity to offer the JV’s SVOD services on a wholesale 
basis on its retail AV platforms, the JV’s SVOD services will also be made available 
independently on the market, on an OTT basis, separat ely from Telenet’s retail AV 
services and/or electronic communications services. Hence, the JV’s SVOD service 
will be made available on an OTT basis to subscribers of competing providers of 
electronic communications services such as Proximus and Orange.  As a 50% 
shareholder in the JV, DPG Media will have the ability to block any attempt by 
Telenet to tie the JV’s SVOD services exclusively to its retail AV platform and/or 
electronic communications services. Moreover, annex 3(i) of the MoU213 provides 
that [ Details of the JV agreement ].    
                                                 
212  Form CO, A nnex 5.1.a., Annex 2  
213  Form CO, Annex 5.1.a.  
 
62 (269)  Second, obtaining the JV’s SVOD integrated within  Telenet’s retail AV platform  is 
not the only way for customers to obtain a “one stop shop” .214 That is because t he 
JV’s SVOD offer will be available as an OTT app for all consumers with an internet 
connection, regardless of the identity of the provider of such connection. The OTT 
app will be available on the following platforms: smartphones and tablets running on 
iOS and Android operating systems, Android TV, Apple TV, Chromecast, Samsung 
Smart TV and LG Smart TV. The JV and/or the Not ifying Parties will not have the 
technical ability - nor the incentive -  to block Proximus or Orange customers from 
downloading the OTT app and/or accessing the JV’s SVOD content. E.g., if 
Proximus customers can access the Google Play Store (the Android users’ app 
store), they can automatically access the JV’s app as well and download it on any 
compatible device.  
(270)  Accordingly, even if Proximus and Orange are not able to integrate the JV’s SVOD 
product into their own content proposition, their customers will have access to the 
JV’s offer at all times through the platforms listed above. This will enable an 
experience similar to the “one- stop-shop” experience which Telenet customers will 
have (e.g. watching on a TV set and/or through an Android set top box).   
(271)  The customer experience will also be similar to the current experience of Proximus 
and Orange subscribers in respect of other SVOD offers.  The Netflix SVOD offer 
is, for example, not fully integrated in the Proximus user interface either.  Proximus 
subscribers accessing Netflix content are effectively directed to the Netflix user 
interface for access to the Netflix content.   
(272)  Orange is promoting streaming through Chromecast and Apple TV (platforms 
through which the SVOD service of the JV will also be available) as the most 
appropriate way to access the SVOD offers of Netflix and others.   
(273)  Third, alternative SVOD offers remain  available such as Netflix, Am azon Prime, 
Apple and Disney+ with whom competing providers of electronic communications 
services could partner. The market investigation confirmed that the JV’s SVOD 
service competes with these international SVOD offers.215 Therefore , competitors of 
Telenet can develop effective and timely counter strateg ies and contract with one or 
several competing SVOD providers . 
(274)  Fourth, the market investigation confirmed there is sufficient content available.216 
Therefore competitors can set up their own competing SVOD offer, as for instance  
Proximus  has already done . In this respect, the Commission notes that barriers to set 
up a new non- linear service are significantly lower than those to set up a new linear 
channel, in particular because there are a significant number of providers of off -the-
shelf one -stop-shop online video platforms that a party wishing to launch an online 
service can choose from (e.g. Datacast, IBM Cloud Video, etc.). These providers 
offer fairly inexpensive OTT platforms ‘as a service’, including content ingestion, 
storage, delivery, user interface, payment integration, etc.  It is also fairly 
                                                 
214  Notifying Parties’ reply to RFI 10, question 5.  
215  Replies to Questionnaire Q2, question 27.  
216  Responses to questionnaires Q1 to content providers, question 22.  
 
63 inexpensive to set up a simple OTT streaming website (using open source software 
and cloud storage).217 
(B) Incentive to engage  in foreclosure  
(275)  The Commission considers that the Parties will not have t he incentive to e ngage in  
foreclosure  of competing providers of retail mobile telecommunication, fixed 
internet access and multiple play services  by bundling the JV’s SVOD with 
Telenet’s retail mobile telecommunication, fixed internet access or multiple play 
services, for the following reasons.  
(276)  DPG Media would not benefit f rom such a foreclosure strategy. It has a very limited 
presence on the mobile market and none on the fixed internet market. If it tried to tie 
the JV’s SVOD se rvice to its mobile service, it would forego significant revenues 
that it is likely to incur by suppling the JV’s SVOD services to subscribers of other 
providers of electronic communications services  (mobile service providers). O n the 
contrary , DPG media will  have the incentive to make the JV’s SVOD services as 
widely available as possible. As DGP Media has negative control over the JV, this 
alone suffices to show that such strategies are unlikely to be pursued.  
(277)  The Commission also notes that Telenet has not historically included its SVOD 
offers in i ts multiple play bundles , which indicates that this is not a profitable 
strategy.  
(C) Impact on effective competition  
(278)  The Commission considers that due to the lack of ability and incentive , there is no 
need  to assess whether a hypothetical  foreclosure strateg y due to the conglomerate 
relationships created by the Transaction would have a ny negative impact on effective 
competition.  
(279)  It is sufficient to note that, even if the JV’s offer would only be available via 
Telenet’s platform or in bundles with Telenet’s electronic communications services, 
competing providers of such services would have several other  business  possibilities 
available to them.  
(280)  First, c ompeting providers of electronic communications services would be able to 
market a bundle of TV, mobile and/or  broadband services with the JV’s SVOD 
service if they were to enter into a reseller agreement with the JV. In such case, the 
JV’s app could be offered e.g. on the competing provider’s decoder itself (such as is 
currently the case with the Netflix app, which is available on the Proximus decoder 
as a result of the reseller agreement which has been concluded between both parties). 
(281)  Entering into a reseller agreement with a connectivity services provider and/or media 
company (as well as consenting to any possibility of integration of the JV’s product 
by any reseller) is a reserved matter under the Joint Venture Agreement and [ Details 
of the JV agreement ].   
                                                 
