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, 22.12.2021  
C(2021)  9968 final 
PUBLIC VERSION  
 
Discovery, Inc.  
230 Park Avenue South  
New York, NY 10003  
USA  
Subject : Case M. 10343 – Discovery/WarnerMedia  
Commission decision pursuant to Article 6(1)(b) of Council Regu lation 
No 139/20041 and Article 57 of the Agreement on the European Economic 
Area2 
Dear Sir or Madam,  
(1) On 17 November 2021, the  European Commission received notification of a 
proposed concentration pursuant to Article 4 of the Merger Regulation by which  
Discovery, Inc. (“ Discovery ”, United States of America ) acquires within the 
meaning of Article 3(1)(b) of the Merger Regulation sole control over AT&T Inc.’s (“AT&T ”, United States of America) WarnerMedia business segment 
(“WarnerMedia ”, United States of Amer ica)
3 (“Transaction ”).4 Discovery  and 
                                                 
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 decisio n. 
2  OJ L 1, 3.1.1994, p. 3 (the “ EEA Agreement ”). 
3  For the purpose of this Decision, WarnerMedia includes WarnerMedia, LLC, Home Box Office, Inc., Turner 
Broadcasting System, Inc., Warner Bros. Entertainment Inc., Historic TW Inc., Warner Media Content  Holdings, 
L.P., WarnerMedia Direct, LLC and Warner Communications LLC . All these companies are incorporated in the 
United States of America.  
4  Publication in the Official Journal of the European Union No C 484, 2.12.2021 , p. 7. 
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information omitted has been replaced by ranges  of figures or a general description.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 WarnerMedia are designated hereinafter as the “Parties ” and Discovery  is referred to 
as the “Notifying Party”.  
1. THE PARTIES  
(2) Discovery  is a global media company , and parent company of its global media 
group, that provide s original and purchased content , largely non -fiction , to viewers 
worldwide through multiple distribution platforms, including linear platforms such 
as pay -TV, FTA, and broadcast TV, authenticated GO applications, digital 
distribution arrangements, content  licensing arrangements and over -the-top (“ OTT ”)  
subscription products. Discovery distributes customized content in the U.S. and over 220 other countries and territories in nearly 50 languages, including a variety of genres such as natural history, sports , general entertainment, food, travel,  health and 
kids. Discovery’s global portfolio of networks includes non- fiction TV brands such 
as Discovery Channel, its most widely distributed global brand, TLC, Animal Planet, Investigation Discovery, and Science Channel. Discovery’s international portfolio includes Eurosport, a sports entertainment provider across Europe and broadcaster of the Olympic Games across Europe, TVN, a Polish media company, as well as Discovery Kids, a children’s entertainment brand in Lat in America. Discovery is 
listed on the New York  Stock Exchange.  Discovery is not controlled by any other 
company and its shares are spread  among a number of stockholders.  
(3) WarnerMedia ,
5 formerly known as Time Warner, is a global media and 
entertainment busi ness currently wholly owned by ultimate parent company AT&T. 
WarnerMedia’s global activities include the development, production, licensing  and 
distribution of feature films, television, gaming and other content over various physical and digital formats. I t also produces, licenses and operates various linear 
and non- linear video programming services, including premium pay -TV services, 
which are made available both through third party and affiliated distributors on a wholesale b asis, as well as on an OTT  retail basis.  WarnerMedia’s business consists 
primarily of seven core-operating  units: (i) Studios & Networks ; (ii) News & Sports ; 
(iii) Direct- to-Consumer ; (iv) International ; (v) Sales & Distribution ; 
(vi) Technology & Operations; and (vii) Corporate Functi ons. WarnerMedia is 
owned and controlled by AT&T, a public company listed on the New York Stock 
Exchange. AT&T is not controlled by any other company or stockholder.  
2. T
HE OPERATI ON 
(4) Pursuant to a Separation and Distribution Agreement and an Agreement and Pla n of 
Merger entered into on 17 May 2021 between Discovery and AT&T, WarnerMedia will be acquired by Discovery and combined with its existing businesses. The Transaction will take place according to the following steps. Following the Transaction, AT&T will not hold any ownership interest or governance right in the merged entity . 
(5) Therefore, the Transaction consists of the acquisition of sole control by Discovery over WarnerMedia within the meaning of Article 3(1)(b) of the Merger Regulation.  
                                                 
5  Form CO, sections 1 -5, Annex 4.C contains a full list of business, operations, assets and liabilities that will fall 
within the scope of this Transaction.  
 
3 3. UNION DIMENSION  
(6) The undertakings concerned have a combined aggregate world- wide turnover of 
more than EUR 5 000 m illion  (Discovery: EUR [ …]; WarnerMedia: EUR […]).6 
Each of them  has a Union- wide turnover in excess of EUR 250 million (Discovery: 
EUR […]; WarnerMedia: EUR [ …]), but each does not achieve more than two-
thirds of its aggregate U nion- wide turnover within one and the same Member State.  
The notified operation therefore has a Union dimension pursuant to Article 1(2) of 
the Merger Regulation.  
4. RELEVANT MARKET S 
4.1. Introduction  
(7) The Transaction concerns all three main levels of the audio- visual (“ AV”)  value 
chain  (from upstream to downstream) :7 (i) the production and supply of AV content  
(including the supply of pre -produced AV content and commissioned AV content), 
where the Parties both produce, supply, and distribute non- film, audio -visual 
content, including for TV broadcasting; (ii) t he wholesale supply of TV channels , 
where the Parties are both active in the wholesale aggregation of content rights into 
TV channels, including for supply to providers of retail TV services, and;  (iii) the 
retail supply of AV services  to end customers, where both Parties offer, throughout 
the EEA, pay TV services.8  
(8) In addition, the Transaction concerns the sale of advertising  on TV channels, where 
both Parties are active in the supply of advertising space.  
4.2. Production and supply of AV content  
4.2.1. The Parties’ activities  
(9) Each of WarnerMedia and Discovery is active in the supply and production, as well as the acquisition, of commissioned TV content f or exploitation on media platforms . 
(10) With regard to the supply -side of the market, WarnerMedia produces, in the EEA, 
non-captive, commissioned, content for third parties through a wide variety of 
                                                 
6  Turnover calculated in accordance with Article 5(1) of the Merger Regulation and the Commission Consolidated 
Jurisdiction al Notice (OJ C95, 16.4.2008, p. 1). 
7  The Transaction also concerns the market for the licensing of non- broadcasting rights . This market was assessed 
in a number of previous decisions, including (i) with regards to the market for merchandise licensing, 
Commission decision of 20 December 2012 in case M.6791 – The Walt Disney Company/Lucasfilm ; and, (ii) 
with regards to the market for publishing of gaming software, Commission decision of 12 February 2014 in Case 
M.7866 – Activision Blizzard/King  and Commiss ion decision M.10001 –  Microsoft/Zenimax . Considering all 
plausible segments and relevant geographic markets, the Parties confirmed that: (i) the combined market shares 
of the Parties are below 20%; (ii) the individual market share of either Discovery or W arnerMedia remain below 
30%; and, (iii) the individual market share of either Discovery or WarnerMedia in any market which would be 
upstream, downstream or neighbouring the market for the licensing of non- broadcasting rights remain below 
30%. Therefore, the Commission concludes that this market is not affected by the Transaction, whether 
horizontally, vertically or as a result of a conglomerate relation. Accordingly, the Commission will not assess this 
market further.  
8  WarnerMedia, through HBO (including on demand via HBO GO), and Discovery through Joyn+, TVN (i.e., 
TVN Player and TVN24), Eurosport Player, and GolfTV. Discovery has also recently started rolling out 
Discovery+ (Discovery’s OTT streaming platform) in the EEA, while WarnerMedia’s OTT streamin g platform 
HBO Max is not yet available in the EEA (to be launched in 2022).  
 
4 production companies. Discovery produces original TV programm ing via its own 
production studios, Discovery Studios in the U.S. Discovery Studios produces 
predominantly captive content along with some non- captive content for other 
channels in the U.S. and outside the EEA. Discovery Studios does not produce content for third parties in the EEA.  
(11) As regards the demand- side of the market, WarnerMedia acquired some 
commissioned TV content from third parties in the EEA to include in its own 
wholesale channels or retail platforms, but only from content producers located in 
Czech Republic, Denmark, Finland, France, Germany, Hungary, Italy, Norway, 
Poland, Portugal, Romania, Slovakia, Spain, and Sweden. Discovery acquired some 
limited commissioned TV content from third parties in the EEA to include in its own 
wholesale channels  or retail platforms, but only from content providers located in 
Denmark, Finland, Germany, Ireland, Italy, the Netherlands, Norway, Poland, Spain, 
and Sweden.  
(12) WarnerMedia and Discovery are also active in the licensing and acquisition of pre -
produced TV content.  
(13) From the supply side, Discovery distributes broadcasting rights to TV content across 
the EEA, including sports content via the TV channel Eurosport (sub -licensing some 
of its sports rights for live access, delayed access, or news -only access by chan nel, 
country, or region). Discovery is also active in the licensing of pre -produced TV 
content through the TV channel  TVN, which distributes a limited amount of rights to 
TV content to third parties located in a limited number of EEA Member States. In 
addition, Discovery has an interest in All3Media, a joint venture with Liberty 
Global, which distributes rights to a range of content to broadcasters and TV services providers across the EEA, including individual TV content it has produced itself and content produced and obtained from third parties.  WarnerMedia generates licensing 
revenue in all EEA Member States.  
(14) From the demand side, Discovery acquires licensing rights from third parties in order to populate its portfolio of TV channels in the EEA . WarnerMedi a acquires  
licensing content with third Parties in the  Czech Republic, Denmark, Estonia, 
Finland, France, Germany, Hungary, Latvia, Lithuania, Norway, Poland, Portugal, 
Romania, Slovakia, Spain, and Sweden.  
4.2.2. Product market definition 
4.2.2.1. Past Commission decisio ns  
(15) 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 -produce d 
AV content (available off -the-shelf).
9 
(16) 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 
                                                 
9 Commission decision of 7 April 2017 in Case M.8354 –  Fox / Sky, para. 54; Com mission decision of 
24 February  2015 in Case M.7194 – Liberty Global / Corelio / W&W / De Vijver Med ia, para. 69; Commission 
decision of 6 November 2018 in Case M.8785 – The Walt Disney Company / Twenty -First Century Fox , para. 67; 
Commission decision of 26 August 2020 in Case M.9299 –  Discovery / Polsat / JV, para. 50.  
 
5 production, thereby excluding captive AV production ( i.e. AV conte nt produced by 
broadcasters for use on their own TV channels), as this AV content is not offered on 
the market.10 
(17) With regard to the market for the licensing of pre- produced AV content , the 
Commission has considered that it may be subdivided by content type , in particular: 
(i) films , (ii) sports , and (iii) other AV content ( i.e. all non- sport, non- film content) , 
but ultimately left the market definition open .11 In addition, t he Commission had 
assessed  whether AV content could be further sub- divided by disting uishing 
between : (i) US and non -US films; (ii) premium an d non- premium content; or 
(iii) scripted and non- scripted content . This question has been  left open in previous 
decisions.12 
(18) The Commission has also considered further sub- dividing the market for the 
licensing of pre -produced AV content  by exhibition window :13 (i) subscription- based  
video on demand (“ SVOD”) ; (ii) transactional video on demand (“ TVOD ”),14 
(iii) pay-per-view (“ PPV ”),15 (iv) first pay TV  window , (v) second pay TV  window , 
and (vi) free- to-air (“FTA ”), but has ultimately left this question open.16 
4.2.2.2. The Notifying Party’s view  
(19) The Notifying Party considers that the supply of commissioned TV content and the licensing of pre -produced TV content should be considered as a single market as in-
house production, commissioned content and content licensing/acquisition all represent various options for sourcing content. 
4.2.2.3. The Commission’s assessment  
(20) Overall, the market investigation indicated  that that Commission can follow the 
approach taken in previous cases with regard to definition of the market for the 
production and supply of AV content . 
(21) The information gathered during the market investigation does not provide indication that the Commisison should depart from the distinction between the market for the prod uction of commissioned AV content on the one hand, and the 
                                                 
10 Commission decision 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/De Agostini/JV , para. 18; Commission decision of 
26 August 2020 in Case M.9299 – Discovery / Polsat / JV , para. 50.  
11  Commission decision of 21 December 2011 in case M.6369 HBO/Ziggo/HBO Nederland .  
12 M.8354 – Fox / Sky, para. 55; M.6369 - HBO/Ziggo/HBO Nederland, para. 18; M.7194 – Liberty  Global / 
Corelio / W&W / De Vijver Media, para. 52; M.8785 –  The Walt Disney Company / Twenty -First Century Fox, 
para. 68.  
13  The use of the term exhibition windows is not applicable to non-film AV content. Non-film AV content may be 
broadcast through dif ferent 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.  
14  TVOD designates a product where a consumer obtains the right to watch a single title within a designated time 
perio d (for example 48 hours) through a single payment.  
15 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.  
16 M.8354 – Fox / Sky, para. 56; M.8785 – The Walt Disney Company / Twenty -First Century Fox, para. 68.  
 
6 market for the licensing of broadcasting rights for pre -produced AV content on the 
other hand.17 
(22) With regards to the market for licensing of broadcasting rights, the market 
investigation suggested that the segmentation  by type of content including (i) films , 
(ii) sports , and (iii) other AV content ( i.e. all non -sport, non- film content)  remains 
appropriate. However, one market participant in Italy noted that “a segmentation 
between films, sports and other AV content is too broad”.18 
(23) Similarly, the market investigation confirmed that the segmentation between (i) US and non- US films; (ii) premium and non -premium content; or (iii) scripted and non-
scripted content  remain s relevant ..
19 In particular, o ne mar ket participant in Italy  
further argued that “from a marketing point of view, for our purposes, the distinction 
should be added not so much between US and non- US, but between Italian, 
European and non- European productions.”20 
(24) With regards to the market for licensing of broadcasting rights, the market 
investigation confirmed that the segmentation by exhibition window remained 
relevant.21 In particular with regards to non -linear AV content, market participants 
confirmed that there are differences in price in te rms of content, pricing and contract 
terms.22 
(25) In light of the above and for the purpose of this D ecision, the Commission considers 
that the production of  commissioned  AV content and the licensing of broadcasting 
rights for AV content constitute two separate  product markets. The question whether 
the market for the licensing of broadcasting rights for AV content can be further 
segmented according to (i) the type of AV content; (ii) US and non- US films; (iii)  
premium an d 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 functioning of the EEA agreement under any plausible product market definition.  
4.2.3. Geographic market definition  
4.2.3.1. Past Commission decisions  
(26) 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.
23 
                                                 
17 Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (Italy), questions 6 
and 6.1. 
18 Responses to questionnaire Q1 – Questionnaires  to market participants in the AV sector (Italy), questions  7.1 . 
19 For exemple, see responses to questionnaire Q1 –  Questionnaires to market participants in the AV sector (Italy), 
questions  7 and 7.1 . 
20 Responses to questionnaire Q1 – Questionnaires to m arket participants in the AV sector (Italy), question 7.1. 
21 Notably, the Commission asked market participants whether the following exhibition windows were appropriate 
for the TV value chain: (i) subscription -based video on demand (“ SVOD ”); (ii) transactional vídeo on demand 
(“TVOD ”); (iii) pay -per-view (“ PPV ”); (iv) first pay TV; (v) second pay TV; (vi) free -to-air (“ FTA ”). 
22 Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (Italy), questions  9.  
23 M.8354 – Fox / Sky,  para. 69; M.9299 –  Discovery / Polsat / JV , para. 54.  
 
7 4.2.3.2. The Notifying Party’s view  
(27) The Notifying Party considers that the exact scope of the geographic market can be 
left open  even if it does not question the Commi ssion’s past decisional practice 
based on regional, national or linguistic geographic markets.  
4.2.3.3. The Commission’s assessment  
(28) The market investigation confirmed that the geographic scope of licensing 
agreements is normally national. Overall, market participants confirmed that the 
market for the production and supply of AV content to be national in scope , or 
encompassing linguistically homogenous areas.24  
(29) In light of the foregoing, the Commission does not have indication that it should depart from the approach taken in previosu cases assessment, and concludes, for the 
purpose of this Decision, that the geographic markets for the production of 
commissioned AV content and the licensing of broadcasting rights for AV content 
are either national or correspond with a  linguistic area s. In any event, the precise 
definition 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.  
4.3. Wholesale supply of TV channels  
4.3.1. The Parties’ activities  
(30) WarnerMedia and Discovery are activ e in the wholesale suppl y of TV channels to 
providers of retail TV services.  
(31) WarnerMedia offers a portfolio of wholesale TV channels across the EEA to both 
FTA and pay TV retailers. WarnerMedia’s core offering encompasses a bouquet of predominantly pay TV channels which broadcast  scripted fiction programmes 
directed at children (e.g., for instance with the TV channels Cartoon Network, or Boomerang)  and general entertainment  (e.g., for instance with the TV channels TNT, 
TNT Film, or TNT Series) .
25 WarnerMedia also distributes Home B ox Office 
(“HBO”) premium film channels predominantly in Eastern Europe . Finally, 
WarnerMedia provides CNN International in the EEA, offering FTA news -related 
content worldwide .  
(32) Discovery offers a portfolio of wholesale TV channels across the EEA to both FTA and pay TV retail broadcasters. Discovery’s channels mainly constitute pay TV 
channels, predominantly for unscripted, non- fiction programmes, such as 
documentaries. In addition to these channels, Discovery’s Eurosport is focused 
solely on sporting cont ent. In Italy, Discovery offers some FTA general 
entertainment and children’s TV channels, including K2 and Frisbee, which it 
acquired as part of the Switchover Media acquisition in 2013. 
                                                 
24 Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (Italy), questions  24.  
25 In Italy, WarnerMedia operates its FTA TV channels for children through a joint ventur e Boing S.p.A. (“ Boing ”) 
with Mediaset S.p.A. (“ Mediaset ”). WarnerMedia and Mediaset also operate some Boing channels in Spain.  
 
8 4.3.2. Product market definition 
4.3.2.1. Past Commission decisions  
(33) 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.26 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,
27 for which customers pay a premium  in addition to their basic 
subscription fee.  
(34) 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 decision, t he Commission also considered that there was no need to draw a 
distinction between linear TV channels and their non- linear ancilla ry services .28 
(35) 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);29 and (ii) different means of infrastructure 
used for the delivery to the consumer  (cable, satellite, terrestrial TV and IPTV).30  In 
the recent Telia Company/Bonnier  Broadcasting Holding decision, the Comm ission 
considered that the market for the wholesale supply of TV channels should not be 
further segmented according to the type of infrastructure used for the delivery to the 
consumer  (such as cable, direct to home (“ DTH ”), digital terrestrial television 
(“DTT ”) and internet protocol television (“ IPTV ”)) since the competitive condition s 
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.31 
                                                 
26 M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , paras. 90 -91. 
27 M.8785 – The Walt Disney Company / Twenty -First Century F ox, para. 77; Commission decision of 15 June 
2018 in Case M.8861 –  Comcast/Sky , para. 50; Commission decision of 6 February 2018 in Case M.8665 – 
Discovery/Scripps , paras. 19 - 20; M.8354 – Fox/Sky, paras. 80 - 81. 
28 M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , paras. 93 -94. 
29 Commission decisions of of 7 April 2017 in case M.8354 –  Fox/Sky, recitals 82 -83; Commission decision of 24 
February 2015 in case M.7194 -  Liberty Global/Corelio/W&W/De Vijver Media , recital 92; Commission decision 
of 2 April 2003 in case M.2876 - Newscorp/Telepiù , recital 76; Commission decision of 18 July 2007 in case 
M.4504 - SFR/Télé 2 France , recitals 41 –42; Commission decision of 26 August 2008 in case M.5121 - News 
Corp/Premiere , recital 35; Commission decision of 21 Decem ber 2010 in case M.5932 –  News Corp/BskyB , 
recital 81; Commission decision of 10 October 2014 in case M.7000 -  Liberty Global/Ziggo , recital 89.  
30 M.7194 – Liberty Global/Corelio/W&W/De Vijver Media , para. 98; Commission decision of 18 July 2007 in 
Case M. 4504 – SFR/Télé 2 France, para. 44; Commission decision of 26 August 2008 in Case M.5121 – News 
Corp/Premiere , para. 22.  
31 Commission  decision of 12 November 2019 in Case M.9064 – Telia Company/ Bonnier Broadcasting Holding,  
para. 162.  
 
