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, 15.03.2022  
C(2022)  1723 final  
PUBLIC VERSION 
 
Amazon.com, Inc.  
410 Terry Ave N  
Seattle 98109, WA  
United States of America  
Subject : Case M. 10349 – AMAZON  / MGM  
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 8 February 2022, the European Commission received notification of a proposed 
concentration pursuant to Article 4 of the Merger Regulation by which Amazon.com, Inc. ("Amazon", USA) will acquire within  the meaning of Article 3( 1)(b) of the 
Merger Regulation  sole control of the whole of M GM Holdings Inc. ("MGM", USA) 
(the “Transaction”). Amazon is designated hereinafter as the  “Notifying Party” and, 
together with MGM, 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’).  
In the published version of this decision, 
some information has been omitted 
pursuant to Article 17(2) of Council 
Regulation (EC) No 139/2004 concerning 
non-disclosure of business secrets and 
other  confidential information. The 
omissions are shown thus […] . Where 
possible the information omitted has been 
replaced by ranges of figures or a general description.
 
 
2 1. THE PARTIES  
(2) Amazon  is based in Seattle, Washington, US. It operates a range of businesses 
including retail, entertainment, consumer electronics, and technology services. Most 
relevant to the Transaction, Amazon is active in the (co -)production of audio- visual 
(“AV”) content through Amazon Studios, which is available alongside third- party 
content on Amazon's home entertainment offering, Amazon Prime Video  (“Prime 
Video”) , available to consumers in the EEA and internationally. In addition, Amazon 
produces streaming media player devices and supplies other forms of digital content, including music streaming, audiobooks, and ebooks. 
(3) MGM is an entertainment company based in Beverly Hills, California, US A. MGM is 
active in the production and global distribution of AV content . In particular, MGM is 
involved in the development, production, financing, and acquisition of films for 
theatrical ( i.e., cinema) release, as well as the production and licensing of films for 
distribution via all other means and media throughout the world , including 
nontheatrical, free and pay television ("TV"), physical home video, and all forms of 
digital home entertainment. MGM is not active in theatrical distribution in the EEA, 
but distributes its content through third parties. With regard to TV conte nt, MGM 
produces and distributes scripted and unscripted shows. MGM offers a wholesale 
channel, MGM+, in a number of EEA jurisdictions via retail distributors Prime Video, Zattoo, and Mediaset. MGM is also active in licensing intellectual property ("IP") rights for use in consumer products and interactive games, as well as various other 
licensing activities.  
2. T
HE OPERATION  
(4) On 25 May 2021, the Parties entered into an Agreement and Plan of Merger by which Amazon will acquire the entire issued share capital of  MGM for USD 8.45 billion.  
The Transaction therefore consists of the acquisition of sole control of MGM by Amazon within the meaning of Article 3(1)(b) of the Merger Regulation.  
3. U
NION  DIMENSION  
(5) The undertakings concerned have a combined aggregate worldwide  turnover of more 
than EUR 5 000 million3. Each of them has a Union- wide turnover in excess of 
EUR  250 million, and each of them  do not achieve more than two- thirds of their 
aggregate U nion- wide turnover within one and the same Member State. The notified 
operation therefore has a U nion dimension within the meaning of Article 1(2) of the 
Merger Regulation .  
4. RELEVANT MARKETS  
(6) The overall structure of the AV industry comprises different levels: the upstream, intermediate, and downstream, as follows.  
                                                 
3  Turnover calculated in accordance with Article 5 of the Merger Regulation . 
 
3 (7) The upstream level encompasses production of film and TV content and the licensing 
of distribution rights to such content to parties active in the intermediate (such as wholesale distributors) and downstream levels (such as broadcasters or VOD providers). AV content production includes, inter alia , financing, developing scripts, 
casting actors and directors, shooting, and postproduction. Studios and independent producers produce film and TV content in a number of ways, including through various forms of cooperation with and acquisitions from other production companies.  
(8) The intermediate level covers wholesale distribution of content ( e.g., the wholesale 
supply of TV channels or licensing out of exhibition rights to third party distributors for onward supply to the end- user), and related marketing activities. The intermediate 
level in the value chain is carried out both by third party wholesale distributors (who specialise in distributing content, either individually or in aggregate), and through self-distribu tion by film and TV content producers.  
(9) The downstream level includes both theatrical exhibition (whereby customers pay for tickets to view a film at a theatre or cinema), and retail distribution through home entertainment channels, including physical dist ribution via DVD and Blu- ray discs, all 
types of linear TV ( e.g., broadcast, cable, satellite), and VOD services.  
(10) The Transaction primarily concerns home entertainment at all levels of  the AV value 
chain : (i) the production and supply of AV content  (including the supply of pre -
produced AV content and commis sioned AV content), where  both Amazon (through 
Amazon Studios)  and MGM are active in the production and licensing of AV content ; 
(ii) the wholesale supply of TV channels , where  MGM  is active in  the wholes ale 
supply of AV channels in certain countries in  the EEA through MGM+ ; and (iii) the 
retail supply of AV services to end customers , where Amazon is active  in the EEA  
through Prime Video. The scope of the three markets is assessed below in Sections 4.1 to 4.3. 
(11) Considering all plausible product markets and the assessment of  the geographic scope 
of the market for the retail supply of AV services to end customers in Section 4.3 below, as a result of the Parties’ overlapping activities the Transaction only gives rise to affected vertical relation ships in Germany, Austria and Croatia relating  to the retail 
supply of AV services to end customers under a narrow market definition consisting of only SVOD services . Therefore, this will be the starting point for the Commission’s 
assessment in this decisi on. 
(12) The Transaction further concerns  part of the theatrical distribution value chain , 
namely the production and licensing of distribution rights of films for theatrical 
exhibition, where both Amazon (through Amazon Studios) and MGM are active . The 
scope of this market is assessed below in Section 4.4. The Transaction does not 
concern the  other markets that are part of the theatrical distribution value chain, being 
the market for  the distribution to exhibitors of films for theatrical exhibition  and the 
market for theatrical exhibition . On  the market for  the distribution to exhibitors of 
films for theatrical exhibition  only Amazon is active through Amazon Studios but it is 
not active in the EEA.  Moreover, neither of  the Parties is  active in theatrical 
exhibition . Therefore , this decision will not further assess the impact of the 
Transaction  on these market s. 
(13) During the Commission’s investigation, the question arose whether the distinction between the AV value chain and the theatrical distribution value chain is still relevant . 
 
4 The distinction between those value chains, both at the level of the production and 
licensing of films as well as the retail distribution of films, is assessed below in Section 4.5. 
(14) The Transaction does not affect  the distribution of home entertainment products , 
which incl udes products that are distributed in physical form. Only MGM is active in 
the licensing and supply of home entertainment for physical exploitation and the 
Transaction does not give rise to relevant vertical relationships . 
(15) Home entertainment refers to the provision of copies of films for consumers to buy or rent and watch at their convenience. Home entertainment products can include products in physical format (such as DVDs and Blu- ray discs) and products that are 
distribute d in electronic form. Amazon is not active on this market and MGM is not 
active in the distribution  of home entertainment products in the EEA. Therefore, this 
decision will not further discuss a market for the distribution of home entertainment 
products. 
(16) Finally , the Parties are both active in the licensing out  of IP rights for merchandising.  
However, as the merchandise licensing industry is very large (according to public sources reaching USD 280 billion in 2017)
4 and the combined market share of the 
Parti es would be very low (less than [0- 5]%) under any market definition, this 
decision will not further discuss a market for merchandise licensing.   
4.1. Production and supply of AV content  
4.1.1. The Parties’ activities  
(17) Both Amazon (through Amazon Studios) and MGM are active in the production and supply of AV content . 
(18) With regard to the supply -side of the market, Amazon Studios produces original film 
and TV content, which is offered to customers in over 200 countries and territories, including the EEA , as video on demand (“VOD”) service . As regards the production 
of commissioned AV content , Amazon Studios is not active in the EEA . MGM 
produces  AV content for physical distribution (DVD/Blu -ray) and distribution on 
video on demand services. Further, MGM occasionally  produces AV content 
commissioned by third parties in the EEA  and recently launched MGM International, 
an international television division with a view to expanding MGM’s non- US 
production capabilities.  
(19) With regard to the demand- side of the market, Amazon  Studios commissions AV 
content  from third parties  and has previously licensed content from MGM. MGM 
occasionally commissions certain unscripted content from third parties on behalf of EPIX, a premium Pay -TV network that  it owns through EPIX Entertainment LLC.  
(20) Amazon Studios and MGM are also active in  the acquisition and licensing of 
broadcasting rights for pre -produced AV content.  
                                                 
4  See Licensing International, Global sales of licensed products and services reach US 280.3 billion, fifth 
straight year of growth for the licensing industry, available at: 
https://licensinginternational.org/news/global- sales -of-licensed -products -and-services -reach -us-280-3-
billion -fifth-straight -year-of-growth -for-the-licensing -industry/ .  
 
5 (21) From the supply side, Amazon generally does not license its content to third parties, 
[business secrets concerning Amazon's li censing activities ]. MGM’s licensing of 
broadcasting rights for pre -produced AV content includes films ( often following 
theatrical release) , first -run TV shows and library content. Film and TV content is 
licensed globally on [ business secrets concerning MG M's licensing policy ], and 
through [ business secrets concerning MGM's licensing policy ]. 
(22) From the demand side, Amazon Studios licenses in third- party studio content libraries 
and sourcing content via direct publishing by creators that is distributed throug h Prime 
Video. MGM does not typically license in distribution rights for pre -produced AV 
content. Outside the EEA, EPIX licenses in broadcast rights for pre -produced content 
for distribution (in the United States and Bermuda).  
4.1.2. Product market definition 
4.1.2.1. Past Commission decisions  
(23) In previous decisions, the Commission has concluded that there are separate markets 
for: (i) the production and supply of commissioned AV content (also referred to as ad hoc or new content); and (ii) the licensing of broadcasting rights for pre -produced AV 
content (available off -the-shelf).
5 
(24) With regard to the market for the production of commissioned AV content , the 
Commission has found the product market to be limited to non- captive AV 
production, thereby excluding captive AV production ( i.e., AV content produced by 
broadcasters for use on their own TV channels), as this AV content is not offered on the market.
6 
(25) With regard to the market for the licensing of pre- produced AV content , the 
Commission has considered that the market may be subdivided by content type, in particular: (i) films, (ii) sports, and (iii) other AV content ( i.e., all non- sport, non- film 
content), but ultimately left the market definition open.
7 In addition, the Commission 
had assessed whether AV content could be further sub- divided by distinguishing 
between: (i) US and non -US films; (ii) premium an d non- premium content; or 
(iii) scripted and non- scripted content. T he question whether such further possible 
sub-segments constituted separate markets  has been left open in previous decisions.8 
                                                 
5 Commission decision of 7 April 2017 in Case M.8354 –  Fox / Sky, para . 54; Commission decision of 
24 February 2015 in Case M.7194 –  Liberty Global / Corelio / W&W / De Vijver Media, para. 69; 
Commission decision of 6 November 2018 in Case M.8785 –  The Walt Disney Comp any / Twenty -First 
Century Fox, para. 67; Commission decision of 26 August 2020 in Case M.9299 –  Discovery / Polsat / JV, 
para. 50;  and Commission decision of 22 December 2021 in Case M.10343 –  Discovery / Warner Media, 
paras. 21 and 25.  
6 Commission decis ion of 22 September 2006 in Case M.4353 –  Permira  / All3Media Group, paras. 11- 12; 
Commission decision of 9 October 2014 in Case M.7360 –  21st Century Fox / Apollo /JV, para. 36; 
Commission decision of 20 June 2016 in Case M.7865 – Lov Group  Invest /De Ago stini / JV, para. 18;  and 
Commission decision of 26 August 2020 in Case M.9299 –  Discovery / Polsat / JV, para. 50.  
7  Commission decision of 21 December 2011 in case M.6369 –  HBO / Ziggo  / HBO Nederland; and  
Commission decision of 22 December 2021 in Case  M.10343 – Discovery / Warner Media, para. 22. 
8 Commission decision of 7 April 2017 in Case M.8354 – Fox / Sky, para. 55; M.6369 – HBO / Ziggo / HBO 
Nederland, para. 18; Commission decision of 24 February 2015 in Case M.7194 –  Liberty Global / Corelio / 
W&W / De Vijver Media, para. 52; Commission decision of 6 November 2018 in Case  M.8785 – The Walt 
 
 
6 (26) The Commission has also considered further sub- dividing the market for the licensing 
of pre -produced AV content by exhibition window:9 (i) subscription- based video on 
demand (“ SVOD ”); (ii) transactional video on demand (“TVOD”),10 (iii) pay -per-
view (“PPV”),11 (iv) first pay TV window, (v) second pay TV window, and (vi) free -
to-air (“FTA”), but has ultimately left this question open.12 
4.1.2.2. The Notifying Party’s views  
(27) The Notifying  Party argues that the precise scope of the market for the production and 
supply of AV content can be left open. As regards the production of commissioned 
AV content and the licensing of pre -produced content, the Notifying Party submits 
that the definition  of the relevant product market can be left open as the Transaction 
does not raise serious doubts as to its compatibility with the internal market under any plausible market definition, given the absence of an overlap.  
(28) The question arose during the Commiss ion’s investigation whether the distinction 
between the AV value chain and the theatrical distribution value chain is still relevant . 
The distinction between those value chains, both at the level of the production and 
licensing of films as well as the reta il distribution of films, is  further discussed in 
Section 4.5 below. The Notifying P arty argues in this regard that there cannot be a 
distinction between markets for the production and supply of films intended for either 
theatrical or direct -to-streaming  (“DTS ”) release. In any event , the Notifying Party 
submits that the precise market definition can be left open as the Transaction does not 
raise serious doubts as to its compatibility with the internal market under any 
plausible market definition. 
4.1.2.3. The Com mission’s assessment  
(29) As set out in para. (11)  above, the markets in Germany, Austria and Croatia are a 
starting point for the Commission’s assessment as the Parties’ overlapping activities 
only give rise to affected vertical relationships in those countries relating to the retail 
supply of AV services to end customers under a narrow market definition consisting 
of only SVOD services . 
(30) Overall, the market  investigation indicated that the re are no reasons for the 
Commission to depart from the approach taken in previous cases with regard to the 
definition of the market for the production and supply of AV content.  
                                                                                                                                                        
Disney Company / Twenty -First Century Fox, para. 68;  and Commission decision of 22 December 2021 in 
Case M.10343 –  Discovery / Warner Media, para. 23.  
9  The use of the term exhibition windows is not applicable to non -film AV content. Non -film AV content 
may be broadcast through different exploitation fields ( e.g., pay TV, FTA) but the rights do not pass 
through each method in the same way a newly released film  does.  
10  TVOD designates a product where a consumer obtains the right to watch a single title within a designated 
time period (for example 48 hours) through a single payment.  
11 PPV designates a product where a consumer obtains the right to watch a single  title during a specific time 
period (for example Sunday between 2.00 pm and 3.45 pm) through a single payment.  
12 Commission decision of 7 April 2017 in Case M.8354 – Fox / Sky, para. 56; Commission decision of 6 
November 2018 in Case  M.8785 – The Walt Dis ney Company / Twenty- First Century Fox, para. 68; 
Commission decision of 1 December 2021 in Case M.10456 – Sky / VIACOMCBS / JV, para. 36; and 
Commission decision of 22 December 2021 in Case M.10343 –  Discovery / Warner Media, paras. 24- 25. 
 
7 (31) The vast majority of respondents to the marke t investigation confirm that the general 
distinction that the Commission has previously recognised (between (i) production 
and licensing of AV content, (ii) the wholesale supply of TV channels, and (iii) the retail supply of AV services)  is still an accura te description of the AV value chain in 
the EEA and more specifically in Germany, Austria and Croatia, today.
13 
(32) The information gathered during the market investigation does not provide an 
indication that the Commission should depart from  the distinction between the  market 
for the production of commissioned AV content on the one hand and the market for  
the licensing of broadcasting rights for pre -produced AV content ( i.e., content that is 
available off the shelf ) on the other hand. T he vas t majority of the respondents to the 
market investigation consider that this still accurately reflects the market reality in the EEA and more specifically in Germany, Austria and Croatia.
14 
(33) As regards a market for the licensing of broadcasting rights for pr e-produced AV 
content, the Commission then considered whether this market could be segmented by 
type of content including (i) films, (ii) sports, and (iii) other AV content ( i.e., all non -
sport, non- film content) . The majority of the respondents to the mar ket investigation 
confirm that this distinction is equally still accurate.15 However, several respondents 
note that series are missing from this segmentation and wonder whether this should be part of a segment for films or whether there should be a distinct ion between fictional 
and non- fictional content.
16 Within a potential market for films, the majority of 
respondents state that US and non- US films are equally important to attract end -
customers.17 Within a potential market for other AV content, the majority of the 
respondents to the market investigation confirmed that segmentations  between 
scripted and unscripted AV content as well as between premium and non- premium 
content  are still accurate.18 In relation to this first segmentation , content providers 
highlig ht that “ scripted and non- scripted programming are totally different in terms of 
production budget, licensing parameters, target audience, etc.”.19 As regards the 
distinction between premium and non- premium content, one respondent clarifies that 
“[p]remium content usually has a higher production budget to ensure a better 
technical quality, access to the best talent and the most exciting well -known 
brands ”.20 
(34) The Commission further investigated whether the market for the licensing of broadcasting rights for pre -produced AV content could be segmented by exhibition 
windows into (i) SVOD , (ii) TVOD , (iii) PPV , (iv) first pay TV window , (v) second 
pay TV window , and (vi) FTA. For pre -produced AV content, the results of the 
market investigation are inconclusive.
21 An equal number of respondents consider that 
the distinction by exhibition window is entirely relevant or irrelevant. Some other respondents indicate that the distinction by exhibition window is only partly relevant . 
However, these respondents point to diffe rent reasons why this would be the case  
                                                 
13  Questionnair e 1 to content providers, question 6.  
14  Questionnaire 1 to content providers, question  15. 
15  Questionnaire 1 to content providers, question 16.1.  
16  Questionnaire 1  to content providers, question  16.6. 
17  Questionnaire 1 to content providers, question 16.2.  
18  Questionnaire 1 to c ontent providers, questions 16.3 and 16.4.  
19  Questionnaire 1  to content providers, question  16.3.1.  
20  Questionnaire 1 to content providers, question 16.4.1.  
21  Questionnaire 1 to content providers, question 17.1.  
 
8 indicating that it might differ per country, that some exhibition windows would be less 
relevant or that it depends on the specific content.22 
(35) By contrast, a  small majority of respondents indicate that the same segmen tation by 
exhibition window would be relevant for the market for the production and supply of commissioned AV content.
23 Several respondents however seem to indicate that in the 
case of commissioned AV content, it depends on the commissioner whether there w ill 
be a second release window.24 In view of this, the Commission considers that the 
results of the market investigation are insufficiently clear to conclude that a segmentation by exhibition window should be distinguished in relation to commissioned AV content.  
(36) In light of the above, the Commission concludes, for the purpose of this decision, that the production and supply of AV content forms a relevant product market and that, within this market, there are separate product markets for the production of commissioned AV content and the licensing of broadcasting rights for pre -produced 
AV content. The question whether the market for the licensing of broadcasting rights for pre -produced AV content can be further segmented according to (i) the type of AV 
content , (ii) US and non- US films, (iii) premium and non -premium content, (iv) 
scripted and non- scripted content, or (v) exhibition window can be left open as the 
Transaction does not raise serious doubts as to its compatibility with the internal market or the fu nctioning of the EEA agreement under any plausible product market 
definition. 
4.1.3. Geographic market definition  
4.1.3.1. Past Commission decisions  
(37) In past decisions, the Commission has considered the market for the production and supply of AV content (and its relevant segments) to be either national or regional, based on linguistically homogeneous areas.
25 
4.1.3.2. The Notifying Party’s views  
(38) As regards the production of commissioned AV content, the Notifying Party submits 
that the definition of the relevant geographic market can  be left open as the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market under any plausible market definition, given the absence of an overlap. 
4.1.3.3. The Commission’s assessment  
(39) The vast majority of the respondents to the market investigation indicated that the 
geographic scope of the market for the production and supply of AV content is either 
national in scope or encompassing linguistically homogeneous regions.26 As a result, 
                                                 
22  Questionnaire 1 to content providers, question 17.3.  
23  Questionnaire 1 to content providers, question  17.2.  
24  Questionnaire 1 to content providers, question 17.3.  
25 Commission decision of 7 April 2017 in Case M.8354 –  Fox / Sky, para . 69; Commission deci sion of 
26 August 2020 in Case  M.9299 – Discovery / Polsat / JV, para. 54; and Commission decision of 
22 December 2021 in Case M.10343 – Discovery Warner Media, paras 28 -29. 
26  Questionnaire 1 to content providers, question 40.  
 
9 the Commission does not have any indication tha t it should depart from the approach 
taken in previous cases.  
(40) The Commission concludes that, for the purpose of this decision, the geographic 
markets for the production of commissioned AV content and the licensing of broadcasting rights for pre -produced AV  content are either national in scope or 
encompass linguistically homogeneous regions.  In any event, the precise scope of the geographic market can be left open, as the Transaction does not raise serious concerns as to its compatibility with the internal market under any plausible market definition.  
4.2. Wholesale supply of TV channels   
4.2.1. The Parties’ activities  
(41) Only MGM is active in the wholesale supply of TV channels. In the EEA, MGM provides wholesale supply of TV channels through MGM+. MGM+ is available on Prime Video in France, Germany (where it is also available on both Prime Video and 
Zattoo), Italy, the Netherlands and Spain. More specifically, the genre of TV channels that MGM provides wholesale supply for can be qualified as film and general entertainmen t. 
(42) While Amazon is not active in the wholesale supply of TV channels and does not directly acquire TV channels from wholesale suppliers either, it does act as an intermediary between supplier s and end- customer s. For its Prime Video offering in 
France, Ital y, Spain, the Netherlands and Germany, Amazon offers MGM+ as well as 
similar channels of content produced by other studios to its customers. In addition, Amazon offers an option in Germany for customers to access the public broadcasters’ linear free TV channels ( i.e., not on a VOD basis), including ARD and ZDF as well as 
some regional channels, through their Prime Video subscription. 
4.2.2. Product market definition 
4.2.2.1. Past Commission decisions  
(43) In its previous decisions, the Commission has identified a wholesale market for the supply of TV channels. Within that market, in certain decisions, the Commission has further identified two separate product markets for: (i) FTA TV channels, and (ii) pay TV channels.
27 The Commission has further stated that, within the pay TV channels 
market, there could be different segments for: (i) basic pay TV channels, which are included in the basic subscription fee, and (ii) premium pay TV channels,
28 for which 
customers pay a premium in addition to their basic subscription fee.  
(44) In Liberty  Global / Corelio / W&W / De Vijver Media , the Commission concluded 
that, at the level of the wholesale supply of TV channels, there were two separate product markets, one consisting of the wholesale supply of premium pay TV channels and one consisting of the wholesale supply of basic pay TV/FTA channels. In that 
                                                 
27 Commission decision of 24 February 2015 in Case M.7194 – Liberty Global / Corelio / W&W / De Vijver 
Media, paras. 90 -91. 
28 Commission decision of 6 November 2018 in Case M. 8785 – The Walt Disney Company  / Twenty -First 
Century Fox, para. 77; Commission decision of 15 June 2018 in Case M.8861 –  Comcast  / Sky, para. 50; 
Commission decision of 6 February 2018 in Case M.8665 – Discovery  / Scripps, paras. 19- 20; and 
Commission decision of 7 April 2017 in Case M.8354 – Fox/Sky, paras. 80-  81. 
 