217  Form CO, paragraph 770.  
 
64 (282)  Second, competing providers of electronic communications services would be able 
to market a bundle of TV, mobile and/or broadband services with an alternative 
SVOD offer. Several other SVOD offers are available.   
(D) Conclusion  
(283)  In light of the above considerations, the Commission considers that the Transaction 
does not give rise to serious doubts as to its compat ibility with the internal market 
relative to any hypothetical foreclosure strategy resulting from the conglome rate 
relationships between the Parties ’ activities with respect to the  retail suppliers of AV 
services, and to Telenet’ s activities as a retail su pplier  of fixed internet access, 
mobile telecommunication and multiple play services , given the lack of possibility, 
incentive or possible effects of such strategy to foreclose competing retail suppliers 
of electronic communication services .218 
5.4.6. Conglomerate non-coordinated effects relating to the Parties’ activities in the  retail 
supply of AV services, and Telenet’s activities in the retail supply of mobile 
telecommunication, fixed internet access and multiple play services : Possible 
foreclosure of competing retail suppliers of OTT SVOD services  
(284)  The Transaction creates a conglomerate relationship between the Parties’ activities 
in the retail supply of AV services, in particular the JV’s  activities as a supplier of  
SVOD services,  and Telenet’s activities as a p rovider of multiple play bundles , fixed 
internet access and mobile telecommunication services.  
(285)  In the present section, the Commission analyses whether the merged entity would 
have the ability and incentive to foreclose rival suppliers of OTT SVOD services  by 
engaging in a tying or bundling strategy, then assesses whether each of any 
foreclosure strategy would have an impact on effective competition in the possible 
market  for the retail supply of SVOD services.  
5.4.6.1. Notifying Parties’ view  
(286)  The Notifying Parties c ontend that the Transaction will give rise to no conglomerate 
effects relating to the foreclosure of competing OTT SVOD services for the 
following reasons. (i) rival SVOD suppliers have sufficient alternative providers of 
retail telecommunication services,  fixed services and multiple play services with 
whom they can partner (Proximus, Orange, MVNOs); (ii) regulation restricts Telenet 
from degrading its service offering by prohibiting zero rating practices that may 
favour the JV’s SVOD service; (iii) Telenet has an incentive to maintain the 
relevance of its retail AV services by including content from rival SVOD providers; 
and (iv) a bundling strategy would have no material impact on competition because 
it is possible to successfully launch and compete with a n OTT SVOD service 
                                                 
218  Such co nclusion  applies regar dless of regardless of which precise product and geographic market 
definition discussed i n Section 5.1. and Section 5.2.4. applies.  This is because the only merger -specific 
conglomerate relationship is the tying or bundling related to the JV’ s SVOD offer as opposed to the 
existing retail AV offers of the Parties. Thus, under any of the market definitions discussed in Section 5.1 
and Section 5.2.4, the analysis would focus on whether competing suppliers of fixed internet access, 
mobile telecomm unication and multiple play services  could be foreclosed by tying the SVOD offer to the 
Parties’ (and mostly Telenet’s) telecommunications services. Thus the analysis would be the same under 
all the above mentioned market definitions.  
 
65 without partnering with an electronic telecommunications provider, as the 
experience of Netflix shows.219 
5.4.6.2. Commission’s assessment  
(A) Ability to engage in foreclosure  
(287)  The Commission considers that the Parties will not have t he ability to engage in  any 
hypothetical foreclosure  strategy of competing suppliers of OTT SVOD services  by 
bundling the JV’s SVOD service with Telenet’s retail mobile telecommunication, 
fixed internet access or multiple play services, for the following reasons. 
(288)  First, comp eting SVOD providers in Belgium have sufficient alternative providers of 
retail mobile telecommunications services, retail fixed services and retail multiple 
play services remain to partner with.  Proximus and Orange both offer fixed internet 
(with combine d market share of [50 -60]% in 2019 in Belgium ), mobile 
telecommunications (with a combined market share of [60-70]% in 2019 in 
Belgium ), retail AV services (with combined market share of [20 -30]% in the 
Telenet -footprint in 2019) and multiple play services  (with e.g. combined market 
share of [30 -40]% in 4-play bundles in the Telenet footprint in 2019) . Other 
competitors will also remain active in these markets (e.g. TV V laanderen in retail 
AV s ervices and  several MVNO’s in  mobile telecommunications ). 
(289)  Second, competing SVOD providers in Belgium  do not need to partner with a 
provider of retail mobile telecommunications services, retail fixed services and retail 
multiple play services . This is shown by the fact that set -top-box integration with 
Proximus and Tel enet did not change at all the trajectory of Netflix uptake in 
Belgium.220 It appears that SVOD services can launch competitively without an 
explicit telecoms supplier and only require that the customer has a broadband 
connection, which most customers do.  
(290)  Third, the Commission considers that any ability to implement zero rating practices, 
i.e., not deducting the consumption of data related to the JV’s SVOD service from 
the data volume included in the customer’s subscription , would be restricted by the 
provis ions in the Open Internet Regulation.221 Article 2 thereof foresees that 
“[p]r oviders of internet access services shall not engage in traffic management 
measures […], and in particular shall not block, slow down, alter, restrict, interfere 
with, degrade or discriminate between specific content, applications or services, or 
specific categories thereof ”. This regulation is enforced by the Belgian federal 
regulator BIPT . In its recent decision of 12 November in case M.9064 – Telia  
Company /Bonnier  Broadcasting,  the Commission concluded on similar grounds that 
the merging parties did not have the ability to foreclose competing OTT providers .222 
                                                 
219  Form CO, paragrap hs 666 -672. 
220  Ampere analysis, referred to in paragraph 666 of the Form CO 
221  Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying 
down measures concerning open internet access and amending Directive 2002/22/E C on universal service 
and users’ rights relating to electronic communications networks and services and Regulation (EU) No 
531/2012 on roaming on public mobile communications networks within the Union (Text with EEA 
relevance)  
222  Commission decisions of 1 2 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 785.  
 