9 4.3.2.2. The Notifying Party’s view  
(36) The Notifying Party does not consider it appropriate to segment the market for the 
wholesale supply of TV channels between FTA and pay TV, whether basic or premium, between genres, or between means of transmission. 
4.3.2.3. The Commission’s assessment  
(37) The market investigation has yielded mixed results on the definition of the product 
market for the wholesale supply of TV channels. 
(38) In relation to the possible segmentation between FTA and pay T V channels, the  
market investigation has confirmed that the segmentation is still relevant in a 
majority of Member States under investigation.
32 In other Member States, the views 
were mixed or inconclusive.33 
(39) In relation to the possible segmentation between premium and basic pay TV 
channels, the market investigation has yielded inconclusive results.34 This seems to 
be linked to the absence of a consistent definition of which pay TV channels would 
qualify as basic and which as  premium and to the fact that TV c ontent are 
distributed to different channels that market themselves both as basic and premium 
TV channels.35 
(40) Similarly, the possible segmentation of the market for the wholesale supply of TV 
channels by genre or thematic content has yielded mixed results depending mainly on the country of operation of the market respondents. For instance, the respondents 
                                                 
32 Response to questi onnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 10 and 
10.1; questionnaire Q2 - Questionnaire to market participants in the AV sector (Belgium), questions 6 and 6.1; 
questionnaire Q3 – Questionnaire to market participan ts in the AV sector (Denmark) questions 6 and 6.1; 
questionnaire Q4 – Questionnaire to market participants in the AV sector (France) questions 6 and 6.1; 
questionnaire Q5 – Questionnaire to market participants in the AV sector (Germany) questions 6 and 6.1; 
questionnaire Q6 – Questionnaire to market participants in the AV sector (Romania) questions 6 and 6.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 6 and 6.1; 
questionnaire Q11 – Questionnaire to market pa rticipants in the AV sector (Spain) questions 6 and 6.1.  
33 Response to questionnaire Q7 -  Questionnaire to market participants in the AV sector (Bulgaria), questions 6 and 
6.1; questionnaire Q8 – Questionnaire to market participants in the AV sector (Finla nd) questions 6 and 6.1; 
questionnaire Q9 –  Questionnaire to market participants in the AV sector (Norway) questions 6 and 6.1.  
34 Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 11 and 
11.1; questionna ire Q2 - Questionnaire to market participants in the AV sector (Belgium), questions 7 and 7.1; 
questionnaire Q3 – Questionnaire to market participants in the AV sector (Denmark) questions 7 and 7.1; 
questionnaire Q4 – Questionnaire to market participants i n the AV sector (France) questions 7 and 7.1; 
questionnaire Q5 – Questionnaire to market participants in the AV sector (Germany) questions 7 and 7.1; 
questionnaire Q6 – Questionnaire to market participants in the AV sector (Romania) questions 7 and 7.1; 
questionnaire Q7 -  Questionnaire to market participants in the AV sector (Bulgaria), questions 7 and 7.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 7 and 7.1; 
questionnaire Q9 – Questionnaire to market parti cipants in the AV sector (Norway) questions 7 and 7.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 7 and 7.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 7 and 7.1. 
35 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 12 and 13; 
questionnaire Q2 - Questionnaire to market participants in the AV sector (Belgium), questions 8 and 9; 
questionnaire Q3 –  Questionnair e to market participants in the AV sector (Denmark) questions 8 and 9; 
questionnaire Q4 –  Questionnaire to market participants in the AV sector (France) questions 8 and 9; 
questionnaire Q5 –  Questionnaire to market participants in the AV sector (Germany) q uestions 8 and 9; 
questionnaire Q6 –  Questionnaire to market participants in the AV sector (Romania) questions 8 and 9; 
questionnaire Q8 - Questionnaire to market participants in the AV sector (Bulgaria), questions 8 and 9; 
questionnaire Q8 – Questionnaire  to market participants in the AV sector (Finland) questions 8 and 9; 
questionnaire Q9 –  Questionnaire to market participants in the AV sector (Norway) questions 8 and 9 
questionnaire Q10 –  Questionnaire to market participants in the AV sector (Poland) que stions 8 and 9; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 8 and 9.  
 
10 to the market investigation in Italy, Germany, Finland, Poland and Spain indicated 
that this segmentation is  relevant  while the market investigation in othe r Member 
States suggests otherwise .36 In particular in Italy, the market investigation has 
suggested that the segmentation by genre should be made in addition to the 
segmentation between wholesale supply of FTA and pay TV channels.37 For 
instance, one market  participant stressed that “Broadcasting operators, both pay and 
FTA, already segmented their cannels also by genre, presumably to segment their audiences and to sell more targeted adv.”
38 
(41) Furthermore, specifically for Italy, the market investigation has co nfirmed that it is 
easy to categorise channels on the basis of their genre and in line with previous 
Commission decisions which defined the following genre categories: films, sports, 
news, children/ youth, and others .39 As state d by one market participant: “ it is easy to 
categorise channels by genre or theme in Italy, as long as we define a residual 
category that encompasses mainstream programming, meaning a channel which 
covers multiple genres such as movies, TV series, sports, events, and news.”40 In 
support  of this position, the market investigation has indicated that the choice of a 
retailer of AV services to purchase a channel is based on the channel’s genre.41 
(42) In relation to the possible segmentation according to the distribution technology, the 
market inv estigation has indicated that this is no longer a relevant segmentation in 
the Member States under investigation except Spain.42 
In all the countries covered by the market investigation,43 market participants have 
confirmed that there should be no segmentati on betwe en linear TV channels and the 
ancillary services44 linked thereto.45 
                                                 
36 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 15.1; 
questionnaire Q5 – Questionn aire to market participants in the AV sector (Germany) questions 11; questionnaire 
Q11 – Questionnaire to market participants in the AV sector (Finland) questions 11; questionnaire Q10 –  
Questionnaire to market participants in the AV sector (Poland) questi ons 11; questionnaire Q11 – Questionnaire 
to market participants in the AV sector (Spain) questions 11.  
37 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 15.1.2.  
38 Response to questionnaire Q1 – Questi onnaire to market participants in the AV sector (Italy), question 15.1.2.  
39 For relevant past decisions of the Commission, see above in paragraph (34) . 
40 Response to questionnaire Q1 –  Questionnaire to market par ticipants in the AV sector (Italy), question 15.1.3 and 
15.1.3.1 . 
41 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 15.1.4.  
42 Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 15.2 and 
15.2.1; questionnaire Q2 –  Questionnaire to market participants in the AV sector (Belgium), questions 11.2 and 
11.2.1; questionnaire Q3 –  Questionnaire to market participants in the AV sector (Denmark) questions 11.2 an d 
11.2.1; questionnaire Q4 –  Questionnaire to market participants in the AV sector (France) questions 11.2 and 
11.2.1; questionnaire Q5 –  Questionnaire to market participants in the AV sector (Germany) questions 11.2 and 
11.2.1; questionnaire Q6 –  Question naire to market participants in the AV sector (Romania) questions 11.2 and 
11.2.1; questionnaire Q7 –  Questionnaire to market participants in the AV sector (Bulgaria), questions 11.2 and 
11.2.1; questionnaire Q8 – Questionnaire to market participants in th e AV sector (Finland) questions 11.2 and 
11.2.1; questionnaire Q9 –  Questionnaire to market participants in the AV sector (Norway) questions 11.2 and 
11.2.1; questionnaire Q10 –  Questionnaire to market participants in the AV sector (Poland) questions 11.2 and 
11.2.1; questionnaire Q11 –  Questionnaire to market participants in the AV se ctor (Spain) questions 11.2 
and 11.2.1.  
43   The market investigation covers Bulgaria, Belgium, Denmark, Finland, France, Germany, Italy, Norway, Poland, 
Romania, and Spain.   
44 Ancillary services are services or functionalities offered to consumers simultaneously with the linear 
transmission, such as catch up services, personal video recorder, accessibility of the TV channel’s content 
through the internet and on mobile devices, etc.  
 
11 (43) 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 should be further segmented between FTA 
and pay TV channels, and in turn whether pay TV channels should be further 
segmented between basic pay and p remium pay TV channels can be left open as the 
Transaction does not raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement under any plausible product market definition. The question whether this product market should be further segmented by 
genre (i.e., sports, films, children/youth and other) can also  be left open, as the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement under any plausible product market 
definition. 
4.3.3. Geographic market definition  
4.3.3.1. Past Commission decisions  
(44) In its previous decisions, the Commission found the market for the wholesale supply 
of TV channels to be either national in scope,
46 regional,47 or delinea ted by 
linguistically homogeneous areas encompassing more than one EU Member State.48 
4.3.3.2. The Notifying Party’s arguments  
(45) The Notifying Party considers that the exact scope of the geographic market can be 
left open even if it does not question the Commission’s past decisional practice 
based on regional, national or linguistic geographic markets.  
4.3.3.3. The Commission’s assessment  
(46) Except for Belgium, the market investigation has confirmed that agreements between 
wholesale suppliers of TV channels and retail suppliers of  AV services are 
negotiated on a national basis.49 In Belgium, market participants consider ed that TV 
                                                                                                                                                      
45 Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 15.3 and 
15.3.1; questionnaire Q2 - Questionnaire to market participants in the AV sector (Belgium), questions 11.3 and 
11.3.1; questionnaire Q3 –  Questionnaire to market participants in the AV sector (Denmark) questions 11.3 and 
11.3.1; questionnaire Q4 –  Questionnaire to market participants in the AV sector (France) questions 11.3 and 
11.3.1; questionnaire Q5 –  Questionnaire to market participants  in the AV sector (Germany) questions 11.3 and 
11.3.1; questionnaire Q6 –  Questionnaire to market participants in the AV sector (Romania) questions 11.3 and 
11.3.1; questionnaire Q7 - Questionnaire to market participants in the AV sector (Bulgaria), questi ons 11.3 and 
11.3.1; questionnaire Q8 – Questionnaire to market participants in the AV sector (Finland) questions 11.3 and 
11.3.1; questionnaire Q9 –  Questionnaire to market participants in the AV sector (Norway) questions 11.3 and 
11.3.1; questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 11.3 and 
11.3.1; questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 11.3 and 
11.3.1.  
46 M.6369 – HBO/Ziggo/HBO Nederland, para. 39; Commiss ion decision of 15 April 2013 in Case M.6880 – 
Liberty Global/Virgin Media, para. 41; Commission decision of 10 October 2014 in Case M.7000 –  Liberty 
Global/Ziggo, para. 98; M.9299 –  Discovery / Polsat / JV, para. 70.  
47 M.7197 – Liberty Global/Corelio/W&W/De Vijver Media, para. 106 onwards.  
48 M.8354 – Fox / Sky, para. 90 onwards.  
49 Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 25 and 
25.1; questionnaire Q3 –  Questionnaire to market participants in the  AV sector (Denmark) questions 12 and 12.1; 
questionnaire Q4 – Questionnaire to market participants in the AV sector (France) questions 12 and 12.1; 
questionnaire Q5 – Questionnaire to market participants in the AV sector (Germany) questions 12 and 12.1; 
questionnaire Q6 – Questionnaire to market participants in the AV sector (Romania) questions 12 and 12.1; 
 
 
12 channels are usually targeted at specific audiences on the basis of the language of the 
channel. As such, agreements tend to be negotiated on the basis the  footprint of 
network retailers.50 
(47) Similarly, except for Belgium, the market investigation has confirmed that the wholesale suppliers of TV channels are the same across a Member State.
51 
(48) Finally, the market investigation confirmed that the geographic scope o f negotiations 
is not dependent on the genre of the channel being supplied.52 
(49) In light of the above, for the purpose of this Decision, the Commission concludes that the relevant geographic market for the wholesale supply of TV channels, and all its possible  sub-segments is national for all of the countries considered in this 
decision, and/ or regional in scope  for Belgium . 
4.4. Retail supply of AV services to end customers  
4.4.1. The Parties’ activities  
(50) WarnerMedia and Discovery are active in the retail provision of audi o-visual 
services to end users . 
(51) Discovery offers FTA TV  services in  Austria, Finland, Germany, Ireland, Italy, 
Poland and Spain. Discovery also offers pay TV services such as Joyn+ (in Germany), TVN (available in Austria, Belgium, Cyprus, Denmark, Estonia, Finland, 
France, Germany, Greece, Ireland, Italy, Latvia, Lithuania, Netherlands, Norway, Poland, Portugal, Spain and Sweden), Eurosport Player (available in all EEA Member States), GolfTV (available in all EEA Member States), Discovery+ 
                                                                                                                                                      
questionnaire Q7 -  Questionnaire to market participants in the AV sector (Bulgaria), questions 16 and 16.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 16 and 16.1; 
questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway) questions 16 and 16.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) quest ions 16 and 16.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 16 and 16.1.  
50 Response to questionnaire Q2 –  Questionnaire to market participants in the AV sector (Belgium) questions 12 
and 12.1.  
51 Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 26 and 
26.1; questionnaire  Q3 – Questionnaire to market participants in the AV sector (Denmark) questions 13 and 13.1; 
questionnaire Q4 – Questionnaire to market participants in the AV sector (France) questions 13 and 13.1; 
questionnaire Q5 – Questionnaire to market participants in the AV sector (Germany) questions 13 and 13.1; 
questionnaire Q6 – Questionnaire to market participants in the AV sector (Romania) questio ns 13 and 13.1; 
questionnaire Q7 -  Questionnaire to market participants in the AV sector (Bulgaria), questions 17 and 17.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 17 and 17.1; 
questionnaire Q9 – Questio nnaire to market participants in the AV sector (Norway) questions 17 and 17.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 17 and 17.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sect or (Spain) questions 17 and 17.1.  
52 Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 27 and 
27.1; questionnaire Q2 – Questionnaire to market participants in the AV sector (Belgium) questions 14 and 14.1; 
questionnaire Q3 – Questionnaire to market participants in the AV sector (Denmark) questions 14 and 14.1; 
questionnaire Q4 – Questionnaire to market participants in the AV sector (France) questions 14 and 14.1; 
questionnaire Q5 – Questionnaire to market participants in the AV sector (Germany) questions 14 and 14.1; 
questionnaire Q6 – Questionnaire to market participants in the AV sector (Romania) questions 14 and 14.1; 
questionnaire Q7 -  Questionnaire to market participants in the AV sector (Bulgaria), qu estions 18 and 18.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 18 and 18.1; 
questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway) questions 18 and 18.1; 
questionnaire Q10 – Ques tionnaire to market participants in the AV sector (Poland) questions 18 and 18.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 18 and 18.1.  
 
13 (Discovery’s recent SVOD platform, currently available in the Denmark, Finland, 
Ireland, Italy, Netherlands, Norway, Spain and Sweden).53 
(52) WarnerMedia offers retail FTA TV services only in Italy  and Spain. WarnerMedia 
also offers HBO channels as a pay TV service (including on- demand via HBO GO), 
which is available in Bulgaria, Croatia, Czech Republic, Denmark, Finland, 
Hungary, Norway, Poland, Romania, Slovakia, Slovenia, Spain, and Sweden. 
WarnerMedia has also just launched its SVOD platform HBO Max  in a handful of 
countries  in the EEA -  namely Sweden, Denmark, Norway, Finland and Spain, 
where HBO Max was launched on 26 October 2021. HBO Max will then be rolled 
out in 2022 across Central and Eastern Europe, Portugal, as well as the Netherlands, 
Greece and  Iceland.54 
4.4.2. Product market definition  
4.4.2.1. Past Commission decisions  
(53) The Commission has in previous cases split the retail supply of AV services in two 
separate markets: FTA and pay TV,55 but in other more recent cases has ultimately 
left open the product market definition.56 The Comm ission has also considered 
whether  the market for  retail pay AV services should be segmented further according 
to: (i) premium pay AV vs. basic pay AV services;57 (ii) distribution technologies 
(e.g. cable, satellite, or terrestrial);58 and (iii) linear vs n on-linear AV services ;59 but 
ultimately left the market definition open.60 
(54) Distribution technologies : In Liberty Global / Corelio / W&W / De Vijver Media , 
the Commission recogni sed that at least retail A V services offered over cable and 
IPTV form part of the  same relevant product market .61 In the recent Telia 
Company/Bonnier Broadcasting Holding case,62 the Commission conclude d that all 
the different distribution technologies are part of the same product market .  
(55) Linear and non -linear services : In the past , the Commission noted that non- linear 
services have gradually been integrated to complement TV broadcasters ’ and retail 
AV service providers’  offering s and enhance the consumer's  experience of l inear TV 
                                                 
53 Form  CO, Chapter 4, paragraphs 33- 35. 
54 Form CO, Chapter 4, paragra phs 17- 32. 
55 M.4504 – SFR/Télé 2 France, para. 45.  
56 M.8785 –The Walt Disney Company / Twenty -First Century Fox, para. 98; C ommission decision of 
8 October  2018 in Case M.8842 – Tele2/ComHem, para. 37; M.7000 –  Liberty Global/Ziggo, para. 137; M.8665 
– Discovery/Scripps, para. 33; M.8354 –  Fox/Sky, para. 101; Commission decision of 3 August 2016 in Case 
M.7978 – Vodafone/Liberty Global/Dutch JV, para. 56; M.7194 –  Liberty Global/Corelio/W&W/De Vijver 
Media, para. 152.  
57 M.7194 – Liberty Global/Corelio/W&W/D e Vijver Media, para. 119.  
58 M.7194 – Liberty Global/Corelio/W&W/De Vijver Media, para. 127; M.5121 – News Corp/Premiere, para. 22; 
Commission decision of 21 December 2010 in Case M.5932 - News Corp/BskyB, para. 105; M.7000 –  Liberty 
Global/Ziggo, para. 11 3. 
59 M.7194 – Liberty Global/Corelio/W&W/De Vijver Media, para. 124; M.5121 – News Corp/Premiere, para. 21; 
M.7000 - Liberty Global/Ziggo, paras. 109 –110. 
60 M.8785 – The Walt Disney Company / Twenty -First Century Fox, para. 93 and case law cited; M.9299 – 
Discovery / Polsat / JV, para. 82.  
61 M.7194 – Liberty Global / Corelio / W&W / De Vijver Media, para. 126.  
62 M.9064 – Telia Company/ Bonnier Broadcasting Holding, para. 195.  
 
14 channel s. Most recently, in NENT/Telenor , the Commission indicated that linear and 
non-linear AV services are increasingly regarded as substitutable.63  
(56) 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.64  
4.4.2.2. The Notifying Party’s view  
(57) The Notifying Party considers that the Transaction should be assessed on the basis of 
a single market for the retail supply of AV services, which encompasses all AV 
services (including linear and non- linear, FTA and pay TV, ba sic and premium), 
delivered through all distribution technologies, including OTT to singled welling or 
multiple dwelling units.  
4.4.2.3. The Commission’s assessment  
(58) The market investigation has yielded mixed results in relation to the market for the 
retail supply of AV services.  
(59) Except for Finland, t he market investigation suggested that a segmentation between 
the retail supply of FTA AV services  and pay AV services  may no longer  be 
relevant.65 For instance, one market participant explain ed that: “ this is not an 
appr opriate driver of segmentation for retail markets, with suppliers characterized 
by different business models competing to attract viewers’ attention.”66  
(60) In relation to a possible segmentation of the market for the retail supply of pay AV 
services , a majori ty of market respondents consider ed that it is no longer appropriate 
to segment the retail market for the supply of pay AV services between basic and premium services.
67 Market participants also indicated that non- linear pay AV 
services constitute a good al ternative to linear pay AV services.68 
(61) In relation to a possible segmentation of the market for the retail supply of AV services that are advertis ing funded between linear TV channels ( i.e., FTA TV 
channels) and non -linear FTA AV services ( i.e., advertising- based video on demand 
                                                 
63  Commission decision of 30 April 2020 in Case M.9604 – NENT / Telenor / JV, para. 184.  
64  See e.g. M.9799 –  Discovery / Polsat / JV, para. 82. 
65  Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 17 and 
17.1; questionnaire Q7 –  Questionnaire to market participants in the AV sector ( Bulgaria), questions 12 and 12.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 12 and 12.1; 
questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway) questions 12 and 12.1; 
questionnai re Q10 – Questionnaire to market participants in the AV sector (Poland) questions 12 and 12.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 12 and 12.1.  
66  Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 17.1.  
67  Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 18 and 
18.1; questionnaire Q7 - Questionnaire to market participants in the AV sector (Bulgaria), questions 13 and 13.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 13 and 13.1; 
questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway) questions 13 and 13.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 13 and 13.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 13 and 13.1.  
68  Response to questionnaire Q1 –  Questionnaire to market parti cipants in the AV sector (Italy), question 19 and 
19.1; questionnaire Q7 - Questionnaire to market participants in the AV sector (Bulgaria), questions 14 and 14.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions  14 and 14.1; 
questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway) questions 14 and 14.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 14 and 14.1; 
questionnaire Q11 – Questionnai re to market participants in the AV sector (Spain) questions 14 and 14.1.  
 