10 decision, the Commission also considered that there was no need to draw a distinction 
between linear TV channels and their non- linear ancillary services.29  
(45) In its previous decisions, the Commission also examined a number of other potential 
segmentations of the market for the wholesale supply of TV channels but ultimately left the market definition open, as regards: (i) genre or thematic content (films, sports, news, children/youth, and others);
30 and (ii) different means of infrastructure used for 
the delivery to the consumer (cable, satellite, terrestrial TV and IPTV).31 In the recent 
Telia Company/Bonnier  Broadcasting Holding decision, the Commission considered 
that the market for the wholesale suppl y of TV channels should not be further 
segmented according to the type of infrastructure used for the delivery to the consumer (such as cable, direct to home (“DTH”), digital terrestrial television 
(“DTT”) and internet protocol television (“IPTV”)) since t he competitive conditions 
in the market for the wholesale supply of TV channels, and any possible 
segmentation, would be similar irrespective of the distribution technology and type of infrastructure used for the distribution of the TV channels.
32 
4.2.2.2. The Notif ying Party’s views  
(46) The Notifying Party submits that the definition of the relevant product market for the 
wholesale supply of TV channels can be left open as the Transaction does not raise 
serious doubts as to its compatibility with the internal market und er any plausible 
market definition, given the absence of a horizontal overlap and the limited vertical 
links.  
4.2.2.3. The Commission’s assessment  
(47) As set out in para. (11)  above, the markets in Germany, Austria and Croatia are a 
starting point for the Commission’s  assessment as the Parties’ overlapping activities 
only give rise to affected vertical relationships in those countries relating to the retail 
supply  of AV services to end customers under a narrow market definition consisting 
of only SVOD services . In the upstream market for the wholesale supply of TV 
channels, MGM+ is not available in Austria and Croatia. Therefore, the Commission only assessed the sc ope of the market for the wholesale supply of TV channels in 
relation to Germany.  
                                                 
29 Commission deci sion of 24 February 2015 in Case M.7194 –  Liberty Global / Corelio / W&W / De Vijver 
Media, paras. 93 -94. 
30 Commission decisions of 7 April 2017 in case M.8354 – Fox / Sky, paras.  82-83; Commission decision of 
24 February 2015 in C ase M.7194 –  Liberty Glob al / Corelio  / W&W  / De Vijver Media, para.  92; 
Commission decision of 2 April 2003 in C ase M.2876 –  Newscorp  / Telepiù, para.  76; Commission 
decision of 18 July 2007 in Case M.4504 – SFR / Télé 2 France, paras.  41–42; Commission decision of 
26 August 2008 in Case M.5121 -  News Corp  / Premiere, para.  35; Commission decision of 21 December 
2010 in Case M.5932 – News Corp  / BskyB, para.  81; and Commission decision of 10 October 2014 in 
Case M.7000 –  Liberty Global  / Ziggo, para.  89. 
31 Commission decision of 24 February 2015 in Case M.7194 –  Liberty Global / Corelio / W&W / De Vijver 
Media, para. 98; Commission decision of 18 July 2007 in Case M.4504 –  SFR / Télé 2 France, para. 44; and 
Commission decision of 26 August 2008 in Case M.5121 – News Corp  / Premiere, para. 22.  
32 Commission decision of 12 November 2019 in Case M.9064 –  Telia Company  / Bonnier Broadcasting 
Holding, para. 162.  
 
11 (48) The market investigation generally confirmed the Commission’s approach taken in 
previous cases with regard to the definition of the market for the wholesale supply of TV chan nels in Germany . 
(49) The Commission first considered whether the market for the wholesale supply of TV channels should still be segmented by the supply of FTA TV channels and pay TV channels. In this regard, t he majority of the respondents to the market investigation  
expressing an opinion confirm that the previously recognised segmentation of the 
market for the wholesale supply of TV channels between the wholesale supply of FTA TV channels and pay TV channels is still accurate today in Germany.
33 One 
respo ndent explains that the “ regimes for rights’ clearance and acquisition differ 
significantly between pay TV and FTA. […] Additionally, the content and exploitation 
windows available through these channels differ substantially. The same holds true 
for pricin g and carriage conditions etc.”.34 
(50) Within a market for the wholesale supply of pay TV channels, the Commission then 
considered whether a distinction should be made between the supply of basic pay TV channels and premium pay TV channels. A majority of the re spondents expressing an 
opinion indicate that, within a market for the wholesale supply of pay TV channels in 
Germany, the supply of basic pay TV channels and premium pay TV channels can be 
considered as complements to each other  rather than as alternatives .
35  
(51) Further, the Commission investigated whether the market for the wholesale supply of 
TV channels should be segmented by genre. A small majority of the respondents 
expressing an opinion further state that, from the point of view of a retail distributor, different thematic pay TV channels  (e.g., films, sports, general entertainment, news, 
youth and others) within a market for the wholesale supply of pay TV channels are complements to each other.
36 One respondent explains that “ segmentations by genre 
or the matic content becomes relevant in particular with regard to composing 
respective genres or themes of FTA / pay TV channels, which are often composed  to reach specific end -customer groups (Kids, male, female young, old, sports affine 
etc)”.
37 In relation to  kids’ TV channels, this is echoed by other respondents as the 
majority  still consider s these are complements to non -kids’ TV channels.38 
(52) Another possible distinction the Commission investigated is that between the wholesale supply of linear and non- linear rights. Linear refers to a distribution method 
that provides for a scheduled program under which the respective content is only 
available at a specific time ( e.g., classic TV channels). Non -linear refers to a 
distribution method that allows consumers to choose when to watch the available 
content ( e.g., VOD services). A majority of the responding retail suppliers of AV 
services indicate that  they would acquire both linear and non- linear rights rather than 
buying  the two separately or  buying  linear rights plus ancillary non- linear rights (such 
as TVE and  catch -up).
39 Similarly, a majority of replying wholesale suppliers indicate 
that they typic ally supply both linear and non- linear rights to retailers of AV 
                                                 
33  Questionnaire 1 to content providers, question 20.  
34  Questionnaire 1 to content providers, question 20.1.  
35  Questionnaire 1 t o content providers, question 21.  
36  Questionnaire 1 to content providers, question 22.  
37  Questionnaire 1 t o content providers, question 22.1.  
38  Questionnaire 1 to content providers, question 23.  
39  Questionnaire 1 to content providers, question 24.  
 
12 services.40 In relation to ancillary services, the Commission has previously concluded 
that they have gradually  been  associated to TV channels to complement the TV 
offering and enhance the vie wer experience of traditional linear channels. The market 
investigation confirms that this is also accurate in Germany today.41 As a result, the 
Commission considers that the results of the market investigation do not support a 
distinction between the whole sale supply of linear and non- linear rights.  
(53) Finally , the Commission considered in previous cases  whether the market for the 
wholesale supply of TV channels should be further segmented according to 
distribution technology  (e.g., cable, IPTV, satellite, ter restrial or OTT). The vast 
majority of respondents to the market investigation responded that they do not 
consider that the market in Germany should be further segmented by distribution 
technology.42 
(54) In light of the above, the Commission considers that, for  the purpose of this decision, 
the relevant product market is the market for the wholesale supply of TV channels, 
including their ancillary services and covering all types of infrastructure. The question whether this product market can be further segmented  (i) by genre, (ii) by distribution 
technology, or between (iii) FTA and pay TV channels, and in turn whether pay TV channels can be further split into basic pay and premium pay TV channels, or (iv) FTA and basic pay TV channels on the one hand, and premium pay TV channels on the other hand can be left open since the Transaction does not raise serious doubts as to its compatibility with the internal market under any such plausible product market definition. 
4.2.3. Geographic market definition  
4.2.3.1. Past Commission decisions  
(55) In its previous decisions, the Commission found the market for the wholesale supply of TV channels to be either national in scope,
43 regional,44 or delineated by 
linguistically homogeneous areas encompassing more than one EU Member State.45 
4.2.3.2. The Noti fying Party’s views  
(56) The Notifying Party submits that the precise scope of the geographic market for the wholesale supply of TV channels can be left open as the Transaction does not raise 
serious doubts as to its compatibility with the internal market under  any plausible 
market definition, given the absence of a horizontal overlap and the limited vertical 
links.  
                                                 
40  Questionnaire 1 to content providers, question 25.  
41  Questionnaire 1 to content providers, question 26.  
42  Questionnaire 1 to content providers, question 29.  
43 Commission decision of 7 March 2012 in Case M.6369 – HBO / Ziggo / H BO Nederland, para. 39; 
Commission decision of 15 April 2013 in Case M.6880 –  Liberty Global  / Virgin Media, para. 41; 
Commission decision of 10 October 2014 in Case M.7000 – Liberty Global  / Ziggo, para. 98; Commission 
decision of 3 May 2021 in Case  M.9299 – Discovery / Polsat / JV, para. 70; and Commission decision of 22 
December 2021 in Case  M.10343 – Discovery  / Warner Media, para. 46 onwards.  
44 Commission decision of 24 February 2015 in Case M.7197 – Liberty Global / Corelio / W&W / De Vijver 
Media, para. 106 onwards; and Commission decision of 22 December 2021 in Case  M.10343 – Discovery  / 
Warner Media, para. 46 onwards.  
45 Commission decision of 7 April 2017 in Case M.8354 – Fox / Sky, para. 90 onwards.  
 
13 4.2.3.3. The Commission’s assessment  
(57) The vast majority of respondents to the market investigation indicate that they 
distribute wholesale TV channels to TV/A V service providers on a national basis, 
while some respondents indicate they do so by linguistic region or at a regional level. No respondents indicate these services are distributed on either an EEA or worldwide basis.
46 
(58) For the purpose of this decision, the Commission concludes therefore that the relevant geographic market for the wholesale supply of TV channels and all its possible sub -
segments is national in scope for Germany.  
4.3. Retail supply of AV services to end -customers  
4.3.1. The Parties’ activities  
(59) Amazon is active in the retail distribution of AV content. As regards non- linear 
services, Amazon offers access to VOD services through Prime Video, which is 
available in more than 200 territories (including the EEA). Prime Video is available 
either as a Prime membership benefit or, in some territories, via a stand- alone Prime 
Video subscription. In addition, existing Prime members and Prime Video subscribers have the option to subscribe to add- on third- party channels , depending on their 
country, such as Starzplay , Hayu, OCS, ZDFtivi etc. Some content on Prime Video is 
available on a TVOD basis, i.e. , customers can either purchase or rent this content on 
a title -by-title basis.  
(60) While Amazon does not offer traditional linear TV content, it does offer some live sport s content ( e.g., depending on the country, English Premier League matches, NFL 
Thursday Night Football, etc.) and linear Prime Video Channels. Prime Video 
Channels principally provide consumers with access to content on a VOD basis, with only a small proportion of overall Channels content provided on a linear basis (such as, for example, public broadcasters’ free linear channels in Germany).  
(61) MGM is not active in the retail distribution of AV content on either a non -linear or a 
linear basis in the EEA. As re gards non- linear services , MGM operates a small over -
the-top VOD service called EPIX in the United States . Further, MGM operates 
through MGM+ a small wholesale channel. MGM does not operate MGM+ as a direct -to-consumer  offering but rather provides the service through third- party 
distributors  like Prime Video . 
4.3.2. Product market definition 
4.3.2.1. Past Commission decisions  
(62) The Commission has split in previous cases the retail supply of AV services in two 
separate markets: FTA and pay TV,47 but in other more recent cases has ultimately left 
this aspect of the product market definition open .48 The Commission has also 
                                                 
46  Questionnaire 1 to content providers, qu estion 41.  
47 Commission decision of 18 July 2007 in Case M.4504 –  SFR / Télé 2 France, para. 45.  
48 Commission decision of 22 December 2021 in Case M.10343 – Discovery / Warner Media, para. 63; 
Commission decision of 6 November 2018 in Case M. 8785 – The Walt Disney Company / Twenty -First 
Century Fox, para. 98; Commission decision of 8 October 2018 in Case M.8842 –  Tele2  / ComHem, 
 
 
14 considered whether the market for retail pay AV services should be segmented further 
according to: (i) premium pay AV vs. basic pay AV services;49 (ii) distribution 
technologies ( e.g., cable, satellite, or terrestrial);50 and (iii) linear vs non- linear AV 
services;51 but ultimately left the market definition open  in this regards .52 
(63) Distribution technologies : In Liberty Global / Corelio  / W&W / De Vijver Media , the 
Commission recognised that at least retail AV services offered over cable and IPTV 
form part of the same relevant product market.53 In the recent Telia Company/Bonnier 
Broadcasting Holding case,54 the Commission concluded that a ll the different 
distribution technologies are part of the same product market.  
(64) Linear and non -linear services : In the past, the Commission noted that non- linear 
services have gradually been integrated to complement TV broadcasters’ and retail AV service providers’ offerings and enhance the consumer's experience of linear TV 
channels. Most recently, in NENT/Telenor , the Commission indicated that linear and 
non-linear AV services are increasingly regarded as substitutable.
55  
(65) Premium and basic pay TV services : The question whether premium and basic pay 
TV services constitute separate product markets has been left open in recent cases.56 
4.3.2.2. The Notifying Party’s views  
(66) The Notifying Party submits that the appropriately defined product market is a market 
for all retail distribution of AV content. The Notifying Party argues however that the 
precise scope of the market can be left open on the basis that there can be no material difference to the competitive assessment of the Transaction, as there are no affected  
markets.  
                                                                                                                                                        
para.  37; Commission decision of 8 May 2018 in Case M.7000 – Liberty Global  / Ziggo, para. 137; 
Commission decision of 6 Februa ry 2018 in Case M.8665 – Discovery  / Scripps, para. 33; Commission 
decision of 7 April 2017 in Case M.8354 –  Fox / Sky, para. 101; Commission decision of 3 August 2016 in 
Case M.7978 –  Vodafone  / Liberty Global/Dutch JV, para. 56; and Commission decision of 24 February 
2015 in Case M.7194 –  Liberty Global / Corelio / W&W / De Vijver Media, para. 152.  
49 Commission decision of 24 February 2015 in Case M.7194 –  Liberty Global / Corelio / W&W / De Vijver 
Media, para. 119.  
50 Commission decision of 24 February 2015 in Case M.7194 –  Liberty Global / Corelio / W&W / De Vijver 
Media, para. 127; Commission decision of 25 June 2008 in Case M.5121 – News Corp  / Premiere, para. 22; 
Commission decision of 21 December 2010 in Case M.5932 –  News Corp  / BskyB, para. 105; and 
Commission decision of 30 May 2018 in Case M.7000 –  Liberty Global / Ziggo, para. 113.  
51 Commission decision of 24 February 2015 in Case M.7194 –  Liberty Global / Corelio / W&W / De Vijver 
Media, para. 124; Commission decision of 25 June 2008 in Case M.51 21 – News Corp  / Premiere, para. 21; 
and Commission decision of 30 May 2018 in Case M.7000 – Liberty Global  / Ziggo, paras. 109– 110. 
52 Commission decision of 22 December 2021 in Case M.10343 – Discovery / Warner Media, para. 63; 
Commission decision of 6 November 2018 in Case M.8785 –  The Walt Disney Company / Twenty -First 
Century Fox, para. 93 and case law cited; and Commission decision of 26 June 2020 in Case M.9299 – 
Discovery / Polsat / JV, para. 82. 
53 Commission decision of 24 February 2015 in Case M. 7194 – Liberty Global / Corelio / W&W / De Vijver 
Media, para. 126. 
54 Commission decision of 12 November 2019 in Case M.9064 – Telia Company / Bonnier Broadcasting 
Holding, para. 195. 
55  Commission decision of 30 April 2020 in Case M.9604 –  NENT / Telenor / JV, para. 184. 
56  See, e.g., Commission decision of 26 June 2020 in Case M.9 299 – Discovery / Polsat / JV, para. 82.  
 
15 4.3.2.3. The Commission’s assessment  
(67) The market investigation has yielded mixed results in relation to the market for the 
retail supply of AV services to end- customers . 
(68) The market investigation first confirmed the segmentation  that the Commission  
previous ly identified  between the retail supply of FTA TV channels and pay TV 
channels , indicating that this distinction  is accurate on the markets in Germany, 
Austria and Croatia today.57 In relation to Croatia, a respondent explains that FTA TV 
channels and pay T V channels have a different consumers reach . A respondent that is 
active in both Germany and Austria explains that the segmentation is relevant because 
“all levels of the value chain operate a differentiated licensing model with respect to 
FTA and pay TV ”.58 
(69) Within the market for the retail supply of pay TV channels however, the market 
investigation results are inconclusive as to the question whether the retail supply of 
basic pay TV and premium pay TV are alternatives or complements.59 The vast 
majority of respondents moreover indicate that it would not be accurate in Germany, Austria and Croatia to distinguish between the retail supply of FTA and basic pay TV 
channels on the one hand and premium TV channels on the other hand.
60  
(70) The Com mission further investigated whether the market for the retail supply of pay 
TV channels could be segmented between linear and non- linear pay TV channels as 
was concluded in previous decisions. In this regard, a majority of the respondents to 
the market in vestigation expressing an opinion indicating that they see linear and non-
linear pay TV channels as alternatives in Germany, Austria and Croatia.61 
(71) Within a market for the retail supply of non- linear pay AV services, a small majority 
of the respondents expressing an opinion indicate that they consider non -linear pay 
AV services by local OTT players as an alternative to similar services provided by 
international SVOD players ( e.g., Netflix, HBO GO, Prime Video, Apple TV) for 
end-customers.62  
(72) The vast majority of respondents to the market investigate consider that there is no need to further distinguish between the supply of FTA linear channels and AVOD non-linear services in relation to advertising -founded AV services ,
63 pointing to the 
fact that both feature the same business model and that advertisers could simply place the advertising elsewhere .
64 
(73) The Commission finally  also investigated whether end cus tomers in Germany, Austria 
and Croatia would consider different distribution forms ( e.g., cable, IPTV, satellite, 
terrestrial or OTT) through which they access TV channels / AV content as 
                                                 
57  Questionnaire 1 to content providers, question 30.  
58  Questionnaire 1 to content providers, question 30.1.  
59  Questionnaire 1 to content providers, question 31.  
60  Questionnaire 1 to content providers, question 31.2.  
61  Questionnaire 1 to content providers, question 32.  
62  Questionnaire 1 to content providers, question 33.  
63  Questionnaire 1 to content providers, question 34.  
64  Questionnaire 1 to content providers, 34. 1. 
 
16 alternatives. A majority of the respondents to the market investigation indicates that 
this is indeed the case.65 
(74) In light of the above, the Commission considers that, for the purpose of this decision, there exists a relevant product market for the retail supply of AV services, separate from the production and supply of AV content and the wholesale supply of TV channels. However, the Commission considers that the question whether within this product market a further distinction can be made (i) between FTA TV channels and pay TV channels; (ii) between basic and premium pay TV  channels; (iii) between 
linear and non- linear TV channels (and further sub- segmentations thereof); or (iv) 
between different distribution technologies, can be left open, since the Transaction does not raise serious doubts as to its compatibility with the internal market under any such plausible product market definitions . 
4.3.3. Geographic market definition  
4.3.3.1. Past Commission decisions  
(75) The Commission has in the past considered that the geographic scope of the market for the retail provision of AV services could be e ither (i) national, since providers of 
retail AV services compete on a nation -wide basis; or (ii) limited to the coverage area 
of each cable operator.
66 
4.3.3.2. The Notifying Party’s views  
(76) The Notifying Party submits that the relevant geographic market is national in scope. Nonetheless, for the purpose of the Transaction, the Notifying Party argues that the precise scope of the market can be left open as the Transaction does not raise serious doubts as to its compatibility with the internal market under any plausible market definition. 
4.3.3.3. The Commission’s assessment  
(77) The vast majority of respondents indicate that they distribute retail AV services to end-customers on a national basis.
67 This is the case for each of Germany, Austria and 
Croatia.  
(78) The Commission therefore concludes that in Germany, Austria and Croatia, the 
relevant geographic market for the retail supply of AV services, including all its 
possible sub- segments, is national in scope.  
4.4. Production and licensing of distribution rights of films for theatrical exhibition  
4.4.1. The Parties’ activities  
(79) Both Amazon (through Amazon Studios) and MGM are active in the production and licensing of distribution rights of films for theatrical exhibition.  
                                                 
65  Questionnaire 1 to content providers, question 35.  
66  M. 10343 –  Discovery  / Warner Media, para. 67; Commission decision of 6 November 2018 in Case 
M.8785 – The Walt Disney Company  / Twenty -First Century Fox, par a. 100; and Commission decision of 
26 June 2020 in Case M.9 299 – Discovery /  Polsat  / JV, para. 86.  
67  Questionnaire 1 to content providers, question 42.  
 
17 (80) From the supply side, Amazon Studios produces and licenses out some films for 
theatrical release [ business secrets concerning Amazon's marketing policy ]. In 2019, 
Amazon publicly announced it would shift its strategy away from licensing out for theatrical release. This can also be seen in Amazon Studios’ film releases for theatrical d istribution in 2018- 2020 (2 in 2020, 7 in 2019, and 15 in 2018). MGM is 
active in the licensing out of films it has produced for theatrical release and the licensing of broadcasting rights for pre -produced AV content. While it does not have 
studio facilities in the EEA, it sometimes has local film production activities in the EEA ( e.g., in [ countries ]). 
(81) From the demand side, MGM also acquires films for theatrical release.  
4.4.2. Product market definition 
4.4.2.1. Past Commission decisions  
(82) In previous decisions, the Commission has considered the question of whether the 
production/acquisition and distribution of films for theatrical release constitute a 
single or two separate product markets. While in some cases the definition of the market was ultimately left open
68, in others the Commission found that the production 
and distribution of films for theatrical release constitute two separate markets.69  
(83) In The Walt Disney Company/Twenty -First Century Fox , the Commission assessed 
the scope of the producers’ activities with r espect to the licensing of distribution rights 
to third -party distributors, noting that simply producing a film cannot constitute a 
market before a market -based exchange, such as the distribution of a film, takes 
place.70 For the purpose of that decision, t he Commission concluded that a separate 
market for the production and licensing of distribution rights to third- party distributors 
of films for theatrical release exists .71 Moreover, the Commission took the 
conservative view for the purpose of that decision that licensing of distribution rights 
to third -party distributors constitute a product market separate from the distribution of 
films to exhibitors, given that it entails different commercial activities consisting of 
market, promoting films etc. carried o ut by different players, with the exhibitors being 
the distributors’ customers.72 
(84) The Commission has further considered, but ultimately left the question open, 
whether a distinction needs to be drawn between films produced by US studios and films produced b y non- US studios.
73 
                                                 
68  Commission decision of 20 December 2012 in Case M.6791 –  The Walt Disney Company  / Lucasfilm, 
para.  53; and Commission decision of 13 July 2010 in Case M.5579 –  Comcast  / NBC Universal, para.  55. 
69  Commission decision of 14 June 2013 in Case M.6866 –  Time Warner  / CME, para.  152; Commission 
decision of 21 September 1998 in Case M.1219 –  Seagram  / Polyg ram, para.  37. 
70  Commission decision of 28 January 2019 in Case M.8785 –  The Walt Disney Company  / Twenty -First 
Century Fox, para. 19.  
71  Commission decision of 28 January 2019 in Case M.8785 –  The Walt Disney Company  / Twenty -First 
Century Fox, para. 22.  
72  Commission decision of 28 January 2019 in Case M.8785 –  The Walt Disney Company  / Twenty -First 
Century Fox, para. 19.  
73  Commission decision of 28 January 2019 in Case M.8785 –  The Walt Disney Company  / Twenty -First 
Century Fox, para. 22; Commission de cision of 30 March 2005 in Case M.3595 –  Sony  / MGM, para.  11. 
 
18 4.4.2.2. The Notifying Party’s views  
(85) The Notifying Party submits that the industry has seen a blurring of various release 
windows and a blurring of the distinction between theatrical versus home entertainment release. In light of this transformation, the Notifying Party argues that the question whether there is a market for the production and licensing of films (including captive and non- captive production), without distinguishing between 
production for theatrical release or direct -to-streaming, c an be left open.  
(86) In Section 4.5 below, the distinction between the AV value chain and the theatrical 
distribution value chain is further discussed bot h at the level of the production and 
licensing of films as well as the retail distribution of films.  
4.4.2.3. The Commission’s assessment  
(87) The results of the market investigation support the view that the production and licensing of distribution rights of films for theatrical release constitutes a separate market from the distribution of films for theatrical release. T he majority  of the content 
providers  and cinemas expressing an opinion confirm  the existence of a separate 
market for the production and licensing of distribution rights of films for theatrical exhibition in the EEA and more specifically in Germany, Austria and Croatia, is still accurate.
74  
(88) On the basis of the above, the Commission concludes that for the purpose of this decision the production and licensing of distribution rights to third -party distributors 
of films for theatrical release constitutes a relevant product market. The question whether a distinction should be drawn between films produced by US studios and films produced by non- US studi os can be left open since the Transaction does not 
raise serious doubts as to its compatibility with the internal market under any plausible market definition. 
4.4.3. Geographic market definition  
4.4.3.1. Past Commission decisions  
(89) In past decisions, the Commission found the geog raphic market for the production of 
films for theatrical release to be at least EEA -wide in scope but ultimately left the 
precise market definition open.75 
(90) In The Walt Disney Company/Twenty -First Century Fox  however, the Commission 
considered for the purpos e of that decision that the relevant geographic market  for the 
production and licensing of distribution rights of films for theatrical release is national in scope as the relationship between producers and distributors is more often than not national.
76 
                                                 
74  Questionnaire 1 to content providers, question 7; Questionnaire 2 to cinemas, question 4.  
75  Commission decision of 20 December 2012 in Case M.6791 – The Walt Disney Company/Lucasfilm, 
para.  59; and Commission decision of 13 July 2010 in Case M.5779 –  Comcast/NBC Universal, para. 53.  
76  Commission decision of 28 January 2019 in Case M.8785 –  The Walt Disney Company/Twenty -First 
Century Fox, paras. 25- 26. 
 