66 (B) Incentive to engage in foreclosure  
(291)  The Commission considers that the Parties will not have t he incentive to engage in  
forecl osure  of competing suppliers of OTT SVOD services  by bundling the JV’s 
SVOD with Telenet’s retail mobile telecommunication, fixed internet access or 
multiple play services, for the following reasons. 
(292)  First, Telenet will have the incentive to maintain the relevance of its retail AV 
services for consumers by including relevant content from competing SVOD 
providers.  The Parties have explicitly clarified in article 4.7.5. of the MoU that  
[Details of the JV agreement ]”. 
(293)  Second, the Notifying Parties will also not have the incentive to significantly 
degrade their service offerings in breach of Open Internet requirements.  
Infringements of these requirements could trigger administrative fines of up to 5% of 
their Belgian telecommunications turnover, which would by far exceed the 
hypothetical benefits of breaching the regulatory requirements. 
(C) Impact on effective competition  
(294)  The Commission considers that due to the lack of ability and incentive , it is not 
needed to assess whether any foreclosure strategy would have a  negative impact on 
effective competition.  
(295)  In any event, even if Telenet  would exclusively offer the JV’s SVOD service, 
competing SVOD providers  would still have access to alternative providers of retail 
telecommunication services, fixed services and multi ple play services with whom 
they can partner ( such as Proximus, Orange and MVNOs)  for partnering or to 
distribute their SVOD service.  
(296)  As discussed above and in line with the Commission ’s findings in a previous case,223 
cooperating with providers of fixed int ernet access services and mobile 
telecommunications services is not necessary for providers of OTT SVOD services 
to compete. The example of Netflix shows that it is possible to launch a successful 
OTT SVOD service without such cooperation.   
(297)  Finally, an increased number of fixed internet and/or mobile data subscribers have 
tariff plans with either unlimited data or very high data allowances and only a small 
minority (less than [0 -5]%) exceed such data allowance. This significantly limits the 
relevance of zero rating practices  because these subscribers have sufficient data 
allowances to consume data thanks to their tariff plans. Allowing these subscribers 
to deduct  the consumption of data related to the JV’s OTT SVOD service from the 
data included in the cust omer’s subscription of fixed or mobile internet access 
services is therefore not providing a benefit to these subscribers .   
(298)  VRT raised whether  the Transaction  could give the Notifying Parties  an incentive to 
favor the JV’s on demand content, possibly to t he detriment of the findability and 
visibility of VRT’s on dema nd content, in particular because  the Telenet user 
                                                 
223  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting 
Holding, recital 793.  
 
67 interface allows Telenet  to actively influence and steer viewer preferences by 
promoting certain content.224   
(299)  The Commission notes that, pre -Transaction, the linear channels of VRT are 
included in Telenet’s entry level basic Pay TV Channel on all its TV -platforms. 
They have fixed pre -programmed Electronic Programme Guide (“ EPG ”) positions in 
the EPG on all these platforms. These EPG positions [ …] and they are also covered 
by the commitment to the BCA discussed in Section 5.4.4.2.225 
(300)  VRT’s near -linear content (e.g. catch up services ) is integrated in the Telenet user 
interface (in a manner that does not materially differ from the integration in the 
Proximus or Orange user interfaces. The visibility, findability and accessibility of 
this VRT content is also covered by the commitment to the BCA.  
(301)  As to VRT’s non -linear content, it is present in different forms: (i) Free VOD and 
Broadcaster TVOD: these appear in the VRT catalogue which is fully integrated in 
the Telenet user interface. The content and structure of t he catalogue are defined by 
VRT; (ii) VRT library SVOD catalogue ‘Net Gemist’: VRT owned SVOD service 
which contains SVOD content  of VRT that was aired on their linear channels in the 
last 7 days. Price: €5.95/month. Integrated in Telenet user interface. Non- exclusive 
service, also available on Proximus; and (iii) VRT SVOD licensed programs for Play 
and Play More (non -exclusive): […]. Integrated in the Telenet user interface in the 
Play and Play More catalogues. [ …]. 
(302)  The Transaction will not change how VRT’s linear TV channels and near -linear 
content will be integrated in Telenet’s AV offering post -Transaction.226  
(303)  VRT’s TV channels will continue to be included in Telenet’s entry level basic Pay 
TV package. Inclusion in this entry level package is mandatory as a result of the 
must carry status of these channels (i.e. they must be included in the package that is 
most widely availabl e to subscribers in Belgium). The Transaction will also not 
change the way in which VRT’s ‘Net Gemist’ SVOD services will be integrated in 
Telenet’s AV offerings.227 The Transaction will not bring about any merger -specific 
changes in t his respect.  
(D) Conclusion  
(304)  In light of the above considerations, the Commission considers that the Transaction 
does not give rise to serious doubts as to its compatibility with the internal market 
with reference to any hypothetical strategy resulting from  the conglome rate 
relationships between the Parties ’ activities as retail suppliers of AV services, and 
Telenet’s activities as retail suppliers of fixed internet access, mobile 
                                                 
224  Response by VRT to questionnaire Q2 to A V ma rket participants, question 57.2.  
225  Parties’ reply to RFI 10, question 2.  
226  Parties’ reply to RFI 10, question 2.  
227  For completeness, the same would hold for VRT’s Free VOD and Broadcaster TVOD . See Parties’ reply 
to RFI 10, question 2.  
 