15 (“AVOD ”)), the market participants  considered that such segmentation may not be 
appropriate.69 
(62) The market investigation has not yielded any evidence on the segmentation by 
distribution technology.  
(63) In light of the above, the Commission considers that, for the purpose of this 
Decision, the relevant product market at retail level is the market for the retail supply of AV services encompassing all distribution technologies. The question whether the retail supply of AV services should be further segmented between (i) FTA and pay AV services, as well as the question whether the retail supply of pay AV services should be segmented according to (ii) linear and non- linear pay AV services, and, 
(iii) premium and basic pay AV services can be left open as the Transaction does not 
raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement under any plausible product market definition. The question 
of whether the market for the retail supply of FTA AV  services should be segmented 
according to linear and non- linear FTA AV services can also be left open as the 
Transaction does not raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement under any plaus ible product market 
definition. 
4.4.3. Geographic market definition  
4.4.3.1. Past Commission decisions  
(64) The Commission has in the past considered that the geographic scope of the market for the retail provision of AV services could be  either (i) national, since providers of 
retail AV services compete on a nation -wide basis; or (ii) limited to the coverage 
area of each cable operator .
70 
4.4.3.2. The Notifying Party’s view  
(65) The Notifying Party considers that the Transaction will not raise competition concerns at the retail level regardl ess of the precise geographic market defin ition and 
has provided market data on the basis of national markets, which it considers to fit 
the narrowest plausible geographic scope in the Commission’s precedents.  
4.4.3.3. The Commission’s assessment  
(66) The market investi gation ha s confirmed that the market for the retail supply of AV 
services is national in scope , due to the fact that these services are offered on a 
national basis.
71 
                                                 
69  Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 20  and 
20.1; questionnaire Q7 - Questionnaire to market participants in the AV sector (Bulgaria), questions 15 and 15.1; 
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 15 and 15.1; 
questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway) questions 15 and 15.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 15 and 15.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 15 and 15.1.  
70 M.8785 – The Walt Disney Company / Twenty -First Century Fox, para. 100; M.9799 –  Discovery / Polsat / JV, 
para. 86.  
71  Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 28 and 
28.1; questionnaire Q7 - Questionnaire to market participants in the A V sector (Bulgaria), questions 19 and 19.1; 
 
 
16 (67) In light of the above, for the purpose of this Decision, the Commission concludes 
that the  relevant geographic market for the retail supply of AV services, and all its 
possible sub- segments, is national in scope.  
4.5. Sale of advertising space  
4.5.1. The Parties’ activities  
(68) Discovery and WarnerMedia are both suppl iers of advertising space on audiovisual s’ 
supports . Discovery and WarnerMedia both sell advertising space on TV and online. 
From an advertising perspective, the Parties’ retail service offerings include limited AVOD options in the EEA. 
(69) With regard to the demand- side of the advertising market, i.e., the downstream 
acquisition of ad space on TV channels and/or national websites, the Parties buy 
advertising space mostly through media buyers or media agencies, and to a lesser 
extent directly and/or within the framework of barter agreements.  
(70) In the vast  majority of EEA Member States, the Parties sell TV advertising space 
mainly through third- party ad vertising  sales houses, which represent a multitude of 
competing channels or platforms and negotiate directly with media buyers or 
adve rtisers.  
(71) In particular , Discovery sells advertising space in the majority of the EEA Member 
States, but has no (offline or online advertising) sales in Cyprus, Greece, Iceland, 
Lithuania, Liechtenstein, Luxembourg, Malta, and Slovakia. WarnerMedia sells 
advertising space in the  majority of the EEA Member States . WarnerMedia does no 
longer have any advertising revenues from its TV channels in Norway, Denmark and 
Sweden, since in September 2020 it decided to discontinue its in- house ad sale 
business in the Nordics with effect from  the end of 2020.  
4.5.2. Product market definition 
4.5.2.1. Past Commission decisions  
(72) The Commission has in previous cases established a distinction between (i) online 
and (ii) offline advertising, on the basis of specificity (i.e. the ability to reach a more 
targeted au dience) and pricing model.
72 Within offline advertising, the Commission 
has distinguished separate markets for (i) the sale of advertising on TV channels and (ii) for the sale of advertising in newspapers.
 73 
                                                                                                                                                      
questionnaire Q8 –  Questionnaire to market participants in the AV sector (Finland) questions 19 and 19.1; 
questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway) questions 19 and 19.1; 
questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland) questions 19 and 19.1; 
questionnaire Q11 – Questionnaire to market participants in the AV sector (Spain) questions 19 and 19.1. 
72  Commission decision of 9 September 2014 in Case M.7288 –  Viacom/Channel 5Broadcasting, para. 35.  
73  Commission decision of 7 July 2005 in Case M.3817 –  Wegener/PCM/JV, para. 27; Commission decision of 1 
February 1999 in Case M.1401 - Recoletos/Unedisa, paras. 26 -28; Commission decision of 21 December 2010 in 
Case M.5932 – News Corp/ BSkyB, paras. 265 and 266; Commission decision of 6 February 2017 in Case 
M.8665 – Discovery / Scripps, para. 40.  
 
17 (73) The market investigation in Viacom/Channel 5 indi cated  that the  distinction between 
online advertising and TV advertising is becoming increasingly blurred. 74 Moreover, 
the question whether advertising placed on FTA channels and on pay TV channels 
should constitute separate markets  has, to date, been left  open.   
4.5.2.2. The Notifying Party’s view  
(74) The Notifying Party considers that there is only one market for all TV advertising, 
with no need to distinguish between advertising on FTA and pay TV channels or 
advertising on OTT and VOD.  
4.5.2.3. The Commission’s assessment  
(75) Overall, the market investigation indicated that that Commission can follow the 
approach taken in previous cases with regard to definition of the market for the sale 
of advertising space.  
(76) The market investigation suggested that the segmentation between online and offline 
advertising, and within the offline advertising segment . A majority of market 
participants active across the AV value chain indicated that there is a distinct market 
for the sale of advertising space on TV channels.75 The market investigation 
provided mixed responses on whether the market for the sale of advertising space on TV channels should be further segmented between the sale of advertising space on FTA TV channels and pay TV channels.
76 
(77) In light of the above and for the purpose of this Dec ision, the Commission considers 
that there is a distinct market for the sale of advertising space on TV channels. The question whether the market for sale of advertising space on TV channels can be further segmented between the the sale of advertising spac e on FTA TV channels 
and pay TV channels can be left open as the Transaction does not raise serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement under any plausible product market definition.  
4.5.3. Geographic market definition  
4.5.3.1. Past Commission decisions  
(78) In its previous decisions, the Commission has considered that the market for the 
supply of TV advertising, including the possible segmentations outlined above, is national in scope.
77 
4.5.3.2. The Notifying Party’s view  
(79) The Notifying Party does not disagree with the Commission’s previous decisions 
and considers that the  market for the supply of TV advertising could be national in 
scope. In any case, the Notifying Party  consider s that, for the purpose of this case, 
the exact g eographic market definition can be left open. 
                                                 
74  M.7288 – Viacom/Channel 5Broadcasting, paras. 38 and 40.  
75  Responses to questionnaire Q1 – Questionnai res to market participants in the AV se ctor (Italy), questions  21 
and 21.1.  
76  Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (Italy), questions  22 
and 22.1 . 
77 Among other cases, M.7288 – Viacom/Channel 5Broadcasti ng, para. 45.  
 
18 4.5.3.3. The Commission’s assessment  
(80) The market investigation confirmed that the geographic scope for the purchase or 
supply of advertising space on TV channels is national in scope .78 
(81) Therefore, for the purpose of this Decision, the Commission considers that the market for the sale of advertising space on TV is national in scope.  
5. C
OMPETITIVE ASSESSMENT  
5.1. Identification of affected markets  
5.1.1. Horizontally affected markets  
(82) The Parties’ activities overlap in most Member States a t the various levels of the AV 
value -chain as well as for the sale of advertising space. However, the market shares 
of the Parties are limited and the Transaction only gives rise to the following horizontally affected markets:  
(a) Sale of advertising space on pay TV channels in Denmark;  
(b) Retail supply of non- linear pay AV services  in Finland;  
(c) Wholesale supply of pay TV channels  in Germany;  
(d) Wholesale supply of pay TV channels for other content  in Germany;  
(e) Wholesale supply of TV channels for children content  in It aly; 
(f) Wholesale supply of FTA TV channels for children content  in Italy;  
(g) Wholesale supply of pay TV  in Norway;  
(h) Retail supply of non- linear pay AV services  in Norway;  
(i) Wholesale supply of TV channels  in Poland;  
(j) Wholesale supply of pay TV channels  in Poland;  
(k) Wholesale supply of TV channels  for other content in Poland;  
(l) Wholesale supply of pay TV channels  for other content in Poland;  
(m) Sale of advertising space on TV channels  in Poland;  
(n) Sale of advertising space on pay TV channels  in Poland;  
(o) Wholesale supply of pay  TV in Sweden;  
(p) Retail supply of non- linear pay AV services  in Sweden; and,  
(q) Sale of advertising space on pay TV channels  in Sweden.  
                                                 
78  Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (Italy), questions  29. 
 
19 5.1.1.1. Denmark  
(83) Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following horizontally  affected market :79 
Table 1: Horizontally affected markets in Denmark (2020)  
 Value    
Discovery  Warner Media  Combined  
Sale of advertis ing space  on pay TV 
channels  [20-30]%  [0-5]% [20-30]%  
Source : Annex 4 to Chapter 6 of the Form CO  
(84) As of September 2020, WarnerMedia has decided to discontinue all its activities for the sale of advertising space on TV channels  in Denmark, Norway and Sweden, with 
effect from the end of 2020. As such, even though the Danish market for the sale of 
adve rtising space on pay TV channels market was affected in 2020, it is  not relevant  
for the Commission to further assess this market due to the purely historical nature of the overlap.
80 Therefore, the Commission excludes that th e Transaction  may give 
rise to serious doubts as to its compatibility with the internal market or the 
functioning of the EEA Agreement in relation to this market and will not assess it further.  
5.1.1.2. Finland  
(85) Based on the market shares submitted by the Notifying Party, the Transaction gives rise to the following horizontally affected market : 
Table 2: Horizontally affected markets in Finland (2020)  
 Value  Volume  
Discovery  Warner 
Media  Combined  Discovery  Warner 
Media  Combined  
Retail supply of non -
linear pay AV services  [0-5]% [20-30]%  [20-30]%  [0-5]% [20-30]%  [20-30]%  
Source : Annex 1 to Chapter 4 of the Form CO  
5.1.1.3. Germany  
(86) Based on the market shares submitted by the Notifying Party, the Transaction gives rise to the following horizontally affected markets : 
                                                 
79 For completeness, the Notifying Party has submitted that the market for the retail supply of non-linear pay TV 
services may be  affected since the combined market shares  of the Parties in 2018 was  [20-30]%  . However, the 
combined market share of the Parties has not exceeded the 20% threshold in 2019 and 2020. Therefore, the 
Commission excludes that the Transaction may give rise to  serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement in relation to this market and will not assess it further.  
80 Form CO, Chapter 6, paragraphs 35 and 41. 
 
20 Table 3: Horizontally affected markets in Germany (2020)  
 Value  
Discovery  WarnerMedia  Combined  
Wholesale supply of pay TV 
channels  [0-5]% [10-20]%  [20-30]%  
Wholesale supply of pay TV 
channels for other content  [0-5]% [10-20]%  [20-30]%  
Source : Annex 10  to Chapter 3 of the Form CO  
5.1.1.4. Italy 
(87) Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following horizontally affected markets : 
Table 4: Horizontally affected markets in Italy (2020)  
 Value  
Discovery  WarnerMedia  Combined  
Wholesale supply of TV channels 
for children  content  [20-30]%  [20-30]%  [50-60]%  
Wholesale supply of FTA TV 
channels for children  content  [20-30]%  [20-30]%  [50-60]%  
Source : Annex 10  to Chapter 3 of the Form CO  
5.1.1.5. Norway 
(88) Based on the market shares submitted by the Notifying Party, the Transaction gives rise to the following horizontally affected markets :
81 
Table 5: Horizontally affected markets in Norway (2020)  
 Value  Volume  
Discovery  Warner 
Media Combined  Discovery  Warner 
Media  Combined  
Wholesale supply of 
pay TV  [20-30]%  [0-5]% [20-30]%  / / / 
Retail supply of non -
linear pay AV 
services82 / / / [0-5]% [10-20]%  [20-30]%  
Source : Annex 10  to Chapter 3 of the Form CO ; Annex 1 to Chapter 4 of the Form CO  
                                                 
81 For completeness, the Notifying Party has subm itted that the market for the wholesale supply of TV channels 
may be affected since the combined market shares of the Parties in 2018 was [20 -30]% . However, the combined 
market share of the Parties has not exceeded the [20-30]%  threshold in 2019 and 2020. Therefore, the 
Commission excludes that the Transaction may give rise to serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement in relation to this market and will not assess it further.  
82 The Parties are on ly active in the market for the retail supply of non -linear pay AV services through their SVOD 
offering. The Parties are not active in the other segments of the non -linear pay AV services, namely TVOD and 
PPV offerings. The market shares included in the table correspond to the Parties’ market shares in a hypothetical market for the retail supply of SVOD services and are used as proxies for the market for the retail supply of non-linear pay AV services. As the Parties do not offer any TVOD or PPV services, t his market may ultimately not be 
affected. For completeness, the Commission will consider this market as affected in this decision. This reasoning has been applied throughout this decision.
 
 
21 (89) As of September 2020, WarnerMedia has decided to discontinue all its activities for 
the sale of advertising space on TV channels in Denmark, Norway and Sweden, with effect from the end of 2020.
83 Irrespective of that , the market share of WarnerMedia 
in any segment of the Norwegian market for the sale of  advertising space on TV was 
[0-5]%.84 As such, even though the market was affected in 2018 (with an increment 
of less than [0 -5]% brought by WarnerMedia) , the Commission excludes that the 
Transaction m ay give rise to serious doubts as to its compatibility with the internal 
market or the functioning of the EEA Agreement in relation to this market and will not assess it further . 
5.1.1.6. Poland 
(90) Based on the market shares submitted by the Notifying Party, the Trans action gives 
rise to the following horizontally affected markets : 
Table 6: Horizontally affected markets in Poland (2020)  
 Value  
Discovery  WarnerMedia  Combined  
Wholesale supply of TV channels  [20-30]%  [0-5]% [20-30]%  
Wholesale s upply of pay TV 
channels  [30-40]% [0-5]% [30-40]% 
Wholesale supply of TV channels 
for other content  [20-30]%  [0-5]% [20-30]%  
Wholesale supply of pay TV 
channels for other content  [20-30]%  [0-5]% [20-30]% 
Sale of advertising space on TV 
channels  [30-40]% [0-5]% [30-40]% 
Sale of advertising space on pay TV 
channels  [20-30]%  [0-5]% [30-40]% 
Source : Annex 10  to Chapter 3 of the Form CO ; Annex 4 to Chapter 6 of the Form CO  
5.1.1.7. Sweden  
(91) Based on the market shares submitted by the Notifying Party, the Transaction g ives 
rise to the following horizontally affected markets : 
Table 7: Horizontally affected markets in Sweden (2020)  
 Value  Volume  
Discovery  Warner 
Media  Combined  Discovery  Warner 
Media  Combined  
Wholesale supply of 
pay TV  [20-30]%  [0-5]% [20-30]%  / / / 
Retail supply of non -
linear pay AV services  / / / [0-5]% [10-20]%  [20-30]%  
Sale of advertising 
space on pay TV 
channels  [20-30]%  [0-5]% [20-30]%  / / / 
Source : Annex 10  to Chapter 3 of the Form CO ; Annex 1 to Chapter 4 of the Form CO ; Annex 4 to Chapter 6 
of the Form CO  
                                                 
83 Form CO, Chapter 6, paragraphs 35 and 41.  
84 Form CO, Chapter 6, Annex 4. 
 
22 (92) As of September 2020, WarnerMedia has decided to discontinue all its activities for 
the sale of advertising space on TV channels in Denmark, Norway and Sweden, with effect from the end of 2020. As such, even though the  Swedish market for the sale of 
advertising space on pay TV channels market was affected in 2020, it is not relevant for the Commission to further assess this market due to the purely historical nature of the overlap.
85 Therefore, the Commission excludes that the Transaction may give 
rise to serious doubts as to its compatibility with the internal market or the functioning of the EEA Agreement in relation to this market and will not assess it further.  
5.1.2. Non- horizontally affected markets  
5.1.2.1. Vertical relationships  
(A) Vertically affected markets arising from the relationships between the 
markets for the production of AV content (upstream), and the markets for 
the wholesale supply of TV channels (downstream)  
(93) The Transaction gives rise to a number of vertically affected m arkets due to the 
relationships between the markets for the production of AV content (upstream), and the markets for the wholesale supply of TV channels (downstream) , in Finland, 
Germany, Italy, Poland, and Spain. These vertically affected markets are pres ented 
below.  
(A.i) Finland 
(94) Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Finland:  
Table 8: Vertically  affected markets in Finland (2020; 2019 where  indicated ) 
Upstream market  Downstream market  
Production of commissioned AV content  (2019)  
Revenue : WarnerMedia: [5-10]% (only) ; Combined: 
[5-10]% Wholesale supply of pay TV  channels  
TV audience : Discovery (only): [ 40-50]%; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]%; Combined: 
[70-80]%  
Source : Annex 3  to Chapter 2 of the Form CO ; and Annex 10 to Chapter 3 of the Form CO  
(A.ii) Germany  
(95) Based on the market shares submitted by the Notifying Par ty, the Transaction gives 
rise to the following vertically  affected markets  in Germany : 
                                                 
85  Form CO, Chapter 6, paragraphs 35 and 41. 
 
23 Table 9: Vertically  affected markets in Germany (2020; 2019 where indicated ) 
Upstream market  Downstream market  
Production of commissioned AV co ntent  (2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined : [0-5]% Wholesale supply of pay TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 90-100]% ; 
Combined: [90-100]%  
Production of non -captive commissioned AV content  
(2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [5-10]% Wholesale supply of pay TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 90-100]% ; 
Combined : [90-100]%  
Source : Annex 3  to Chapter 2 of the Form CO ; and Annex 10 to Chapter 3 of the Form CO  
(A.iii)  Italy 
(96) Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Italy : 
Table 10: Vertically  affected markets in Italy (2020; 2019 whe re indicated ) 
Upstream market  Downstream market  
Production of commissioned AV content  (2019)  
Revenue : Discovery: [0-5]% (only) ; Combined: [0-
5]% Wholesale supply of TV  channels for children 
content  
TV audience : Discovery: [20-30]%; WarnerMedia: [20-
30]%; Combined: [50-60]% 
Wholesale supply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]%; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Source : Annex 3  to Chapter 2 of the Form CO ; and Annex 10 to Chapter 3 of the Form CO  
(A.iv)  Poland 
(97) Based on  the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Poland:  
Table 11: Vertically  affected markets in Poland (2020; 2019 where indicated ) 
Upstream market  Dow nstream market  
Production of commissioned AV content  (2019)  
Revenue : Discovery (only): [ 0-5]%; Combined: [0-
5]% Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]%; WarnerMedia: [0-
5]%; Combined : [30-40]%  
Production of non -captive commis sioned AV content  
(2019)  
Revenue : Discovery (only): [ 0-5]%; Combined: [0-
5]% Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]%; WarnerMedia: [0-
5]%; Combined: [30-40]%  
Source : Annex 3  to Chapter 2 of the Form CO ; Annex 10 to  Chapter 3 of the Form CO ; and Annex 1 to 
Chapter 7 of the Form CO  
(A.v) Spain 
(98) Based on the market shares submitted by the Notifying Party, the Transaction gives rise to the following vertically  affected markets  in Spain:  
 