19 4.4.3.2. The Notifying Party’s views  
(91) The Notifying Party submits that the scope of the relevant geographic market can be 
left open as the Transaction does not raise serious doubts as to its compatibility with the internal market under any plausible market definition, given the limited overlap between the Parties.  
4.4.3.3. The Commission’s assessment  
(92) The vast majori ty of responding content providers  indicate that, as a producer/supplier 
of AV content, they would license distribution rights to third -party distributors of 
films fo r theatrical release on a national level.
77 This is confirmed by the responses the 
Commission received from cinemas, where the majority indicates that they procure the rights to exhibit films from distributors on a national level.
78 
(93) The Commission concludes that, for the purpose of this decision, the relevant 
geographic market for the production and licensing of distribution rights of films for 
theatrical release is national in scope.  
4.5. The distinction between the AV value chain and the theatrical distribution value 
chain  
(94) As set out  in paras. (6) -(13) above, the Commission has previously assessed the 
markets that are part of the A V value chain and the markets that are part of the 
theatrical distribution value chain separately. In particular, in relation to the 
production and licensing of films, the Commission defined separate markets for the 
production and supply of AV content for home entertainment and production and 
licensing of distribution rights of films for theatrical exhibition. At the retail level of 
the market, the Commission defined separate markets for the retail supply of AV 
services to end -customers and the market for t he theatrical exhibition of films.  
(95) During the investigation, the Commission received a complaint by a movie theatres chain arguing that recent trends in the AV industry are characterised by the shrinking 
and skipping of the theatrical release window, such that new films are sometimes not 
released in theatres but have a direct DTS release or have a simultane ous theatrical 
and DTS release.
79 As a result, films would be  produced both for theatrical exhibition 
and for home entertainment, and cinemas would compet e with SVOD platforms such 
as Prime Video  as channels to release a new film . 
(96) Without prejudice to the assessment above , the Commission will therefore assess 
whether there is a need to reconsider its views on the AV value chain and the 
theatrical distribution value chain as regards the production and retail supply of films. 
4.5.1. Production and licensing of films for home entertainment and for theatrical release  
4.5.1.1. The Notifying Party’s views  
(97) In relation to the production of films, the Notifying Party submits that th e decision as 
to whether a film will be released directly or for home entertainment directly is 
                                                 
77  Questionnaire 1 to content providers, question 38.  
78  Questionnaire 2 to cinemas, question 18.  
79  Comments on the proposed acquisition of MGM by Amazon, 17 January 2022.  
 
20 usually taken at the beginning of the production process. However, this decision is not 
final and there are examples of films initially intended for theatrical release that were subsequently released for home entertainment.  
(98) The Notifying Party argues that there is a substantial overlap in the characteristics of films intended for theatrical and DTS release. First, the Notifying Party argues that there is a consid erable overlap in budget ranges. While generally films intended for 
DTS release will be more expensive to produce owing to streaming buyouts that need to be paid to compensate talent for the absence of various profit -sharing mechanisms 
applicable in the th eatrical release model, production budgets are generally higher for 
theatrically released films as this model allows for greater risk mitigation. The Notifying Party submits however that the practice of content producers allocating more budget for the production of films intended for theatrical release has been changing. Second, there would be no material variability in the time that is required for producing a film and the intended timing for release depending on whether a film 
is intended for theatrical o r DTS release. Third, while the theatrical release process 
may involve certain pre -release activities that are not part of the DTS release process 
(such as pre -release test screenings), the Notifying Party argues that analogous pre -
release steps may also b e taken in the context of the production of a film intended for 
DTS release (for example marketing campaigns). Fourth, the Notifying Party submits that there are no material differences in the technical elements of the production process, for example in re lation to visual effects or soundtracks). Fifth, the marketing 
strategy would not differ materially between films intended for theatrical release and those intended for DTS release. Sixth, the Notifying Party submits that nowadays films intended for DTSs r elease are similarly capable of attracting talent and garnering 
awards.  
(99) The Notifying Party submits that in any event it is difficult to identify films intended for theatrical release as a clearly demarcated segment. After all, the release window structure  of films is fluid and has evolved over time. Theatrical release windows 
(which in the past generally lasted around 3 months) have shortened and there is a growing trend of simultaneous or near simultaneous theatrical and DTS release, or even initial relea se solely via streaming services. Because of the fluidity of release 
windows and the fact that films will be released DTS and on other home -
entertainment channels in any event, the boundaries between films intended for theatrical release and those intended  for home entertainment are more difficult to 
delineate.  
(100)  As a result of the above, the Notifying Party submits that there cannot be a distinction 
between markets for the production and supply of films intended for either theatrical or DTS release. In any event, the Notifying Party submits that the precise market definition can be left open as the Transaction does not raise serious doubts as to its compatibility with the internal market under any plausible market definition.  
4.5.1.2. The Commission’s assessment  
(101)  In light of the complaint the Commission received in relation to the impact of the 
Transaction on cinemas, the Commission assessed as part of its market investigation whether the distinction between markets in the AV value chain and markets in the theatrical di stribution value chain is still relevant . 
 
21 (102)  The Commission first assessed at what stage a content provider decides whether a 
future film is intended for either theatrical or DTS release.  
(103)  In line with the statement of the Notifying Party, the majority of responding cinemas indicate that a producer of AV content makes a choice at the beginning of the production process of a new film as to whether it will be released theatrically or DTS.
80 In this regard, one respondent states that “ [b]efore producing the mov ie the 
producer has to know his revenue streams to define the budget of the movie. Without knowing the possible revenue streams he can not [sic] set up a reliable calculation”.
81 
Another respondent adds however that “ [i]t can also be that at the end of the 
production process, the movie does not meet its initial expectations and the producer decides to stream the movie directly as this is cheaper than a theatrical release ”.
82 
The response from content providers as to whether they make a choice how a film will 
be released at the beginning of the production process was inconclusive.83 The results 
of the market investigation are equally inconclusive in relation to the question whether 
content providers have produced any films originally intended for theatrical rele ase 
but that were finally released DTS or vice -versa.84 Among the respondents indicating 
that they changed the intended way of releasing a film, several did so in large part due 
to COVID -19 restrictions.85  
(104)  In relation to the hypothetical question whether fi lms could have been released 
differently, the vast majority of responding content providers indicated that 90- 100% 
of the films that are released theatrically could have equally been released DTS86 
while vice -versa a smaller majority also indicated that 90 -100% of the films that were 
released direct -to-streaming could have equally been released theatrically.87 Relating 
to the first scenario, one of the respondents states that “ [g]iven the high -quality 
expectations for both streaming and theatrical release ali ke, the differences are not 
fundamental. Furthermore, enhancements in home entertainment technology have 
increased their substitutability ”.88 
(105)  The responses from content providers to the same questions stand in stark contrast to 
the responses the Commission received from cinemas. A majority of responding cinemas indicate that only 10 -20% of the films that are released theatrically could 
have equally been released DTS.
89 As to the question what percentage of films that are 
released DTS could have instead been r eleased in theatres, the responses from 
cinemas are more mixed. However, the majority indicates that this would lie below 50%.
90 In general, one respondent highlights that “ [i]n Germany there are up to 600 
                                                 
80  Questionnaire 2 to cinemas, question 6.  
81  Questionnaire 2 to cinemas, question 6. 1. 
82  Questionnaire 2 to cinemas, question 6.1.  
83  Questionnaire 1 to content providers, question 9.  
84  Questionnaire 1 to content providers, question  11. 
85  Questionnaire 1 to content providers, question  11.2.  
86  Questionnaire 1 to content providers, question  13. 
87  Questionnaire  1 to content providers, question  14. 
88  Questionnaire 1 to content providers, question 13. 1. 
89  Questionnaire 2 to cinemas, question 9.  
90  Questionnaire 2 to cinemas, question  10. 
 
22 new releases per year, which means more than 10 per  week. It is hardly possible to 
create an awareness for each of these movies ”.91 
(106)  Based on the  contradictory responses from content providers and cinemas set out  
above, the Commission considers that  there is no ground for concluding that the 
production of fi lms intended for theatrical and DTS release should be part of the same 
market as a result of the decision -making process regarding the way a future film will 
be released . 
(107)  The Commission further investigated whether there are differences in characteristics 
between films intended for theatrical release as compared to those intended for DTS release.  
(108)  In this regard, the results of the market investigation reveal that a majority of responding content providers consider that in relation to the budget range
92, the 
capability of attracting talent93, the script of a film94 and the content of a film95, there 
are no significant differences between films intended for theatrical release and those intended for DTS release. Also  from the perspective of cinemas, there are no 
significant differences between films intended for theatrical release and those intended 
for DTS release in relation to the capability of attracting talent
96, the script of a film97 
and its content98. Cinemas do however consider that there are significant diffe rences 
in the technicalities of the release process, the timing and related costs of those films.
99 One responding cinema chain states that “ [i]n general, streaming releases 
have much shorter marketing campaigns and the marketing budgets are a lot lower than for theatrical releases. The main purpose for streaming platforms is to attract as much subscribers but the marketing focus is less on the film itself ”.
100 The responses 
from content providers were inconclusive as to whether the technicalities of the 
release process, the timing and related costs of those films constitute a significant 
difference between films intended for theatrical release and those intended for DTS 
release.101  
(109)  In relation to the differences in quality between films intended for theatrical release 
and those intended for DTS release, content providers and cinemas have widely different views. While the vast majority of responding content providers considers that films produced for theatrical release are not of a better quality overall compared  
to those that are produced for direct -to-streaming release
102, the vast majority of 
responding cinemas considers this to be the case.103  
                                                 
91  Questionnaire 2 to cinemas, question 9. 1. 
92  Questionnaire 1 to content providers, question 10.1.  
93  Questionnaire 1 to content providers, question 10.2.  
94  Questionnaire 1 to content providers, question 10.4.  
95  Questionnaire 1 to content providers, question 10. 5. 
96  Questionnaire 2 to cinemas, question  7.2. 
97  Questionnaire 2 to cinemas, question  7.4. 
98  Questionnaire 2 to cinemas, question  7.5. 
99  Questionnaire 2 to cinemas, question 7.3.  
100  Questionnaire 2 to cinemas, question 7.3 . 
101  Questionnaire 1 to content providers, question 10. 3. 
102  Questionnaire 1 to content providers, question 12.  
103  Questionnaire 2 to cinemas, question 8.  
 
23 (110)  Given these different views, the Commission considers that it is not possible to 
conclude that  films intended for theatrical release and those for DTS release share the 
same characteristics or have a similar quality  such that there should be a single market 
for the production and licensing of films for home entertainment and theatrical release.  
(111)  Finally, a majority of both content providers and cinemas responding to the market 
investigation indicate that, in line with the Commission’s precedents, there are distinct markets for the production and licensing of AV content for home entertainment and for the production and licensing of distribution rights of films for theatrical release.
104 
(112)  Based on the above considerations  in relation to the production process, 
characteristics and quality of films for theatrical and DTS release, t he Commission 
concludes  that there is insufficient evidence to depart  from  the previously recognised 
distinction between a market for the production and licensing of AV content for home 
entertainment and a market for the production and licensing of distribution rights of 
films for theatrical release.  Nonetheless, this Decision discusses the potential 
horizontal overlap as well as a possible foreclosure of cinemas from accessing 
MGM’s new film content in the competitive assessment.105 
4.5.2. Retail supply of films for home entertainment and f or theatrical exhibition  
(113)  While neither of the Parties is active on the market for theatrical exhibition of films, 
Amazon is active on the market for the retail supply of AV services. Therefore, the Commission also assessed whether films intended for theatr ical exhibition compete 
with films supplied for home entertainment.  
4.5.2.1. The Notifying Party’s views  
(114)  In relation to the retail supply of films, the Notifying Party submits that because of the blurring of film release windows, consumers got even more choice betw een watching 
content in a theatrical or home entertainment setting. Whether consumers choose to watch a film at a cinema or at home may be influenced by factors such as the choice of film, availability and timing of its release, and cost. Most consumers ha ve access to 
free to air TV and/or cable, satellite, or OTT subscriptions, and can choose to view high quality content across any of these services, in addition to choosing to purchase physical copies of DVDs/ Blu-ray discs. The Notifying Party therefore su bmits that all 
retail distributors of AV content compete for viewership. The factors set out above (i.e., the choice of film, availability and timing of its release, and cost) would be 
equally relevant for a consumer to choose a specific medium between fre e to air TV, 
cable, satellite, or OTT, as it is for the choice between watching a film in a cinema or 
at home.  
(115)  Overall, the Notifying Party submits that the appropriately defined product market is one that comprises all retail distribution of AV content. I n any event, the Notifying 
Party argues that the precise product market definition can be left open on the basis that there can be no material difference to the competitive assessment of the 
Transaction, as there are no affected markets.  
                                                 
104  Questionnaire 1 to content providers, ques tion 8; Questionnaire 2 to cinemas, question  5. 
105  See Section 5.3.1  and Section 5.5.5 . 
 
24 4.5.2.2. The Commission’s a ssessment  
(116)  First, the Commission investigated whether films released in cinemas and films 
released via subscription- based video on demand platforms (such as Amazon’s Video 
Prime) are considered as alternatives or complements by end -customers – that is to 
say, whether customers would still choose between watching a film in a cinema or at 
home or whether they would continue watching films in cinemas even if they are released in parallel or shortly thereafter on SVOD platforms. The responses from content providers to the market investigation are inconclusive. Around a third of the respondents indicate that cinemas and SVOD platforms are complements, whereas another third indicates these are alternatives and the final third of the respondents indicate that they d o not know.
106 The responses from cinemas are clearer. The 
majority of the responding cinemas indicate that they consider that cinemas compete 
with other retailers of AV services such as SVOD platforms.107 One respondent 
observes that there is a lot of competition in particular where there is no separate 
theatrical release window, but “when an exclusivity window is respected (first theatrical and then home entertainment), the media are complementary and all ow to 
maximize both channels to the benefit of the production.”
108 Despite this distinction 
based on the release window, a majority of responding cinemas state that cinemas are an alternative to home entertainment platforms.
109 
(117)  Second, the Commission investiga ted whether end -customers would be expected to 
switch away from watching films in cinemas in the event of a small but non -transitory 
price increase of cinema tickets. The majority of the responding content providers indicated that they would not know the i mpact of a price increase between 5 and 10%. 
The responses from the content providers that expressed an opinion are moreover 
inconclusive. While some respondents indicated that end- customers would pay the 
increased ticket prices, others indicated that cust omers would either wait to see the 
films they wanted on the SVOD platform they are subscribed to or watch other films on that platform. Some respondents even consider that end- customers would be 
willing to subscribe to a SVOD platform that they expect will show the films they 
wanted to see in cinemas.
110 While the response from content providers remains 
inconclusive, a majority of responding cinemas expressing an opinion indicated that end-customers would continue to pay cinema tickets in the event of a small  but non-
transitory price increase.
111 Several respond ing cinemas  indicate that the willingness 
of end- customers to pay increased ticket prices depends on the release window: “ the 
answer depends on whether or not the theatrical exclusivity has been respected. If this 
is the case, end customers will pay the increased price to have the first experience of 
watching the movie. However, if the same movie is released via theaters and streaming at almost the same moment, the consumers will be more reluctant to pay 
the different price ”.
112 
(118)  Overall, the results of the market investigation are mixed . In particular, it appears 
from the results of the market investigation that the theatrical release window has a 
                                                 
106  Questionnaire 1 to content providers, question 36.  
107  Questionnaire 2 to cinemas, question 14.  
108  Questionnaire 2 to cinemas, question 14.1.  
109  Questionnaire 2 to cinemas, question 15.  
110  Questionnaire 1 to content providers, question 37.  
111  Questionnaire 2 to cinemas, question 16.  
112  Questionnaire 2 to cinemas, question 16.1.  
 
25 significant impact on whether cinemas and home entertainment s tand in a competitive 
relationship for a particular film. While the Commission observes a general trend of 
shorter theatrical release windows, exclusivity during such window is still the norm. In addition, it remains to be seen to what extent deviations fr om exclusive theatrical 
release windows during the last two years will continue if and when measures taken because of the pandemic are lifted.  
(119)  In light of these uncertainties and as the results of the market investigation do not provide a clear indication to what exten t cinemas and home entertainment are 
substitutable from the perspective of the end- customer, the Commission concludes 
that there is insufficient evidence to depart from  the previously recognised distinction 
between a market for the retail sup ply of AV services to end -customers and a market 
for theatrical release. Nonetheless, this Decision discusses a possible foreclosure of 
cinemas from accessing MGM’s new film content in the competitive assessment.
113 
5. COMPETITIVE ASSESSMENT   
5.1. Analytical framework  
(120)  The Guidelines on the assessment of horizontal mergers (“Horizontal Merger Guidelines”)
114 describe two main ways in which horizontal mergers may 
significantly impede effective competition, in particular by creating or strengthening a dominant position: (i) by eliminating important competitive constraints on one or more firms, which consequentl y would have increased market power, without 
resorting to coordinated behaviour (non -coordinated effects); and (ii) by changing the 
nature of competition in such a way that firms that previously were not coordinating their behaviour, are significantly more  likely to coordinate and raise prices or 
otherwise harm effective competition (coordinated effects
115) as a result of the 
proposed concentration.  
(121)  A merger giving rise to horizontal non- coordinated effects might significantly impede 
effective competition by  creating or strengthening the dominant position of a single 
firm, one which, typically, would have an appreciably larger market share than the next competitor post -merger. Moreover, also mergers that do not lead to the creation 
of or the strengthening of a single firm’s dominant position may create competition concerns under the substantive test set out in Article 2(2) and Article 2(3) of the 
Merger Regulation. Regarding mergers in oligopolistic markets, the Merger 
Regulation clarifies that “ under certain circumstances, concentrations involving the 
elimination of important competitive constraints that the merging parties exerted upon each other, as well as a reduction of competitive pressure on the remaining competitors, may, even in the absence of a likeli hood of coordination between the 
                                                 
113  See Section 5.5.5 . 
114  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  22. 
115  A merger may also make coordination easier, more stable or more effective for firms which were 
coordinating prior to the merger.  
 
26 members of the oligopoly, result in a significant impediment to effective 
competition ”.116 
(122)  The Horizontal Merger Guidelines list a number of factors which may influence whether or not significant horizontal non- coordinated effects are likely to result from 
a merger, such as the large market shares of the merging firms, the fact that the merging firms are close competitors, the limited possibilities for customers to switch suppliers, or the fact that the merger would eliminat e an important competitive force. 
Not all those factors need to be present to make significant non- coordinated effects 
likely and it is not an exhaustive list.
117  
(123)  Further, in some markets, a merger may give rise to coordinated effects where the structure is  such that firms would consider it possible, economically rational, and 
hence preferable, to adopt on a sustainable basis a course of action on the market aimed at selling at increased prices.
118 According to the Horizontal Merger 
Guidelines, coordination is  more likely where it is relatively simple to reach a 
common understanding on the terms of coordination. Moreover, three conditions need to be met for coordination to be sustainable: (i) the coordinating firms must be able to monitor to a sufficient degree  whether the terms of the coordination are being adhered 
to; (ii) there must be some form of credible deterrent mechanism that can be activated 
if deviation is detected; and (iii) the reactions of outsiders as well as customers should 
not be able to jeopar dise the results expected from the coordination.
119 
(124)  Next to horizontal effects, the Guidelines on the assessment of non- horizontal mergers 
(“Non -Horizontal Merger Guidelines”) sets out that there are also two broad types of 
non-horizontal mergers that can be  distinguished: vertical mergers and conglomerate 
mergers.120  
(125)  Vertical mergers involve companies at different levels of the supply chain. According to the Non- Horizontal Merger Guidelines, non- coordinated effects may significantly 
impede effective competiti on as a result of a vertical merger if such merger gives rise 
to foreclosure. Foreclosure occurs where actual or potential rivals’ access to supplies or markets is hampered or eliminated as a result of the merger, thereby reducing these companies’ ability and/or incentive to compete.
121 Such foreclosure may discourage 
entry or expansion of rivals or encourage their exit.122 There are two forms of 
foreclosure: input foreclosure occurs where the merger is likely to raise the costs of downstream rivals by restricting their access to an important input, and customer 
foreclosure occurs where the merger is likely to foreclose upstream rivals by 
restricting their access to a sufficient customer base.
123 A vertical  merger could also 
lead to other non- coordinated effects, for instance where the merged entity may, by 
                                                 
116  Merger Regulation, recital 25. Similar wording is also found in paragraph 25 of the Horizontal Merger 
Guidelines.  
117  Horizontal Merger Guidelines, paragraph 26.  
118  Horizontal Merger Guidelines, paragraph 39.  
119  Horizontal Merger Guidelines, paragraph 41.  
120  Guidelines on the assessment of non- horizontal mergers under the Council Regulation on the control o f 
concentrations between undertakings (“Non -Horizontal Merger Guidelines”), OJ C 265, 18.10.2008, 
paragraph  3. 
121  Non-Horizontal Merger Guidelines, paragraph 18.  
122  Non-Horizontal Merger Guidelines, paragraph 29.  
123  Non-Horizontal Merger Guidelines, paragr aph 30.  
 
27 vertically integrating, gain access to commercially sensitive information regarding the 
upstream or downstream activities of rivals.124 Finally, a vertical  merger may also 
give rise to coordinated effects.  
(126)  Lastly,  the Non- Horizontal Merger Guidelines focus, besides vertical mergers, on 
conglomerate mergers consisting of mergers between companies that are active in closely related markets, for instance suppliers of complementary products or of products which belong to a range of products that are generally purchased by the same set of customers for the same end use.
125 According to the Non- Horizontal Guidelines, 
in the majority of circumstances, conglomerate mergers will not lead to any competition problems.
126 
(127)  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. While tying and bundling have often no 
anticompetitive consequences, in certain circumstances such practices may lead to a reduction in actual or potential competitors' ability or incentive to compete. This may 
reduce the competitive pressure on the merged entity allowing it to increase prices.
127  
(128)  In assessing the likelihood of such a scenario, the Commission examines, first, 
whether the merged firm would have the ability to foreclose its rivals128, second, 
whether it would ha ve the economic incentive to do so129 and, third, whether a 
foreclosure strategy would have a significant detrimental effect on competition, thus causing harm to consumers.
130 In practice, these factors are often examined together 
as they are closely intertwin ed. Most importantly, these conditions are cumulative so 
that the absence of any one of them is sufficient to rule out the likelihood of anti -
competitive input foreclosure.131  
(129)  In order to be able to foreclose competitors, the merged entity must have a signi ficant 
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.
132 Further, for foreclosure to be a potential concern, there must be a large 
common pool of customers, which is more likely to be the case when the products are comple mentary.
133 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.134  
                                                 
124  Non-Horizontal Merger Guidelines, paragraph 78.  
125  Non-Horizontal Merger Guidelines, paragraph 91.  
126  Non-Horizontal Merger Guidelines, paragraph 92.  
127  Non-Horizontal Merger Guidelines, paragraphs 91 and 93.  
128  Non-Horizontal Merger Guidelines, paragraphs 95- 104. 
129  Non-Horizontal Merger Guidelines, paragraphs 105 -110. 
130  Non-Horizontal Merger Guidelines, paragraphs 111 -118. 
131 Judgment of 23 May 2019, KPN v. Commission , T‑370/17,  EU:T:2019:354, paragraph 119.  
132  Non-Horizontal Merger Guidelines, paragraph 99.  
133  Non-Horizontal Merger Guidelines, paragraph 100.  
134  Non-Horizontal Merger Guidelines, paragraph 103.  
 