68 telecommunication and multiple play services , given the lack of possible foreclos ure 
of competing retail suppliers of OTT SVOD services.228 
5.4.7. Possible foreclosure of  competing suppliers of SVOD services by denying access to 
the Notifying Parties’ TV advertising and radio advertising space (input foreclosure)  
(305)  The Notifying Parties are both active on the upstream market for  TV advertising, and 
DPG Media also on the upstream market for  radio advertising, while the Notifying 
Parties and the JV are active in the downstream market for retail supply of AV 
services.  
(306)  The merger -specific change brought about by the Transaction is the addition of the 
JV’s downstream activities as supplier of a SVOD service.  
(307)  Given that the combined market share of the Notifying Parties in the market for TV 
advertising, (including on the markets pursuant to the plausibl e alternative market  
definitions discussed in Section 5.1 and Section 5.2.8), and the market share of DPG 
Media in the radio advertising market are  above 30%, the market for the supply of 
retail AV services in the Flemish (including the markets pursuant to  the plausible 
alternative market definitions) region is vertically affected (input foreclosure). As the 
only merger specific change brought about by the Transaction is the addition of the 
JV’s downstream activities as supplier of a SVOD service, the Commi ssion has 
assessed the risk of foreclosing competing SVOD providers.229  
5.4.7.1. Notifying Parties’ v iew 
(308)  The Notifying Parties submit that the Transaction will not lead to any vertical 
concerns regarding the foreclosure of access to TV/ radio advertising space by 
customers/companies competing with the JV ( input foreclosure ).230 
(309)  The Notifying Parties claim  that they would lack the ability  to engage in input 
foreclosure, since, over the period of 2017- 2019, not a single competing SVOD 
provider has acquired TV/ radio advert ising space from either of the Notifying Parties 
for the promotion of its SVOD products, whilst Netflix’s customer base in Flanders 
expanded significantly over  that period (from 21% to 40%).231 
(310)  In addition, the Notifying  Parties claim that, since they will c ontinue to operate as 
separate and independent suppliers, the Transaction would not materially change the 
existing market situation. According to the Notifying Parties, post -Transaction, 
                                                 
228  This conclusi on holds regardless of which  precise market definition discussed in Section 5.1., Section 
5.2.5 and Section 5.2.7 applies. This is because the only merger -specific conglomerate relationship is the 
tying or bundling related to the JV’s SVOD offer. Thus , under all of the market definitions discussed i n 
Section 5.1., Section 5.2.5 and Section 5.2.7,  the analysis would focus on whether competing suppliers 
SVOD services c ould be foreclosed by tying the SVOD offer to the Parties’ (and mostly Telenet’s) 
telecommun ications services. Thus the analysis w ould be the same under all the plausible market 
definitions  relating to fixed internet, multi -play bundles or mobile telecommunications . 
229  The Commission considers that the Notifying Parties will not likely engage in customer foreclosure post -
Transaction, since (despite the Parties’ high combined share of retail supply of AV services of [50 -60]%), 
they only account for less than [0-5]% of the demand market and the JV’s share will most likely also be 
minimal post -Transa ction, given the large amount of companies across a variety of sectors acquiring such 
advertising space. See Form CO, paragraphs 508 -510. 
230  Form CO, paragraph 709.  
231  Form CO, paragraphs 686 -692. 
 
69 significant competitors will remain present on the TV and R adio adver tising markets 
and substantial alternative advertising channels (online, newspapers, magazines) will 
remain available.232 
(311)  The Notifying Parties  consider  that they would also lack the incentive to engage in 
an input foreclosure strategy post -Transaction  becau se advertising revenue is critical 
for them as content -providers . Moreover, the Notifying Parties submit  that any inpu t 
foreclosure strategy  is unlikely to be profitable due to the many al ternative 
advertising channels  available to competing SVOD providers .233 In particular, 
Telenet and DPG Media realised advertising turnover of respectively EUR [ Parties’ 
TV and radio advertising sales]  and EUR [Parties’ TV and radio advertising sales]  
through the sale of TV advertising space, representing respectively [Parti es’ TV and 
radio advertising sales]  and [Parties’ TV and radio advertising sales]  of their total 
advertising revenue; and DPG Media realised advertising turnover of EUR [Parties’ 
TV and radio advertising sales]  through the sale of radio advertising space, 
representing [Parties’ TV and radio advertising sales]  of its total advertising 
revenue.234 
(312)  Even if the Notifying Parties had the ability and incentive to engage in  an input 
foreclosure strategy , they submit that such strategy  would not have any significant  
detrimental effect  on the marketing strategy and the success of competing SVOD 
providers  as these competing SVOD providers do not rely on TV advertsing to 
market their services as they already have other preferred advertising channels which 
they can continue to use .235 
5.4.7.2. Commission’s assessment  
(313)  The Commission’s assessment of anticompetitive input foreclosure, in light of the 
results of the market investigation, is set out in the following paragraphs. For this 
purpose, consistent with paragraph 32 of the Non- Horizontal Merger Guidelines, in 
relation to each of these practices, the Commission examines, (i) whether the 
Notifying Parties would have  the ability  to foreclose a ccess to inputs  (i.e. advertising 
space on TV or radio) , (ii) whether they  would have the incentive  to do so, and (iii) 
whether a foreclosure strategy would have a significant detrimental effect on 
competition in the downstream markets.  
(A) Ability to engage in foreclosure  
(314)  The Commission considers that the Notifying Parties  will not have t he ability to 
engage in input foreclosure  of competi ng SVOD players  by denying access to their 
TV/radio advertising space, for the following reasons. 
(315)  First, even though the Commission cannot exclude that , given the market shares (as 
shown in Tables 22- 24 in Section 5 .2.8 above)  the Notifying Parties would  have  a 
significant degree of market power  in the upstream markets for (i) TV advertising 
and (ii) radio advertising , including all possible sub- segments, the Commission 
                                                 