24 Table 12: Vertically  affected markets in Spain (2020 ; 2019 where indicated ) 
Upstream market  Downstream market  
Production of commissioned AV content  (2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]% 
Combined: [0-5]% Wholesale supply of FTA TV  channels for children 
content  
TV aud ience: WarnerMedia (only): [ 30-40]% ; 
Combin ed: [30-40]% 
Production of non -captive commissioned AV content  
(2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% Wholesale supply of FTA TV  channels for children 
content  
TV audience : Warner Media (only): [ 30-40]% ; 
Combined: [30-40]%  
Source : Annex 3  to Chapter 2 of the Form CO ; and Annex 10 to Chapter 3 of the Form CO  
(B) Vertically affected markets arising from the relationships between the 
markets for the licensing of AV content (upstream), and the markets for the 
wholesale supply of TV channels (downstream)  
(99) The Transaction gives rise to a number of vertically affected markets due to the relationships between the markets for the licensing  of AV content (upstream), and 
the markets for the wholesale supply of TV channels (downstream) , in Bulgaria, 
Finland, Germany, Italy, Poland, Romania, and Spain. These vertically affected markets are presented below.  
(B.i) Bulgaria  
(100)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Bulgaria : 
Table 13: Vertically  affected markets in Bulgaria (2020)  
Upstream market  Downstream market  
Licensing of broadcasting rights for Other AV 
content (i.e. non- Films, non -Spor ts) 
Combined: <20%  
 Wholesale supply of pay TV channels for children 
content * 
TV audience : WarnerMedia (only ): [30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for Sports AV 
content  
Discovery (only): <30%; Combined: <30%  Wholesale supply of  pay TV channels for children 
content*  
TV audience : WarnerMedia (only ): [30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for Children AV 
content  
Combined: <20%  Wholesale supply of  pay TV channels for children 
content*  
TV audience : WarnerMedia ( only): [30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for AV content in 
the first pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV channels for children 
content*  
TV audience : WarnerMedia (only ): [30-40]% ; 
Combined: [30-40]% 
Licensing of broadcasting rights for AV content in 
the second pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV channels for children 
content*  
TV audience : WarnerMedia (only ): [30-40]% ; 
Combined : [30-40]%  
* The market shares for the who lesale supply of pay TV channels for children  content are exactly equal to the 
market shares for the wholesale supply of TV channels for children  content. We keep the narrowest possible 
market.  
Source : Annex 10 to  Chapter 3 of the Form CO; and Notifying Party’s reply to RFI 8  
 
25 (B.ii) Finland 
(101)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Finland:  
Table 14:  Vertically  affected markets in Finland (2020; 20 19 where indicated ) 
Upstream market  Downstream market  
Licensing of broadcasting rights for AV content - 
excluding sports and news content  (2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% Wholesale supply of pay TV  channels  
TV audie nce: Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
Licensing of broadcasting rights for Films AV 
content  
WarnerMedia (only) : <30%; Combine d: <30 % Wholesale supply of pay TV  channels  
TV audience : Discovery (only):  [40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
Licensing of broadcasting rights fo r US Films AV 
content  
WarnerMedia (only): <30 %; Combined: <30%  Wholesale supply of pay TV  channels  
TV audience : Disco very (only): [ 40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
Licensing of broadcasting rights for non -US Films 
AV content  
WarnerMedia (only): <30 %; Combined: <30%  Wholesale supply of pay TV  channels  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
Licensing of broadcasting rights for Other AV 
content (i.e. non Films, non Sports)  
Combined: <20% 
 Wholesale supply of pay TV  channels  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
Licensing of broadcasting rights for Children AV 
content  
Combined: <20%  Wholesale supply of pay TV  channels  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
Licensing of broadcasting rights for AV content in 
the first pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV  channels  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
 
26 Upstream market  Downstream market  
Licensing of broadcasting rights f or AV content in 
the second pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV  channels  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  
Wholesale supply of pay TV  channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  
Source : Annex  3 to Chapter 2 of the Form CO ; Annex 10 to  Chapter 3 of the Form CO ; and Notifying Party’s 
reply to RFI 8  
(B.iii)  Germany  
(102)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following  vertically  affected markets  in Germany : 
Table 15: Vertically  affected markets in Germany (2020; 2019 where indicated ) 
Upstream market  Downstream market  
Licensing of broadcasting rights for AV content - 
excluding sports and news co ntent  (2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [10-20]% ; 
Combined: [10-20]%  Wholesale supply of pay TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 90-100]% ; 
Combined: [90-100]%  
Licensing of broadcasting rights for Other AV 
conte nt (i.e. non- Films, non -Sports)  
Combined: <20%  
 Wholesale supply of pay TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 90-100]% ; 
Combined: [90-100]%  
Licensing of broadcasting rights for Sports AV 
content  
Discovery (only): <30%; Combine d: <30%  Wholesale supply of pay TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 90-100]% ; 
Combined:  [90-100]%  
Licensing of broadcasting rights for Children AV 
content  
Combined: <20%  Wholesale supply of pay TV  channels for children 
conte nt 
TV audience : WarnerMedia (only): [ 90-100]% ; 
Combined:  [90-100]%  
Licensing of broadcasting rights for AV content in 
the first pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV  channels for children 
content  
TV audience : WarnerMedia (only ): [90-100]% ; 
Combined: [90-100]%  
Licensing of broadcasting rights for AV content in 
the second pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 90-100]% ; 
Combined : [90-100]%  
Licensing of broadcasting rights for AV content in 
the FTA exhibition window  
Combined: <20%  Wholesale supply of FTA TV channels for sports 
content  
TV audience : Discovery  (only): [40-50]% ; Combined: 
[40-50]%  
Source : Annex 3 to Chapter 2 of the Form CO ; Annex 10 to  Chapter 3 of the Form CO ; and Notifying Party’s 
reply to RFI 8  
 
27 (B.iv)  Italy 
(103)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Italy : 
Table 16: Vertically  affected markets in Italy (2020; 2019 where indicated ) 
Upstream market  Downstream market  
Licensing of broadcasting rights for AV content - 
excluding sports and news content  (2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [10-20]% ; 
Combined: [10-20]%  Wholesale supply of TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Wholesale supply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Com bined: [50-60]%  
Licensing of broadcasting rights for Films AV 
content  
WarnerMedia (only): <30 %; Combined: <30%  Wholesale supply of TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Wholesale sup ply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Licensing of broadcasting rights for US Films AV 
content  
WarnerMedia (only): <30 %; Combined: <30%  
 Wholesale supply of TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Wholesale supply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Licensing of broadcasting r ights for non -US Films 
AV content  
WarnerMedia (only): <30 %; Combined: <30%  Wholesale supply of TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Wholesale supply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Licensing of broadcasting rights for Other AV 
content (i.e. non- Films, non -Sports)  
Combined: <20%  
 Wholesale supply of TV  channels for children 
content  
TV audience : Discove ry: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Wholesale supply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Licensing of broadcasting rights for Sports AV 
content  
Discovery  (only): <30%; Combined: <30%  Wholesale supply of TV  channels for children 
content  
TV audience : Discover y: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Wholesale supply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; Warn erMedia: [20-
30]%; Combined: [50-60]%  
 
28 Upstream market  Downstream market  
Licensing of broadcasting rights for Children AV 
content  
Combined: <20%  Wholesale supply of TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Wholesale supp ly of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Licensing of broadcasting rights for AV content in 
the FTA exhibition window  
Combined: <20%  
  Wholesale supply of TV  channels for child ren 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined:  [50-60]%  
Wholesale supply of FTA TV  channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]%; Combined: [50-60]%  
Source : Annex 3 to Chapter 2 of the Form CO ; Annex 10 to  Chapter 3 of the Form CO; and Notifying Party’s 
reply to RFI 8  
(B.v) Poland 
(104)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Poland:  
Table 17: Vertically  affected markets in Poland (2020; 2019 where indicated ) 
Upstream market  Downstream market  
Licensing of broadcasting rights for AV content - 
excluding sports and news content  (2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  
Licensing of broadcasting rights for Films AV 
content  
WarnerMedia (only): <30 %; Combined: <30%  Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  
Licensing of broadcasting rights for US Films AV 
content  
WarnerMedia (only): <30 %; Combined: <30%  
 Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%Combined: [30-40]%  
Licensing of broadcasting rights for non -US Films 
AV content  
WarnerMedia (only): <30 %; Combined: <30%  Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]% 
Licens ing of broadcasting rights for Other AV 
content (i.e. non- Films, non -Sports)  
Combined: <20%  
 Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  
Licensing of broadcasting rights for Sports AV 
content 
Discovery (only): <30 %; Combined: <30%  Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  
Licensing of broadcasting rights for Children AV 
content  
Combined: <20%  Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  
Licensing of broadcasting rights for AV content in 
the first pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  
 
29 Upstream market  Downstream market  
Licensing of broadcasting rights for AV content in 
the second pay exhibition window  
Combined: <20%  Wholesale supply of pay TV  channels  
TV audience : Discovery: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  
Sourc e: Annex 3  to Chapter 2 of the Form CO ; Annex 10 to  Chapter 3 of the Form CO ; and Notifying Party’s 
reply to RFI 8  
(B.vi)  Romania 
(105)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Romania : 
Table 18: Vertically  affected markets in Romania (2020; 2019 where indicated ) 
Upstream market  Downstream market  
Licensing of broadcasting rights for AV content - 
excluding sports and news content  (2019)  
Revenue : Discove ry: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% Wholesale supply of pay TV  channels for children 
content*  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for Other AV 
content (i.e. non- Films, non -Sports)  
Combined: <20%  
 Wholesale supply of pay TV  channels for children 
content*  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for Sports AV 
content  
Discovery (only): <30%; Combined: <30%  Wholesale supply of pay TV  channels for children 
content*  
TV audience : Warn erMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for Children AV 
content  
Combined: <20%  Wholesale supply of pay TV  channels for children 
content*  
TV audience : WarnerMedia (only):  [30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for AV content in 
the first pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV  channels for children 
content*  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for AV content in 
the second pay exhibition window  
Combined: <20%  
  Wholesale supply of pay TV  channels for children 
content*  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
* The market shares for the wholesale supply of pay TV channels for children  content are exactly equal to the 
market shares for the wholesale supply of TV channels for children  content. We keep the narrowest possible 
market.  
Source : Annex 3  to Chapter 2 of the Form CO ; Annex 10 to  Chapter 3 of the Form CO ; and Notifying Party’s 
reply to RFI 8  
(B.vii)  Spain 
(106)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Spain:  
Table 19: Vertically  affected markets in Spain (2020 ; 2019 where indicated ) 
Upstream market  Downstream market  
Licensing of broadcasting rights for AV content - 
excluding sports and news content  (2019)  
Revenue : Discovery: [0-5]%; WarnerMedia: [5-10]% ; 
Combined: [5-10]%  Wholesale supply of FTA TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
 
30 Upstream market  Downstream market  
Licensing of broadcasting rights for Other AV 
content (i.e. non- Films, non -Sports)  
Combined: <20%  
 Wholesale supply of FTA TV  channels for children 
conte nt 
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for Sports AV 
content  
Discovery (only): <30%; Combined: <30%  Wholesale supply of FTA TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for Children AV 
content  
Combined: <20%  Wholesale supply of FTA TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Licensing of broadcasting rights for AV content in 
the FTA exhibition window  
Combined: <20%  Wholesale supply of FTA TV  channels for children 
content  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  
Source : Annex 3  to Chapter 2 of the Form CO ; Annex 10 to  Chapter 3 of the Form CO ; and Notifying Party’s 
reply to RFI 8  
(C) Vertically affected markets arising from the relationships between the 
markets for the wholesale supply of TV channels (upstream), and the markets for the retail supply of AV services (downstream)  
(107)  The Transaction gives rise to a number of vertically affected markets due to the relationships between the markets for the wholesale supply of TV channels  
(upstream), and the markets for the retail supply of AV services  (downstream) , in 
Bulgaria, Finland, Italy, Norway, Poland, Romania, Spain, and Sweden. These 
vertically affected markets are presented below.  
(C.i) Bulgaria 
(108)  Based on the market shares submitted by the Notifying Party, the Transaction gives rise to the following vertically  affected markets  in Bulgaria : 
Table 20:  Vertically  affected markets in Bulgaria (2020)  
Upstream market  Downstream market  
Wholesale supply of pay TV channels for children 
content*  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [0-
5]%; Combined: [5-10]%  
* The market shares for the wholesale supply of pay TV channels for  children content are exactly equal to the 
market shares for the wholesale supply of TV channels for children content. We keep the narrowest possible 
market.  
Source : Annex 10 to  Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
 
31 (C.ii)   Finland 
(109)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets in Finland : 
Table 21:  Vertically  affected markets in Finland (2020)  
Upstream market  Downstream market  
Wholesale supply of pay TV channels  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [5-10]% ; 
Combined : [5-10]%  
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription : Discovery: [0-5]%; WarnerMedia: [20-
30]%; Combined: [20-30]%  
Wholesale supply of pay TV channels for sports 
content*  
TV audience : Discover y (only): [ 40-50]% ; Combined: 
[40-50]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; Warner Media: [5-10]% ; 
Combined: [5-10]%  
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [20-
30]%; Combined: [20-30]%  
Wholesale supply of pay TV channels for other 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined 
[70-80]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [5-10]% ; 
Combined: [5-10]%  
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [20-
30]%; Combined: [20-30]%  
* The market shares for the wholesale supply of pay TV channels for sports  content are exactly equal to the 
market shares for the wholesale supply of TV channels for sports  content. We keep the narrowest possible 
market.  
Source : Annex 10 to  Chapter 3 of the For m CO; and Annex 1 to Chapter 4 of the Form CO  
(C.iii)  Italy 
(110)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Italy : 
Table 22: Vertically  affected markets  in Italy (2020)  
Upstream market  Downstream market  
Wholesale supply of TV channels for children 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia: [20-
30]% ; Combined: [50-60]%  Retail supply of pay AV  services  
Revenue : Discovery (only): [0 -5]%; Combine d: [0-
5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription:  Discovery (only): [0 -5]%; Combined: 
[0-5]% 
Retail supply of non -linear FTA AV services (AVOD)  
Revenue : Discovery (only): [0 -5]%; Com bined: [0-
5]% 
Wholesale supply of FTA TV cha nnels for chil dren 
content  
TV audience : Discovery: [20-30]% ; WarnerMedia:  [20-
30]% ; Combined: [50-60]%  Retail supply of pay AV  services  
Revenue : Discovery (only): [0 -5]%; Combined: [0-
5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription:  Discovery (only): [0 -5]%; Combined: 
[0-5]% 
Retail supply of non -linear FTA AV services (AVOD)  
Revenue : Discovery (only): [0 -5]%; Combined: [0-
5]% 
Source : Annex 10 to  Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
 
32 (C.iv)  Norway  
(111)  Based on the m arket shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Norway : 
Table 23: Vertically  affected markets in Norway (2020)  
Upstream market  Downstream market  
Wholesale su pply of pay TV channels for sports 
content*  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [5-10]%  
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [10-
20]%; Combined:  [20-30]%  
* The market shares for the wholesale supply of pay TV channels for sports  content are exactly equal to the 
market shares for the wholesale supply of TV channels for sports  conten t. We keep the narrowest possible 
market.  
Source : Annex 10 to  Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
(C.v) Poland 
(112)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  in Poland:  
Table 24: Vertically  affected markets in Poland (2020)  
Upstream market  Downstream market  
Wholesale supply of TV channels for news content  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  Retail su pply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [0-
5]%; Combined: [5-10]% 
Wholesale supply of pay TV channels  
TV audience : Discover y: [30-40]% ; WarnerMedia: [0-
5]%; Combined: [30-40]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [0-
5]%; Combined: [5-10]% 
Wholesale supply of pay TV channels for sports 
content  
TV audience : Discovery (only): [ 30-40]% ; Combined: 
[30-40]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [0-
5]%; Combined: [5-10]% 
Wholesale supply of pay TV channels for news 
content  
TV audience : Discovery (only): [ 70-80]% ; Combined: 
[70-80]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [0-
5]%; Combined: [5-10]% 
Source : Annex 10 to  Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
 
33 (C.vi)  Romania 
(113)  Based on the market shares submitted by the Notifying Party, the Transaction gives 
rise to the following vertically  affected markets  Romania : 
Table 25: Vertically  affected markets in Roman ia (2020)  
Upstream market  Downstream market  
Wholesale supply of pay TV channels for children 
content*  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined:  [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [0-
5]%; Combined: [5-10]%  
* The market shares for the wholesale supply of pay TV channels for children  content are exactly equal to the 
market shares for the wholesale supply of TV channels for children  content. We keep the narrowest possible 
market.  
Source : Annex 10 to  Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
(C.vii)  Spain 
(114)  Based on the market shares submitted by the Notifying Party,  the Transaction gives 
rise to the following vertically  affected markets  in Spain:  
Table 26: Vertically  affected markets in Spain (2020 ) 
Upstream market  Downstream market  
Wholesale supply of FTA TV channels for children 
content  
TV audience : WarnerMedia (only): [ 30-40]% ; 
Combined: [30-40]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Revenue : Discovery: [0-5]%; WarnerMedia: [5-10]%; 
Combined: [5-10]%  
Retail supply of non -linear FTA AV services (AVOD)  
Revenue : Discovery (only): [0 -5]%; Combined: [0-
5]% 
Wholesale supply of pay TV channels for sports 
content  
TV audience : Discovery (only): [ 40-50]% ; Combined: 
[40-50]%  Retail suppl y of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [0-5]%; 
Combined: [0-5]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Revenue : Discovery: [0-5]%; WarnerMedia: [5-10]% ; 
Combined : [5-10]%  
Source : Annex 10 to  Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
(C.viii)  Sweden  
(115)  Based on the market shares submitted by the Notifying Party, the Transaction gives rise to the following vertically  affected markets  in Sweden : 
 
34 Table 27: Vertically affected markets in S weden (2020)  
Upstream market  Downstream market  
Wholesale supply of TV channels for news content  
TV audience : WarnerMedia (only): [ 40-50]% ; 
Combined: [40-50]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [5-10]% ; 
Combined : [5-10]% 
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription: Discovery: [0-5]%; WarnerMedia: [10-
20]%; Combined: [20-30]%  
Retail supply of non -linear FTA AV services (AVOD)  
Revenue : Discovery (only): [0 -5]%; Combined: [0-
5]% 
Wholesale supply o f pay TV channels for news 
content  
TV audience : WarnerMedia (only): [90-100]% ; 
Combined: [90-100]%  Retail supply of pay AV  services  
Revenue : Discovery: [0-5]%; WarnerMedia: [5-10]% ; 
Combined: [5-10]%  
Retail supply of non-linear pay AV  services  (SVOD)  
Subscription : Discovery: [0-5]%; WarnerMedia: [10-
20]%; Combined: [20-30]%  
Source : Annex 10 to  Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
5.1.2.2. Affected markets arising from c onglomerate relationships between the possible 
markets for the whole sale supply of TV channles for news, sports, children and 
other content  
(116)  Based on the market shares provided by the Notifying Party, t he Transaction gives 
rise to various conglomerate relationships between the Parties on a number of 
affected possible  mark ets at the level of the wholesale supply of TV channels for 
news, sports, children and other content in several Member States.  
(A) Belgium  
(117)  In Belgium, the conglomerate relationships are the ones included in the following table that indicates that the Parties h ave shares over 30% in the following possible 
markets : Discovery with [50-60]%  in the possible  market for the wholesale supply of 
pay TV channels for sports content . 
Table 28: Conglomerate  affected markets in Belgium  (2020)  
Affected  possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for sports content  [50-60]%  / [50-60]%  
Wholesale supply of pay TV 
channels for news content  / [10-20]%  [10-20]%  
Source : Annex 10 to Chapter 3 of the  Form CO; and Annex 1 to Chapter 4 of the Form CO   
(B) Bulgaria  
(118)  In Bulgaria, the conglomerate relationships are the ones included in the following table that  indicates that the Parties have shares over 30% in the following possible  
market: WarnerMedia with [ 30-40]%  in the possible market for the wholesale supply 
of pay TV channels for children content.  
 