28 (130)  The incentive to foreclose rivals through bundling or ty ing depends on the degree to 
which this strategy is profitable.135 Bundling and tying may entail losses or foregone 
revenues for the merged entity.136 However, they may also allow the merged entity 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.137 
(131)  It is only when a sufficiently large fraction of market output is affected by foreclosure 
resulting from the concentration that the concentration may significantly impe de 
effective competition. If there remain effective single -product players in either 
market, competition is unlikely to deteriorate following a conglomerate 
concentration.138 The effect on competition needs to be assessed in light of 
countervailing factors s uch as the presence of countervailing buyer power or the 
likelihood that entry would maintain effective competition in the upstream or 
downstream markets.139  
5.2. Market share calculation  
(132)  The market shares for the downstream market of retail supply for AV content for SVOD platforms were calculated using two metrics. The first metric is the revenue 
that SVOD platforms obtain as a result of the retail supply of AV content. The second 
metric is the number of subscribers for each SVOD platform. The two metrics 
correspond to the value and volume calculation respectively. Both metrics were used 
in the calculation of the SVOD’s market share due to the fact that eliminating either of 
the two would not convey the full picture of the players’ position in the market. Since 
the subscription fee differs among SVOD platform s, the revenues as well as the 
number of the subscription demonstrate each player’s position in the market. 
(133)  As regards Prime Video in p articular, it should be noted that it is not offered as a 
standalone service. Amazon does not operate merely as an SVOD platform, but 
operates a wide range of businesses including retail, entertainment, consumer 
electronics, and technology services. This t ranslates into  benefits provided to Amazon 
Prime subscribers. Amazon offers its Prime subscribers the “Prime Membership 
Benefits” which include delivery benefits (consisting, among others, of free and faster 
delivery , and choosing the date and place of del ivery), streaming and digital benefits 
(including access to Prime Video content, to Amazon Music, to Prime gaming and to 
Amazon’s photo storage solution, as well as to Amazon kids consisting of kid- friendly 
books, movies and educational applications), shopping benefits (discounts applicable 
when shopping at food markets, clothe and jewellery stores and bookstores), reading 
benefits (early access to new books and books with audible narration) and other 
benefits such as linking a user’s account  account to another user’s account.
140 
(134)  The fact that  Prime Video  is offered as part of a bundle, means that the both the 
revenue and the subscription based market shares for Amazon Prime are not 
indicative, simply because they reflect the revenue generated by the totality of the 
                                                 
135 Non-Horizontal Merger Guidelines, paragraph 105.  
136  Non-Horizontal Merger Guidelines, paragraph 106.  
137  Non-Horizontal Merger Guidelines, paragraph 108.  
138  Non-Horizontal Merger Guidelines, paragraph 113.  
139  Non-Horizontal Merger Guidelines, paragraph 114.  
140  See more on Amazon Prime benefits here: https://www.amazon.com/primeinsider/about 
 
29 Amazon Prime services that might, in its turn, includ e subscribers that do not make 
use of the Prime Video service but prefer other offerings included in the bundle.  
(135)  The distinction between Amazon Prime subscribers and Prime Video subscribers is 
relevant here as, for the purposes of assessing the Transaction, the Commission 
needed to compare Amazon’s Prime Video market shares with the market shares of competing retail suppliers of AV content. However, none of the competing retail supplies of AV cont ent offer their SVOD platform as part of a bundle of other 
services; they offer it as a standalone service. Based on that, it is safe to assume that when a customer subscribes to any of the se platforms, it is because of an interest in  
the AV content offere d by a particular retailer. On the contrary, when a customer 
subscribes to Amazon Prime, it could be due to the attractiveness of any of the services in the bundle or due to the attractiveness of the bundle overall.  
(136)  For this reason, the following methodol ogy has been used for the calculation of 
revenue and subscription based market share of Prime Video. 
Prime Video’s revenue- based market shares  
(137)  Prime Video is one out of several component s of the Prime subscription. Therefore, 
estimating the value of each additional SVOD customer to Prime Video depends on 
several factors, [ business secrets concerning internal processes and calculations ]. To 
approximate the value that a Prime Video SVOD customer generates for Amazon three main  indicators , described below, wer e taken into account.  
(138)  The first indicator relates to [ business secrets concerning internal processes and 
calculations ]. In Member States where the Prime programme is offered , [business 
secrets concerning internal processes and calculations ]. Amazon has developed a 
model that [ business secrets concerning internal processes and calculations ].
141  
(139)  In Member States where there is no Prime programme ( e.g., Croatia), […] are 
subscribers to the Prime Video only service. In these Member States, Amazon  does 
not have a dedicated and localized e- commerce website and therefore does not offer a  
Prime membership as customers could not make use of  benefits linked to deliver ies. 
For this reason, as far as these Member States are concerned , Prime Video's revenu es 
reflect […] .  
(140)  In addition to revenues from […] , the overall value a paid Prime member generates 
for Amazon are also based on two  additional indicators: [ business secrets concerning 
internal processes and calculations ]. 
(141)  The total value of each Prime memb er (from all indicators) is measured by Amazon as 
[business secrets concerning internal processes and calculations ]. The value of an 
average Prime member that [ business secrets concerning internal processes and 
calculations ] is calculated by [ business secrets concerning internal processes and 
calculations ]. Finally, this value is then [ business secrets concerning internal 
processes and calculations ], which arrives at the average value associated with 
[business secrets concerning internal processes and calculations ]. In Member States 
                                                 
141  For instance, in 2020, the […]  for Prime Video in France was […]: this means that [ business secrets 
concerning internal processes and calculations ]. Corresponding numbers for the other EEA countries where 
an Amazon store is available were as follows: […].  
 
30 where there is no Prime programme, the average economic value [ business secrets 
concerning internal processes and calculations ]. 
Prime Video’s subscription- based market shares  
(142)  The SVOD subscription shares are based on Ampere Analysis142 estimates of the 
number of subscriptions of each of the individual services. They capture total 
subscriptions sold by a given service as a share of total subscriptions sold by all 
SVOD services in a given territory.  
(143)  With respect to multi- homing, for example, a customer purchasing both a Prime 
Video and Netflix subscription would lead to one Prime Video subscription and one 
Netflix subscription to be added into the total subscriptions sold by all SVOD services used as the denominator in calculatin g shares. This is no different to calculating 
volume product category shares in any differentiated product market, where the 
purchase of two similar products would be  added to the total sales in the product 
category used as the denominator. 
5.3. Identification of affected markets  
5.3.1. Horizontal relationships  
(144)  Amazon and MGM are both active in the production and licensing of distribution 
rights to third party distributors of films for theatrical release. However, the overlap is very limited as Amazon is only active in this segment to a very limited extent, and the combined share of the Parties is small. The Parties' combined shares in box office revenues do not exceed [10- 20]% in any EEA country in any of 2018, 2019, or 2020. 
Even assuming that the relevant market onl y includes US studios, the combined 
market shares of the Parties did not exceed [10- 20]% in any EEA country during the 
last three years. Amazon has very limited activities in this market, with Amazon Studios releasing 24 films for theatrical distribution in 2018- 2020 (2 in 2020, 7 in 
2019, and 15 in 2018). On an EEA -wide level, Disney, NBCUniversal, WarnerMedia, 
StudioCanal and Sony have all achieved higher market shares than the Parties combined.  
(145)  The Notifying Party also provided estimates of MGM’s market shares in the market 
for the production and licensing of distribution rights of films for theatrical exhibition in 2021, when MGM released the  new Bond film No Time to Die and Ridley Scott’s 
House of Gucci . In 202 1, MGM’s market shares exceed [20 -30]% in a number of 
Member States
143 and [30- 40]% in Austria and Latvia. Also in view of these figures , 
however, there is no horizontally affected market as Amazon is not active in the 
production and licensing of distribution rights of films for theatrical exhibition in any of such Member States. As a result, this horizontal link does not give rise to a horizontal overlaps  in the EEA.  
(146)  Even though the Commission considers that there are two separate markets for the 
production and licensing of AV content for home entertainment on the one hand and 
for the production and licensing of distribution rights of films for theatrical release on 
the other hand, it has revi ewed the potential combined market shares of the Parties of 
                                                 
142  Ampere is a data and analytics firm specialisin g in the media sector.  
143  [Countries ]. Notifying Party’s reply to Commission’s RFI No 11.  
 
31 a hypothetical market including the production of AV content for home entertainment 
and for theatrical release (including captive and non- captive productions). Based on 
the Parties’ estimates, the ir combined revenue share144 in such hypothe tical market 
would not exceed [10- 20]% in any EEA country during the period between 2018 and 
2020 and range between [0- 5]% and [10- 20]% on an EEA -wide level during these 
three years.  Based on the number of films pr oduced, the Parties estimate their 
combine d share to amount to less than [0- 5]% in the EEA for each year between 2018 
and 2020. 
5.3.2. Vertical relationships  
5.3.2.1. Production of commissioned AV content (upstream) and acquisition of 
commissioned AV content (downstream)  
(147)  There is a vertical relationship between MGM’s activities in the production of commissioned AV conte nt on the supply side and Amazon’s activities in the same 
market on the demand side  (i.e., acquisition of commissioned AV content) . First, 
MGM does not produce comm issioned AV content in the EEA, with the exception of  
[business secrets concerning production]  in 2019- 2020 that generated a de minimis  
share of less than [0 -5]% in [ countries ]. Amazon is active in the acquisition of 
commissioned content from t hird parties. However, Amazon’s market share in each of 
the EEA Member States is well below 20%. Consequently, this vertical link does not give rise to an affected market.  
5.3.2.2. Licensing of rights for pre -produced content  (upstream)  and acquisition of pre -
produced content  (downstream)  
(148)  There is a vertical link between MGM's upstream activities in the licensing of rights for pre -produced content and Amazon's downstream activities in the acquisition of 
pre-produced content. MGM licenses its films for distribution w ith individua l 
broadcasters and distributors ( e.g., Pay -TV and FTA broadcasters, Apple, Amazon, 
Google, local digital partners) in  relevant territories.
145 Amazon is active in the 
acquisition or licensing in of rights for pre -produced AV  content to be offere d via 
Prime Video.146 The Parties market shares in the respective markets are low and in 
any case below 20% in each of the EEA Member States. Consequently, this vertical link does not give rise to an affected market.  
5.3.2.3. Wholesale supply and acquisition of TV channels  (upstream) and retail distribution 
of AV content (downstream)  
(149)  There is a vertical link between MGM's upstream activities in the wholesale supply of TV channels (through M GM+) and Amazon's downstream  activities  in the retail 
distribution of AV content. MGM is active in the wholesale supply of AV channels in 
                                                 
144  As no data comparable to box office revenues are available for DTS titles, the Parties based their estimates 
on IMDb page views for each individual title. They submit that there is a positive correlation between this metric and box office revenues for titles that have been released theatrically.  
145  Amazon generally does not license its content to third parties, [ business secrets concerning licensing deals ]. 
Note that there are also a small number of legacy titles created before Amazon Studios was active ou tside 
the US where Amazon had sold (or never owned) the international rights to content it had produced or co -
produced.  
146  MGM does not typically license -in distribution rights for pre -produced AV content in the EEA, although 
[business secret concerning st rategic decision ] its MGM+ channel.  
 
32 the EEA only to a limited extent, where MGM+ is available on Prime Video in 
France, Germany , Italy, the Netherlands and Spain , providing film and general 
entertainment ( i.e., TV series)  genres.  Amazon acts as an intermediary in the 
downstream market between the wholesale channel supplier and the end- user. For its 
Prime Video offering in France, Italy, Spain, the Netherlands, and Germany, Amazon offers MGM's wholesale channel, MGM+, as well as similar channels of content produced by other studios, to its customers. According to the Parties , MGM+'s share 
in respect of the wholesale supply of channels is unlikely to exceed [5 -10]% in any 
EEA Member State in which MGM+ is available. Amazon's spend on wholesale TV channels is modest and even assuming Amazon's share of total payments to wholesale channel providers is the same as its share of subscribers among Prime Video and Pay -
TV services in the respective countries and years, it will in all c ases be below 30%  as 
indicated in paragraphs (153)  to c) below .
147 Consequently, this vertical link does not 
give rise to an affected market.  
5.3.2.4. Licensing- out of rights for pre -produced content/production and supply of 
commissioned TV content (upstream)  and r etail distribution of AV content  
(downstream)  
(150)  There is a vertical link between MGM's upstream activities in the licensing out of 
rights for pre -produced content/production and supply of commissioned TV content 
and Amazon's downstream activities in the retail distribution of AV content.   
(151)  MGM's share i n the licensing out of rights for pre -produced content does not reach 
30% on any plausible market segment. This also applies when we consider the market 
shares of MGM further segmented by content genre into films (further segmented between US films and non- US films) and other TV content ( i.e., excluding sports 
content, since the Parties do not play any significant role nor overlap in the licensing of sports content). In addition to that, when looking at the shares segmented by exhibition window, in line wit h sub- segments considered by the Commission in 
previous cases . MGM's estimated share of supply for AV content licensing in the 
relevant EEA countries and segments is in all cases <30%, and in most countries and segments is significantly lower.  
(152)  MGM's share in the production and supply of commissioned TV content also does not 
reach 30% on any plausible market segment . A strategy advisory firm specialised in 
the media and entertainment sector  engaged by the Parties , determined the total 
segment size based on t he amounts that broadcasters and VOD providers spend on 
commissioned TV content for each country in which they operate.
148 As me ntioned 
above, MGM has limited activities in the production of commissioned AV content in 
the EEA. The [ business secrets concernin g production] commissioned content that 
MGM has produced for a retail distributor in the EEA was [ business secrets 
                                                 
147  Form CO, Table 19.  
148 The total segment size was determined by deducting estimated sports rights licensing spending from 
estimated licensed content spending. The total segment size therefore includes only film and TV 
acquisitions. The Parties' revenues from the licensing of film and TV content were then compared to the 
estimated total segment size to derive estimates of the Parties' shares of supply for AV content licensing in certain EEA countries. As noted in paragrap h 344, Amazon generally does not license its content to third 
parties. 
[Business secrets concerning licensing revenues ]. As such, Amazon's estimated share of supply 
for AV content licensing in the relevant EEA countries is [0-5]%, except for Germany where it is [0 -5]% 
[Business secrets concerning licensing revenues ]. 
 
33 concerning sales ]. Otherwise, MGM did not produce or sell any commissioned TV 
content or earn production for hire revenues in 2018 or 2019 in any EEA country. 
[Business secrets concerning business strategy ]. In any event, the Parties' estimated 
shares of supply for commissioned TV production in t he relevant EEA countries was 
[0-5]% for all commissioned content, in the segment of both commissioned scripted 
and commissioned unscripted content .  
(153)  Prime Video’ s share of the downstream market for the retail distribution of AV 
content was estimated for the years 2018- 2020 based on the number of subscriptions  
compared to the number of subscriptions of competing services  as well as based on 
the revenues it generates  compared to the revenues of competing services . 
a) Overall market for the retail distribution of AV content. The Notifying Party did 
not provide marke t share estimates for Amazon’s share in an overall market for 
the retail distribution of AV content. However, it pointed out that at an EEA -wide 
level, classical TV accounts for over 50% of the total AV market revenues 
whereas SVOD services would only acco unt for 6%. Since Amazon only provides 
SVOD services, its share would be well below 30% in an overall market for the retail distribution of AV content.  
 
b) SVODs, TVODs and Pay -TV. Assuming a market that includes only linear and 
non-linear Pay -TV services , the market shares of Prime Video where estimated 
based on the hypothesis that SVOD platforms compete with TVOD platforms as well as Pay -TV. In this hypothetical market, Prime Video’s subscription-  and 
revenue -based market share does not exceed 30% in the EEA  and in each of the 
EEA Member States.  
 
c)  SVODs and TVODs.  The subscription-  and revenue- based market shares of Prime 
Video were also calculated for the hypothetical market that comprises only non -
linear distribution of Pay -TV, i.e., SVOD and TVOD platform s.149 In this market, 
Prime Video’ s share does  not exceed 30 % in the EEA.  However, Prime Video’s 
subscription- based market shares for this hypothetical market is [30 -40]% in 
Austria , and [30-40]% in Germany for 2020. The revenue -based market share for 
the same year exceeds the 30% threshold only i n Germany with the share of 
[30-40]%.150 
d) SVODs. Prime Video’s market shares were also calculated in the hypothetical 
market comprising only of SVOD platforms. In this hypothetical market, Prime Video’s subscription-  and revenue- based market share does not exceed 30% in the 
EEA. However, it exceeds 30% in three individual Member States. As regards 
subscription- based market shares, Prime Video has a share o f [30 -40]% in Austria, 
[30-40]% in Croatia and [30- 40]% in Germa ny for the year 2020. As regards 
revenue -based market shares, Prime Video’s shares do not exceed 30% in any 
Member State for the same year.  
e) SVODs, TVODs, Pay -TV and exhibitors (cinemas). Based on the hypothesis that 
various categories of retail distributo rs of AV content compete with exhibitors, the 
                                                 
149  TVOD is applicable only to the shares by revenue and is reflected only for the EEA countries in which 
Prime Video generated TVOD revenues in 2020 ( [countries ]). 
150  The market shares do not change if we consider that l ocal OTT players are not considered as competing 
within the s ame market . 
 
34 market shares of Prime Video were estimated for the hypothetical market that 
includes SVODs, TVODs, Pay -TV and exhibitors. For this market, subscription-
based shares were not taken into account as a subscriptio n is not an option offered 
by most of the exhibitors. In this hypothetical market, Prime Video’s revenue -
based market share does not exceed 30% in the EEA and in each of the EEA Member States.  
 
f) SVODs and exhibitors. Another hypothetical market concerns the SVODs being in 
direct competition with cinemas . The current release- window trends would justify 
such a hypothetical market. Theatrical release windows (which in the past generally lasted around 3 months) have shortened,
151 and there is a growing trend 
of simultaneous or near simultaneous theatrical and premium video-on- demand  
(“PVOD”) , or other streaming release,152 or initial release solely via 
PVOD/streaming services. Similarly, while release windows have traditionally been geographically specific, there has been an increasing trend towards simultaneous global releases. The decision to do a simultaneous global release will 
also depend on any piracy risk for the specific film and whether there would be global demand for the film. For this market, subscription- based shares were not 
taken into account as a subscription is not an option offered by all the exhibitors. In this hypothetical market, Prime Video’s revenue -based market share does not 
exceed 30% in the EEA and in each of the EEA Member States.  
(154)  In concl usion, this transaction results in vertically affected markets for Austria, 
Croatia and Germany, if one were to assume the  narrowest sub- segmentation possible  
for the downstream  market for the retail supply of  AV content  (i.e., the sub-
segmentation where there is a separate downstream market for SVODs).  It also gives 
rise to affected markets in Austria and Germany taking into account the downstream market where SVODs compete with TVODs.  
(155)  The market shares in the affected markets below and the Commission’s a ssessment 
focuses on the affected markets that arise from the narrowest sub -segmentation 
possible for the downstream market for the retail supply of AV content ( i.e., the sub-
segmentation where there is a separate downstream market for SVODs) since the potential competition concerns are the same for both possible sub- segmentations 
described in the paragraph above and focusing on the narrowest market possible would enable the Commission to fully assess the impact of the Transaction. 
5.4. Market shares  in the affe cted markets   
5.4.1. Amazon 
5.4.1.1. Overview – SVOD subscription and revenue shares 
(156)   Table 1 below provides an overview of Amazon’s market shares in the hypothetical market for the retail supply of AV services via SVOD platforms, based both on revenues and on subscriber numbers. As mentioned, Amazon’s market shares exceed 
                                                 
151  See https://www.cnbc.com/2020/11/16/unive rsal-and-cinemark -agree-to -shorten- theatrical -window html . 
152  See https://variety.com/2020/film/news/warner -bros-hbo-max-theaters -dune -matrix -4-1234845342/ ; 
https://www.adweek.com/convergent -tv/disney -plans -simultaneous -theatrical -premium -streaming -releases -
of-raya-andthe -last-dragon/; https://variety.com/2021/film/box -office/theatrical- window- dead -1234973333/.  
 
35 30% in Austria, Croatia and Germany, for which more details will be provided in 
Sections 5.4.1.2, 5.4.1.3, and 5.4.1.4 below.  
Table 1. All Member States -  Amazon’s  SVOD shares  
Member State  Subscription  shares  Revenue  shares  
2018  2019  2020  2018  2019  2020  
Austria  [40-50]% [40-50]% [30-40]% [30-40]% [20-30]% [20-30]% 
Belgium  [10-20]% [10-20]% [10-20]% [5-10]% [5-10]% [5-10]% 
Bulgaria  [20-30]% [10-20]% [10-20]% [5-10]% [10-20]% [10-20]% 
Croatia  [20-30]% [20-30]% [30-40]% [5-10]% [10-20]% [10-20]% 
Cyprus  [5-10]% [5-10]% [10-20]% [0-5]% [0-5]% [5-10]% 
Czech Republic  [0-5]% [10-20]% [10-20]% [0-5]% [5-10]% [5-10]% 
Denmark  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
Estonia  [5-10]% [5-10]% [5-10]% [0-5]% [0-5]% [5-10]% 
Finland  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
France  [30-40]% [20-30]% [10-20]% [10-20]% [10-20]% [5-10]% 
Germany  [40-50]% [40-50]% [30-40]% [30-40]% [30-40]% [20-30]% 
Greece  [10-20]% [10-20]% [10-20]% [0-5]% [5-10]% [5-10]% 
Hungary  [10-20]% [10-20]% [10-20]% [5-10]% [5-10]% [10-20]% 
Ireland  [10-20]% [20-30]% [20-30]% [0-5]% [5-10]% [10-20]% 
Italy [10-20]% [10-20]% [10-20]% [5-10]% [5-10]% [5-10]% 
Latvia  [5-10]% [5-10]% [5-10]% [0-5]% [0-5]% [5-10]% 
Lithuania  [10-20]% [10-20]% [10-20]% [0-5]% [5-10]% [5-10]% 
Luxembourg  [10-20]% [10-20]% [10-20]% [0-5]% [5-10]% [5-10]% 
Malta  [10-20]% [20-30]% [20-30]% [5-10]% [5-10]% [10-20]% 
Netherlands  [5-10]% [5-10]% [10-20]% [0-5]% [0-5]% [0-5]% 
Poland  [0-5]% [5-10]% [5-10]% [0-5]% [0-5]% [0-5]% 
Portugal  [5-10]% [5-10]% [5-10]% [0-5]% [0-5]% [5-10]% 
Romania  [10-20]% [10-20]% [10-20]% [5-10]% [5-10]% [10-20]% 
Slovakia  [10-20]% [10-20]% [10-20]% [5-10]% [5-10]% [10-20]% 
Slovenia  [10-20]% [10-20]% [10-20]% [0-5]% [5-10]% [10-20]% 
Spain  [20-30]% [20-30]% [20-30]% [5-10]% [10-20]% [5-10]% 
Sweden  [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% [0-5]% 
 
5.4.1.2. Austria  
(157)  In Austria , Amazon’s subscription share for 2020 is [30- 40]%, behind that of Netflix 
that had a share of [40- 50]% in 2020. In the last years, Amazon ’ market share has 
declined from almost [40 -50]% in 2018. This is likely the result of the entry of new 
players in to the market, namely Apple TV+ and Disney+ that launch ed in Austria in 
2019 and 2020 respectively and have achieved a market share of [5 -10]% and [5- 10]% 
respectively in 2020.  
(158)  Also in terms of revenue shares , Netflix’s market share has increased during the same 
period despite  the en try of the new players from [50- 60]% in 2018 to [60- 70]% in 
2020. Amazon’s revenue based market share in Austria has decreased from [30 -40]% 
in 2018 to [20- 30]% in 2020.  
 