232  Form CO, 686 -687. 
233  Form CO, paragraphs 693 -707. 
234  Form CO, paragraph 693.  
235  Form CO, paragraph 708.  
 
70 considers that access to the Notifying Parties ’ advertising space has so far not been 
an important input for competing SVOD players.  
(316)  Whilst TV/radio advertising space may be  considered an “important input” within 
the meaning of  the Non -Horizontal Merger Guidelines236 for certain downstream 
activities,  in line with the Commission’s  conclusions  in precedent cases,237 the 
Commission , in the context of this case, does not consider  the Notifying Parties’ 
TV/radio advertising  to be  a critical or  important input for SVOD players  competing 
with the JV downstream . 
(317)   This is because, as demonstrated by the Notifying Parties, over the past  years (2017 -
2019) , not a single competing SVOD provider has acquired TV/radio advertising 
space from either of the Notifying Parties for the  promotion of its SVOD 
products.238 Without purchasing any TV/radio advertising space from the Notifying 
Parties, SVOD players like Netflix have still managed to grow significantly in 
Flanders during this period.239 
(318)  Second, even though a dvertisers and AV providers responding to the market 
investigation confirmed the importance of the parents’ advertising channels,240 it is 
also clear from the market investigation that international SVOD players like Netflix 
and Discovery are not concerned about being denied access to advertising space on 
the parents’ chan nels.241 Also a local competitor and substantial advertiser on DPG 
Media’s TV and radio channels  responding to the market investigation indicated that 
“the transaction is not likely to have a detrimental impact on the acquisition of 
advertising space (also because advertising is still very limited for SVOD service.”  
(B) Incentive to engage in foreclosure  
(319)  For the reasons set out below , the Commission considers that the Notifying Parties  
will not likely have the incentive to engage in total or partial input foreclo sure of 
their TV/radio advertising space , irrespective of any plausible segmentation of the 
product market in pay TV and FTA TV; and inclusion or exclusion of AVOD 
services.  
(320)  First, the merger -specific change brought about by the Transaction relates to the 
Notifying Parties jointly controll ing an (additional) SVOD service in the 
downstream market post -Transaction. Both Telenet and DPG Media, however, were 
already pre -Transaction selling advertising space on the upstream TV/radio 
advertising markets while sup plying retail AV services on the downstream market.  
                                                 
236  Non-Horizontal Merger Guidelines, paragraph 35. For input foreclosure to be a concern, a vertically 
integrated entity must have a significant degree of market power in the upstream market. It is only in th ose 
circumstances that the entity can be expected to have significant influence on the conditions of 
competition in the upstream market and thus, possibly, on prices and supply conditions in the downstream 
market.  
237  See case M.7023 Publicis/Omnicom (2014) , paras ; case M.7194 -Liberty Global/ Corelio/W&W/ De Vijver 
Media  (2015) para 202; case M.9064 – Telia Company / Bonnier Broadcasting Holding  (2019), sections 
8.5.1.9. and 8.5.2.9.  
238  For 2020, the Notifying Parties noted that [Parties’ TV and radio adverti sing sales] . See Form CO, 
pargraph 686.  See also Notifying Parties’ response to RFI 11 of 28 July 2020.  
239  Customer base in Flanders f rom 21% to 40%  during this period.  Form CO, paragraph 686.  
240  Responses to Questionnaire Q2 to AV market participants, questions 77 -79. 
241  Responses to Questionnaire Q2 to AV market participants, questions 77- 79. 
 
71 The Commission thus considers that the Notifying Parties were  already vertical ly 
integrated pre -Transaction.  
(321)  Second, w ith respect to access to the Notifying  Parties’ advertising space to local 
players such as Proximus , it noteworthy that  Proximus’s advertising  spend with DPG 
Media on OTT is [DPG Media’s TV and radio advertising sales] . For example, in 
2019, Proximus spent EUR [DPG Media’s TV and radio advertising sales]  on 
TV/radio  advertising with DPG Media  for its OTT services, compared to (and 
representing only [DPG Media’s TV and radio advertising sales] ) of its total EUR 
[DPG Media’s TV and radio advertising sales]  TV/radio advertising spend with 
DPG Media.242 Therefore, the Commission considers it unlikely that the Notifying  
Parti es would risk losing the other [DPG Media’s TV and radio advertising sales]  
(EUR [DPG Media’s TV and radio advertising sales] ) of Proximus’s TV /radio  
advertising spend by enging in an input foreclosure strategy, render ing such i nput 
foreclosure strategy unprofitable . 
(322)  In addition, DPG Media already entered into an agreement with [DPG Media’s 
commercial negotiations ]. DPG Media has also entered into an agreement with 
[DPG Media’s commercial negotiations] . DPG Media is also  in negot iations with 
[DPG Media’s commercial negotiations] .243 These examples further support the 
notion that the Notifying Parties will not have the incentive post -Transaction to 
foreclose  access to their  advertising space, as they clearly demonstrate DPG Media’s 
willingness to launch advertising campaigns promoting SVOD services which will 
compete with the JV’s offering . 
(323)  In light of the above, the Commission considers that  the Notifying Parties are 
unlikely to have the incentive to engage in total or partial input foreclosure of their 
TV/radio advertising space, irrespective of any plausible segmentation of the product 
market in pay TV and FTA TV; and inclusion or exclusion of AVOD services.  
(C) Impact on effective competition  
(324)  The Commission considers that due to the la ck of ability and incentive for the 
Notifying Parties to engage in an input foreclosure strategy,  as set out above , it is not 
needed to assess whether any foreclosure strategy would have a negative impact on 
effective competition.  
(D) Conclusion  
(325)  In light of th e foregoing, the Commission concludes that the Transaction would not 
raise serious doubts as to its compatibility with the internal market  relative to any 
hypothetical total or partial input foreclosure  strategy  of the Notifying Parties’ TV 
and/or radio a dvertising space. This conclusion holds regardless of which precise 
market definition discussed in Secti on 5.1. and Secti on 5.2.8 is retained in relation to 
the sale of TV advertising space.244  
                                                 
242  Form CO, Table 3.6.4.  
243  Notifying Parties’ Response to RFI 11 of 28 July 2020.  
244  This is because the only merger -specific change is the new SVOD service of th e JV that competes 
downstream relative to the sale of TV advertising space, where the Parties hold strong position. Thus, 
under all of the market definitions discus sed in Section 5.1 and Section 5.2.8  the analysis would focus on 
 