35 Table 29: Conglomerate affected markets in Bulgaria (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for children content  / [30-40]% [30-40]% 
Wholesale supply of pay TV 
channels for other content  [10-20]% / [10-20]% 
Wholesale supply of pay TV 
channels for sports content  [20-30]% / [20-30]% 
Source : Annex 10 to Chapter  3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO   
(C) France  
(119)  In France, the conglomerate relationships are the ones included in the following table 
that indicates that the Parties have shares over 30% in the following possible market: 
Discovery with [30-40]%  in the possible market for the wholesale supply of pay TV 
channels for sports content. 
Table 30: Conglomerate affected markets in France  (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for sports content  [30-40]% / [30-40]% 
Wholesale supply of pay TV 
channels for children content  / [20-30]% [20-30]% 
Wholesale supply of pay TV 
channels for other content  [5-10]% [0-5]% [10-20]% 
Source : Annex 10 to Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
(D) Germany  
(120)  In Germany, the conglomerate relationships are the ones included in the following table that indicates that the Parties have shares over 30% in the following possible 
markets: (i) Warner Media with [90- 100]% of the possible market for the wholesale 
supply of pay TV channels for children content, and (ii) Discovery with [ 40-50]%  in 
the possible market for the wholesale supply of FTA TV channels for sports content . 
Table 31: Conglomerate affected markets in Germany  (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for children content  / [90-100]%  [90-100]%  
Wholesale supply of FTA TV 
channels for s ports content  [40-50]% / [40-50]% 
Wholesale supply of pay TV 
channels for other content  [0-5]% [20-30]%  [20-30]% 
Wholesale supply of pay TV 
channels for other content  [0-5]% / [0-5]% 
Source : Annex 10 to Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO   
 
36 (E) Italy 
(121)  In Italy, the conglomerate relationships are the ones included in the following table 
that indicates that the Parties have shares over 30% in the following possible market : 
the merged entity with [50- 60]%  in the possible market for t he wholesale supply of 
linear FTA TV channels for children content.  
Table 32: Conglomerate affected markets in Italy (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of linear FTA  TV 
channels for children content  [20-30]% [20-30]% [50-60]%  
Wholesale supply of pay TV 
channels for children content  / [20-30]% [20-30]% 
Wholesale supply of FTA TV 
channels for other content  [5-10]% / [5-10]% 
Wholesale supply of pay TV 
channels for spo rts content  [5-10]% / [5-10]% 
Wholesale supply of pay TV 
channels for other content  [0-5]% / [0-5]% 
Source : Annex 10 to Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO   
(F) Norway  
(122)  In Nor way, the conglomerate relationships are the ones included in the following 
table that indicates that the Parties have shares over 30% in the following possible 
market: Discovery with [40- 50]%  in the possible market for the wholesale supply of 
pay TV channels for sports content. 
Table 33: Conglomerate affected markets in Norway (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for sports content  [40-50]% / [40-50]% 
Wholesale supply of pay TV 
channels for children con tent / [10-20]% [10-20]% 
Source : Annex 10 to Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO   
(G) Poland 
(123)  In Poland, the conglomerate relationships are the ones included in the following table that indicates that the Parties have shares over 30% in the following possible 
markets : (i) Discovery with [70 -80]%  in the possible market for the wholesale 
supply of pay TV channels for news content, and (ii) Discovery with [ 30-40]%  in the 
possible market for the wholesale supply of pay TV channels for sports content. 
Table 34: Conglomerate affected markets in Poland  (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for news content  / [70-80]% [70-80]% 
 
37 Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesa le supply of pay TV 
channels for sports content  [30-40]% / [30-40]% 
Wholesale supply of FTA TV 
channels for other content  [20-30]% / [20-30]% 
Wholesale supply of pay TV 
channels for other content  [20-30]% [0-5]% [20-30]% 
Wholesale supply of pay TV 
chann els for children content  / [10-20]% [10-20]% 
Source : Annex 10 to Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
(H) Romania  
(124)  In Romania, the conglomerate relationships are the ones included in the following 
table that indicates that the Parties have shares over 30% in the following possible 
market: WarnerMedia with [30- 40]%  in the possible market for the wholesale supply 
of pay TV channels for children content.  
Table 35: Conglomerate affected markets in Romania (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for children content  / [30-40]% [30-40]% 
Wholesale supply of pay TV 
channels for sports content  [10-20]% / [10-20]% 
Wholesale supply of pay TV 
channels for other content  [0-5]% [0-5]% [0-5]% 
Source : Annex 10 to Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
(I) Spain  
(125)  In Spain, the conglomerate relationships are the ones included in the following table that indicates that the Pa rties have shares over 30% in the following possible 
markets: (i) Discovery with [40-50]%  in the possible market for the wholesale 
supply of pay TV channels for sports  content , and (ii) WarnerMedia with [30- 40]%  
in the possible market for the wholesale sup ply of FTA TV channels for children 
content. 
(126)   
Table 36: Conglomerate affected markets in Spain (2020)  
Affected possible markets  Audiences Shares  
Discovery  Warner Media  Combined  
Wholesale supply of pay TV 
channels for sports conte nt [40-50]% / [40-50]% 
Wholesale supply of FTA TV 
channels for children content  / [30-40]% [30-40]% 
Wholesale supply of pay TV 
channels for other content  [0-5]% [10-20]% [10-20]% 
Source : Annex 10 to Chapter 3 of the Form CO; and Annex 1 to Chapter 4 of the Form CO  
 
38 5.1.3. Conclusion 
(127)  Each of these potential effects is discussed in turn in the following sections. After 
setting out the analytical framework (section [ 5.2]) and the market shares in the 
relevant markets and po ssible sub -segments (section [ 5.3]), the C ommission will 
first assess the potential horizontal non- coordinated effects stemming from the 
Transaction (section [ 5.4]). Then the Commission will assess the potential vertical  
effects of the Transaction (section [ 5.5]). Finally, the Commission will asse ss the 
potential conglomerate  effects stemming from the Transaction (section [ 5.6]). 
5.2. Analytical Framework  
(128)  Under Article 2(2) and (3) of the Merger Regulation, the Commission must assess 
whether a proposed concentration would significantly impede effective competition in the internal market or in a substantial part of it, in particular through the creation or strengthening of a dominant position.  
(129)  In this respect, a merger may entail horizontal and/or non- horizontal (namely, 
vertical or conglomerate) effects.  Horizontal effects are those deriving from a 
concentration where the undertakings concerned are actual or potential competitors of each other in one or more of the relevant markets concerned. Vertical effects are those deriving from a concentration where the undertakings concerned are active on different or multiple levels of the supply chain. Conglomerate effects are those deriving from a concentration where the undertakings concerned are in a relationship which is neither horizontal nor vertical. A conce ntration may involve all three types 
of effects. In such a case, the Commission will appraise horizontal and non-horizontal effects in accordance with the guidance set out in the relevant notices, that is to say the  Horizontal Merger Guidelines
86 and the Non- Horizontal Merger 
Guidelines.87 
(130)  In assessing the competitive effects of a merger, the Commission compares the competitive conditions that would result from the notified merger with the conditions that would have prevailed without the merger. In most cases  the 
competitive conditions existing at the time of the merger constitute the relevant comparison for evaluating the effects of a merger. However, in some circumstances,  
the Commission may take into account future changes to the market that can reasonably be predicted.
88 
5.3. Market shares89 
(131)  According to the Horizontal Merger Guidelines and the Non- Horizontal Merger 
Guidelines,90 in the assessment of the effects of a merger, market shares constitute a 
                                                 
86   Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Horizontal Merger Guidelines"), OJ C31, 5.2.2004, p. 5.  
87   Guidelines on the assessment of non- horizontal mergers under the Council Regulation on the control of 
concentrations between undertakings ("Non-Horizontal Merger Guidelines"), OJ C 265, 190.2008.  
88   Horizontal Merger Guidelines, paragraph 9; Non-Horizontal Merger Guidelines, paragraph 20.  
89   In this section, the calculation of market shares in the market for the wholesale supply of TV channels in all countries is made on the basis of an average of quarterly market shares provided by the Notifying Party. Therefore, due to the rounding, the sum of market shares presented in the “Combined” or “Total market” row 
may insignificantly differ from an arithmetic sum.
 
90   Horizontal Merger Guidelines, paragraph 14; Non-Horizontal Merger Guidelines, paragraph 24. 
 
39 useful first indication of the structure of the markets at stake  and of the competitive 
importance of the relevant market players.  
(132)  In the following recitals, the Commission present s the market shares of the Parties to 
the Transaction and their competitors, in all horizontally affected markets  where the 
Parties have com bined market shares above 20% , and all non- horizontally affected 
markets where the Parties have an individual or combined market share above 30%.  
5.3.1. Belgium  
5.3.1.1. Wholesale supply of pay TV channels for sports content  
(133)  The following table presents the market shares  (by volume) on the market for the 
wholesale supply of pay TV channels for sports content in Belgium. 
Table 37: Market shares on the market for the wholesale supply of pay TV channels 
for sports content in Belgium (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [40-50]% [40-50]% [50-60]% 
Combined  [40-50]% [40-50]% [50-60]% 
Telenet  [40-50]% [50-60]% [30-40]% 
Other  [0-5]% [0-5]% [10-20]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(134)  The Belgian market for the wholesale supply of pay TV channels for sports content 
is split between Discovery and Telenet with one or the other leading depending on the events being shown.  Eleven is the main other competitor. Since WarnerMedia is not active in the market, the Transaction will not affect the current market structure.   
5.3.2. Bulgaria 
(135)  Wholesale supply of pay TV channels for children content  
(136)  The following table presents the market shares (by volume) on the market for the wholesale sup ply of pay TV channels for children content in Bulgaria.  
Table 38: Market shares on the market for the wholesale supply of pay TV channels 
for children content in Bulgaria (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
WarnerMedia  [30-40]% [30-40]% [30-40]% 
Combined  [30-40]% [30-40]% [30-40]% 
ViacomCBS  [30-40]% [40-50]% [50-60]% 
Disney  [20-30]% [10-20]% [10-20]% 
Other  [0-5]% [0-5]% / 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the For m CO  
(137)  ViacomCBS is the largest player on t he Bulgarian market for the wholesale supply 
of pay TV channels for children content with market shares above 50% in 2020. WarnerMedia is the second largest competitor with around [30- 40]% market share in 
the same y ear. Disney is the third largest competitor, however its market share has 
been decreasing and went from [20- 30]% in 2018 to [10-20]% in 2020. Following 
 
40 this decrease, ViacomCBS’s market share increased by almost [ 10-20] percentage 
points between 2018 and 2020, while WarnerMedia’s market shares increased by 
only [0-5] percentage points between 2018 and 2020. Since Discovery is not active 
in the market, the Transaction will not affect the current market structure.  
5.3.3. Finland 
5.3.3.1. Retail supply of non- linear pay AV se rvices  
(138)  The following table presents the market shares (both by value and volume) on the 
market for the retail supply of non- linear pay AV services in Finland. 
Table 39: Market shares on the market for the retail supply of non -linear  pay AV  
services in Finland (2018- 2020)  
 2018  2019  2020  
Market shares in value (EUR)  
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [20-30]% [20-30]% [20-30]% 
Combined  [20-30]% [20-30]% [20-30]% 
Netflix  [40-50]% [30-40]% [30-40]% 
Viaplay  [10-20]% [20-30]% [20-30]% 
Ruutu+  [5-10]% [5-10]% [5-10]% 
C More  [0-5]% [0-5]% [5-10]% 
Amazon Prime Video  [0-5]% [0-5]% [0-5]% 
Disney+   / / [0-5]% 
Others  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Market shares in volume (number of subscribers)  
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [20-30]% [20-30]% [20-30]% 
Combined  [20-30]% [20-30]% [20-30]% 
Netflix  [40-50]% [40-50]% [30-40]% 
Viaplay  [5-10]% [10-20]% [10-20]% 
Ruutu+  [10-20]% [10-20]% [5-10]% 
Disney+  /   / [5-10]% 
Apple TV+  / [0-5]% [0-5]% 
Amazo n Prime Video  [0-5]% [0-5]% [0-5]% 
C More  [0-5]% [0-5]% [0-5]% 
Canal Digital  [0-5]% [0-5]% [0-5]% 
DAZN  /   / [0-5]% 
Others  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 1 to Chapter 4 of the Form CO  
(139)  Prior to the Transaction, WarnerMe dia represents the second largest market player, 
with a market share of approximately [20-30]% by value and [20- 30]% by volume. 
Discovery is a very small market participant, with market shares below [0 -5]% both 
by value and by volume. The largest retail su pply of non- linear pay TV services is 
Netflix, with market shares consistently above [ 30-40]%, both by value and volume. 
Other relevant market participants with market shares exceeding 5% include Viaplay 
and Ruutu+. 
5.3.3.2. Wholesale supply of pay TV channels  
(140)  The following table presents the market shares (by volume) on the market for the 
wholesale supply of pay TV channels in Finland.  
 
41 Table 40: Market shares on the market for the wholesale supply of pay TV channels in 
Finland (2018- 2020)  
 2018 2019  2020  
Market shares in volume (share of audience)  
Discovery  [90-100]% [90-100]% [40-50]% 
Combined  [90-100]% [90-100]% [40-50]% 
Bonnier  / [0-5]% [0-5]% 
BBC  / [0-5]% [0-5]% 
Disney  / [0-5]% [5-10]% 
Government (DE)  / [0-5]% [0-5]% 
Other  / [0-5]% [40-50]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(141)  Discovery is the largest player on t he Finnish market for the wholesale supply of pay 
TV channels , with pay TV channels such as Eurosport and Discovery Channel. The 
ident ified alternative suppliers in the market ( listed  as ‘Other’) do not have market 
shares exceeding 5%. Since WarnerMedia is not active in the market, the 
Transaction will not affect the current market structure.  
5.3.3.3. Wholesale supply of pay TV channels for sport s content  
(142)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for sports content in Finland. 
Table 41: Market shares on the market for the wholesale supply of pay TV channels 
for sports content in Finland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [90-100]% [90-100]% [40-50]% 
Combined  [90-100]% [90-100]% [40-50]% 
Bonnier  / [0-5]% [0-5]% 
Other  / [0-5]% [50-60]% 
Total market  100% 100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(143)  In the Finnish market for the wholesale supply of pay TV channels for sports 
content , the number one player  is Discovery , which is active through its  pay TV 
channel Eurosport. The identified alternative supplier in the market ( listed  as 
‘Other’) is Bonnier, which has a market share below [0 -5]% in 2020. Since 
WarnerMedia is not active in the market, the Transaction will not affect the current market structure.  
5.3.3.4. Wholesale supply of pay TV channels for  other content  
(144)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for other content in Finland. 
 
42 Table 42: Market shares on the market for the wholesale supply of pay TV channels 
for other content in Finland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [90-100]% [90-100]% [70-80]% 
Combined  [90-100]% [90-100]% [70-80]% 
BBC  / [0-5]% [20-30]% 
Other  / [0-5]% / 
Total market  100%  100% 100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(145)  The number one player on the  Finnish market for the wholesale supply of pay TV 
channels for other content is Discovery , which is active through its  pay TV channel 
Discovery Channel. The identified alternative supplier in the market (not identified 
as ‘Other’) is BBC, which has a market share around [20- 30]% in 2020. BBC 
reached [0-5]% market share when entering the market in 2019, and gained almost 
[20-30] percentage points between 2019 and 2020, at the e xpense of Discovery. 
Since WarnerMedia is not active in the market, the Transaction will not affect the current market structure.  
5.3.4. France  
5.3.4.1. Wholesale supply of pay TV channels for sports content  
(146)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for sports content in France.  
Table 43: Market shares on the market for the wholesale supply of pay TV channels 
for sports content in France (2018- 2020)  
 2018  2019  2020  
Market sh ares in volume (share of audience)  
Discovery  [20-30]% [20-30]% [30-40]% 
Combined  [20-30]% [20-30]% [30-40]% 
beIN  [40-50]% [20-30]% [20-30]% 
Canal+  [20-30]% [20-30]% [20-30]% 
NextRadio  [5-10]% [10-20]% [10-20]% 
Other  [5-10]% [0-5]% [0-5]% 
Total marke t 100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(147)  The French market for the wholesale supply of pay TV channels for sports content is split between four players with market shares that can fluctuate signigicantly over time depending on the content rights each one of them are holding from one season to the next. In that context, NextRadio is the up and coming player while beIN has been losing half of its market shares over the last three years.  Since WarnerMedia is not active in the market, the  Transaction will not affect the current market structure.  
5.3.5. Germany  
5.3.5.1. Wholeasle supply of pay TV channels  
(148)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels in Germany. 
 
43 Table 44: Market shares on the market for the wholesale supply of pay TV channels in 
Germany (2018- 2020)  
 2018  2019  2020  
Market shares in volume ( share  of audience ) 
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [10-20]% [10-20]% [10-20]% 
Combined  [10-20]% [10-20]% [20-30]% 
Sky Group  [20-30]% [30-40]% [20-30]% 
NBCU  [10-20]% [10-20]% [10-20]% 
Disney  [10-20]% [10-20]% [10-20]% 
RTL Group  [5-10]% [5-10]% [5-10]% 
Hearst  [0-5]% [0-5]% [0-5]% 
Sony  [0-5]% / / 
Other  [5-10]% [5-10]% [5-10]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(149)  On t he German market for the wholesale supply of pay TV channels the largest 
player is Sky Group, with around [30- 40]% market shares. Depending on the year, 
the second largest market participant used to be NBCU but since 2020, it became 
WarnerMedia. Discovery has a very limited market shares and ranks sixth in the market for the wholesale supply of pay TV channels in Germany. As a result of the Transaction , the merged entity would be the second market player after Sky Group.  
5.3.5.2. Wholesale supply of pay TV channels for sports content  
(150)  The following table presents the market shares (by volume) on the market for the wholesale supply of FTA TV channels for sports content in Germany.  
Table 45: Market shares on the market for the wholesale supply of FTA TV channels 
for sports content in Germany (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [40-50]% [40-50]% [40-50]% 
Combined  [40-50]% [40-50]% [40-50]% 
Constantin Medien  [50-60]% [50-60]% [50-60]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(151)  The German market for the wholesale supply of FTA TV channels for sports content is split between Constantin Medien, the market leader, and Discovery.  Since 
WarnerMedia is not active in the market, the Transaction will not affect the current market structure.   
5.3.5.3. Wholesale supply of pay TV channels for children content  
(152)  The following table presents the market shares (by volume) on the marke t for the 
wholesale supply of pay TV channels for children content in Germany.  
 
44 Table 46: Market shares on the market for the wholesale supply of pay TV channels 
for children content in Germany (2018- 2020)  
 2018  2019  2020  
Market sha res in volume (share of audience)  
WarnerMedia  [90-100]% [90-100]% [90-100]% 
Combined  [90-100]% [90-100]% [90-100]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(153)  WarnerMedia is the largest player o n the German market for the w holesale supply of 
pay TV channels for children content , and is active on the market with the pay TV 
channels Boomerang and Cartoon Network, which hold [90- 100]% of the market 
with no alternative supplier. Since Discovery is not active in the market, the 
Transaction will not affect the current market structure . 
5.3.5.4. Wholeasle supply of pay TV channels for other content  
(154)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for other content  in Germany . 
Table 47: Market shares on the market for the wholesale supply of pay TV channels 
for other content in Germany (2018 -2020)  
 2018  2019  2020  
Market shares in volume ( share  of audience ) 
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [10-20]% [10-20]% [10-20]% 
Combined  [10-20]% [10-20]% [20-30]% 
NBCU  [30-40]% [30-40]% [30-40]% 
Disney  [20-30]% [20-30]% [20-30]% 
RTL Group  [10-20]% [5-10]% [5-10]% 
Hearst  [5-10]% [5-10]% [5-10]% 
Sony  [0-5]% / / 
Other  [5-10]% [5-10]% [0-5]% 
Total mar ket 100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(155)  The largest player on the German market for the wholesale supply of pay TV 
channels for other content is NBCU , with more than  30% market shares. T he second 
largest market participant is Disne y. Discovery has a very limited market shares and 
ranks sixth in the market for the wholesale supply of pay TV channels for other content  in Germany. As a result of the Transaction , the merged entity would be the 
third  market player after NBCU and Disney .  
5.3.6. Italy 
5.3.6.1. Wholesale supply of TV channels for children content  
(156)  The following table presents the market shares (by volume) on the market for the wholesale supply of TV channels for children content in Italy.  
 