36 (159)  Table 2 below shows the competing SVOD platforms and their respective 
subscription- based market shares for the years 2018- 2020. 
Table 2. Austria -  SVOD subscription shares  
Service  Subscription 
share 2018 Subscription 
share 2019 Subscription 
share 2020 
Prime Video  [40-50]% [40-50]% [30-40]% 
Netflix  [40-50]% [40-50]% [40-50]% 
Disney+   [0-5]% [0-5]% [5-10]% 
DAZN  [5-10]% [10-20]% [5-10]% 
Apple TV  [0-5]% [0-5]% [5-10]% 
Total  100%  100%  100%  
 
(160)  Table 3 below shows the competing SVOD platforms and their respective revenue -
based market shares for the years 2018 -2020.  
Table 3 -  Austria -  SVOD revenue shares  
Service  Revenue share 
2018 Revenue share 
2019 Revenue share 
2020 
Prime Video  [30-40]% [20-30]% [20-30]% 
Netflix  [50-60]% [50-60]% [60-70]% 
Disney+  [0-5]% [0-5]% [0-5]% 
DAZN  [10-20]% [10-20]% [10-20]% 
Apple TV  [0-5]% [0-5]% [0-5]% 
Total  100%  100%  100%  
 
5.4.1.3. Croatia  
(161)  In Croatia, only Netflix and Amazon currently offer SVOD services. Netflix is the 
market leader with a subscription- based  market share of [60- 70]% in 2020 with Prime 
Video ’s share being [30 -40]% for the same year. While Amazon’s market share has 
increased (from [20 -30]% in 2018 to [30- 40]% in 2020) and Netflix’s market share 
has consequently decreased (from [70- 80]% in 2018 to [60- 70]% in 2020), Netflix is 
still clearly the market leader.  
(162)  Revenue -based markets shares also reflect the above picture with Prime Video’s share 
having increased from [20- 30]% in 2018 to [30- 40]% in 2020 and Netflix’s market 
share having decreased from [70 -80]% in 2018 to [60- 70]% in 2020.  
(163)  Table 4 below shows the competing SVOD platforms and their respective 
subscription- based market shares for the years 2018 -2020. 
 
37 Table 4. Croatia – SVOD subscription shares  
Service  Subscription 
share 2018 Subscription 
share 2019 Subscription 
share 2020 
Prime Video  [20-30]% [20-30]% [30-40]% 
Netflix  [70-80]% [70-80]% [60-70]% 
Total  100%  100%  100%  
 
(164)  Table 5 below  shows the competing SVOD platforms and their respective revenue -
based market shares for the years 2018 -2020.  
Table 5. Croatia -  SVOD revenue shares  
Service  Revenue  share 
2018 Revenue  share 
2019 Revenue  share 
2020 
Prime Video  [5-10]% [10-20]% [10-20]% 
Netflix  [90-100]% [80-90]% [80-90]% 
Other153 [0-5]% [0-5]% [0-5]% 
Total  100%  100%  100%  
 
5.4.1.4. Germany  
(165)  In Germany, Prime Video was among the first global SVOD services to launch in 
Germany and enjoyed a first mover advantage. However, Prime Vide o's share has 
declined form [40- 50]% in 2018 to [30- 40]% in 2020 after the entry and growth of 
other SVOD players, namely Apple TV+ (with [ 5-10]% subscriber share in Germany 
in 2020) and Disney+ (with [10- 20]% subscriber share in Germany in 2020) . Netflix's 
subscriber share in Germany has remained steady , amounting to [30-40]% in 2018 
and [30-40]% in 2020, while its absolute number of s ubscribers has increased (from 
[5-10] million  in 2018 to almost [10 -20] million  in 2020). Furthermore, in Germany  
the market tends to be more segmented due to the existence of local SVOD platforms. 
(166)  As regards revenue- based shares in Germany, they reflect even more clearly the fact 
that Prime Video is losing ground against Netflix. Prime Video’s market share has decre ased from [30 -40]% in 2018 to [20- 30]% in 2020 while Netflix’s ma rket share 
has increased from [40 -50]% in 2018 to [50- 60]% in 2020. It also reflects the 
consequences of the entry and growth of new SVOD players as well as the consequences of the existence of many local SVOD platforms.  
(167)  Table 6 below shows the competing SVOD platforms and their respective 
subscription- based market shares  for the years 2018 -2020. 
                                                 
153  “Other" in the "SVOD –  EEA revenue" she et refers to Voyo. Voyo does not appear in the "SVOD –  EEA 
subscriptions" sheet because the number of subscriptions is based on year -end figures. According to the 
Ampere Analysis data, Voyo stopped generating revenues as of Q3 2018 and had no subscriptions  at the end 
of Q4 2018 (which is the point in time that the SVOD subscription shares for 2018 are based on).  
 
38 Table 6. Germany -  SVOD subscription shares  
Service  Subscription 
share 2018 Subscription 
share 2019 Subscription 
share 2020 
Prime Video  [40-50]% [40-50]% [30-40]% 
Netflix  [30-40]% [30-40]% [30-40]% 
Disney+  [0-5]% [0-5]% [10-20]% 
Apple TV  [0-5]% [0-5]% [5-10]% 
DAZN  [5-10]% [5-10]% [0-5]% 
TV Now  [0-5]% [0-5]% [0-5]% 
Joyn Plus+  [0-5]% [0-5]% [0-5]% 
Sky ticket  [0-5]% [0-5]% [0-5]% 
Other  [5-10]% [0-5]% [0-5]% 
Total  100%  100%  100%  
 
(168)  Table 7 below shows the competing SVOD platforms and their respective revenue -
based market shares for the years 2018 -2020.  
Table 7. Germany -  SVOD revenue shares  
Service  Revenue share 
2018 Revenue  share 
2019 Revenue  share 
2020 
Prime Video  [30- 40]% [30-40]% [20-30]% 
Netflix  [40-50]% [40-50]% [50-60]% 
Disney+  [0-5]% [0-5]% [0-5]% 
Apple TV  [0-5]% [0-5]% [0-5]% 
DAZN  [5-10]% [5-10]% [5-10]% 
TV Now  [0-5]% [0-5]% [0-5]% 
Joyn Plus+  [0-5]% [0-5]% [0-5]% 
Sky ticket  [5-10]% [0-5]% [0-5]% 
Maxdome  [5-10]% [5-10]% [0-5]% 
Other  [0-5]% [0-5]% [0-5]% 
Total  100%  100%  100%  
 (169)  The market shares in the above countries are slightly above [ 30-40]% for 2020 and the 
markets present similarities in that Prime Video and Netflix are currently losing their 
market shares to new entrants and the entry of more SVOD platforms (such as HBO 
max) is envisaged for the coming years.  On this basis, the competitive assessment is 
deemed to concern all of the three countries where affected markets arise and when 
 
39 there are particularities app licable only to one of the three markets this will be 
explicitly mentioned.  
5.4.2. MGM  
(170)  As mentioned above, MGM’s market share in the  upstream markets for the licensing 
out of rights for pre -produced content and for the production and supply of 
commissioned TV content do not reach 30% on any plausible basis.  
(171)  MGM has no or de minimis  (i.e., less than [0 -5]%) upstream activities involving the 
licensing of SVOD or TVOD distribution rights for pre -produced AV content in the 
EEA and in each individual Member State incl uding the aforementioned Member 
States  where affected markets arise ( i.e., Austria, Croatia and Germany).  
(172)  As regards the vertical link between MGM's upstream activities as a producer and 
supplier of commissioned TV content and Amazon's activities as a pur chaser of AV 
content, the following should be taken into account. First, MGM is not active in the 
production of commissioned TV content in the EEA. Second, Amazon does not 
produce commissioned AV content for third parties in the EEA. [Business secrets 
concerning internal financial processes ]. In any case, Prime Video’s revenue market 
shares are well below 30% for the EEA and for each individual EEA Member State.  
5.5. Vertical assessment  
5.5.1. Foreclosure of rival SVOD platforms  from accessing MGM’s AV content ( Input 
foreclosure ) 
(173)  To examine whether the vertical link between MGM’s upstream activities in the licensing -out of rights for pre -produced content/production and supply of 
commissioned TV content and Amazon's downstream activities in the retail distribution  of AV content  gives rise to competition concerns, the Commission 
investigated whether the merged entity would have the ability or the incentive to leverage its position in the market in order to foreclose rival SVOD platforms by making MGM’s content exclu sive to Prime Video  or by worsening the terms and 
conditions under which it licenses MGM’s content to rival platforms .  
5.5.1.1. The Notifying Party’s view s 
(A) Ability to engage in input foreclosure  
(174)  The Notifying Party submits that the Transaction will not give rise to any input foreclosure concerns. It submits that the merged entity will not have the ability to engage in input foreclosure, due to the fact that Prime Video is not the leading SVOD player in the EEA, MGM’s content represents a small percentage of the con tent 
generally available and such content is already licensed out for the following years.  
Furthermore, MGM’s content is not considered particularly important for retail 
suppliers of AV content.  
(175)  First, the Notifying Party submits that since Netflix is the leading SVOD player in all 
EEA countries except Germany (where Prime Video has [ business secrets concerning 
share evolution] ) and since  Prime Video's SVOD revenue share in the EEA  is less 
than 30%, it is implausible that Amazon could credib ly marginalise rivals on the 
 
40 downstream distribution market by strategically manipulating their access to MGM 
content.  
(176)  Second, MGM's AV content represents only a small proportion of total output (e.g., under [5- 10]% of supply for films in every EEA countr y for each of the last 3 
years, even on the basis of national markets) and significantly less than the output of Netflix and Disney, for example. Therefore, even if Amazon was planning to leverage its position in the market making use of MGM’s content , the latter is not considered 
enough to achieve an input foreclosure strategy against rival SVOD platforms.   
(177)  Third , according to the Notifying Party, Amazon would have no ability to foreclose 
rivals' access to a part of MGM's most valuable content at least in the short to medium term, as it is already licensed  to third parties in key EEA territories, including 
[countrie s]. Amazon's competitors will therefore  continue to have access to a part of 
MGM's content for [ duration] . 
(178)  Fourth, [ business secrets concerning sales strategy ].  
(179)  Fifth, according to the Notifying Party there is no such thing as "must have" content and so, even if access to MGM content were entirely removed, Amazon's competitors would still be able to compete just as effectively and would continue to have access to a wide range of AV content from producers, including through self -producing, 
commissioning, and coproducing content. Competition in the AV industry is currently considered to be very high and new content is constantly being produced.  
(B) Incentive to engage in input foreclosure  
(180)  The Notifying Party also submi ts that the merged entity will have no incentive to 
engage in input foreclosure due to the fact that such strategy would not lure customers away from other platforms in the favour of Prime Video. Consumers also tend to 
“multi- home ”, meaning that a subscription to Prime Vid eo would not necessarily 
prompt the cancellation of a subscription to a rival SVOD platform.  
(181)  In addition, the prevalence of multi -homing by subscribers for SVOD services would 
imply that a large number of subscribers of rival SVOD services may subscribe to 
Prime Video while maintaining their subscriptions to rival SVOD services.  
(182)  The Notifying Party further submits that Amazon's incentive to license library
154 
content  flows from its interest in generating consumer interest around new content  it 
produces based on that IP. Moreover, library content is largely fungible, and a vast 
array of such content is widely available. Making all of MGM's library  content 
exclusive would have a cost to Amazon in terms of licensing revenues  foregone, but 
have limited actual impact on rivals, as SVOD/Pay -TV services  have access to 
alternative library content with similar characteristics.  
                                                 
154  Generally , film and TV content licensed outside of the Pay 1 and Pay 2 windows are referred to as "library" 
assets. The age at which content becomes library content differs between different studios and distributors. 
For example, MGM considers content to be library content at the beginning of the quarter of a title's second 
anniversary following its initial theatrical release or broadcast date. See https://live -
mgm2.pantheonsite.io/sites/default/files/2021 - 05/Q1%202021%20Financial%20Report_0.pdf, page 41. 
[Confidential information relating to internal classification of content] . The terms “Pay 1” and “Pay 2” 
windows are used to refer to the fact  that there is usually more than one pre -FTA "pay" window, and titles 
are generally exclusive to the licensee for each of those Pay 1, Pay 2, and/or Pay 3 windows.  
 
41 (183)  Moreover , the Notifying Party point s out that  even if Amazo n were to pursue a 
strategy of making all MGM  content exclusive to Prime Video, the competitive 
effects would be very limited. In respect of new content, as such content would in any 
event be licensed  exclusively to a single distributor for the  duration of  the Pay 1 
window, the competitive effects would be limited (it would be exclusive to Amazon 
instead  of – potentially – another provider).  
(184)  Based on the above, the Notifying Party concludes that Amazon’s acquisition of 
MGM cannot result in input foreclosur e concerns for Amazon’s rivals in the 
downstream market for the retail supply of AV services  due to the fact that exclusive 
licensing is [ business secrets concerning sales strategy ].  
(185)  The Notifying Party therefore, concludes that the merged entity will have neither the ability nor the incentive to engage in input foreclosure vis -à-vis other retail suppliers 
of AV content in Austria, Croatia and Germany.  
5.5.1.2. The Commission’s assessment  
(186)  The Commission investigated whether t he vertical link between MGM’s upstre am 
activities in the licensing -out of rights for pre -produced content/production and supply 
of commissioned TV content and Amazon's downstream activities in the retail distribution of AV content  give s rise to input foreclosure concerns .  
(187)  The market investi gation results point to a lack of  ability and incentive from 
Amazon’s side to effectively apply input foreclosure strategies.  
(A) Ability to engage in input foreclosure  
(188)  Input foreclosure concerns may only give rise to competition problems if they concern an important input.
155 The merged entity would need to have a significant degree of 
market power in the upstream market in order to be able to exercise a significant influence on such market as well as on prices and supply conditions in the downstream market.
156 Neither condition is fulfilled in the present case.  
(189)  According to the market investigation results, Amazon is not capable of foreclosing rival SVOD platforms by restricting access to MGM’s content. Participants in the market for the retail supply f AV content confirm that they are licensing MGM’s content [duration ] and that MGM’s overall content is not considered particularly 
important . As regards the  Bond franchise
157 in particular,  which is conside red the most 
important of MGM’s content , the market participants perceive it as more important 
than MGM’s content in general, but eventually the Commission found that no input 
foreclosure concerns arise in that regard too.  
                                                 
155  See Non -Horizontal Merger Guidelines, para. 34.  
156  See Non -Horizontal Merger Guidelines, para. 35.  
157  For the purposes of this decision, the term “franchise” is used to indicate  a film series that is  a collection of 
related films ( in succession ) that share the same fictional universe, or are marketed as a series  of films . 
Therefore, Bond  franc hise refers to the rights on all the existing Bond movies and the right to make future 
ones.  
 
42 Market power  
(190)  First, participants to the market investigation indicate that they licence limited content 
from MGM. For most of the market investigation participants, MGM content 
corresponds to less than  20% of the licens ing expenses.158 This means that even in the 
absence of such content the majority of their offering would remain intact. It also means that they do not heavily rely on MGM’s content to attract viewers.  
(191)  Second , MGM is not amongst the  biggest content suppliers. Most of the retail 
suppliers of AV content that partici pated in the market investigation indicated that 
content licensed from other major US studios such as NBCUniversal, WarnerMedia, 
ViacomCBS, Sony and Disney are the biggest content suppliers. The majority of market participants has higher expenses for licen sing from each of these studios than 
for MGM .
159  
(192)  Third , based on current contracts between MGM and retail suppliers of AV content, 
Amazon would have no ability to foreclose rivals' access in the short term. [ Business 
secrets concerning the licensing of MGM content ].160 
(193)  Most of the  market investigation participants confirmed that they have existing 
licensing agreement s with MGM  in Austria, Croatia and Germany as well as in other 
key EEA territories .161 According to the market investigation, Prime Video’s  
competitors in Austria, Croatia and Germany will therefore continue to have access to 
their current  MGM's content for the duration of their contracts , [duration] .162 
Important input  
(194)  Fourth, many retail suppliers of AV content participating in the market investigation  
have indicated that there is an abundance of content, as the market for production, wholesale and retail supply for AV content is characterised by a great degree of competitiveness.
163 The majority of retail suppliers takes the view that there is 
sufficient  pre-produced AV content  available for other retail platforms to enter or 
expand in the market for the retail supply of AV services in Austria, Croatia and Germany.
164 
(195)  Fifth, MGM’s content in general is not considered particularly important in the sense 
that it does not contribute significantly to the competitiveness of retail AV services . 
The market investigation results clearly demonstrate that retail providers of AV content consider the MGM’s content to be of average importance (with the exception of certain titles) for the competitiveness of their retail services.
165 The majority of 
respondents to the market investigation took the view that should Amazon stop licensing or worsen s the terms and conditions at which they supply MGM’s content in 
Austria, Croatia and Germany (for instance, by making this content exclusive to Prime 
                                                 
158  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 59.  
159  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 60.  
160  For instance, [ Business secrets concerning the licensing of MGM content ]. 
161  Key EEA territories include  [countrie s]. 
162  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 56.3.  
163 Minutes of calls of 02 December, 14 December 2021 and 12 January 2022 with market participants.  
164  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 70.  
165  See responses to Q1 - Questionnaire to co ntent providers and retail supplie rs, question 58.  
 
43 Video), they would be able to replace it with similar content from other suppliers.166 
Respondents were inconclusive about the potential impact for retail suppliers as a 
resul t of the worsening of the terms (or the cease to supply) MGM content, as they 
could not predict whether they could mitigate the negative impact with effective counterstrategies.
167  
(196)  The market participant’s view, however, is different when it comes to certai n MGM 
franchises with the Bond  franchise being considered the most significant. Some 
market participants took the view that, although MGM’s content is generally 
replaceable, the Bond franchise is considered essential.168 On this basis, some market 
respondent s indicated that they would respond to a potential worsening of the terms 
for licensing MGM’s content (such as price increase) by limiting the acquisition of 
content to what is most significant. In this case, they would most likely opt for the 
Bond franchi se.169 This means that retail suppliers of AV content will still be able to 
acquire the content that they consider important for the competitiveness of their 
platforms . Furthermore, in the context of the market investigation, retail suppliers of 
AV content a lso took the view that MGM’s licensing terms are similar to the terms 
requested by other producers of AV content. A few retailers took the view that MGM’s content is actually  licensed  [business secrets concerning MGM's licensing 
practices ]. As a result, a few market investigation participants took the view that a 
potential increase in price for MGM’s content is not likely to significantly affect their 
ability to purchase MGM content.
170 
(197)  Finally, the Commission notes that as of the date of this decision  and for the three 
Member States Austria, Croatia and Germany , out of the 27 titles of the Bond  
franchise, MGM [ business secrets concerning MGM's licensing practices ].171. Taking 
into account the high level of competition in the German and Austrian m arket, it is 
therefore obvious that Bond titles currently play at best a very marginal role for 
competition and are in no way particularly important titles. In light of these 
circumstances, the concerns voiced about the availability of the Bond titles during the 
market investigation, seem to reflect rather an  expectation of increased competition by 
Prime Video, that might have an opportunity to include the Bond titles as part of its 
SVOD services, than the  fear that an important input would no longer be made 
available.  
(198)  Based on the above, it is clear that even though a distinction can be drawn between the 
Bond franchise and the rest of MGM content in terms of significance for players in the 
downstream market for the retail supply of AV content, the merged en tity would not 
have the ability to foreclose retail suppliers. Even in the case where Amazon reserves the entirety of MGM’s content exclusively for Prime Video, retail suppliers of AV 
content will be able to replace the content with similar content from other wholesale 
suppliers, as discussed below. 
(199)  In conclusion, as regards MGM’s input and the Bond franchise in particular, Amazon 
will not acquire an “important input” that will have significant influence on the 
                                                 
166  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 67.  
167  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 69.  
168  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 69.  
169  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, questions 72 and 72.1.  
170 See responses to Q1 - Questionnaire to content providers and retail suppliers, question 62.  
171  See Annex 5 .1 to Response to RFI  11. 
 
44 conditions of competition in the upstream market , and the merged entity cannot be 
expected to have a significant influence on the conditions of competition in the 
upstream market within the meaning of the Non -Horizontal Merger Guidelines.  
(200)  For these reasons, the Commission concludes that, given the highly competitive market for the retail supply of AV content and the abundance of content available, the merged entity will not have the ability to foreclose rival platforms in Austria, Croatia and Germany.  
(B) Incentive to engage in input foreclosure  
(201)  In the previous section, the Commission analysed how t he merged entity has no 
ability to foreclose its competitors in the downstream market for the retail supply. Nevertheless, for completeness, the Commission has also assessed the potential incentive of the m erged entity to foreclose its rivals in the downstream market.  
(202)  The market investigation results demonstrate that there is a lack of incentive for Amazon to engage in input foreclosure against rival SVOD platforms. The market for the retail supply of AV content in Austria, Croatia and Germany is very competitive with many active players  and non- SVOD players exerting additional pressure in the 
market for the retail supply of AV content . Content is also widely available and 
MGM’s content is not considered part icularly important  for the competitiveness of the 
platforms, as it could be easily replaced . Finally, while the Bond franchise is 
considered to be of higher importance than the rest of MGM’s content, it represents a very small fragment of the content available and the retail suppliers of AV content might be able to acquire it even under worse terms and conditions. As a result, a few 
market investigation participants took the view that a potential increase in price for MGM’s content is not likely to signific antly affect their ability to purchase MGM 
content.
172 
(203)  First, SVOD players face competition by other retail suppliers of AV content (TVOD 
platforms, Pay -TV etc). This is clearly demonstrated in the market investigation 
results, according to which , Prime Vide o is not amongst the top providers of retail AV 
services in  Austria, Croatia and Germany .173  
(204)  More specifically, in Austria, the leading players are Sky and Magenta. Netflix and Prime Video seem to follow in the third and fourth positions after the aforementioned 
platforms.
174 For Croatia, while the market investigation results were inconclusive as 
to the leading players, Prime Video was not mentioned as one of the top- 5 providers 
of retail AV services.175 Finally, in Germany, the market for the retail s upply of AV 
services seems to be quite competitive with multiple active players. ARD/ZDF and Vodafone were indicated by the market participants as the leading players. Netflix, Prime Video a nd Deutsche Telekom were also indicated as  some of the top- 5 retai l 
suppliers, but not as the market leaders.
176 As Prime Video is not the market leader, 
any attempt to restrict access to content will have limited impact. Furthermore, taking into account the current -multi homing trend described below, subscribers are not 
                                                 
172  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 62.  
173  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 61.  
174  See responses to Q1 - Questionnaire to c ontent providers an d retail suppliers, question 61.1.  
175  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 61.2.  
176  See responses to Q1 - Questionnaire to content providers and retail suppliers , question 61.3.  
 
45 likely to only have one subscription to Prime Video or to leave their current 
subscription to a bigger player to obtain a subscription to Prime Video. Even though 
in this case the affected downstream market includes only SVOD players, the market 
investigation results point to an out -of-market competitive constraint that exerts 
significant pressure to SVOD platforms.  
(205)  Second , and in addition to the above , the respondents to the market investigation took 
the view that the market for the retail supply of  AV cont ent is characterised by 
rigorous competition in Austria177 and Germany178 and high to moderate competition 
in Croatia .179 Based on this, in the hypothetical scenario where Amazon would restrict 
all access to MGM’s content, such move would have limited impact  in the market as 
there are many other retail suppliers of AV content and consumers would still have a 
wide range of choices.  Furthermore, vertically integrated platforms, which account for 
more than half of the market investigation participants,180 could respond by also 
making content available exclusively on their own platform . This means Amazon is 
unlikely to capture demand downstream by restricting access to MGM’s content for rival platforms.  
(206)  Third, the prevalence of multi -homing by subscribers for SVOD servi ces implies that 
a large number of subscribers of rival SVOD services may subscribe to Prime Video 
while maintaining their subscriptions to rival SVOD services.
181 The majority of the 
market investigation participants took the view that end- customers multi- home across 
2 to 3 different platforms accessible via a paid subscription.182 
(207)  Fourth, the vast majority of market investigation participants considers that there 
sufficient pre -produced AV content is available in Austria, Croatia and Germany, for 
other retail  platforms to enter or expand in the market for the retail supply of AV 
services.183Fifth, even if Amazon stops licensing or worsens  the terms and conditions 
at which it supplies MGM’s content in Austria, Croatia and Germany (for instance, by 
making this content exclusive to Prime Video), the market participants clearly stated that they will be able to replace the content with similar content from other suppliers.
184 Similarly, in the case where Amazon raises the price for licensing MGM 
content by 10%, the majority of the participants to the market investigation indicated that they will respond to the price increase by decreasing the amount of content 
acquired by MGM.
185It must be noted, however, that similarly to paragraph (196)  
above, the market participants take the view that when it comes to the Bond franchise, 
they will not be able to  easily  replicate the content with content from other 
suppliers.186 However , in the scenario where Amazon worsens the terms and 
conditions under which it licenses MGM, rival platforms will still be able to acquire the content that is they considered important for the competitiveness of their platforms , as indicated the paragraphs  above.  
                                                 
177  See responses to Q1 - Questionnaire to content providers and retail suppliers , question 64.1.  
178  See responses to Q1 - Questionnaire to content providers and  retail suppliers, question 64.3.  
179  See responses to Q1 - Questionnaire to content providers and  retail suppliers, question 64.2.  
180  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 55.  
181  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 71.  
182  See responses to Q1 - Questionna ire to content providers and retail suppliers, questions 71 and 71.1.  
183  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 70.  
184  See responses to Q1 - Questionnaire to content providers and retail suppliers, questions 6 7 and 67.1.  
185  See responses to Q1 - Questionnaire to content providers and retail suppliers, questions 72 and 72.1.  
186  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 67.1.  
 