 
72 5.5. Cooperative effects  
5.5.1. Introduction  
(326)  Under Article 2(4) of the Merg er Regulation, to the extent that the creation of a joint 
venture constituting a concentration pursuant to Article 3 has as its object or effect 
the coordination of the competitive behaviour of undertakings that remain 
independent, such coordination shall be appraised in accordance with the criteria of 
Article 101(1) and (3) of the TFEU , with a view to establishing whether or not the 
operation is compatible with the common market.  
(327)  Under Article 2(5) of the Merger Regulation, in making this appraisal, the 
Commission shall take into account in particular: (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 to 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.  
(328)  A restriction of competition under Article 101(1) TFEU is established when the 
coordination of the parent companies’ competitive behaviour is likely and 
appreciable and results from the creation of the joint venture, be it as its object or its 
effect .  
5.5.2. Notifying Parties’ view  
(329)  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 coordination, 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 a small part of the Notifying Parties’ overall 
businesses.245  
5.5.3. The Commissi on’s assessment  
(330)  The Notifying Parties will remain independently active in a number of the same 
markets as the JV, notably: (i) the market for the production of AV content in 
Flanders (demand side) ,246 its exhibition window segments and the scripted and non-
scripted content segments; (ii) the market for the l icensing of individual  AV content  
(supply and demand side), as well as the segments for first PayTV and SVOD;247 
and (iii) the market for the retail supply of  AV services (including AVOD and 
                                                                                                                                                      
whether competing suppliers ’ SVOD services could be foreclosed by refusing advertising space or 
increasing the cost thereof. Irrespective of the exact market definition retained in TV advertising, the 
analysis would involve the same steps (ability, incentive and overall impoact) and the substantive 
arguments in the analysis, as presented in subsections A- C) would not change.  
245  Form CO, paragraph 819- 850. 
246  On the supply side of this market, DPG Media is only active for captive use and the JV is not active. The 
Notifying Parties wi ll also be active (without the JV) in the segment for the production for hire.  
247  The Notifying Parties will also be active (without the JV) in the segments for the licensing of FTA, 
TVOD, Premium Sports and series SVOD.  
 
73 SVOD services), as well as the segment for retail supply of non- linear pay AV 
services.248  
(331)  The Notifying Parties will also remain independently active in a number of markets 
closely related to the activities of the JV, notably: (i) the market segment for the 
production of AV content for hire; (ii) the market segments for the licensing of 
content in the FTA, TVOD, Premium Sports and series SVOD  windows ; (iii) the 
market segment for retail supply of linear pay AV services249; (iv ) the sale of 
adve rtising space on TV channels an d websites; (v ) the wholesale supply of basic 
pay TV channels; and (vi)  the retail supply of mobile communications services .  
(332)  Against this background, for the reasons set out below, t he Commission considers 
that the Transaction does not give rise to seriou s doubts as to its compatibility with 
the internal market as a result of cooperative effects in (i) the market for production 
of AV content (demand side)  and its sub- segments (potential narrower product 
markets) ; (ii) the market for licensing of individual  AV conte nt (supply and demand 
side)  and its sub-segments (potential narrower product markets) ; (iii) the market for 
retail supply of AV services  and its sub- segments (potential narrower product 
markets) ; (iv) the  markets for sale of advertising space  on D utch language TV 
channels and websites  (potential narrower product markets); (v ) the market for 
wholesa le supply of basic pay  TV channels  (potential narrower product markets) ; 
and (vi ) the market for retail supply of mobile communications services .  
(333)  First,  the Commission observes that the relevant markets are not conducive to 
coordinat ion between the Parties. The market  shares of the Parties are asymmetric 
and several competitors would remain post -Transaction, which would be likely to 
disrupt any attempts of the Notifying Parties to coordinate their activities on the 
relevant markets.  
(334)  As regards the market for the production of AV content ( demand side) , or any of the 
segments/narrower product markets, Telenet and DPG Media  will retain activities on 
the dema nd side of this market, with market shares of respectively [20 -30]% and 
[30-40]% in 2019 in the Flemish Region .250 The JV itself will have modest activities 
on the demand side of this market, representing an expected  market share of [5-10]% 
by 2023. The Noti fying Parties commission TV programmes for their respective 
FTA channels.  AV production agreements are negotiated confidentially and 
bilaterally.  The terms of these agreements are not made public.  Hence, there is no 
transparency regarding the terms of ag reements between broadcasters (and retail AV 
service providers) commissioning AV content on the one hand and AV production 
companies on the other hand.  This makes reaching terms of coordination and 
                                                 
248  The Notifying Parties will also be active (without the JV) in the segment for retail supply of linear AV 
services.  
249  Including the supply of library SVOD content.  
250  The Notifying Parties estimate that their respective market shares would not be materially different if 
separate segments  for commissioned TV production versus TV production for hire or separate segments 
by exhibition window  were considered.  Telenet and DPG market shares of respectively [5 -10]% and [40-
50]% for scripted AV content and [20- 30]% and [30- 40]% for non -scripted A V content. See the Notifying 
Parties’ Response to RFI 12 of 31 July 2020 . 
 