45 Table 48: Market shares on t he market for the wholesale supply of TV channels for 
children content in Italy (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [20-30]% [20-30]% [20-30]% 
WarnerMedia  [20-30]% [20-30]% [20-30]% 
Combined  [40-50]% [50-60]% [50-60]% 
RAI [20-30]% [20-30]% [20-30]% 
ViacomCBS  [10-20]% [10-20]% [10-20]% 
De Agostini  [0-5]% [0-5]% [0-5]% 
Disney  [0-5]% [0-5]% / 
Sony  [0-5]% [0-5]% / 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(157)  In 2020, WarnerMedi a was the market leader in the Italian market for the wholesale 
supply of TV channels for children content, closely followed by RAI and Discovery. 
The rest of the market is divided between ViacomCBS and De Agostini. The merged entity would become the marke t leader with a market share exceeding 50%.  
5.3.6.2. Wholesale supply of FTA TV channels for children content  
(158)  The following table presents the market shares (by volume) on the market for the wholesale supply of FTA TV channels for children content in Italy.  
Table 49: Market shares on the market for the wholesale supply of FTA  TV channels 
for children content in Italy (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [20-30]% [20-30]% [20-30]% 
WarnerMedia  [20-30]% [20-30]% [20-30]% 
Combined  [50-60]% [50-60]% [50-60]% 
RAI [30-40]% [30-40]% [20-30]% 
ViacomCBS  [10-20]% [10-20]% [10-20]% 
Sony  [0-5]% [0-5]% / 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(159)  In 2020, RAI was the market  leader in the Italian market for the wholesale supply of 
FTA TV channels for children content, closely followed by WarnerMedia and Discovery. Since Sony is no longer active on the market for the wholesale supply of FTA TV channels for children content in Italy, the only remaining market participant 
is ViacomCBS with [10- 20]% market shares. The merged entity would become the 
market leader with a market share exceeding 50%.  
5.3.7. Norway  
5.3.7.1. Wholesale supply of pay TV channels  
(160)  The following table presents the market s hares (by volume) on the market for the 
wholesale supply of pay TV channels in Norway.  
 
46 Table 50: Market shares on the market for the wholesale supply of pay TV channels in 
Norway (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience ) 
Discovery  [20-30]% [20-30]% [20-30]% 
WarnerMedia  [0-5]% [0-5]% [0-5]% 
Combined  [20-30]% [20-30]% [20-30]% 
Egmont  [50-60]% [50-60]% [40-50]% 
NENT  [10-20]% [10-20]% [10-20]% 
Disney  [0-5]% [0-5]% [0-5]% 
BBC  [0-5]% [0-5]% [0-5]% 
ViacomCBS  [0-5]% [0-5]% [0-5]% 
Hearst  [0-5]% [0-5]% [0-5]% 
Bonnier  [0-5]% [0-5]% [0-5]% 
Other  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(161)  The market leader in the Norwegian  market for the wholesale supply  of pay TV 
channels is Egmont with approximately [50- 60]% market shares . Discovery is the 
second market player, significantly behind Egmont. WarnerMedia has a very limited 
market presence as the sixth player on the market . The merged entity would be the 
second market participant, significantly behind Egmont. 
5.3.7.2. Wholesale supply of pay TV channels for sports content  
(162)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for sports content in Norway.  
Table 51: Market shares on the market for the wholesale supply of pay TV channels 
for sports content in Norway (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [40-50]% [40-50]% [40-50]% 
Combined  [40-50]% [40-50]% [40-50]% 
Egmont  [30-40]% [30-40]% [30-40]% 
NENT  [10-20]% [10-20]% [10-20]% 
AMC  [0-5]% [0-5]% [0-5]% 
Other  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(163)  Discovery is the largest player on t he Norwegian market for the wholesale supply of 
pay TV channels for sports content with [40- 50]% market share. The number two 
actor in the market is Egmont with around [30- 40]% market shares, followed by 
NENT with around [10- 20]% market share in 2020. Since WarnerMedia is not active 
in the market, the Transaction will not affect the current market structure.  
5.3.7.3. Retail supply of non- linear pay AV services  
(164)  The following table presents the market shares (both by value and ) on the market for 
the retail supply  of non- linear pay AV services in Norway . 
 
47 Table 52: Market shares on the market for the retail supply of non -linear pay AV 
services in Norway (2018- 2020)  
 2018  2019  2020  
Market shares in value (EUR)  
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [10-20]% [10-20]% [10-20]% 
Combined  [10-20]% [10-20]% [10-20]% 
Viaplay  [20-30]% [30-40]% [30-40]% 
TV2 [30-40]% [20-30]% [20-30]% 
Netflix  [20-30]% [20-30]% [20-30]% 
Amazon Prime Video  [0-5]% [0-5]% [0-5]% 
Disney+  /  / [0-5]% 
DAZN  / / [0-5]% 
Others  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Market shares in volume (number of subscribers)  
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [20-30]% [20-30]% [10-20]% 
Combined  [20-30]% [20-30]% [20-30]% 
Netflix  [30-40]% [30-40]% [20-30]% 
Viaplay  [10-20]% [10-20]% [10-20]% 
TV2 [10-20]% [10-20]% [10-20]% 
Disney+   / /  [5-10]% 
Canal Digital  [5-10]% [5-10]% [0-5]% 
Apple TV+   / [0-5]% [0-5]% 
Amazon Prime Video  [0-5]% [0-5]% [0-5]% 
DAZN   / /  [0-5]% 
Others  [0-5]% [0-5]% [0-5]% 
Total mar ket 100%  100%  100%  
Source : Annex 1 to Chapter 4 of the Form CO  
(165)  The largest player on the  Norwegian  market for the retail supply of non -linear pay 
TV services is Viaplay by value, with market shares consistently above 20% (and 
above 30% since 2019) and by Netflix  by volume, with market shares consistently 
above [20-30]% by volume. By value, WarnerMedia represents the fourth largest 
market participants behind Viaplay, TV2 and Netflix. By volume, WarnerMedia is the second largest market participant. Discovery  has limited market presence by 
being the fifth largest market participant by value, far behind WarnerMedia, and the sixth market participant by volume. The merged entity would be the fourth largest market participant by value and the second largest by vol ume.  
5.3.8. Poland 
5.3.8.1. Wholesale supply of TV channels  
(166)  The following table presents the market shares (by volume) on the market for the wholesale supply of TV channels in Poland. 
Table 53: Market shares on the market for the wholesale supply o f TV channels in 
Poland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [20-30]% [20-30]% [20-30]% 
WarnerMedia  [0-5]% [0-5]% [0-5]% 
Combined  [20-30]% [20-30]% [20-30]% 
 
48  2018  2019  2020  
Market shares in volume (share of audience)  
TVP  [20-30]% [30-40]% [20-30]% 
Polsat  [20-30]% [20-30]% [20-30]% 
Puls [5-10]% [5-10]% [5-10]% 
ViacomCBS  [0-5]% [0-5]% [0-5]% 
Disney  [0-5]% [0-5]% [0-5]% 
Vivendi  [0-5]% [0-5]% [0-5]% 
Hearst  [0-5]% [0-5]% [0-5]% 
Sony  [0-5]% [0-5]% [0-5]% 
BBC  [0-5]% [0-5]% [0-5]% 
NBCU  [0-5]% [0-5]% [0-5]% 
AMC  [0-5]% [0-5]% [0-5]% 
4Fun Media  [0-5]% [0-5]% [0-5]% 
Euronews  [0-5]% [0-5]% [0-5]% 
Other  [0-5]% [0-5]% [5-10]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(167)  The market leader in the Polish  market for the wholesale supply of TV c hannels is 
TVP , closely followed by Polsat and Discovery . The rest of the market is fragmented 
and WarnerMedia is the ninth market participant. Due to the very limited market 
shares increment, the merged entity will be the second market participant  after T VP 
and closely followed by Polsat. 
5.3.8.2. Wholesale supply of pay TV channels  
(168)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels in Poland.  
Table 54: Market shares on the ma rket for the wholesale supply of pay TV channels in 
Poland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [30-40]% [30-40]% [30-40]% 
WarnerMedia  [0-5]% [0-5]% [0-5]% 
Combined  [30-40]% [30-40]% [30-40]% 
Polsat  [20-30]% [20-30]% [20-30]% 
ViacomCBS  [5-10]% [5-10]% [5-10]% 
TVP  [5-10]% [5-10]% [5-10]% 
Disney  [5-10]% [5-10]% [5-10]% 
Vivendi  [5-10]% [5-10]% [0-5]% 
Hearst  [0-5]% [0-5]% [0-5]% 
Sony  [0-5]% [0-5]% [0-5]% 
BBC  [0-5]% [0-5]% [0-5]% 
NBCU  [0-5]% [0-5]% [0-5]% 
AMC  [0-5]% [0-5]% [0-5]% 
Euronews  [0-5]% [0-5]% [0-5]% 
Other  [5-10]% [5-10]% [10-20]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(169)  The market leader in the Polish market for the wholesale supply of pay TV channels 
is Disco very with more than 30% market shares. The second market player is Polsat, 
with more than 20% market shares. The rest of the market is fragmented and 
WarnerMedia is the seventh  market participant. T he Transaction will only bring 
about a very limited market share increment and will therefore only strengthen the 
merged entity to a limited extent with regards to Polsat. . 
 
49 5.3.8.3. Wholesale supply of TV channels for other content  
(170)  The following table presents the market shares (by volume) on the market for the 
wholesale supply of TV channels for other content in Poland.  
Table 55: Market shares on the market for the wholesale supply of TV channels for 
other content in Poland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [20-30]% [20-30]% [20-30]% 
WarnerMedia  [0-5]% [0-5]% [0-5]% 
Combined  [20-30]% [20-30]% [20-30]% 
TVP  [20-30]% [20-30]% [20-30]% 
Polsat  [20-30]% [20-30]% [20-30]% 
Puls [5-10]% [5-10]% [5-10]% 
Disney  [0-5]% [0-5]% [0-5]% 
ViacomCBS  [0-5]% [0-5]% [0-5]% 
Hearst  [0-5]% [0-5]% [0-5]% 
Vivendi  [0-5]% [0-5]% [0-5]% 
Sony  [0-5]% [0-5]% [0-5]% 
NBCU  [0-5]% [0-5]% [0-5]% 
BBC  [0-5]% [0-5]% [0-5]% 
AMC  [0-5]% [0-5]% [0-5]% 
4Fun Media  [0-5]% [0-5]% [0-5]% 
Other  [5-10]% [5-10]% [5-10]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(171)  The market leader in the Polish market for the wholesale supply of TV channels for other content is TVP, closely followed by Polsat and Discovery. The rest of the  
market is fragmented and WarnerMedia is the eleventh  market participant. Due to 
the very limited market shares increment, the merged entity will be the third  market 
participant after TVP and Polsat.  
5.3.8.4. Wholesale supply of pay TV channels for other content  
(172)  The following table presents the market  shares (by volume) on the market for the 
wholesale supply of pay TV channels for other content in Poland. 
Table 56: Market shares on the market for the wholesale supply of pay TV channels 
for other content in Poland (2018- 2020)  
 2018 2019  2020  
Market shares in volume (share of audience ) 
Discovery  [20-30]% [20-30]% [20-30]% 
WarnerMedia  [0-5]% [0-5]% [0-5]% 
Combined  [20-30]% [20-30]% [20-30]% 
Polsat  [10-20]% [20-30]% [10-20]% 
TVP  [10-20]% [10-20]% [10-20]% 
Disney  [5-10]% [5-10]% [5-10]% 
ViacomCBS  [0-5]% [5-10]% [0-5]% 
Hearst  [0-5]% [0-5]% [0-5]% 
Vivendi  [5-10]% [5-10]% [5-10]% 
Sony  [0-5]% [0-5]% [0-5]% 
NBCU  [0-5]% [0-5]% [0-5]% 
 
50  2018 2019  2020  
Market shares in volume (share of audience ) 
BBC  [0-5]% [0-5]% [0-5]% 
AMC  [0-5]% [0-5]% [0-5]% 
Other  [10-20]% [10-20]% [10-20]% 
Total mark et 100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(173)  The market leader on the Polish market for the wholesale supply of pay TV channels 
for other content is Discovery  with more than 20% market shares. The second 
market player is Polsat, with app roximately [10-20]% market shares. The third 
market participant is TVP with approximately [10- 20]% market shares.  The rest of 
the market is fragmented and WarnerMedia is the eleventh market participant. The 
Transaction will only bring about a very limited market share increment and will 
therefore only strengthen the merged entity to a limited extent with regards to Polsat.  
5.3.8.5. Wholesale supply of TV channels for news content  
(174)  The following table presents the market shares (by volume) on the market for the 
wholes ale supply of TV channels for news content in Poland.  
Table 57: Market shares on the market for the wholesale supply of TV channels for 
news content in Poland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [40-50]% [40-50]% [40-50]% 
Combined  [40-50]% [40-50]% [40-50]% 
TVP  [40-50]% [40-50]% [40-50]% 
Polsat  [10-20]% [10-20]% [10-20]% 
BBC  [0-5]% [0-5]% [0-5]% 
Euronews  [0-5]% [0-5]% [0-5]% 
Other  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(175)  The two largest players on the Polish market for the wholesale supply of TV 
channels for news content are Discovery and TVP, which both had market shares 
around [40-50]% in 2020. The number three actor in the m arket is Polsat which had 
market share of [10- 20]% in 2020. All the other suppliers active in the market have 
market shares below [0 -5]%. Since WarnerMedia is not active in the market, the 
Transaction will not affect the current market structure.  
5.3.8.6. Wholesale supply of pay TV channels for sports content  
(176)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for sports content in Poland. 
Table 58: Market shares on the market f or the wholesale supply of pay TV channels 
for sports content in Poland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [30-40]% [30-40]% [30-40]% 
Combined  [30-40]% [30-40]% [30-40]% 
Polsat  [40-50]% [50-60]% [40-50]% 
Vivendi  [10-20]% [10-20]% [10-20]% 
AMC  [0-5]% [0-5]% [0-5]% 
 
51  2018  2019  2020  
Market shares in volume (share of audience)  
NBCU  [0-5]% [0-5]% [0-5]% 
Other  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(177)  The largest player on the  Polish market for the wholesale supply of pay TV channels 
for sports content is Polsat with market share around [40- 50]% in 2020. Discovery 
holds the number two position with a market share of [30- 40]% in 2020, followed by 
Vivendi with a market share of [10- 20]% in 2020.  The number five in the  market is 
AMC, with a market share of [0 -5]% in 2020, and all the other suppliers active in the 
market have less than [0 -5]% market share. Since WarnerMedia is not active in the 
market, the Transaction will not affect the current market structure.  
5.3.8.7. Wholes ale supply of pay TV channels for news content  
(178)  The following table presents the market shares (by volume) on the market for the 
wholesale supply of pay TV channels for news content in Poland. 
Table 59: Market shares on the market fo r the wholesale supply of pay TV channels 
for news content in Poland (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [70-80]% [70-80]% [70-80]% 
Combined  [70-80]% [70-80]% [70-80]% 
Polsat  [20-30]% [20-30]% [20-30]% 
BBC  [0-5]% [0-5]% [0-5]% 
Euronews  [0-5]% [0-5]% [0-5]% 
Other  / / [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(179)  The largest player on the  Polish market for the wholesale supply of pay TV channels 
for news content is Discovery, which had a market share around [70- 80]% in 2020. 
The number two actor in the market is Polsat with a market share of [20- 30]% in 
2020. All the other suppliers active in the market have market shares below [0 -5]%. 
Since WarnerMedia is not active in th e market, the Transaction will not affect the 
current market structure.  
5.3.8.8. Sale of advertising space on TV channels  
(180)  The following table presents the market shares (by value) on the market for the sale 
of advertising space on  TV channels in Poland. As the Part ies were unable to 
provide market shares of competitors on the basis of revenue, the market shares indicated below are calculated as a share of spend. Therefore, the market shares indicated below are slightly different from those identified above in Table 6.
91  
                                                 
91 The “Other” category also includes channels represented on the market by each of Discovery, Polsat and TVP 
through brokerage services.  The Commission considers that this alternative market shares methodology correctly 
captures the effects of the Transaction o n the market for the sale of advertising space on TV channels in Poland.  
 
52 Table 60: Market shares on the market for the sale of advertising space on TV 
channels in Poland (2018- 2020)  
 2018  2019  2020  
Market shares in value (share of spend ) 
Discovery  [30-40]% [30-40]% [30-40]% 
Polsat  [30-40]% [30-40]% [20-30]% 
TVP  [10-20]% [20-30]% [20-30]% 
Other92 [10-20]% [10-20]% [10-20]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(181)  The market leader in the Polish market for the sale of advert ising space on  TV 
channels in Poland is Discovery with more than 30% market shares , closely 
followed by Polsat. TVP is the third market participant with approximately [20-30]% 
market shares.  
5.3.8.9. Sale of advertising space on pay TV channels  
(182)  The following table presents the market shares (by value) on the market for the sale 
of advertising space on pay TV channels in Poland. As the Parties were unable to provide market shares of competitors on the basis of revenue, the market shares indicated below are calculated  as a share of spend. Therefore, the market shares 
indicated below are slightly different from those identified above in table  Table 6.
93 
Table 61: Market shares on the market for the sale of advertising space on pay TV 
channels in Poland (2018 -2020)  
 2018  2019  2020  
Market shares in value (share of spend)  
Discovery  [20-30]% [20-30]% [20-30]% 
Polsat  [10-20]% [10-20]% [10-20]% 
TVP  [0-5]% [0-5]% [0-5]% 
Other94 [50-60]% [50-60]% [50-60]% 
Total  market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(183)  The market leader in the Polish market for the sale of advertising space on TV channels in Poland is Discovery with approximately [20- 30]% market shares, 
followed by Polsat. TVP is the th ird market participant with approximately [0-5]% 
market shares.  
5.3.9. Romania 
5.3.9.1. Wholesale supply of pay TV channels for children content  
(184)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for childr en content in Romania. 
                                                 
92 This includes WarnerMedia’s market shares which the Notifying Party was unable to single out on the basis of 
share of spend.  
93 The “Other” category also includes channels represented on the market by each of Discovery, Polsat and TVP through brokerage services.  The Commission considers that this alternative market shares methodology correctly 
captures the effects of the Transaction on the market for the sale of advertising space on p ay TV channels in 
Poland.
 
94 This includes WarnerMedia’s market shares which the Notifying Party was unable to single out on the basis of 
share of spend. 
 