46 (208)  For completeness, the Commission therefore concludes  that the merged entity would 
not have an incentive to foreclose rival platforms in Austria, Croatia and Germany 
given that MGM’s content is considered replaceable with the content of many other AV content producers.  
(C) Overall likely impact on effective competition  
(209)  For completeness, the Commission further notes that for the same reasons on which it based its conclusion that Amazon would not have an ability to foreclose competing SVOD platforms, any such foreclosure strategy, if it were to be implemented, would have n o significant impact on its competitors’ ability to compete and would therefore 
not lead to any significant impact on effective competition.  
5.5.2. Foreclosure of producers of AV content (customer foreclosure)  
(210)  The Commission looked into potential competition conc erns stemming from the 
vertical link between MGM’s upstream activities in the licensing -out of rights for pre -
produced content/production and supply of commissioned TV content and Amazon's downstream activities in the retail distribution of AV in Austria, Croatia and 
Germany. In particular, it looked into a potential increase  in the bargaining power of 
Amazon  vis-à-vis other content producers as a result of vertical integration. The 
Commission investigated whether Amazon’s  acquisition of MGM’s content and t he 
exploitation of MGM’s IP would make redundant the necessity to deal with other AV content producers and suppliers in the upstream market of licensing -out of rights for 
pre-produced content/production and supply of commissioned TV content  in Austria, 
Croatia and Germany.  
5.5.2.1. The Notifying Party’s view  
(A) Ability to engage  in customer  foreclosure  
(211)  The Notifying Party takes the view that there is n o risk of customer foreclosure  in 
Austria, Croatia and Germany  due to the fact that Amazon is a relatively small 
custom er for content producers and that [ business secrets concerning licensing costs ]. 
(212)  The Notifying Party submits that Amazon's share of acquisition of pre -produced AV 
content licensing is sufficiently small that there cannot be credible  concerns that 
content s uppliers would be weakened as a result of Amazon licensing less  content 
from them. Prime Video accounts for a limited share in the acquisition of all pre-
produced licensed content in each country: the l argest proportion in 2019 was 
[10-20]% in  Germany (whether one considers all content, films, or TV content).
187 
[Business secrets concerning internal processes in relation to costs ]. 
(B) Incentive to engage in customer foreclosure  
(213)  The Notifying Party takes the view that the merged entity has no incentive to foreclose customer s in Austria, Croatia and Germany  since MGM’s content is not 
sufficient to attract and retain consumer attention in a highly -competitive market 
where its competitors are heavily producing or acquiring  content . 
                                                 
187  [Business secrets concerning internal processes in relation to costs ]. 
 
47 (214)  First, the Notifying Party submits that if Prime Video relied only or mostly on MGM 
content this would reduce its consumer appeal substantially. [ Business secrets 
concerning licensing costs ], it would not be sufficient to replace Amazon's acquisi tion 
of licensed content from third parties. For instance, looking at Germany as an example: Amazon's content spend on licensing is EUR [business secret ], whilst  
MGM's  revenue  from  licensing  to all downstream services  is EUR [ business secret ] 
(based on 2019 data) . The Transaction would not reduce Amazon's appetite for 
purchasing content from third party content producers, [ business secrets concerning 
licensing costs ]. 
(215)  Second , Amazon’s competitors like Netflix and Apple invest heavily in content. At 
the same time, traditional large producers, such as Disney, Comcast, and 
WarnerMedia, are ramping  up their direct -to-consumer services in the EEA, and the 
valuable content available on  their services is increasing as existing licenses for their 
content expire. With such  competitors Amazon will always need new and diverse 
content to keep its Prime Video service attractive to consumers. This cannot be 
achieved by relying on MGM alone  (which, as indicated above, has a very small share 
of supply) and reducing purcha ses from other content suppliers. 
5.5.2.2.  The Commission’s assessment  
(216)  The Commission investigated whether the vertical link between MGM’s upstream activities in the licensing -out of rights for pre -produced content/production and supply 
of commissioned TV content and Amazon's downstream activities in the retail distribution of AV content  gives rise to customer foreclosure concerns  in Austria, 
Croatia and Germany.  
(217)  The market investigation results point to a lack of ability and incentive from Amazon’s side to effecti vely apply customer foreclosure strategies.  
(A) Ability to engage in customer foreclosure  
(218)  The results of the market investigation point to a lack of ability of the merged entity to engage  in customer foreclosure as MGM ranks below  many  other major content 
producers and its content is not deemed sufficient to confer significant bargaining 
power to Amazon in a highly competitive market.  This means that the acquisition of 
MGM is unlikely to confer to Amazon the ability to be independent from other production studios or significantly increase Amazon’s bargaining power in negotiations with them.  
(219)  First, as seen in paragraph s (157) -(169)  Prime Video  is not the leading SVOD 
platform in Austria and Croatia. In Germ any, Prime Video’s subscription- based 
market share marginally exceeds that of Netflix but it s revenue -based share is still 
well below that of Netflix.  Therefore, participants active in the upstream market will 
be able to license a large amount of  content to other SVOD players with a significant 
presence in the downstream market.  
(220)  Second, and in addition to the above, the respondents to the market investigation took the view that the market for the retail supply of AV content is characterised by rigorous competition in Austria
188 and Germany189 and high to moderate competition 
                                                 
188  See responses to Q1 - Questionnaire to content providers and retail suppliers , question 64.1.  
 
48 in Croatia190. Croatia is co nsidered to be a  small market for producers of AV 
content191 and as a result, even in the case where foreclosure in the Croatian market 
occurred, it would not be sufficient to raise the costs for producers of AV content.  
(221)  Third, all the retail suppliers of A V content that responded to the market investigation 
indicated that they license from different suppliers.192 This is due to the fact that the 
retail suppliers of AV content are seeking to satisfy the needs of several consumer 
groups to which they present a diverse portfolio of AV content.193 
(222)  Based on the above it is clear that there are many players interested in the content of 
AV suppliers and they actively try to have an interesting offering of AV content to maintain their viewers and attract new ones.  
(223)  Fourt h, it is necessary to note that the merged entity will not have the ability to engag e 
in customer foreclosure based on the nature and the particularities of the markets involved. T he nature of competition in the market for the production of AV content 
upstream and the retail supply of AV content downstream is different than the nature 
of competition in other vertical markets where a certain amount of upstream input is 
necessary for the production of downstream input. As outlined in the previous 
paragraphs, sourcing all their content from a single producer would not increase the competitiveness of retail suppliers of AV content as the final offering would not satisfy the needs and tas tes of different audiences. Therefore, a scenario where 
retailers can potentially rely on one wholesaler for their upstream input and be rewarded for their loyalty ( e.g., with rebates) is hig hly unlikely in this market. Here 
the attractiveness of the final  offering is heavily dependent on the diversity of the 
content offered. Based on this, it is expected that players active in the upstream market of AV content production will continue to license their content to Prime Video as well as its competitors.  This is confirmed by the market investigation participants 
that are vertically integrated ( i.e., active in the production and licensing of AV content 
as well as in the retail supply of AV content). All the vertically integrated market investigation participants indicated that they continue to supply AV content to third parties. The fact  that Prime Video will have direct access to MGM’s library will not 
allow it to solely depend on it, taking also into account that MGM is not amongst the biggest AV content producers, as described below.  
(224)  Fifth , and in relation to the above, all the respondents to the market investigation 
indicated Disney, WarnerMedia and NBCUniversal as the biggest AV content suppliers. No respondent listed MGM amongst the five top providers of AV  
content.
194 This means that MGM’s content production is limited in comparison to the 
production of other studios and Prime Video’s access to this content does not confer a competitive advantage that enables it to stop licensing from other suppliers.  
                                                                                                                                                        
189  See responses to Q1 - Questionnaire to content providers and  retail suppliers, question 64.3.  
190  See responses to Q1 - Questionnaire to content providers and  retail suppliers, question 64.2.  
191  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 45.2..  
192  See responses to Q1 - Questionnaire to content providers and  retail suppliers, question 60.  
193  Minutes of  the call of 02 December 2021 with a market participant  
194  See responses to Q1 - Questionnaire to content providers and retail suppliers, questions 44 and 44.1, 44.2 
and 44.3.  
 
49 (225)  Sixth , the majority of the respondents to the market investigation consider the level of 
competition in the upstream market for the licensing out  of AV content  to retailers to 
be very high in Austria and Germany195 and high to moderate in Croatia.196 
(226)  Seventh , as rega rds the bargaining power of the merged entity as a result of the 
transaction, the majority of the market investigation respondents take the view that it 
will improve vis -à-vis providers of pre -produced AV content. However, while most of 
the respondents agree that the merged entity will have an increased bargaining power, 
they do not agree on the significance of this increa se. While some respondents point 
out that the fact that Amazon will acquire a significant library  and the ability to 
produce in-house film and TV content  will increase Amazon’s bargaining power , 
other respondents take the view that MGM’s library is not big  enough to bring a 
significant change in Amazon’s negotiating power.197 Based on this, the merged entity 
is likely to continue licensing content from third production studios. 
(227)  The Commission concludes that, given the highly competitive upstream market for the 
licensing -out of rights for pre -produced content/production and supply of 
commissioned TV content in Austria, Croatia and Germany , the relatively small share 
of MGM in this market  and the need for a wide variety of content in a competitive 
downstream m arket , the merged entity has no ability to foreclose customer s in the 
upstream market  by ceasing  to acquire content from them . 
(B) Incentive to engage in customer foreclosure  
(228)  In the previous section, the Commission analysed how the merged entity has no 
ability  to foreclose its competitors in the upstream market for the production and 
licensing out of content. Nevertheless, for completeness, the Commission has also assessed the potential incentive of the merged entity to foreclose its competitors in the upstream  market for the production and licensing out of content. 
(229)  The results of the market investigation point to a lack of incentive of the merged 
entity to engage in customer foreclosure as a wide variety of content is necessary to attract customers and MGM’s ow n offering is not sufficient for the merged entity to 
rely exclusively on it.  
(230)  First, the market investigation results clearly indicate that out of the entirety of 
MGM’s offering only certain films are considered particularly important for the retail suppli ers of AV content in Austria, Croatia and Germany. This means that the AV 
content suppliers do not consider MGM’s content overall important in the sense that it 
does not c ontribute significantly to the competitiveness of retail AV services. Market 
investig ation participants have clarified that the y consider  mainly the Bond franchise 
important.
198199  
(231)  Second , the majority of the market investigation participants take the view that 
regardless of the existence or not of an increase in Amazon’s bargaining powers vis -à-
                                                 
195  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, questions 45.1 and 45.3.  
196  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 45.2.  
197  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 46.  
198  See responses to Q1 - Questionnaire to content providers and retail suppliers, question 47.  
199  Other important franchises are The Hobbit  and Rocky/Creed . 
 
50 vis content suppliers, Amazon will continue to license content from other suppliers.200 
Vertically integrated players confirmed that as they  took the view that in order to 
attract and maintain viewers, platforms seek to acquire a wide range of AV content  
from different suppliers .201 
(232)  The Commission concludes that, given the highly competitive market for the supply 
of AV content and the need for a variety of content much wider than MGM’s library 
can cover, the merged entity no have the  incentive to stop dea ling with rival AV 
content producers.  
(C) Overall likely impact on effective competition  
(233)  For completeness, the Commission further notes that for the same reasons on which it based its conclusion that Amazon would not have an ability to foreclose producers of AV content, any such foreclosure strategy, if it were to be implemented, would have 
no significant impact on its competitors’ ability to compete and would therefore not lead to any significant impact on effective competition.  
5.5.3.  Foreclosure of customers via A mazon’s Fire TV platform  
(234)  Amazon supplies a  range of Fire TV devices that enable  customers to access content 
including TV episodes and movies, songs, classes ranging from cooking to fitness and meditation, virtual tours, and live and on- demand video service s (including Prime 
Video and third party services). Amazon licenses Fire OS and the Fire TV software experience for use in smart TVs and sound bars manufactured by third parties. 
(235)  The vast majority of the market investigation participants indicated that the y supply 
content via Fire TV. In the context of the market investigation, some of the participants took the view that post -Transaction, Amaz on will have the ability and 
incentive to foreclose access by third -party content providers to its Fire TV device, 
either by denying such access altogether or by worsening the conditions for access. 
Amazon could achieve this  by making MGM’s content exclusive on Fire TV and 
therefore increasing its attractiveness for end -custom ers. As a result, Amazon  could be  
in a stronger gatekeeper position for other third- party AV services on Fire TV ( e.g., 
regarding terms and conditions to make available and promote third- party app lication s 
on TV or excluding third- party providers from the Fire TV platform). Some of the 
respondents agree that this would have a negative impact on their company and on 
AV content producers in general, as their exclusion from Fire TV would most likely result in loss or distribution reach and advertising revenues.  
(236)  First, as  regards the importance of Fire TV and its popularity in the market, the 
Commission notes that the penetration rate of Fire TV in the EEA is quite low, namely [5 -10]%. As regards the affected market s and according to data provided by 
Ampere Analytics , in G ermany it is estimated that [20 -30]% of households currently 
own a Fire TV device. The percentage is bigger than the EEA average but still not 
high. As regards Austria and Croatia, Amazon does not possess information on the percentage of households owning a Fire TV as Amazon does not hav e a dedicated and 
localized e- commerce website in these countries.  
                                                 
200  See responses to Q1 - Questionnaire to co ntent providers and retail suppliers, question 49.  
201  Minute s of calls of 13 and 14 December 2021 with market participants. . 
 
51 (237)  Second, i n order for a third- party retail supplier of AV content ( i.e., a third- party VOD 
service) to distribute its service on Fire TV, the supplier must create a developer 
account and agr ee to the Amazon Developer Services Agreement ("ADSA").202 The 
ADSA is an online standard form (or "click through") agreement and set of policies which set the terms under which a third -party app lication  developer can have its 
service distributed as an app lication  on Fire TV devices.  
(238)  [Business secrets concerning distribution strategy ]. 
(239)  Based on the above, and as regards the market participants’ claims that Amazon will 
have the ability and incentive to foreclose access by third- party content providers to 
its Fire TV device, it should be noted that such foreclosure is unlikely  due to the low 
penetration rate of Fire TV in the EEA, Amazon does not have the ability to foreclose 
access of third -party platforms to Fire -TV devices. In addition, Amazon does not have 
the incentive to foreclose access of third -party platforms to Fire -TV devices given that 
even an increased bargaining power as a result of the transaction would most likely 
result in changes to terms and conditions  of the ADSA. More specifically, the 
increased bargaining power would only concern other retail suppliers of AV content. 
Based on the information provided above, the ADSA is an online standard form 
agreement for all application developers. As indicated above, [ business secrets 
concerning distribut ion strategy ]. Amazon will not enjoy an increase of bargaining 
power vis -à-vis providers of other applications. (i.e., applications for songs, classes 
ranging from cooking to fitness and meditation and virtual tours). 
5.5.4.  Conclusion on the foreclosure of rival SVOD platforms and producers of AV content  
(240)  The merged entity will not have the ability and the incentive to foreclose its upstream 
customers and downstream competitors in the markets of licensing -out of rights for 
pre-produced content/production and supply of commissioned TV content (upstream) 
and Amazon's downstream activities in the retail distribution of AV content 
(downstream) in Austria, Croatia and Germany.203 The market investigation  results 
also reflect this , with most participants responding that the Transaction will have no 
material impact on their business.204  
(241)  Based on the above the Commission concludes that the aforementioned vertical link does not raise any competition concerns.  
5.5.5. Possible foreclosure of cinemas (downstream) from accessing MG M’s new film 
content (upstream)   
(242)  As explained in Sections 4.5.1.2 and 4.5.2.2  above, the Commission has concluded 
that there is a distinction between  AV value chain and the theatrical value chain.  
(243)  However, the Commission notes that, while  MGM has traditionally licensed out its 
films for theatrical exhibition pre -Transaction, Amazon Studios does not usually 
                                                 
202  The ADSA can be found here: https://developer.amazon.com/support/legal/da . 
203 The same conclusion applies as regards Fire TV: t he merged entity will not have the ability and the incentive 
to foreclose its upstream customers and downstream competitors in the markets of licensing -out of rights for 
pre-produced content/production and supply of commissioned TV content (upstream) and A mazon's 
downstream activities in the retail distribution of AV content (downstream) in Austria, Croatia and 
Germany  via Amazon’s Fire TV platform.  
204 See responses to Q1 - Questionnaire to content providers an d retail suppliers, question 74.  
 
52 license out films for theatrical release, except on limited occasions [ business secrets 
concerning sales strategy] . On the contrary, Amazon monetizes content production 
activities mainly through home entertainment retail distribution via Prime Video.205 
Furthermore, as explained in more details below, while Amazon [ business secrets 
concerning sales strategy ] (See paragraphs (245)  and (259)  below).  
(244)  The Commission also notes that, as explained in paragraph (95)  above, it received a 
complaint from a cinema chain. In line with the complaint, almost all responding 
cinemas to the market investigation consider that MGM’s films, especially  Bond 
films, are particularly important, such that Amazon  could foreclose cinemas that 
would otherwise have exhibited new MGM titles for a certain period (see Section s 
5.5.5.2(A.i)  and 5.5.5.2(B.i)  below).  
(245)  While  the AV value chain and the theatrical value chain do not form part of the same 
relevant markets, the Commission has assessed , for the sake of completeness, the 
possible ability a nd incentive for Amazon to stop licensing new MGM films to 
cinemas, as well as the effects of such possible behaviour. For this purpose, the 
Commission bases itself on   a total input foreclosure scenario ( i.e., MGM’s new films 
are no longer licensed to cinemas at all ). The reasoning applies, a fortiori,  to a 
possible partial input foreclosure scenario ( i.e., MGM’s new films are released in 
cinemas for a shorter window or in parallel to DTS release).  
5.5.5.1. Notifying Party’s view  
(246)  The Notifying Party submits that A mazon [business secrets concerning sales 
strategy ].206 207  
(247)  In any case, the Notifying Party submits that the merged entity would not have the 
ability to successfully foreclose cinemas by ceasing to license out rights for MGM’s films. The Notifying Party  points out that Amazon cannot autonomously decide 
whether or not to discontinue the theatrical release of certain MGM films and to release them DTS.
208 Third parties co -own a  number of MGM’s top film franchises , 
and they have to  agree t  on the release strategy of the relevant films. In particular, 
MGM and Danjaq/Eon co- own the Bond franchise . Danjaq/Eon is  the holding 
company of the Broccoli family co -producing Bond [business secret concerning 
financing agreement ]. Danjaq/Eon has broad approval rights [ business secret 
concerning strategic decisions ] relating to the Bond franchise, [business secret 
concerning strategic decisions ].209 Likewise, MGM and Warner Bros co -own the 
Hobbit franchise , and Warner Bros  controls the distribution rights of the respective 
films.210  
(248)  Moreover, according to t he Notifying Party , a hypothetical foreclosure strategy vis-à-
vis cinemas would not cause any anticompetitive effects, because MGM’s films 
                                                 
205  Form CO, paragraph 212.  
206  Form CO, paragraph 447. See also N otifying Party’s reply to the Commission’s RFI No 11.  
207  Notifying Party’s reply to the Commission’s RFI No 11.  
208  Notifying Party’s reply to the Commission’s RFI No 12.  
209  Form CO, paragraphs 244 – 246 and Table 16.  
210  Form CO, Table 16.  
 
53 content is not significant enough to have a meaningful effect on cinemas if it was 
withheld.211 
(249)  First, the Notifying Party points out that MGM’s shares in the production and 
licensing of film content for theatrical release based on box office revenues  are very 
low, not exceeding [0- 5]% in the EEA in each of the three years from 2018 to 2020 
and in any case almost always lower than [10- 20]% in each and every Member State 
across the three years.212 The Notifying Party also provided MGM’s shares based on 
box office revenues of 2021. Such revenues are higher, in relative terms, than in the previous years, accounting  for market shares of up  to [30- 40]% in Austria and 
[40-50]% in Latvia. However, the Notifying Party submits that such numbers are not 
indicative of MGM’s actual position in the market for the production and licensing of films for theatrical release. In this regard, the Notifying Party notes that such market shares are driven by two particular titles released in 2021, i.e. , No Time to Die and 
House of Gucci, in a year in which the total box office revenues, especially in Austria and Latv ia, were considerably lower than in the pre -pandemic years due to COVID -19 
related restrictions imposed on a national basis.
213 
(250)  More specifically, considering Bond films, the Notifying Party notes that No Time to 
Die has accounted for high proportions of the  overall box office revenues in certain 
Member States, especially in Austria ([20 -30]%) and Germany ([10- 20]%). However, 
these shares are not due to an exceptional performance of the Bond title, but rather to 
the low box office revenues of 2021. In this re gard, the Notifying Party submits that 
No Time to Die generated lower box office revenues than each of the four previous 
Bond films, even though the latter accounted for much lower shares of the overall box 
office revenues.214 In any case, the Notifying Part y notes that Bond films are released 
infrequently, meaning that in most years, cinemas do not offer Bond titles in any 
event.215 
(251)  Second , and in connection to the above, the Notifying Party points out that the Bond 
franchise generates less revenues than other  famous franchises that collect 
considerable box office success, such as the Marvel Cinematic Universe , Star Wars  
and Harry Potter.216 
(252)  Therefore, the Notifying Party considers that, should the merged entity cease to 
license MGM’s content, including new Bond films, for theatrical release, the merged 
entity would not be able to successfully foreclose cinemas. Even assuming that the merged entity pursued such a foreclosure strategy, it would not cause anticompetitive 
effects on cinemas.  
                                                 
211   Notifying Party’s reply to the Commission’s RFI No 12.  
212  Annex 27 to the Form CO  and Form CO, paragraph 422.  
213  Notifying Party’s reply to the Commission’s RFI No 11.  
214  Notifying Party’s reply to the Commission’s RFI No 11.  
215  Notifying Party’s reply to the Commission’s RFI No 12.  
216  Form CO, paragraph 243.  
 
54 5.5.5.2. Commission Assessment  
(A) Possible foreclosure of cinemas on the market for the retail supply of films 
for theatrical exhibition from accessing MGM’s overall film content  
(A.i) Ability  to engage in input foreclosure  
(253)  The Commission considers that, even if the merged entity could technical ly release 
MGM’s new films exclusively on Prime Video, in agreement with the relevant third-parties that own rights to certain MGM franchises, the merged entity would not have the ability to foreclose cinemas by ceasing to license MGM’s film content for theatrical release.  
(254)  First, the Commission notes that MGM’s content represents a minimal share of the box office revenues compared to the content of competing production st udios, 
reaching a maximum of [0 -5]% and [5- 10]% in the three years preceding the 
Trans action at EEA level and at Member State level respectively.
217 In this regard, no 
cinemas responding to the market investigation indicated MGM as one of the top- 10 
production studios based on the respective box office revenues in any year from 2015 to 2021.
218 Moreover, responding cinemas indicated that the percentage of their 
revenues accounted for by MGM films was generally very low in the years from 2015 to 2021, exceeding [ 10-20]% for some cinemas only in 2021, in correspondence to the 
release of the new Bo nd franchise film No Time to Die (but not in 2015 when Spectre 
was released) .
219 MGM’s films screened by responding cinemas in the pre -
Transaction years ranked among the top- 10 films in their respective year of release 
only on very few occasions, namely when the latest Bond films were released in 2015 
and 2021.220  
(255)  Second, cinemas have access every year to a large variety of movies from many production studios that generate significant box office revenues compared to MGM. Studios like Warner Bros, Sony Picture Entertainment, Universal and Walt Disney consistently rank among the top production companies in term of box office revenues for all responding cinemas, together with local studios that also represent a significant box office share in the years from 2015 t o 2021.
221 Therefore, should the merged 
entity stop licensing MGM’s films for theatrical release, cinemas would continue to 
have a wide array of content available, both local and international, to build an 
attractive offer to end -customers.  
(256)  Third, results of the market investigation indicate that MGM’s film content is not 
particularly important overall compared to that of other production studios. 
Responding cinemas indicate Bond as the only prominent franchise, such that in years 
when no Bond movies are rel eased MGM’s film content does not represent an 
important input for cinemas .222  
                                                 
217  Annex 27 to the Form CO.  
218  See responses to Q2 -  Questionnaire to cinemas, question 22.  
219  See responses to Q2 -  Questionnaire to cinemas, que stion 24.  
220  See responses to Q2 -  Questionnaire to cinemas, question 23.  
221  See responses to Q2 -  Questionnaire to  cinemas, question 22 . 
222  See responses to Q2 -  Questionnaire to cinemas, question 25.  
 