74 monitoring deviations difficult.251 Competitors such as VRT , with market share of 
[40-50]%, will remain active in this market post -Transaction.  
(335)  As regards the market for the licensing of broadcasting rights for ( pre-existing ) AV 
content , or any of the segments/narrower product markets, Telenet and DPG Media  
will l icense the rights to individual AV content  on the supply side , with market 
shares of respectively approximately  [0-5]% and [0 -5]% in 2019.252 The JV is not 
expected to have a market share exceeding [0 -5]%.253 Furthermore, similar to what 
is the case for AV pro duction agreements, the individual AV content licenses are 
negotiated bilaterally and confidentially. Hence, there is no transparency regarding 
the terms of such license agreements.254  
(336)  Telenet and DPG Media will also retain activities on the demand side  of the market 
for the licensing of individual AV content , with market shares of respectively [40 -
50]% and [10 -20]% in 2019 in the Flemish Region. 255 The JV will only acquire 
certain content in the Pay TV and SVOD window and will run its content acquisition 
activities separately from its parents through its own dedicated content teams.256 
Furthermore, this market is characterised by heterogeneous services and confidential 
and bilateral negotiations of agreements, and its supply side is fragmented.257 These 
market ch aracteristics suggest that the market is not transparent. Competitors such as 
VRT  ([5-10]%), Proximus  ([10-20]%), Netflix  and Amazon Prime ( [10-20]%) will 
remain active in this market post -Transaction.  
(337)  As regards the market for the retail supply of AV ser vices, and the possible 
subsegments/narrower potential product markets, both Telenet and DPG Media will 
retain their activities as suppliers of retail AV services, with market shares of 
respectively [50-60]% and less than [0 -5]% in Telenet’s footprint.258 Contary to its 
parents, the JV will be active only in the SVOD segment.  The overlap between the 
Notifying Parties , however, will be limited, as DPG Media will exit the market on 1 
September 2020 following its prior decision to shut down Stievie. The incentiv es of 
the Notifying Parties will remain significantly different on this marke t, given that 
DPG Media’s VTM GO  is a purely advertising based OTT platform (free -of-charge 
for the viewer),  while Telenet operates a subscription based retail AV service over 
                                                 
251  Form CO, paragraph 600.  
252 This market share relates to Belgium. The market share would be slightly higher, but still low if the 
geographic market was Flanders. The Notifying Parti es estimate that their combined market shares would 
remain below 20% under any plausible market definition as considered above. See the Notifying Parties’ 
Response to RFI 12 of 31 July 2020.  
253  Form CO, paragraphs 822 -825. 
254  Form CO, paragraph 616.  
255  Telenet and DPG Media have market shares of respectively [30 -40]% and [20 -30]% in the market 
segment for licensing of Dutch language individul AV content; [60- 70]% and [0 -5]% in the TVOD 
segment; [30 -40]% and [0- 5]% in the First Pay/SVOD and SVOD library segm ents; [20 -30]% and [40 -
50]% in the FTA segment; and [60 -70]% and [0- 5]% in the Premium Sports segment. Their respective 
market shares would be [30- 40]% and [20 -30]% for film, [50 -60]% and [5- 10]% for sport, and [20- 30]% 
and [10 -20]% for other genres; [40- 50]% and [0- 5]% for premium content; [20- 30]% and [20 -30]% for 
non-premium; [30 -40]% and [10 -20]% for scripted content; and [40 -50]% and [10- 20]% for non- scripted 
content. See the Notifying Parties’ Response to RFI 12 of 31 July 2020.  
256  Form CO, paragraph 826. 
257  Form CO, paragraph 616.  
258  Telenet and DPG Media have market shares of respectively [30 -40]% and less than [0 -5]% in the market 
segment for non -linear pay AV services and [60 -70]% and less than [0- 5]% (through Stevie) in the  
market segment for lin ear pay AV services.  
 
75 a traditional TV platform .259 Furthermore, c ompetitors such as Proximus and 
Orange, but also Netflix, Amazon and Disney, will remain active in this market post -
Transaction.  
(338)  As regards the market for the sale of TV adve rtising space on TV channels  and 
websites, the Notifying Parties will continue to sell advertising space on a wide 
spectrum of media,  including advertising space on TV  channels ((Telenet [20-30]% 
vs. DPG Media [60 -70]%) and websites ( Telenet [0-5]% vs. DPG Media [5-10]%) in 
the Flemish Region. The JV, as a customer, would not have access to the overall 
advertising strategies of the Notifying Parties  and t he Notifying Parties will continue 
to be active as independent advertising providers post -Transaction . Furthermore, this 
market is characterised by  numerous and opaque  rates , due to the many and 
significant rebates in this sector .260 Competitors such as VAR ( [5-10]%) and 
Transfer ([0-5]%) will remain active in the market for TV advertising post-
Transaction,  while players such as Google ([40-50]%) and F acebook ([10-20]%) will 
remain active in the market for online advertising . 
(339)  As regards the market for the wholesale supply of basic pay TV channels , Telenet 
and DPG Media will retain their activities as suppliers of linear TV channels and 
ancillary non -linear services separately, with market shares of respectively [5-10]% 
and [20-30]% in Telenet’s footprint.261 The JV will not be active as either a supplier 
or a purchaser of linear TV channels and/or ancillary non -linear services.  
Furthermore, this  market is characterised by confidential and bilateral negotiations of 
agreements.262 In addition, compet ing broadcasters, such as VRT , or suppliers of 
retail AV services, such as Proximus and Orange,  could jeopardi se the effects of any 
attempt of the Notifying Parties to coordinate their behaviour on this market .263 
(340)  As regards the market for the retail supply of mobile communications services , both 
Telenet and DPG Media will retain their activities as suppliers of retail mobile 
telecommunication services, with market sha res of respectively [20-30]% and [0 -
5]% in Belgium .264  The JV will not be active in this market  and would not have 
access to the overall mobile strategies of its parents. In addition, there are significant 
differences between the respective market positions  of the Notifying Parties  on this 
market , so their incentives in this market would not be aligned. Namely, Telenet is a 
mobile network operator (“MNO”) offering mobile services on the basis of its own 
mobile network (either standalone or as part of a multi ple play package), with a 
market share of [10 -20]% by value in 2019, whilst DPG Media is active in this 
market as a MVNO using the mobile network of Orange Belgium and offering 
standalone mobile services exclusively to consumers, with a market share of [0 -
                                                 