53 Table 62: Market shares on the market for the wholesale supply of pay TV channels 
for children content in Romania (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
WarnerMedia  [30-40]% [30-40]% [30-40]% 
Combined  [30-40]% [30-40]% [30-40]% 
ViacomCBS  [20-30]% [20-30]% [30-40]% 
Disney  [30-40]% [20-30]% [20-30]% 
AMC  [10-20]% [10-20]% [10-20]% 
Other  [0-5]% / [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form C O 
(185)  The largest players on the  Romanian market for the wholesale supply of pay TV 
channels for children content are WarnerMedia and ViacomCBS with market shares 
around [30-40]% and [30- 40]% respectively in 2020. Disney is the third largest 
competitor, with a  market share of [20- 30]% in 2020, and is followed by AMC with 
a market share of [10- 20]% in 2020. Since Discovery is not active in the market, the 
Transaction will not affect the current market structure  
5.3.10. Spain  
5.3.10.1. Wholesale supply of FTA TV channels for chil dren content  
(186)  The following table presents the market shares (by volume) on the market for the 
wholesale supply of FTA TV channels for children content in Spain. 
Table 63: Market shares on the market for the wholesale supply of FTA T V channels 
for children content in Spain (2018 -2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
WarnerMedia  [20-30]% [20-30]% [30-40]% 
Combined  [20-30]% [20-30]% [30-40]% 
RTVE  [40-50]% [40-50]% [40-50]% 
Disney  [20-30]% [20-30]% [20-30]% 
Regional  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(187)  The largest player on the  Spanish market for the wholesale supply of FTA TV 
channels for children content is RTVE with a market share around [40- 50]% in 
2020. WarnerMedia is the number two in the market with a market share around [30-40]% in 2020, and is followed by Disney with a market share of around 
[20-30]%  in 2020. The number four in the market is Regional which had a market 
share of [0 -5]% in 2020. Since Discovery is not active in the market, the Transaction 
will not affect the current market structure  
5.3.10.2. Wholesale supply of pay TV channels for sports content  
(188)  The following table presents the market shares (by volume) on the market for the wholesal e supply of pay TV channels for sports content in Spain. 
 
54 Table 64: Market shares on the market for the wholesale supply of pay TV channels 
for sports content in Spain (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of au dience)  
Discovery  [10-20]% [20-30]% [40-50]% 
Combined  [10-20]% [20-30]% [40-50]% 
Telefonica  [5-10]% [30-40]% [50-60]% 
DAZN group  / / / 
Mediapro  [70-80]% [20-30]% / 
La Liga  [0-5]% [0-5]% / 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of  the Form CO  
(189)  The largest player on the  Spanish market for the wholesale supply of pay TV 
channels for sports content is Telefonica with a market share around [50- 60]% in 
2020. Discovery is the number two in the market with a market share around 
[40-50]% in  2020. Since WarnerMedia is not active in the market, the Transaction 
will not affect the current market structure.  
5.3.11. Sweden  
5.3.11.1. Wholesale supply of pay TV channels  
(190)  The following table presents the market shares (by volume) on the market for the wholesale supply  of pay TV channels in Sweden.  
Table 65: Market shares on the market for the wholesale supply of pay TV channels in 
Sweden (2018- 2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
Discovery  [10-20]% [20-30]% [20-30]% 
WarnerMedia  [0-5]% [0-5]% [0-5]% 
Combined  [20-30]% [20-30]% [20-30]% 
NENT  [30-40]% [30-40]% [30-40]% 
Bonnier  [20-30]% [20-30]% [20-30]% 
Disney  [5-10]% [0-5]% [0-5]% 
ViacomCBS  [0-5]% [0-5]% [0-5]% 
BBC  [0-5]% [0-5]% [0-5]% 
Hearst  [0-5]% [0-5]% [0-5]% 
RTVE  [0-5]% [0-5]% [0-5]% 
TV2 [0-5]% [0-5]% [0-5]% 
Other  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(191)  The market leader in the Swedish  market for the wholesale supply of pay TV 
channels is NENT, with  approximately [30-40]% market shares. Bonnier is the 
second market player, with approximately [20- 30]% market shares. Discovery is the 
third market participant with approximately [20- 30]% market shares. The rest of the 
market is fragmented, with WarnerMed ia being the sixth market participant. The 
merged entity will be the third market participant.  
 
55 5.3.11.2. Wholesale supply of TV channels for news content  
(192)  The following table presents the market shares (by volume) on the market for the 
wholesale supply of TV channels  for news content in Sweden. 
Table 66: Market shares on the market for the wholesale supply of TV channels for 
news content in Sweden (2018 -2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
WarnerMedia  [10-20]% [10-20]% [40-50]% 
Combined  [10-20]% [10-20]% [40-50]% 
SVT  [80-90]% [80-90]% [50-60]% 
Other  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(193)  The largest player on the  Swedish market for the wholesale supply of TV channels 
for news content is dominated by SVT with a market share around [50- 60]% in 
2020, and the number two in the market is WarnerMedia which reached a market share of [40- 50]% in 2020.
95 Since Discovery is not active in the market, the 
Transaction wi ll not affect the current market structure.  
5.3.11.3. Wholesale supply for pay TV channels for news content  
(194)  The following table presents the market shares (by volume) on the market for the wholesale supply of pay TV channels for news content in Sweden. 
Table 67: Market shares on the market for the wholesale supply of pay TV channels 
for news content in Sweden (2018 -2020)  
 2018  2019  2020  
Market shares in volume (share of audience)  
WarnerMedia  [90-100]% [90-100]% [90-100]% 
Combined  [90-100]% [90-100]% [90-100]% 
Other  [5-10]% [5-10]% [5-10]% 
Total market  100%  100%  100%  
Source : Annex 10 to Chapter 3 of the Form CO  
(195)  The largest market player on the  Swedish market for the wholesale supply of TV 
channels for news content is WarnerMedia with a market share around [90- 100]% in 
2020. Since Discovery is not active in the market, the Transaction will not affect the current market structure.  
5.3.11.4. Retail supply of non- linear pay AV services  
(196)  The following table presents the market shares (both by value and ) on the market for the retail supply of non- linear pay AV services in Norway.  
                                                 
95   The Commission observes that WarnerMedia’s high market share in the news segment in 2020 corresponds to an 
unusual high peak, which can be explained by the occurrence of the US Presidential election in 2020. 
 
56 Table 68: Market shares on the market for the retail supply of non -linear pay AV 
services in Sweden (2018 -2020)  
 2018  2019  2020  
Market shares in value (EU R) 
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [10-20]% [10-20]% [10-20]% 
Combined  [10-20]% [10-20]% [10-20]% 
Netflix  [30-40]% [40-50]% [40-50]% 
Viaplay  [30-40]% [20-30]% [20-30]% 
C More  [10-20]% [10-20]% [10-20]% 
Amazon Prime Video  [0-5]% [0-5]% [0-5]% 
Disney+   /  / [0-5]% 
DAZN   / /  /  
Others  [0-5]% [0-5]% [0-5]% 
Total market  100%  100%  100%  
Market shares in volume (number of subscribers)  
Discovery  [0-5]% [0-5]% [0-5]% 
WarnerMedia  [20-30]% [20-30]% [10-20]% 
Combined  [20-30]% [20-30]% [20-30]% 
Netflix  [40-50]% [30-40]% [20-30]% 
Viaplay  [10-20]% [20-30]% [20-30]% 
C More  [5-10]% [5-10]% [5-10]% 
Apple TV+  / [0-5]% [5-10]% 
Disney+  / / [0-5]% 
Amazon Prime Video  [0-5]% [0-5]% [0-5]% 
Canal Digital  [0-5]% [0-5]% [0-5]% 
Boxer  [0-5]% [0-5]% [0-5]% 
DAZN  / / [0-5]% 
Others  [5-10]% [5-10]% [0-5]% 
Total market  100%  100%  100%  
Source : Annex 1 to Chapter 4 of the Form CO  
(197)  The Swedish  market for the retail supply of non- linear pay TV services is dominated 
by Netflix both by value  and volume. The second market participant is Viaplay with 
market shares of approximately  [20-30]% both by volume  and by value. The third 
market participant is WarnerMedia. The merged entity will be the second market 
participant by volume and the third market participant by value . 
5.4. Horizontal Assessment  
(198)  The Horizontal Merger Guidelines considers that concentrations which, by reason of the limited market share of the undertakings concerned, are not liable to impede effective competition may be presumed to be compatible with the comm on market. 
Without prejudice to Articles 101 and 102 of the TFEU, an indication to this effect exists, in particular, where the market share of the undertakings concerned does not exceed 25 % either in the common market or in a substantial part of it.
96 
(199)  Furthermore, the Horizontal Merger Guidelines indicate  that the Commission is 
unlikely to identify horizontal competition concerns in a market with a post -merger 
HHI97 below 1 000. Such markets normally do not require extensive analysis. 
                                                 
96 Horizontal Merger Guidelines, paragraph 18. See also recital 32 of the Merger Regulation.  
97 The Herfindahl -Hirschman Index (“ HHI ”) is calculated by summing the squares of the individual market shares 
of all the firms in the market. The HHI gives proportionately greater weight to the market shares of the larger 
firms. Although it is best to include all firms in the calculation, lack of information a bout very small firms may 
not be important because such firms do not affect the HHI significantly. While the absolute level of the HHI can 
 
 
57 Similarly, the Commiss ion is unlikely to identify horizontal competition concerns in 
a merger with a post -merger HHI between 1 000 and 2 000 and a delta below 250, or 
a merger with a post -merger HHI above 2 000 and a delta below 150, except where 
(i) a merger involved a potenti al entrant or a recent entrant with a small market 
share; (ii) one or more merging parties are important innovators in ways not reflected 
in market shares; (iii) there are significant cross -shareholdings among the market 
participants; (iv) one of the mergi ng firms is a maverick firm with a high likelihood 
of disrupting coordinated conduct; (v) indications of part or ongoing coordination, or facilitating practices, are present; and, (vi) one of the merging parties has a pre -
merger market share of 50% or more .
98 
(200)  A merger giving rise to significant impediment of effective competition may do so 
as a result of the creation or strengthening of a dominant position in the relevant 
markets. Moreover, mergers in oligopolistic markets involving the elimination of import ant constraints that the parties previously exerted on each other, together with 
a reduction of competitive pressure on the remaining competitors, may also result in 
a significant impediment to effective competition, even in the absence of 
dominance.
99 
(201)  In fact, the Horizontal Merger Guidelines describe horizontal non- coordinated100 
effects as follows: “ A merger may significantly impede effective competition in a 
market by removing important competitive constraints on one or more sellers who 
consequently have i ncreased market power. The most direct effect of the merger will 
be the loss of competition between the merging firms. For example, if prior to the 
merger one of the merging firms had raised its price, it would have lost some sales 
to the other merging fir m. The merger removes this particular constraint. Non-
merging firms in the same market can also benefit from the reduction of competitive pressure that results from the merger, since the merging firms’ price increase may 
switch some demand to the rival fir ms, which, in turn, may find it profitable to 
increase their prices. The reduction in these competitive constraints could lead to 
significant price increases in the relevant market .”
101 
(202)  The Horizontal Merger Guidelines list a number of factors which may infl uence 
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 eliminate an important competitive 
                                                                                                                                                      
give an initial indication of the competitive pressure in the market post-merger, the change in the HHI (known as 
the “Delta ”) is a useful proxy for the change in concentration directly brought about by the merger. 
98 Horizontal Merger Guidelines, paragraphs 19- 20. 
99 Horizontal Merger Guidelines, paragraph 25.  
100 The Commission, as evidenced by the market investigation, does not consider that the Transaction could give rise 
to coordinated effects in any of the horizontally affected markets as a result of the Transaction, due to (i) the very 
limited market shares increments in most horizontally affected markets; (ii) the existence of several competitors with assymetric market shares, different geographic focuses and financing models and methods; (iii) the 
existence of numerous market players at all the levels of the value chain; (iv) the increased innovation on the 
market in terms of customer reach and content produced; and, (v) the constraints exercised by the levels of the value chain on one another (for example, since the wholesale supply of TV channels is an intermediate market, wholesalers would be constrained by AV conte nt producers and retailers). Therefore, even in the markets with 
higher market shares increments, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market as a result of coordinated effects
. 
101 Horizontal Merger Guidelines, paragraph 24 .  
 
58 force.102 That list of factors applies equally regardless of whether a merger would 
create or strengthen a dominant position, or would otherwise significantly impede 
effec tive competition due to non- coordinated effects. Furthermore, not all of these 
factors need to be present to make significant non- coordinated effects likely and it is 
not an exhaustive list.103  
(203)  In addition, the Horizontal Merger Guidelines describe a number  of factors, which 
could counteract the harmful effects of the merger on competition, including the likelihood of buyer power, the entry of new competitors on the market, and efficiencies.  
5.4.1. Introductory remarks  
(204)  During the market investigation, some market p articipants have expressed concerns 
that the Parties may benefit from an increased bargaining power as a result of the Transaction, notably due to the merged entity’s market shares in the markets for the licensing of broadcasting rights and wholesale suppl y of TV channels.  
(205)  With regards to the market for the licensing of broadcasting rights (including all 
plausible segments), the Commission notes that the Transaction does not give rise to 
any horizontally affected markets in any Member State. This implies e ither that in 
any segment of the market for the licensing of broadcasting rights, the Parties would 
not have a combined market share in excess of 20% or that the Transaction does not give rise to any horizontal  market share increase. The Notifying Party further 
confirmed that there are no instances where either Discovery or WarnerMedia individually have  a market share in excess of 30% in any segment of the market for 
the licensing of broadcasting rights.
104 This implies that there are alternative 
providers supplying at least 70% of the market. Therefore, even if the Transaction 
were to increase the Parties’ bargaining power , the Commission excludes this could 
increase the market power of the merged entity . 
(206)  With regards to  the market for the wholesale supply of  TV channels, the 
Commission notes that any significant degree of  bargaining power would only be 
possible if the Parties had a significant combined market share in the overall market for the wholesale supply of TV channels, without considering segmentations by genre. However, in all countries except Poland, the Transaction either (i) does not lead to a combined market shares of the Parties exceeding  20% ; or, (ii) to any market 
share increment . Therefore, the Commission excludes that the Transaction may 
significantly increase the Parties’ market power  with regards to the market for 
wholesale supply of TV channels . For an assessment of the Polish market and all 
other horizontally affected markets, the Commission refers to its assessment below which explains wh y the Commission consider s that the Transaction does not raise 
serious doubts as to its compatibility with the internal market as a result of horizontal 
effects.  
                                                 
102 Horizontal Merger Guidelines, paragraphs 27 and following. 
103 Horizontal Merger Guidelines, paragraph 26.   
104 See Notifying Party’s response to RFI 8, question 2.  
 
59 5.4.2. Finland 
5.4.2.1. Market for the retail supply of non- linear AV services in Finland  
(A) Notifying Part y’s views 
(207)  The Notifying Party submits that the Transaction would not raise competitive 
concerns in the market for the retail supply of non- linear AV services in Finland for 
the following reasons.  
(208)  First, the Notifying Party submits that the Transaction results in  a negligeable market 
shares increment.105 
(209)  Second, the Notifying Party submits that the retail services offered by the Parties do not compete particularly closely.
106 
(210)  Third, the Notifying Party submits that the Parties face strong competition from 
many sources , including commercial and publicly funded broadcasters, third- party 
pay TV, SVOD and other OTT platforms.107 
(211)  Fourth, the Notifying Party submits that consumers are willing to switch between 
different retail offerings.108 This is notably due to the insignifica nce and reduction in 
switching costs and to changing consumer habits who rely on multiple retail TV services.  
(B) Commission’s assessment  
(212)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the retail supply of non- linear AV services in Finland, for the 
following reasons.  
(213)  First, the Parties’ combined market shares remain moderate and consistently below 20%. In particular, the combined market shares of the Parties in 2020 was of [20-30]% by volume and of [20- 30]% by  value.  
(214)  Second, the Transaction only gives rise to an insignificant market shares increment. Indeed, in 2020, WarnerMedia already accounted for [20- 30]% market shares by 
volume and [20- 30]% by value whereas Discovery only accounted for [0 -5]% 
market shares  by volume and [0 -5]% by value.  The limited change brought along by 
the merger is further evidenced by HHI calculations. Indeed, when considering the market shares by value, the Delta remains consistently below 50. When considering the market shares by vol ume, the Delta remains consistently below 10.  
(215)  Third, the Commission notes that after the Transaction, there will remain numerous alternative retailers of non -linear pay TV services such as Netflix (with a market 
share of  approximately [30-40]% by volume  and value  in 2020), Viaplay (with a 
market share of approximately [10- 20]% by volume and [20- 30]% by value in 2020), 
Ruutu+ (with a market share of approximately [10-20]% by volume  and value  in 
2020), Disney+ (with a market share of approximately [0 -5]% by v olume in 2020), 
                                                 
105 Form CO, Chapter 4, paragraphs 122 -124.  
106 Form CO, Chapter 4, paragraphs 125 -126.  
107 Form CO, Chapter 4, paragraphs 127 -151 . 
108 Form CO, Chapter 4, paragraphs 152 -157. 
 
60 Apple TV, Amazon Prime and C More (each with market shares of approximately 
[0-5]% by volume in 2020). Other smaller market participants include Canal Digital 
and DAZN.  
(216)  Finally, the Commission notes that it has not received any substantiate d complaints 
from the respondents to the market investigation regarding the market for the retail supply of non- linear AV services in Finland. 
(217)  Therefore, for the reasons set out above, the Commission concludes that the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for the retail supply of non-linear pay AV services in Finland and all plausible market segmentations thereof . 
5.4.3. Germany  
5.4.3.1. Market for the wholesale supply of pay TV channels in Germany  
(A) Notifying Part y’s views  
(218)  The Notifying Party submits that the Transaction would not raise competitive concerns in the market for the wholesale supply of pay TV channels in Germany for the following reasons.  
(219)  First, the Notifying Pa rty submit that German FTA broadcasting regulations and the 
broad availability of FTA TV channels severely constrain the market position of pay TV operators.
109 
(220)  Second, the Notifying Party submits that the Transaction will give rise to an insignificant incre ment in the market for the wholesale supply of pay TV channels in 
Germany.
110 
(221)  Third, the Notifying Party submits that the Parties are not each other’s closest competitors.
111 
(222)  Fourth, the Notifying Party submits that the merged entity will continue to be constr ained by large competitors,
112 including by on demande services such as 
AVOD and SVOD platforms.  
(223)  Fifth, the Notifying Party submits that the merged entity will continue to be 
constrained by large customers.113 
(B) Commission’s assessment  
(224)  The Commission considers t hat the Transaction does not raise horizontal concerns in 
the market for the wholesale supply of pay TV channels in Germany, for the 
following reasons.  
                                                 
109 Form CO, Chapter 3, paragraphs 92- 100.  
110 Form CO, Chapter 3, paragraphs 101 -102.  
111 Form CO, Chapter 3, paragraphs 103 -108.  
112 Form CO, Chapter 3, paragraphs 109 -113.  
113 Form CO, Chapter 3, paragraphs 114 -120. 
 
61 (225)  First, the Parties’ combined market shares remain mo derate and consistently 
below  25% when considering volume -based market shares since 2018 . 
(226)  Second, the Transaction only gives rise to an insignificant market shares increment. 
Indeed, in 2020, WarnerMedia already accounted for [10- 20]% market shares by 
volume whereas Discovery only accounted for [0-5]% market shares by volume . 
Therefore, the change on the market brought about by the Transaction is 
insignificant.  
(227)  Third, the Commission notes that after the Transaction, there will remain numerous 
alternative wholesale suppliers of pay TV channels  such as Sky Gro up (with a 
market share of approximately [20- 30]% by volume in 2020), NBCU  (with a market 
share of approximately [10- 20]% by volume in 2020), Disney  (with a market share 
of approximately [10-20]% by volume in 2020), RTL Group (with a market share of 
approx imately [5-10]% by volume in 2020), and Hearst  (with market shares of 
approximately [0 -5]% by volume in 2020). 
(228)  Finally, the Commission notes that it has not received any substantiated complaints from the respondents to the market investigation regarding the market for the 
wholesale supply of pay TV channels in Germany . 
(229)  Therefore,  the Commission concludes that the Transaction does not raise serious 
doubts as to its compatibility with the internal market as a result of horizontal effects 
on the market for the  wholesale supply of pay TV channels in Germany  and all 
plausible market segmentations thereof . 
5.4.3.2. Market for the wholesale supply of pay TV channels for other content in Germany  
(A) Notifying Part y’s views  
(230)  The Notifying Party submits that the Transaction would not raise competitive concerns in the market for the wholesale supply of pay TV channels for other content in Germany for the following reasons.  
(231)  First, the Notifying Party submit that German FTA broadcasting regulations and the 
broad availability of FTA TV channels severely constrain the market position of pay 
TV operators.
114 
(232)  Second, the Notifying Party submits that the Transaction will give rise to an insignificant increment in the market for the wholesale supply of pay TV channels for other content in Germany.
115 
(233)  Third, the Notifying Party submits that the Parties are not each other’s closest competitors.
116 
(234)  Fourth, the Notifying Party submits that the merged entity will continue to be constrained by large competitors,
117 including by on demande services such as 
AVOD and SVOD platforms.  
                                                 
114 Form CO, Chapter 3, paragraphs 92- 100.  
115 Form CO, Chapter 3, paragraphs 101 -102.  
116 Form CO, Chapter 3, paragraphs 103 -108. 
 