55 (257)  Therefore, the Commission concludes that the merged entity would not have the 
ability to successfully foreclose cinemas on the downstream market for the theatrical exhibition of films  by ceasing to license MGM’s film content for theatrical release.  
(A.ii) Incentive to engage in input foreclosure  
(258)  The Commission notes that the conditions for an effective input foreclosure are cumulative. Therefore, as the Commission concluded that the Part ies would not have 
the ability to foreclose cinemas by ceasing to license MGM’s film content, the Commission considers that the merged entity’s incentive to foreclose cinemas from access to MGM’s content is not decisive.  
(259)  For the sake of completeness, the Commission notes that, while the Notifying Party  
submitted that [ business secrets concerning sales strategy ].  
(A.iii)  Effects of a potential foreclosure on competition  
(260)  As explained in Section (A.i)  above, the Commission considers that the merged entity 
would not have the ability to foreclose cinemas by ceasing to license out MGM’s new films for theatrical release. In any event , a hypothe tical foreclosure strategy 
concerning MGM’s film content would not have overall  a significant detrimental 
impact on competition on the market for the  theatrical exhibition  of films.  
(261)  First, the majority of responding cinemas to the market investigation subm itted that 
the Transaction would have a negative impact on them,  should the merged entity stop 
distributing MGM’s new films to cinemas . A few respondents indicated that the 
impact would be neutral.
223 However, the Commission notes that the replies mostly 
refer specifically to the Bond franchise. As better described in Section (B) below, 
while such franchise is one of the most successful ones,224 its films are released 
approximately only once every three to six years. Considering MGM’s production as a whole, as relevant in terms of regular supply of good quality commercial films, it was indicated that MGM’s content is not comparable to that of major studios such as 
Walt Disney, Sony Picture Entertainment, Warner Bros, Universal and Paramount.
225 
As indicated in par agraph (254)  above, MGM’s content represents a minimal share of 
the box office revenues for cinemas compared to the content of competing production 
studios.  
(262)  Second, and consistently with the above, the maj ority of market participants indicated 
that only certain MGM films are particularly important in terms of their contribution to the attractiveness of the cinematic offer, referring specifically to the Bond 
franchise.
226 As mentioned by some responding cinema s, generally , the strength of a 
given studio’s film offer depends on the number of films released every year and on 
                                                 
223  See responses to Q2 -  Questionnaire to  cinemas, question 31.  
224  See The 13 highest -grossing film franchises at the box office (cnbc.com) . The Bond film franchise is 
reported to be am ong the top -10 highest -grossing film franchises, behind the Marvel Cinematic Universe, 
Star Wars and Harry Potter.  
225  See responses to Q2 -  Questionnaire to cinemas, question 31.1.  
226  See responses to Q2 -  Questionnaire to cinemas, questions  48 and 48.1.   
 
56 the quality of the titles, and most of MGM’s film content can be replaced by films 
offered by other studios.227 
(263)  Third, as explained in paragra ph (254)  above, responding cinemas never indicated 
MGM as one of the top- 10 production studios on the basis of the box office revenues 
in any year fr om 2015 to 2021.228 In addition, MGM’s films have accounted for very 
low percentages of cinemas’ revenues  in the same years, exceeding [10- 20]% for 
some respondents only on occasion of the latest (but not the second- to-last) Bond film. 
Therefore, should Amaz on cease licensing MGM’s film content for theatrical release, 
this would not deprive cinemas of a regular and important source of revenues.  
(264)  For the reasons set out above, the Commission concludes that a hypothetical foreclosure strategy with regard to MGM’s film content would not have an overall 
significant detrimental impact on the market for the theatrical exhibition  of films .  
(B) Possible fore closure of cinemas on the market for the theatrical exhibition  of 
films  from accessing new releases of the Bond franchise  
(B.i) Ability  to engage in input foreclosure  
(265)  The Commission considers that, even if the merged entity could technically cease to 
license new releases of the Bond franchise to cinemas, subject to the agreement of 
Danjaq/Eon, the merged entity would not have the ability to foreclose cinemas by 
releasing new Bond films exclusively DTS .  
(266)  The Commission notes that the results of the market investigation suggest that Bond 
films represent an important piece of content for cinemas. Almost all responding cinemas indicated that the Bond franchise is very important in terms of its 
contribution to the  attractiveness of the cinematic offer and as a source of box office 
revenues.
229 The majority of producers and retail suppliers of AV content also 
indicated that Bond in particular  is important for the attractiveness of the cinematic 
offer.230  
(267)  Responding cinemas indicated that the two latest Bond movies, Spectre (2015)  and No 
Time to Die (2021), ranked high in terms of box office revenues of each individual cinema in their respective year of release. More specifically, Spectre consistently 
ranked among the top- 5 films  for respondents to the market investiga tion, although it 
never placed first, whereas the more recent No Time to Die has almost always ranked first as the highest -grossing film for individual responding cinemas.
231  
(268)  Furthermore, as mentioned in para graph (254)  above, while MGM’s films have 
accounted for very low percentages of responding cinemas’ revenues in the period 
from 2015 to 2021, such percentage generally increases in correspondence with the release of new Bond films . Responding cinemas indicated that MGM’s films 
accounted for a share of up to approximately [5- 10]% of their individual revenues in 
                                                 
227  See responses to Q2 -  Questionnaire to ci nemas, question 28.1.  
228  See responses to Q2 -  Questionnaire to cinemas, question 22.  
229  See responses to Q2 -  Questionnaire to cinemas, question 26.  
230  See responses to Q1 -  Questionnaire to AV content providers  and market participants , replies to question 48 
and 48.1.  
231  See responses to Q2 -  Questionnaire to cinemas, question 23.  
 
57 2015, and up to approximately [10- 20]% in 2021 (with a  peak at [20 -30]% for one 
respondent ).232  
(269)  However, the Commission considers that, even in light of the importance of the Bond 
franchise as highlighted by the cinemas that responded to the  market investigation, a 
hypothetical total foreclosure strategy by the merged entity would not amount to a significant impediment to the competitiveness of cinemas.  
(270)  First, the Commission notes that new Bond movies are released at time intervals that 
are quite distanced to one another, generally once every three to six years.
233 As set 
out in paragraph (261)  above, cinemas do thus not rely on Bond movies  in most years 
to have a regular supply of good quality commercial films.234 While the availability of 
a given blockbuster title can have an impact on cinemas’ revenues in the respective 
year of release, cinemas do not construct their business model based on one and  the 
same blockbuster franchise to remain attractive.  
(271)  Second, even in years when new Bond films are released, they normally represent a 
share of respo nding cinemas’ revenues below [10- 20]%, based on the replies to the 
market investigation. In this  regard, Bond movies compete with other blockbuster 
films and generate less revenues than other famous film franchises such as the Marvel 
Cinematic Universe (Walt Disney) , Star Wars (Walt Disney)  and Harry Potter 
(Warner).235 Thus, the performance of a new Bond film as a share of individual 
cinemas’ box office revenues also depends on the box office performance of other 
blockbuster movies released in the same year, which  performed better than certain 
Bond films in the past.236   
(272)  In this regard, while No Time t o Die has ranked first in the list of the highest grossing 
films for responding cinemas in 2021, accounting for a share of revenues sometimes higher than 10%, the Commission notes that such results were achieved in a year in which cinemas were still at lea st partially closed due to the COVID -19 pandemic. In 
this regard, as evidenced by the Notifying Party, it is worth noting that box office data concerning No Time to Die show that, in 2021, it accounted for unusually high 
proportions of the overall box offi ce revenues in certain Member States (up to 
[20-30]% in Austria and [10- 20]% in Germany).
237 However, in both countries, as 
well as in other Member States238, the box office revenues generated by No Time to 
Die are considerably lower than those generated by pr evious Bond movies such as 
Skyfall and Spectre, which however accounted for a much lower share of the overall 
box office revenues in their year of release.239 This is because 2021 saw a significant 
                                                 
232  See responses to Q2 -  Questionnaire to  cinemas, question 24 . 
233  See https://www.007.com/the -films/ . The two latest relea ses, No Time to Die and  Spectre were released in 
2021 and 2015 respectively, preceded by Skyfall (2012) and Quantum of Solace (2008).   
234  See responses to Q2 -  Questionnaire to cinemas, question 31.1.  
235  Form C O, paragraph 243.  
236  Spectre for example, despite being a successful movie, has never ranked first among the top -selling films in 
its year of release for cinemas that responded to the market investigation. See responses to Q2 -  
Questionnaire to cinemas, question 23.  
237  Notifying Party ’s reply to the Commission’s RFI No 11, Annex 4.1.  
238  The same applies to [ countries ], see N otifying Party’s reply to the Commission’s RFI No 11.  
239  [5-10]% and [10- 30]% in Austria and Germany respectively for Skyfall, [5-10]% and [5- 10]% for Spectre. 
See Notifying Party’s reply to the Commission’s RFI No 11.  
 
58 reduction in the number of theatrical releases and in the overall box office revenues 
compared to the pre- pandemic years.240  
(273)  Therefore, the 2021 box office performance of the Bond franchise is not indicative of 
its overall relative position vis -à-vis other franchises  or other new releases more 
generally . In this regard, the percentage of the overall box office revenues in major 
EU Member States that  previous Bond movies account for  from 2006 to 2015 reached 
approximately [10-20] % only on a few occasions and in a few countries, actually 
setting at below [0 -5]% in nume rous Member States.241  
(274)  Third, as already mentioned, the merged entity will not have the ability to decide unilaterally whether or not to license new Bond films for theatrical release. The Bond 
franchise is co -owned with another entity, Danjaq/Eon, that has broad approval rights 
on [ business secrets concerning strategic decisions ] concerning Bond, [ business 
secrets concerning strategic decisions ].
242 Danjaq/Eon also has financial interests on 
the performance of each film, such that the box office constitutes a very attractive source of revenues. Therefore, amendments to the current distribution strategy would have to take into account the need to reach an agreement with Danjaq/Eon. In this 
regard, the Commission notes that, according to public sources, Danjaq/Eon has a strong preference to continue the theatrical release of Bond films.
243 
(275)  For the reasons set out above, the Commission concludes that the merged entity would not have the ability to successfully foreclose cinemas on the downstream market for the theatrical exhibition of films  by ceasing to license new films of the Bond franchise 
for theatrical release.  
(B.ii) Incentive to engage in input foreclosure  
(276)  The Commission notes that the conditions for an effective input foreclosure are cumulative. A s the Commission concluded that the Parties would not have the ability 
to foreclose cinemas by ceasing to license MGM’s film content, the merged entity’s incentive to foreclose cinemas from access to MGM’s content is not decisive.  
(277)  For the sake of completeness, the Commission notes that, while the Notifying Party submitted that [ business secrets concerning sales strategy ].
244  
(B.iii)  Effect s of a potential foreclosure on c ompetition  
(278)  The Commission considers that the merged entity would not have the ability to foreclose cinemas by ceasing to license out new films of the Bond franchise for 
theatrical exhibition. Nevertheless, the Commission has considered the potential effect s that such a distribution strategy would have. In any event, a hypothetical 
foreclosure strategy concerning new Bond films would not have overall a significant 
detrimental impact on competition on the market for the theatrical exhibition of films . 
                                                 
240  See https://www.statista.com/statistics/1238500/box -office -revenue -european -union/ . See also Notifying 
Party’s reply to the Commission’s RFI No 11.  
241  Notifying Party’s reply to the Commission’s RFI No 11, Annex 4.1.  
242  Form CO, paragraph 244.  
243 https:// www hollywoodreporter.com/movies/movie -news/james -bond- will-stay-on-thebig - 
screen -inamazon -mgm- era-1234959461. 
244  Notifying Party’s reply to the Commission’s RFI No 11.  
 
59 (279)  First, as mentioned in paragraph (261)  above, a large majority of responding cinemas 
to the market investigation submitted that the Transaction would have a negative 
impact on their companies should the merged entity stop distribut ing new releases of 
the Bond franchise.245 Without denying that the Bond franchise represents one of the 
highest -grossing film franchises that contributes to an appreciable share of cinemas’ 
revenues, the Commission recalls that Bond films are released appro ximately only 
once every three to six years.246 Therefore, cinemas do not rely on Bond as a source of 
regular yearly supply of good quality content.  
(280)  Second, the Commission notes that the majority of market participants indicated that the Bond franchise is p articularly important in terms of their contribution to the 
attractiveness of the cinematic offer.
247 In this regard, however, bearing in mind the 
considerations about the 2021 figures explained in paragraph (272)  above concerning 
No Time to Die ’s share of the overall box office revenues, the Commission notes that 
in most Member States previous Bond movies have accounted for a portion of the box 
office re venues below 10%, and often below 5%.248 Therefore, since the Commission 
has no reason to believe that the relative performance of the next Bond films will vary 
significantly, post -Transaction cinemas would still be able to obtain most of their 
revenues from  other franchises should the merged entity cease to licence the next 
Bond films for theatrical exhibition. This conclusion is reinforced by the fact that the 
revenues MGM estimates to obtain from the next Bond movie are [ business secret ].249  
(281)  Therefore, the Commission concludes that should the merged entity cease to license 
the next Bond films for theatrical release, such decision would not have a foreclosing 
effect on cinemas.  
5.6. Conglomerate assessment  
5.6.1. Leveraging of Amazon’s strengthened position in the market for the retail supply of 
AV services  into the market for the provision of marketplace services  as a result of the 
addition of MGM’s AV content  
(282)  The Commission notes that there is no direct  conglomerate relationship between the 
product ion and supply of AV content on the one hand and the provision of 
marketplace services  on the other  hand (i.e., between MGM’s products on the one 
hand and Amazon’s products on the other hand) .250 However, Amazon offers  Prime 
                                                 
245  See responses to Q2 -  Questionnaire to cinemas, question 31.  
246  See footnote 205  above.  
247  See responses to Q1 -  Questionnaire to AV content providers and market participants, replies to question 48 
and 48.1.  
248  For example, Casino Royale represented a percentage of the ove rall box office revenues [0 -5]% in France, 
Italy, Poland and Spain; Quantum of Solace in Austria, France, Italy, Poland and Spain, and only [5 -10]% in 
Germany and Croatia; Skyfall in Italy and Spain, and [5 -10]% in most other countries examined.   
249  Notifying Party’s reply to the Commission’s RFI No 11.  
250  The Commission has previously defined a market for the provision of marketplace services in the context of 
an antitrust case, which preliminarily found Amazon had been dominant in such a market. See 
https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077, last accessed on 7 March 2022. The 
Autorità Garante della Concorrenza e del Mercato , the national competition authority of Italy, investigated 
partially similar concerns (with a focus on the Italian market) and similarly defined a market for the provision of marketplace services, in which Amazon was found to have had a dominant position. See https://www.agcm.it/media/comunicati- stampa/2021/12/A528- chiusura , last accessed on 7 March 2022. I f 
the Transaction  were  to harm  effective competition as a result of the conglomerate effects outlined in this 
section,  it would be on the narrowest relevant market on which Amazon is dominant. Given the Transaction 
 
 
60 Video , for which MGM’s content is  an input , as part of the existing Amazon Prime 
bundle. In addition to Prime Video, Amazon Prime includes services related to its 
marketplace, most notably free and /or faster shipping as well as other shopping 
benefits. As a result of this existing bundl e, Amazon’s offerings on the market for the 
retail supply of AV services and the market for the provision of marketplace services 
are complementary products. Consequently, the Transaction, which primarily focusses on the AV content value chain, could have a n impact on the market for the provision 
of marketplace services  via the Amazon Prime bundle . 
(283)  In the present section, the Commission examines whether the merged entity will have the ability and incentive to leverage Amazon’s strengthened position in the ma rket for 
the retail supply of AV content into the market for the provision of marketplace services as a result of the addition of MGM’s content .
251 The Commission then 
assesses whether such a conduct  would have an impact on effective competition in the 
markets for the provision of marketplace services.252 
5.6.1.1. Notifying Party’s views  
(284)  The Notifying Party submits that the Transaction does not give rise to any 
conglomerate concerns, in particular with regard to Amazon’s offer of Prime Video 
and its retail sales in Europe. 
(285)  First, the Notifying Party considers that MGM does not have any content that is 
necessary for retail providers of AV content to compete effectively . As such , it is 
simply not plausible that the addition of MGM content to Prime Video (even if one assumes total foreclosure  of MGM content to other retail providers) could harm 
competition in any relevant market, including in any retail markets.
253 
(286)  Second, the Notifying Party submits that, [ business secrets concerning business 
strategy ], any increase in retail sales through the Amazon Stores due to MGM -related 
content would be marginal compared to Amazon’s current retail sales, and in any case 
                                                                                                                                                        
does not raise any serious doubts with regard to any harm to effective competition on the market for the 
provision of marketplace services , there is no need to conclude on the exact market definition.  The 
Commission therefore proceeds in th is instance without concluding on the exact market definition of the 
market for the provision of marketplace services.  
251  As explained in Sections 4.5.1.2 and 4.5.2.2 above, the Commission has concluded that the distinction 
outlined in previous Commission decisions between the AV value chain and the theatrical value chain is 
still accurate.  Therefore, given that Amazon Prime Video and hence the Amazon Prime bundle are part of 
the AV content value chain, this section focusses its assessment on the addition o f MGM’s position in the 
market for in the market for the production and supply  of AV content . However, in keeping with the 
reasoning outlined in paragraphs (243) -(245)  of Section 5.5.5 , the Commission has, for completeness, also 
assessed thi s concern taking into account MGM’s position in the production and licensing of distribution 
rights of films for theatrical exhibition ( e.g., assuming all MGM content would be released on Prime 
Video). For the avoidance of doubt, the conclusions remain the  same regardless of including in the 
assessment MGM’s position in the production and licensing of distribution rights of films for theatrical 
exhibition.  
252  For the avoidance of doubt, the Commission does not examine whether the merged entity will leverage  
Amazon’s position in the market for the provision of marketplace services into either (i) the market for the 
retail supply of AV services, or (ii) the market for the production and supply of AV content via the Amazon Prime bundle. T his is because t he Tran saction does not change Amazon’s marketplace services offering, 
and therefore would not change Amazon’s ability to leverage its position in the market for the provision of marketplace services into the market for the retail supply of AV services (and thereby into the market for the production and supply of AV content) via the Amazon Prime bundle.  
253  Form CO, paragraph 488.  
 
61 not significant enough to harm competition in the highly dynamic retail sector.254 
Further, the Notifying Party consi ders that [ business secrets concerning business 
strategy ].255 
(287)  Lastly, the Notifying Party notes that any increase in retail sales attributable to the 
Transaction would reflect a benefit to consumers, in the form of increased quality of Prime Video and thereby the Amazon Prime bundle as a whole.
256 
5.6.1.2. Commission Assessment  
(288)  For the reasons set out below , and based on the results of the market investigation, the 
Commission considers, for the purposes of the present Decision, that the merged entity would not have the ability to leverage Amazon’s strengthened position in the 
market for the retail supply of AV content into the market for the provision of 
marketplace services as a result of the addition of MGM’s content , and that there 
would not likely be a signific ant detrimental effect on competition in the market for 
the provision of marketplace services.  
(A) Ability  to foreclose  
(289)  As noted above in paragraph (282) , Amazon offers  Prime Video , for which MGM’s 
content is an input , as part of the existing Amazon Prime bundle. In addition to Prime 
Video, Amazon Prime includes services related to its marketplace  and shipping 
services , most notably free and fast shipping  as well as other shopping benefits. 
(290)  Amazon offers its Prime membership programme to customers in twelve EEA 
member states: Austria, Belgium, France, Germany, Ireland, Italy, Luxembourg, the Netherlands, Poland, Portugal, Spain and Sweden.
257 The standard pricing of Amazon 
Prime membership varies across these countries (approximately EUR 3 -10 for the 
monthly fee, and EUR 36- 96 for the annual fee), as do the Prime benefits available. 
However, Prime video is included as part of the Amazon Prime bundle in all of these 
countries , and is not available via a separate standalone subscription.258 
(291)  Therefore, customers have no choice but to purchase the entire Amazon Prime bundle, 
even if a customer wants only a part of the bundle. However, [ business secre ts 
concerning sales of various services ]. Further, Amazon estimates that the proportion 
of the total pool of Amazon Prime members for whom the Prime Video service has been [business secrets]  in 2021 are as follows: Germany –  […]%, France –  […]%, 
Italy – […]%, and Spain – […]%.
259 Amazon was only able to provide data for these 
countries  because (i) there is insufficient data for countries where Prime has only been 
available since 2020 -2021, and (ii) data for countries where Prime is available only 
                                                 
254  Form CO, paragraph 490, 505, 516 and 517.  
255  Form CO, paragraph 495.  
256  Form CO, paragraph 489.  
257  Form CO, paragraph 232. Customers in Austria, Belgium, Ireland, Luxembourg, and Portugal can only sign 
up for the Prime programme via the Amazon website in a neighbouring country. [Business secrets concerning 
strategic plans ]. 
258  Only in the EEA countries where Amazon Prime is not available, can end customers have access to Prime 
Video via a separate, standalone subscription.  
259  Form CO, paragraph 239. Amazon has developed a model that [business secrets concerning internal 
processes and calculations ]. 
 
62 via the Amaz on website in a neighbouring country is included in the data for said 
neighbouring country.  
Table 8 : Amazon Prime usage (specified EEA countries, October 2021)  
Country260 Usage of shipping by Prime 
Video active users261 Prime Video activity by shipping 
users262 
France  […]  […]  
Germany263 […]  […]  
Italy […]  […]  
Spain  […]  […]  
Source: Form CO, Tables 6 and 7.  
(292)  The Amazon Prime bundle therefore provides an avenue through which the 
Transaction, which primarily focusses on the AV content value chain, could have an 
impact on the market for the provision of marketplace services. A third -party 
marketplace provider  outlined th is concerns during a pre -notification call with the 
Commission.264 The steps by which this impact may occur is set out in the following 
paragraph.  
(293)  As a f irst step, the addition of MGM’s content on Prime Video may increase the 
demand for Prime Video, by attracting significant numbers of new customers and 
binding significant numbers of existing customers to Prime. Second , the increased 
demand for Prime  Video may in turn result in increased demand for Amazon’s 
marketplace services, since Amazon sells them as part of a bundle and they are 
therefore complementary products. Third , the increased demand for Amazon’s 
marketplace services may increase Amazon’s market share and market power  in this 
market. Fourth, the Commission has previously preliminarily found that Amazon he ld 
a dominant position in the market for the provision of marketplace services in France and Germany.
265 In addition, the Autorità Garante della Concorrenza e del Mercato, 
the national competition authority of Italy, found that Amazon held a dominant position in the same market in Italy.
266 Further, France , Germany and Italy together 
account for [ business secret ] of Amazon’s total EEA -wide turnover.267 Fifth , the 
Transaction may therefore allow Amazon to strengthen and solidify its potentially 
dominant position in  the market for the provision of marketplace services , by buying 
an input into its retail supply of AV services  (i.e., MGM’s content), which in turn may 
                                                 
260  Amazon has recently launched new Amazon Stores in the Netherlands (in 2020), in Poland, and in Sweden 
(both in 2021). Given that these stores are relatively new, Amazon did not provide data relating to these 
stores.  
261  "Usage of shipping" refers to Prime members that shipped at least one unit that was Prime delivery.  
262  Prime Video activity refers to Prime members that viewed more than zero seconds of AV content in a given 
month (excluding trailers and promotions of available content that are sometimes sho wn at the start of new 
titles).  
263  The figures for Germany include figures for Austria , since customers in Austria are able to sign -up to 
Amazon Prime only through the Amazon website in Germany.  
264  Agreed minutes of the call of 13  January 2022 with eBay.  
265  See https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077 , last accessed on 7 March 2022.  
266  See https://www.agcm.it/media/comunicati -stampa/2021/12/A528- chiusur a, last accessed on 7 March 2022.  
267  Form CO, Section 4.  
 