259  See Notifying Parties’ Response to RFI 13 of 3 August 2020.  
260  Form CO, paragraphs 829 -831 and Notifying Parties’ Response to RFI 13 of 3 August 2020.  
261  The Notifying Parties estimate that , in view of their absence and/or very mode st activities in all  segments 
but the general entertainment genre, the market shares identified above in the segment of basic Pay TV 
channels also provide a good proxy for their market shares on the demand side of the market segment for 
the wholesale suppl y of TV channels in the general entertainment genre.  See Notifying Parties’ Response 
to RFI 12 of 31 July 2020.  
262  These are complex agreements negotiated for relatively long periods of time (i.e. 3 to 5 years).  Their 
terms vary from one broadcaster to an other and from one retail AV provider to another, depending on, for 
example, the rights included (which technologies, which footprint, which ancillary services, …), the 
business model of the parties, etc.  See Notifying Parties’ Response to RFI 13 of 3 August 2020.  
263  See Notifying Parties’ Response to RFI 13 of 3 August 2020.  
264  Volume market shares of respectively [20 -30]% and [0 -5]%.  
 
76 5]%.265 Competitors such as Proximus and Orange and other MVNOs will remain 
active in this market post -Transaction.  
(341)  Second, the J V represents [ …] of the activities of the Notifying Parties which makes 
it unlikely that the Notifying Parties wou ld have any incentive to coordinate their 
competitive behaviour . Namely , the JV’s expected revenues will be [ …]. According 
to its business plan, the JV is expected to generate revenues in the range of 
approximately EUR […] by 2023, which represents approximately [ …] of Liberty 
Global’s and [ …] of DPG Media’s EU -wide turnover. Even when considering the 
Notifying Parties’ Belgian revenues  only, the JV’s revenues will still represent only 
[…] of Liberty Global’s and [ …] of DPG Media’s revenues.266 In line with the 
Commission’ s conclusions in precedent cases, this suggest s that the conduct of the 
Notifying Parties on the markets is unlikely to be influenced by their cooperati on in 
the JV .267 
(342)  Third, given the diversification of  the Notifying Parties’ businesses and the relative 
differences in their business strategies, it is unlikely that their incentives c ould be  
effectively  aligned. Telenet is in essence a B2C company, providing communication 
services (broadband internet, fixed telephony services and cable television) to 
consumers, whilst DPG Media is a B2B company, which finances AV content by 
providing commercial communication on its media brands to advertisers. Moreover, 
Telenet is the owner of a fixed cable network covering Flanders and (partially) 
Brussels and of a mobile network covering the entire territory of Belgium, whilst 
DPG Media does not own a fixed and/or mobile network and mainly supplies its AV 
content via licens ing deals w ith operators of such networks.268 
(343)  Fourth, information barriers  set out in the Joint Venture Agreement, will make it 
difficult for the Notifying Parties to coordinate their behaviour  post-Trasnsaction .269 
Information barriers will be in place betwee n Notifying Parties  on the one hand and 
the JV on the other hand, and between the Notifying Parties . These information 
barriers will prevent information flows that could otherwise help to coordinate the 
retained activities of the Notifying Parties. More sp ecifically, the information 
barriers will ensure that (i) confidential information relating to the retail supply of 
library SVOD content  services, including the cost per subscriber charged , will not be 
shared by the JV from one parent to the other ; (ii) the Notifying Parties will not use 
the information obtained from each other in their capacity as contract 
party/shareholder/director of the JV  (in particular for their own business purposes) ; 
(iii) the JV will not use information regarding Telenet’s retail s upply of SVOD 
services as disclosed in the context of their wholesale agreement (“Chinese walls”) 
and (iv) the JV will not share confidential information about the advertising rates 
charged by one of its parents with the other parent.270 
                                                 
265  See Notifying Parties’ Response to RFI 13 of 3 August 2020.  
266  Form CO, paragraphs 799 -800. 
267 See case M.5841, Cathay Pacific Airways/Air China/ACC, para 30; case M.5838, 
Bertelsmann/Planeta/Circulo , paras 69-73; case M.3542, Sony Pictures,/Disney/ODG/JV , paras 17-19. 
268  See the Notifying Parties’ Response  to RFI 13 of 3 August 2020.  
269  Form CO, Annex 5.1.c.  
270  Form Co, paragraphs 833 -848. 
 
77 (344)  Fifth, the ongoing growth in the viewing  of AV content via OTT platforms271 will 
likely undermine attempts at coordination  in the markets for  the retail  supply of  AV 
services between  Telenet and DPG Media because such traditional players are 
required to adjust the way they deli ver their content to consumers . Similarly, the 
growth in non- linear viewing272 will likely undermine attempts at coordination in the 
markets for the wholesale supply of TV channels  and t he growth in online 
advertising273 will likely undermine attempts at co ordination in the market for  the 
sale of TV advertising space on TV channels . 
(345)  As already referred to in Section 5.3.2, the Commission notes again t hat coordinated 
effects on this market can be excluded for similar arguments as why cooperative 
effects are excl uded in this market in this section. 
5.5.4. Conclusion  
(346)  In conclusion, in light of the above considerations, the Commission considers that 
the Transaction does not give rise to serious doubts as to the compatibility with the 
internal market relative to the possibi lity of coordination as result ing from  
cooperative effects, with respect to: (i) the market for production of AV content 
(demand side) and its relevant sub- segments; (ii) the market for licensing of 
individual  AV content (supply and demand side) and its relevant sub- segments ; (iii) 
the market for retail supply of AV services and its relevant sub -segments; (iv) the 
markets for sale of advertising space on Dutch language TV channels and websites; 
(v) the market for wholesale supply of basic pay TV channels; and (vi) the market 
for retail supply of mobile communications services.  
6. CONCLUSION  
(347)  For the above reasons, the European Commission has decided not to oppose the 
notified operation and to declare it compatible with the internal market and with the 
EEA Agree ment. 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  
 
 
                                                 
271  Form CO, paragraphs 32 -41 and Annex 1.1.a.  
272  Form CO, paragraphs 32 -41and Annex 1.1.a.  
273  Form CO, paragraph 465 -470.