63 raise the barriers to entry into the market for the provision of marketplace services.  
Finally, raising barriers to entry and strengthening Amazon’s dominant position in the 
market for the provision of marketplace service s may decrease competition in the 
market (in the future), which could result in higher  prices, and lower quality and 
innovation. The merged entity could in such a manner leverage Amazon’s 
strengthened position in the market for the retail supply of AV cont ent into the market 
for the provision of marketplace services as a result of the addition of MGM’s 
content . 
(294)  With respect to the steps above, and f or the reasons set out below, the Commission 
considers that the merged entity would not have the ability to le verage Amazon’s 
strengthened position in the market for the retail supply of AV content into the market for the provision of marketplace services as a result of the addition of MGM’s content . This section proceeds by first presenting the evidence indicating that the 
merged entity would have the ability, before presenting the evidence suggesting the merged entity would not have the ability and the reasons why, on balance, the Commission considers that the overall evidence suggests that the merged entity would not have the ability to do so. 
(295)  First, Amazon Prime is currently only offered in 12 EEA countries, whilst in all 
18 other EEA countries Prime Video is available on a standalone basis either through 
Apple iOS or through Amazon’s site. [ Business secrets con cerning strategic plans ]. 
Therefore, given that the Commission has conclude d that  the relevant markets are 
national  (see paragraphs (78) and (293) ), the concern outlined above , if any, would be  
limited to the countries wher e Amazon offers its Amazon  Prime bundle. 
(296)  Second, as outlined in the Non- Horizontal Merger Guidelines (see paragraph (129) ), 
in order to be able to for eclose competitors, the merged entity must have a significant 
degree of market power. The Commission however considers that this is unlikely to be the case, for the following reasons.  
(297)  In the market for retail supply of AV services, Amazon has a limited deg ree of  market 
power . As outlined in Section 5.4.1, Amazon does not have a market share above 30% 
in the EEA or in any of the EEA member states, except  for in the hypothetical market 
comprising only of SVOD platforms in Austria and Germany (where Amazon’s 
shares are below [30- 40]%).
268 In addition, as outlined in paragraphs (219) -(222)  and 
(225)  in the Commission’s assessment of vertical effects, the market for the retail 
supply of AV services is characterized by a high -level of competition with many 
strong(er) competitors. In the market for the production and supply of AV content , 
MGM has a low m arket share. As outlined in Section 5.4.2, MGM's share is below 
20% under any plausible market definition (and well below 20% in most relevant markets). In addition, as outlined in paragraphs (1 94)-(195)  in the Commission’s 
assessment of vertical effects, the relevant markets w here MGM is present are 
characterized by a high -level of competition with many strong(er) competitors.  
(298)  In the market for the provision of marketplace services, Amazon may have a significant market position (see paragraph (293) ). However, f or the assessment of the 
concern outlined in paragraph (293) , primarily Amazon’s position in the market for 
                                                 
268  Amazon’s share in the hypothetical market comprising only of SVOD platforms is also above 30% in 
Croatia. However, Amazon does not offer Prime in Croatia, and therefore th e concern outlined in 
paragraph  2(293)  is not relevant in Croatia.  
 
64 retail supply of AV services and MGM’s market position in the market  for the 
production and supply of AV content are of greater importance , since the concern 
relates to a strengthening of Amazon’s position in the AV retail market, by the 
addition of MGM’s content, in order to then from these markets  leverage its market 
power.  
(299)  Given the limited market power  in the market  for the retail supply of AV services  
(i.e., the market from which Amazon  must l everage its market power), the merged 
entity is unlikely to be able to leverage its market position  post-Transaction  (i.e., in 
the absence of the second step outlined in paragraph (293) ). Further, MGM’s low 
market share indicates its limited importance for  the retail supply of AV  services, and 
therefore the addition of MGM content to Prime Video is unlikely to give rise to market power for Amazon on the market for AV retail supply. This again indicates that the merged entity is unlikely to be able to leverage its market position  post-
Transaction  (i.e., in the absence of the first  step outlined in paragraph (293) ). 
(300)  Third, as outlined in the Non- Horizontal Merger Guidelines (see paragraph (129) ), in 
order to foreclose competitors, at least one of the merging parties’ products must be viewed by many customers as particularly im portant and there must be few relevant 
alternatives for that product. However, the evidence indicates this is not the case  for 
MGM’s content . 
(301)  Notably, similar to the second point above, it is unlikely that MGM’s content is an 
important input or necessary to be competitive  for retail suppliers of AV services . 
Multiple  SVOD platforms  exist  that would still be able to compete effectively with 
Prime Video even if all MGM content were exclusively available on Prime Video. 
Indeed, despite some respondents to the  Commission’s market investigation 
suggesting otherwise (for a limited amount of MGM’s content),
269 MGM’s content 
overall  is not considered necessary to be competitive, but rather of average importance 
for the competitiveness of the  retail supply of AV servi ces. Moreover, library content 
is largely fungible, and a vast array of such content is widely available.270 Therefore, it 
is unlikely that the addition of MGM’s content on Prime Video would significantly 
increase the demand for Prime Video (by attracting si gnificant number s of new 
customers and binding significant numbers of existing customers to Prime , i.e., in the 
absence of the first step outlined in paragraph (293) ). 
(302)  Fourth, in relation to the third point above, the market for the retail supply of AV services  is characterised by a high -level of competition with strong(er) competitors to 
Amazon and an abundance of content for expansion and entry into the market (see 
paragraph s (219) -(222)  and (225)  above). Further, the Notifying Party notes that 
“consumers have demonstrated a desire to expand their choice of content across 
competing providers of AV content and increasingly multi -home across services ”.
271 If 
consumers multi -home to a significant extent,  this would imply MGM’s market 
power, as well as the significance of its content, may be lower than otherwise. 
Therefore, again, it is unlikely that the addition of MGM’s content on Prime Video would significantly increase the demand for Prime Video (by at tracting significant 
                                                 
269  For further detail, see paragraph (196)  above.  
270  For further detail, please refer to paragraph (194)  above.  
271  Form CO, paragraph 627.  
 
65 numbers of new customers and binding significant numbers of existing customers to 
Prime , i.e., in the absence of the first step outlined in paragraph (293) ). 
(303)  Fifth, in relation to points three and four above, as described in more detail in 
paragraph (315)  below, evidence from Amazon’s valuation of the Transaction 
suggests that the addition of MGM’s content to Prime Video [ business secrets 
concerning the internal processes and calculations ]. Amazon’s estimates indicate 
that, [business secrets c oncerning the internal processes and calculations ]. Therefore, 
it is unlikely that the addition of MGM’s content on Prime Video would significantly increase the demand for Prime Video (by attracting significant numbers of new customers and binding signific ant numbers of existing customers to Prime , i.e., in the 
absence of the first step outlined in paragraph (293) ). Similarly, as described in more 
details in paragraph (316)  below, [business secrets concerning the internal processes 
and calculations ]. 
(304)  Finally , it is unlikely that the addition of MGM’s AV content would rais e barriers to 
entry and exit in the market for the provision of marketplace services. Amazon’s closest and strongest competitors i n this market do not offer retail supply of AV 
services. Therefore, it is unlikely that the availability of AV content for bundling with  
the provision of marketplace services  is necessary to compete in the market for 
marketplace services . Indeed, despite r aising the concerns outlined above in this 
section, a third -party marketplace provider acknowledges that “ the Transaction is 
unlikely to fundamentally change the competitive landscape in the market for marketplace services ”.
272 Further, apart from the sunk cost of the Prime membership, 
competing online marketplaces are typically  accessible at no or low  cost for 
customers. Therefore, it is not necessarily the case that, even if the Transaction were to increase demand for Amazon’s marketpla ce services, barriers to entry and exit 
would increase  as well . In addition, even if there would be  increased demand for 
Amazon’s marketplace services , such demand  could originate from new customers or 
existing customers spending more on marketplace servic es (as opposed to existing 
customers shifting their spending on other marketplaces to Amazon) . To such extend, 
the Transaction would be expanding the market for the provision of marketplace services  instead of  raising barriers to entry and exit.  
(305)  Overall, t he evidence above suggests that the merged entity would not have the ability 
to leverage Amazon’s strengthened position in the market for the retail supply of AV content into the market for the provision of marketplace services as a result of the addition of MGM’s content . In particular, in this instance , the evidence suggests that 
MGM’s content is not important or significant enough to raise barriers to entry in the market for the provision of marketplace services.  
(306)  Nonetheless, the Commission notes that there are other indications that could be considered pointing towards an ability of the merged entity to leverage Amazon’s strengthened position in the market for the retail supply of AV content into the market for the provision of marketplace services as a result of the addition of MGM’s content . However, as further explained in the following paragraphs, the Commission 
considers that , on balance, the overall evidence suggests that the merged entity would 
not have the ability to do so. 
                                                 
272  Agreed minutes of the call of 13 January 2022 with eBay , paragraph 13 . 
 
66 (307)  First, as set out in th e Non -Horizontal Merger Guidelines  (see paragraph (129) ), for 
leveraging  to be a potential concern, there must be  a large common pool of customers. 
Table 8 above shows that the majority of active Prime Video users [ business secrets 
concerning sales  of various services ]. Therefore, given Amazon’s significant market 
share in the market for the provision of marketplace services (see paragraph (293) ] 
above) and its relatively strong position in certain markets in terms of SVOD 
subscriptions (see Section 5.4.1), it is likely that there is a large common pool of 
customers that use both services (relative to the total pool of customers that are using 
either marketplace services or SVOD platforms).   However, even though this is a 
prerequisite for conglomerate concerns, the fact that there is a large common pool of customers is no evidence of an actual ability to successfully leverage Amazon’s strengthened position in the market for the retail supply of AV content into the market for the provision of marketplace ser vices as a result of the addition of MGM’s 
content. In particular with respect to this case, as outlined in paragraphs (301) -(303)  
above, it is unlikely that (i) the addition of MGM’s content on Prime Video would significantly increase the demand for Prime Video, and (ii) the resulting increased demand for Prime Video would in turn result in significantly increased demand for 
Amazon’s marketplace services, even with the existence of a large common pool of customers.  
(308)  Second , evidence from Amazon itself support s the link by which the increased 
demand for Prime Video may result in increased demand for Amazon’s marketplace 
services . Amazon states that “ Amazon hopes that its investment in MGM will lead to 
better content that will enhance the quality of Prime Video's customer proposition over time, which i n turn [considerations regarding Transaction rationale ].
273 This is 
reflected in Amazon’s internal valuation documents, which include in their Transaction valuation calculations  the value of [ considerations regarding Transaction 
rationale ].
274 Further, Amazon has been pursuing this bundling strategy since at least 
2016.275 Indeed, a third -party marketplace provider  considers that “ Prime users are 
more likely to purchase on Amazon and they spend more on Amazon than non- Prime 
buyers. This has been confirmed by the Italian decision (A528, 9 December 2021) and 
various public studies. These data show that once consumers subscribe to Prime, they tend to to [sic] purchase from Amazon and make less diversified choices ”.
276 And 
with regard to the Transaction specifically, th e same third -party marketplace provider  
notes that “ the Transaction would have the aim of driving additional Amazon Prime 
subscriptions, as the Amazon Prime membership is made more attractive by means of 
the addition of MGM’s content to the Amazon Prime Vi deo catalogue ”.277 However, 
as outlined in paragraphs (301) -(303)  above, it is unlikely that (i) the addition of 
MGM’s content on Prime Video would significantly increase the demand for Prime 
                                                 
273  Form CO, paragraph 493.  
274  Form CO, Annexes 36 -40. 
275  As Jeff Bezos, Amazon’s CEO, has put it: " we get to monetize [our subscription video] in a very unusual 
way. When we win a Golden Globe, it helps us sell more shoes. And it does that in a very direct way. 
Because if you look at Prime members, they buy more on Amazon than non -Prime members, and one of the 
reasons they do that is once they pay their annual fee, they're looking around to see, 'How can I get more 
value out of the program?' And so they look across more categories —  they shop more. A lot of their 
behaviours change in ways that are very attractive to us as a business. And the customers utilize more of 
our services. ", See https://www.businessinsider.com/amazon -ceo-jeff-bezos -said-something -about -prime -
video -that-should -scare -netflix -2016- 6?r=US&IR=T , last accessed on 28  February 2022.  
276  Agreed minutes of the call of 13 Jan uary 2022 with eBay, paragraph 11.  
277  Agreed minutes of the call of 13 Janu ary 2022 with eBay, paragraph 12.  
 
67 Video, and (ii) the resulting increased demand for Prime Video wou ld in turn result in 
significantly increased demand for Amazon’s marketplace services, even with the 
existence of a strong link between the demand for Prime Video and the demand for 
Amazon’s marketplace services . 
(309)  Third , evidence from Amazon indicates the v alue of a Prime subscriber  may be  
[business secrets  referencing Amazon's internal strategy documents ], and that gaining 
a Prime customer (through Prime Video) may lead to [ business secrets  referencing 
Amazon's internal strategy documents ] for Amazon. In co ntexts unrelated to the 
Transaction (and prior to the COVID -19 pandemic), Amazon had developed estimates 
for [business secrets  referencing Amazon's internal strategy documents ]; Amazon 
also has estimated the profits that it could earn from […] .278 Table 9 provides 
Amazon’s estimates for the profits it earns from […]  on Prime Video. The differences 
across countries are driven by [ business secrets referencing Amazon's internal 
strategy documents ].279 However, as outlined in paragraph (303)  above, it is unlikely 
that any increased demand for Prime Video resulting from the Transaction would in turn result in significantly increased demand for Amazon’s marketplace services, even with the value of a Prime subscriber being [ business secrets referencing Amazon's 
internal strategy documents ]. 
Table 9 : Amazon profit per […]  (specified countries, USD, 2019)  
Country280 […] […] […] 
[…] […] […] […] 
[…]281 […] […] […] 
[…] […] […] […] 
[…] […] […] […] 
[…]282 […] […] […] 
[…] […] […] […] 
Source: Form CO, Annex 37. 
(310)  Finally, a third -party marketplace provider  has stated that “the Transaction could 
increase the aforementioned lock -in effect”  whereby consumers are driven into the 
Amazon ecosystem and are then incentivized to purchase more at Amazon (and less with competitors).
283 Further  this market participant submits that “ Amazon Prime is 
essentially a loyalty scheme that poses challenges to competition because of its lock -in 
effects on consumers ”, and that in this regard “ Amazon has not only established a 
                                                 
278  Form CO,  paragraph 494.  
279  The Parties’ response to RFI 10, paragraph 14.  
280  Amazon has recently launched new Amazon Stores in the Netherlands (in 2020), in Poland, and in Sweden 
(both in 2021). Given that these stores are relatively new, Amazon did not provide da ta relating to these 
stores.  
281  The figures for Germany include figures for Austria, since customers in Austria are able to sign -up to 
Amazon Prime only through the Amazon website in Germany.  
282  The figures for the U.K.  include figures for Ireland , since customers in Ireland  are able to sign -up to 
Amazon Prime only through the Amazon website in the U.K . 
283  Agreed minutes of the call of 13 Janu ary 2022 with eBay, paragraph 12.  
 
68 connection between e -commerce and video streaming services but also offers other 
services within its Prime bundle at a below -cost price, such as access to music and 
audiobooks. Amazon is an entity that behaves differently from other players because 
of its conglomerate structure combined with its market power across commerce and fulfilment”.
284 And with respect to the Transaction specifically, this market participant  
notes that “content is one driver for customer engagement together with free and fast 
delivery (i.e. FBA), and contributes to increase the propensity of end- customers to 
remain within the Amazon ecosystem with regard to all services offered, including e -
comme rce”.285 Essentially, this third -party marketplace provider  considers that once 
Amazon has raised barriers to entry , it would be difficult for competitors to win back 
lost customers, because Amazon is able to incentivize its customers to stay within its ecosystem.  The end effect of this would be that “ the dominant position of Amazon (as 
determined by the recent decicion [sic] A528 of the Italian competition authority) in 
the market for marketplace services would be further strengthened [sic]  by driving 
consum ers to Amazon Prime via Amazon Prime Video.”
286 However, as outlined in 
paragraph (304) above, it is unlikely that the addition of MGM’s AV content  as a 
result of this specific Transaction  would constitute a raising of barriers to entry and 
exit in the market for the provision of marketplace services.  
(311)  Overall, whilst the evidence in paragraphs (295) -(304)  above suggests that the merged 
entity may theoretically have the ability to leve rage Amazon’s strengthened position 
in the market for the retail supply of AV content into the market for the provision of marketplace services as a result of the addition of MGM’s content , the Commission 
considers that in light of the evidence in paragrap hs (307) (310) , the merged entity 
would ult imately not have the ability to do so. In particular, in this instance, the 
evidence suggests that MGM’s content is not important or significant enough to raise barriers to entry in the market for the provision of marketplace services.  
(312)  In light of the above, taking into consideration the overall market results, for the 
purposes of the present Decision, the Commission considers that the merged entity 
would not have the ability to leverage Amazon’s strengthened position in the market for the retail supply of AV content into the market for the provision of marketplace 
services as a result of the addition of MGM’s content . 
(B) Incentive to foreclose  
(313)  Since the Commission ha s concluded above in Section 5.6.1.2.(A) that the merged 
entity would not have the ability to l everage Amazon’s strengthened position in the 
market for the retail supply of AV content into the market for the provision of marketplace services as a result of the addition of MGM’s content , the question 
whether the merged entity would have the incentive  to engage in such leveraging can 
be left open for the purposes of the present Decision. 
(C) Overall likely impact  
(314)  For the reasons set out below, the Commission considers that , even if the merged 
entity would have the ability and incentive to leverage Amazon’s  strengthened 
position in the market for the retail supply of AV content into the market for the 
                                                 
284  Agreed minutes of the call of 13 Janu ary 2022 with eBay, paragraphs 8 and 12.  
285  Agreed minutes of the call of 13 Janu ary 2022 with eBay, paragraph 12.  
286  Agreed minutes of the call of 13 Janu ary 2022 with eBay, paragraph 12.  
 
69 provision of marketplace services as a result of the addition of MGM’s content , there 
would not likely be a significant detrimental effect on competition in th e market for 
the provision of marketplace services . 
(315)  First, as set out in the Non- Horizontal Merger Guidelines (see paragraph (131) ), for a 
Transactio n to significantly impede effective competition, a sufficiently large fraction 
of market output must be affected by foreclosure. However, the evidence indicates 
that an effect (if any) would only relate to a small fraction of the market for the provision of marketplace services. Evidence from Amazon’s [ internal strategy ] 
suggests that [ business secrets referencing Amazon's internal strategy documents ], 
even if all of MGM’s content were exclusively available on Prime Video. As part of [Amazon's internal strategy] , Amazon estimated [ business secrets referencing 
Amazon's internal strategy documents ]. This analysis mirrors analyses and 
assumptions Amazon makes during [ business secrets referencing Amazon's internal 
strategy documents ], where Amazon had developed estimates for [ business secrets 
referencing Amazon's internal strategy documents ]. Table [ 10] below provides 
Amazon’s estimated potential impact of the Transaction […]  in the period 2022- 2025 
for the specified EEA countries (where Prime membership is avail able). Amazon’s 
estimates indicate that, over the course of the next three years, the Transaction will [business secrets referencing Amazon's internal strategy documents ]. Therefore, 
again, it is unlikely that the addition of MGM’s content on Prime Video w ould 
significantly increase the demand for Prime Video (by attracting significant numbers of new customers and binding significant numbers of existing customers to Prime). 
Table 10 : Amazon’s estimated potential impact of the Transaction on […] (specified countries, 
2022- 2025)  
Country287 […] […] […] 
[…] […] […] […] 
[…]288 […] […] […] 
[…] […] […] […] 
[…] […] […] […] 
Source: The Parties response to RFI 10, question 5; and Form CO, Annex 32.  
(316)  Second , evidence from Amazon’s [internal strategy ] also suggests  that [business 
secrets referencing Amazon's internal strategy documents ], even if all of MGM’s 
content were exclusively available on Prime Video. As part of [ Amazon’s internal 
strategy ], Amazon estimated [ business secrets referencing Amazon's internal strategy 
documents ]. This analysis also mirrors analyses and assumptions Amazon makes 
during [business secrets referencing Amazon's internal strategy documents ]. Table 
[11] below provides Amazon’s estimated potential impact of the Transaction on [ …] 
in the period 2022- 2025 for the specified EEA countries (where Prime membership is 
                                                 
287  Amazon has recently launched new Amazon Stores in the Netherlands (in 2020), in Poland, and in Sweden 
(both in 2021). Given that these stores are relatively new, Amazon did not provide data relating to these 
stores.  
288  The figures for Germany include figures for Austria, since customers in Austria are able to sign -up to 
Amazon Prime only through the Amazon web site in Germany.  
 
70 available). Amazon’s estimates indicate that [ business secrets referencing Amazon's 
internal strategy documents ].  
Table 11 : Amazon’s estimated potential impac t of the Tr ansaction on  […] (specified countries, 
2022- 2025)  
Country289 […] […] […] 
[…] […] […] […] 
[…]290 […] […] […] 
[…] […] […] […] 
[…] […] […] […] 
Source: Form CO, Table 20.  
(317)  Whilst an increase of Amazon’s retail sales by approximately […] % may still be 
significant in absolute terms given the level of Amazon’s retail sales, the additional 
revenues would by defi nition account for less than […] % of the market in which 
Amazon is present at most  (i.e. in this case the market for the provision of 
marketplace s ervices) . This share is unlikely to be sufficiently large enough for the 
Transaction to affect prices and choices on the market for the provision of marketplace services. Indeed, despite raising the concerns outlined above in this section, a third- party ma rketplace provider acknowledges that “ the Transaction is 
unlikely to fundamentally change the competitive landscape in the market for marketplace services ”.
291 
(318)  Third , competitors in the market for the provision of marketplace services  will remain 
in the mark et with the same offering compared to pre -Transaction.  The Transaction 
and addition of MGM content to Prime is unlikely to  hinder competitors’ offerings on 
the market, especially since no other competitors bundle AV content with their products. As consumer s still have all the choices they had pre- Transaction , it is 
unlikely that any harm to competition would occur . 
(319)  Fourth, competitors would have the possibility of employing counter -strategies. 
MGM’s content accounts for only a small part of the market  for the production and 
supply  of AV content (see paragraph (191)  above), and is not an important input into 
the market for the  retail supply of AV se rvices  (see paragraph (195)  above).  
Therefore, competitors in the market for the provision of marketplace services would still be able to create their  own bundle of marketplace services a nd AV content , 
should they choose to pursue such a strategy . 
(320)  In light of the above, taking into consideration the overall market results, for the purposes of the present Decision, the Commission considers  that, even if the merged 
entity would have the ability and incentive to leverage Amazon’s strengthened 
                                                 
289  Amazon has recently launched new Amazon Stores in the Netherlands (in 2020), in Poland, and in Sweden 
(both in 2021). Given that these stores are relatively new, Amazon did not provide data relating to these 
stores.  
290  The figures for G ermany include figures for Austria, since customers in Austria are able to sign -up to 
Amazon Prime only through the Amazon website in Germany.  
291  Agreed minutes of the call of 13 January 2022 with eBay , paragraph 13 . 
 
71 position in the market for the retail supply of AV content into the market for the 
provision of marketplace services as a result of the addition of MGM’s content , ther e 
would not likely be a significant detrimental effect on competition in the market for the provision of marketplace services.  
5.6.1.3. Conclusion 
(321)  In view of the above considerations and in light of the results of the market investigation and the evidence and information available to it, for the purposes of the present Decision, the Commission concludes the Transaction does not raise serious doubts with respect to the compatibility with the internal market and with the EEA agreement as a result of the conglomer ate effects of the Transaction on the market for 
the provision of marketplace services.  
6. C
ONCLUSION  
(322)  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 Agreement. This decision is adopted in application of Article 6(1)(b) of the Merger Regulation and Article 57 of the EEA Agreement.   
For the Commission  
 
(Signed)  
Margrethe VESTAGER  
Executive Vice -President