62 (235)  Fifth, the Notifying Party submits that the merged entity will continue to be 
constrained by large customers.118 
(B) Commission’s assessment  
(236)  The Commission considers that the Transaction does not raise horizontal concerns in the market fo r the wholesale supply of pay TV channels for other content in 
Germany, for the following reasons.  
(237)  First, the Parties’ combined market shares remain moderate and consistently below 25% when considering volume -based market shares since 2018, and were 
even b elow 20% in 2018 and 2019.  
(238)  Second, the Transaction only gives rise to a  limited market shares increment. Indeed, 
in 2020, WarnerMedia already accounted for [10- 20]% market shares by volume 
whereas Discovery only accounted for [0 -5]% market shares by volum e. The limited 
change brought along by the merger is further evidenced by HHI calculations. Indeed, when considering the market shares by value, the Delta remains consistently below 150. 
(239)  Third, the Commission notes that after the Transaction, there will re main numerous 
alternative wholesale suppliers of pay TV channels for other content such as NBCU  
(with a market share of approximately [30- 40]% by volume in 2020), Disney  (with a 
market share of approximately [20- 30]% by volume in 2020), R TL Group  (with a 
market share of approximately [10- 20]% by volume in 2020), Hearst  (with a market 
share of approximately [5 -10]% by volume in 2020). 
(240)  Finally, the Commission notes that it has not received any substantiated complaints from the respondents to the market invest igation regarding the market for the 
wholesale supply of pay TV channels for other content  in Germany.  
(241)  Therefore, for the reasons set out above, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the in ternal 
market as a result of horizontal effects on the market for the wholesale supply of pay TV channels for other content in Germany  and all plausible market segmentations 
thereof . 
5.4.4. Italy 
5.4.4.1. Market for the wholesale supply of TV channels for children content  in Italy  
(A) Notifying Part y’s views  
(242)  The Notifying Part y submits  that the Transaction would not raise competitive 
concerns in the market for the wholesale supply of FTA TV channels for children content in Italy for the following reasons.  
(243)  First, the Notifying Party submits that the merged entity will be constrained by large competitors. This includes competition from suppliers of pay TV and FTA channels and on demand services.
119 
                                                                                                                                                      
117 Form CO, Chapter 3, paragraphs 109 -113.  
118 Form CO,  Chapter 3, paragraphs 114 -120. 
 
63 (244)  Second, the Notifying Party submits that the Parties are not each other’s closest 
competitors.120 
(245)  Third, the Notifying Party submits that the merged entity will be constrained by large customers.
121 
(246)  Fourth, the Notifying Party submits that the merged entity  will neither have the 
incentive nor the ability to put FTA content behind a pay -wall.122 
(247)  Fifth, the Notifying Party submits that there are specific sectoral regulations in Italy governing TV channels specifically targeted at children.  
(248)  On 2 December 2021, the Notifying Party provided the Commission with additional evidence on all of these points (“ Additional Submission ”). Notably, the Additional 
Submission provides evidence on the reasons why the Notifying Party would have no ability and no incentive to put FTA TV channels for children content behind a pay-wall.  
(249)  First, the Notifying Party note s that the content shown on FTA TV channels is 
generally pre -existing content which tends to be shown first on pay TV and then, on 
second or third windowing, on FTA channels.  
(250)  Second, the Notifying Party submits that if moving children content currently shown on FTA TV channels be hind a pay -wall would  be a commercially  viable strategy , 
WarnerMedia would have already done so by moving content on its pay TV channels for children content Boomerang and Cartoon Network.  
(251)  Third, the Notifying Party notes that for  content acquired from third parties, any 
change in model would require the acquisition of pay TV rights and therefore an expansion of existing licensing agreements. [ …].  
(252)  Fourth, WarnerMedia is committed to continue developing Boing [ …]. 
(B) Commission’s asse ssment  
(253)  The Parties’ activities only overlap in the narrower market for the wholesale supply 
of FTA TV channels for children content in Italy. For the reasons set out in 
section  5.4.4.2 below, the Commission concludes that the Tr ansaction does not raise 
serious doubts as to its compatibility with the internal market as a result of horizontal effects on the market for the wholesale supply of TV channels for children content in Italy and all plausible market segmentations thereof . 
5.4.4.2. Market for the wholesale supply of FTA TV channels for children content in Italy  
(A) Notifying Part y’s views  
(254)  The Notifying Part y submit that the Transaction would not raise competitive 
concerns in the market for the wholesale supply of FTA TV channels for children content in Italy for the following reasons.  
                                                                                                                                                      
119 Form CO, Chapter 3, paragraphs 140 -159.  
120 Form CO, Chapter 3, paragraphs 160 -180.  
121 Form CO, Chapter 3, paragraphs 181 -184.  
122 Form CO, Chapter 3, paragraphs 185 -191. 
 
64 (255)  First, the Notifying Party submits that the merged entity will be constrained by large 
competitors. This includes competition from suppliers of pay TV and FTA channels and on demand services.
123 
(256)  Second, the Not ifying Party submits that the Parties are not each other’s closest 
competitors.124 
(257)  Third, the Notifying Party submits that the merged entity will be constrained by 
large customers.125 
(258)  Fourth, the Notifying Party submits that the merged will neither have the in centive 
nor the ability to put FTA content behind a pay -wall.126 
(259)  Fifth, the Notifying Party submits that there are specific sectoral regulations in Italy 
governing TV channels specifically targeted at children.127 
(260)  On 2 December 2021, the Notifying Party provid ed the Commission with additional 
views  on all of these points  (“Additional Submission ”). Notably , the Additional 
Submission provides evidence  on the reasons why the Notifying Party would have 
no ability and no incentive to put FTA TV channels for childre n content behind a 
pay-wall.  
(261)  First, the Notifying Party notes that the content shown on FTA TV channels is 
generally pre -existing content which tends to be shown first on pay TV  channels  and 
then, on second or third windowing, on FTA channels.  
(262)  Second, the Notifying Party submits that if moving children content currently shown 
on FTA TV channels be hinda pay -wall would make sense commercially, 
WarnerMedia would have already done so by moving content on its pay TV 
channels for children content Boomerang and Cartoon Network.  
(263)  Third, the Notifying Party notes that the for content acquired from third parties, any change in model would require the acquisition of pay TV rights and therefore an expansion of existing licensing agreements. [ …].  
(264)  Fourth, WarnerMedia i s committed to continue developing Boing [ …]. 
(B) Commission’s assessment  
(265)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the wholesale supply of FTA TV channels for children content in Italy, for the followin g reasons. 
(266)  First, the Commission notes that despite the high combined market shares of the Parties, there will still be alternative suppliers of FTA TV channels carrying content for children in Italy. In particular, RAI, the Italian public broadcaster will  continue to 
be active on the market for the wholesale supply of FTA TV channels for children 
content with a market share of approximately [30- 40]% as well as ViacomCBS, with 
                                                 
123 Form CO, Chapter 3, paragraphs 140 -159.  
124 Form CO, Cha pter 3, paragraphs 160 -180.  
125 Form CO, Chapter 3, paragraphs 181 -184.  
126 Form CO, Chapter 3, paragraphs 185 -191.  
127 Form CO, Chapter 3, paragraphs 192 -200. 
 
65 a market share of approximately [10- 20]%. Accordingly, the market investigation 
confirmed that there are sufficient alternatives of wholesale suppliers of FTA TV 
channels  for children content  in Italy beyond the Parties.128 
(267)  Second, the market investigation found that FTA TV channels operated by 
Discovery and by WarnerMedia (through Boing ) are not the closest competitors.129 
In particular, while K2 (operated by Discovery) and Boing (operated by 
WarnerMedia through Boing) are regularly ranked as close competitors, Frisbee 
(Discovery’s other FTA TV channel for children) is perceived to be clos er to RAI 
Yoyo. One market participant further considered that Frisbee’s second closest 
competitor to be DeA Junior, a pay TV channel operated by De Agostini. During the 
market investigation, one market participant stressed that “ in FTA Discovery and the 
JV (Mediaset/Warner) compete for the same audience, but with a different offer in 
term of contents and editorial positioning”.130 Therefore, after the Transaction, there 
would still be sufficient alternative FTA TV channels from other providers with similar f ocus to those of the Parties.  
(268)  Third, a majority of market participants who responded to the market investigation 
have confirmed that OTT platforms represent an alternative offering to FTA TV channels for children content.
131 In Telia Company/Bonnier Broadcas ting Holding , 
the Commission considered that “ players like Netflix and HBO offering non -linear 
premium AV services at the retail level exercise an indirect competitive constraint on Bonnier Broadcasting’s premium pay TV non- sports channels active at the 
wholesale level. ”
132 One market participant explained that: “ A direct to consumer 
service may operate on a subscription fee model or on an advertising supported model, whilst the FTA channel will be free to the consumer. Both offerings may not be entirely subs titutable for consumers (children), or at least in one direction. For 
example, a direct to consumer service which is available for no additional fee (but may include adverts) may be more comparable to a FTA channel than a direct to consumer services which is available for an additional subscription fee.”
133 
(269)  In this regard, the Commission considers that in Italy, AVOD platforms  with specific 
children content  are able to exercise an indirect competitive constraint on the merged 
entity’s FTA TV channels for chil dren content since these are both audiovisual 
services provided for free to end- consumers.  
(270)  In the Additional Submission, the Notifying Party indicated  that “ AVOD is the most 
comparable service to FTA in terms of business model ”.134 The Notifying Party 
provide d an extensive list of current providers, other than the Parties, of AVOD 
services in Italy. The Notifying Party notably lists RaiPlay, Mediaset Play, Youtube, Youtube Kids, Samsung TV Plus, Pluto TV and Rakuten TV as third party suppliers 
of AVOD platfor ms with specific children content.  Therefore, the Commission 
                                                 
128 Response to questionnaire Q1 –  Questionnaire to market participants in the AV sector (Italy), question 33 
and 33.1.  
129 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 32.  
130 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 32.1 . 
131 Response to questi onnaire Q1 –  Questionnaire to market participants in the AV se ctor (Italy), question 35.2 
and 35.2.1.  
132 Decision of the Commission of 29 April 2020 in case M.9064 –  Telia Company/Bonnier Broadcasting Holding, 
recital 1227. 
133 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 35.2.1. 
134 Additional submission, page 18.  
 
66 considers that the combined market shares in the market for the wholesale supply of 
the Parties are over -representative of the market power that could be exercised by the 
merged entity.  
(271)  Fourth, given the specificities  of the distribution of FTA TV channels in Italy , the 
Commission considers that it is easy for consumers to switch to another TV channel. Indeed, in Italy, FTA TV channels are supplied directly by wholesalers to end 
consumers through DTT.
135 Accordingly, any viewer of Discovery’s K2 or Frisbee 
channels or WarnerMedia’s Boing, Cartoonito and Boing Plus channels has access to 
all the TV channels of RAI and to ViacomCBS’s channel Super!. As all FTA TV 
channels for children are freely available to every household, switching from one 
channel to an other is easy, timely and cost -free for consumers.  Accordingly, any 
content degradation or discontinuance of the channels would shift end consumers to other FTA TV channels.  
(272)  Fifth, the Commission note s that  the results of the  market investigation ha ve 
indicated  that market entry in unlikely  and that, going forward, the merged entity 
may have the ability and incentive to discontinue its FTA TV channels for children 
content to end consumers  or put the content currently aired on those channels behind 
a pay -wall (either on pay TV channels or on a SVOD platform) . However,  
Commission also notes that the exit of either Discovery or WarnerMedia
136 or a 
degradation of the quality of content supplied to end consume rs through their FTA 
TV channels for children content is unli kely due to the constraints exercised by 
(i) Mediaset over WarnerMedia; and, (ii) TV advertisers  over Discovery . Indeed, as 
explained by a market participant, the incentive to move an FTA TV chan nel behind 
a pay -wall is chiefly determined by the sufficient presence of advertisement revenue 
that can be generated.137 
(273)  With regards to Discovery, the Commission notes that the third party content 
acquired by Discovery is currently only acquired for an FTA  TV window. Therefore, 
in order to be able to put the content acquired behind a pay -wall, Discovery would 
need to amend its licensing agreement s and increase its spending for content without 
necessarily being able to negotiate sufficient carriage feed with  retail suppliers of 
pay AV services or obtaining subscription revenues from its SVOD platform. 
(274)  With regards to WarnerMedia, the Commission notes that on 13 D ecember 2021, the 
Notifying Party submitted an additional paper providing additional information on the arran gements concerning Boing (“ Additional Submission on Boing ”). The 
Additional Submission on Boing explains that Boing is jointly controlled by Mediaset (with a 51% shareholding) and WarnerMedia (with a 49% shareholding).
138 [DETAILS ON THE AGREEMENT S BETWEEN 
WARNERMEDIA AND MEDIASET] .139 With regards the acquisition of content, 
WarnerMedia supplies approximately […]% of the content aired on Boing channels. 
                                                 
135 DTT technology is freely available in Italy and reached almost all households, including with high-definition 
content without the need to ha ve a subscription with a retail provider of AV services. For the very limited areas 
not covered with DTT technology, Tivùsat provides free DTH coverage. Therefore, in Italy, all households can have access to FTA TV channels for free without needing to have a subscription with a TV retailer. In this 
section, DTT should be understood as covering DTH distribution technology as well where DTT is unavailable.
 
136 Response to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question  34. 
137 Minutes of the conference call with ViacomCBS, paragraph 10. 
138 Additional Submission on Boing, page 2.  
139 Additional Submission on Boing, page 2.  
 
67 Other suppliers include […]. The content supplied by WarnerMedia only relates to 
FTA rights […] .140 The broadcasting rights are usually supplied […]  after these have 
been aired on WarnerMedia’s pay TV channels.141 […].  
(275)  Therefore , the Commission notes that WarnerMedia’s FTA TV channels for children 
content available in Italy are solely supplied throug h Boi ng with Mediaset . The 
commercial agreements for the supply of content between WarnerMedia and Boing 
last at least, until […].142 As part of the se commercial agreements, Mediaset is 
tasked with the sale of the advertisement space on the Boing Channels, [ …]. As 
such, the Commission considers that Mediaset will maintain an incentive to ensure that the content supplied by the merged entity will be of sufficient quantity and 
quality to attract advertisement revenues.
143 Futhermore, the Commission notes that 
Mediaset  will have effective means to ensure that such objectives are maintained 
through its […] . 
(276)  In any event, assuming that the merged entity were to have the ability and incentive 
to discontinue its FTA TV channels and put them behind a pay -wall, the 
Commission  notes that this would not concern the three channels operated by Boing , 
which represent the full market share increment brought by WarnerMedia to the merged entity . Indeed, the commercial agreements currently in place will continue to 
run until [ …]. Therefore, the merged entity will not have the ability to  use its market 
power to put the  Boing channels (which represent the full market share increment 
brought by WarnerMedia) behind a pay -wall in Italy before the expiration of the 
commercial agreements between WarnerMedia and Boing.
144 
(277)  Therefore, for the reasons set out above, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market as a result of horizontal effects on the market for the wholes ale supply of 
FTA TV channels for children content in Italy  and all plausible market 
segmentations thereof . 
                                                 
140 Additional Submission on Boing, page 5.  
141 Additional Submission on Boing, pages 4-5.  
142 In this regard,  the Notifying Party notes that, should the Parties decide against renewing the commercial 
agreements with Boing in [ …]. Therefore, the agreement to supply content to Boing will continue well into […]. 
The Commission notes that this would give Mediaset suf ficient time to arrange for supply agreements for content 
for Boing channels with alternative providers of children content, which already account for 50% of the content 
aired on Boing channels. See the Additional Submission on Boing, page 6.  
143 The Commiss ion also notes that, since WarnerMedia already operates, on a stand -alone basis, pay TV channels 
which already broadcast the content visible on Boing channels, if it made commercial sense to maintain such 
content behind a pay -wall, WarnerMedia would alread y have done so. Second, the Notifying Party has provided 
evidence suggesting that after the launch of HBO Max in Spain, WarnerMedia renewed its commercial 
agreements with the Spanish channels of Boing.  
144 Regardless, the Commission notes that FTA TV channe ls for children are not a core part of wholesaler’s 
business, notably because of regulatory restrictions on the sale of advertising space on children TV channels. In 
particular, during a pre -notification call with the Commission on 21 October 2021, Mediase t stated that “In 
general, the children market revolves around a diversification of the offer. From a business continuity 
perspective, however, the children segment is not a large part of Mediaset’s revenues. Indeed, due to regulatory 
constraints, the amount of advertising that can be included in children TV channels is limited.” See the non-
confidential minutes of the pre -notification call with Mediaset of 21 October 2021, paragraph 24.   
 
68 5.4.5. Norway  
5.4.5.1. Market for the wholesale supply of pay TV channels in Norway  
(A) Notifying Part y’s views  
(278)  The Notifying Party submits that the Transaction would not raise competitive 
concerns in the market for the wholesale supply of pay TV channels in Norway for the following reasons.  
(279)  First, the Notifying Party submits that the Transaction will give rise to an 
insignificant market shares increment.
145 
(280)  Second, the Notifying Party submits that the Parties are not each other’s closest 
competitors.146 
(281)  Third, the Notifying Party submits that the merged entity will be constrained by 
large competitors.147 
(282)  Fourth, the Notifying Party submits that the merged entity will be constr ained by 
large customers.148 
(B) Commission’s assessment  
(283)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the wholesale supply of pay TV channels in Norway, for the following reasons.  
(284)  First, the Parties’ combined  market shares remain moderate and consistently 
below  25% when considering volume -based market shares.  
(285)  Second, the Transaction only gives rise to an insignificant market shares increment. Indeed, in 2020, Discovery already accounted for [20-30]% market shares by volume 
whereas WarnerMedia only accounted for [0 -5]% market shares by volume. The 
limited change brought along by the merger is further evidenced by HHI calculations. Indeed, when considering the market shares by volume, the Delta remains below 100 and often below 50.  
(286)  Third, the Commission notes that after the Transaction, there will remain numerous alternative wholesale suppliers of pay TV channels such as Egmont (with a market share of approximately [50- 60]% by volume in 2020), NENT (with a market share of 
approximately [10-20]% by volume in 2020), Disney (with a market share of 
approximately [0-5]% by volume in 2020), BBC (with a market share of 
approximately [0-5]% by volume in 2020). Other market participants include Hearst 
and TV4Media (previous ly, Bonnier Broadcasting). 
(287)  Finally, the Commission notes that it has not received any substantiated complaints from the respondents to the market investigation regarding the market for the wholesale supply of pay TV channels in Norway . 
                                                 
145 Form CO, Chapter 3, paragraphs 208 -213.  
146 Form CO, Chapter 3, parag raphs 214 -223.  
147 Form CO, Chapter 3, paragraphs 224 -228.  
148 Form CO, Chapter 3, paragraphs 229 -231. 
 
69 (288)  Therefore, for the r easons set out above, the Commission concludes that the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for the wholesale supply of pay TV channels in Norway  and all  plausible market segmentations thereof . 
5.4.5.2. Market for the retail supply of non- linear AV services in Norway  
(A) Notifying Part y’s views  
(289)  The Notifying Party submits that the Transaction would not raise competitive 
concerns in the market for the retail supply of non -linear AV services in Norway  for 
the following reasons.  
(290)  First, the Notifying Party submits that the Transaction results in a negligeable market 
shares increment.
149 
(291)  Second, the Notifying Party submits that the retail services offered by the Parties do not compete particularly closely.
150 
(292)  Third, the Notifying Party submits that the Parties face strong competition from many sources, including commercial and publicly funded broadcasters, third- party 
pay TV, SVOD and other OTT platforms.
151 
(293)  Fourth, the Notifying P arty submits that consumers are willing to switch between 
different retail offerings.152 This is notably due to the insignificance and reduction in 
switching costs and to changing consumer habits who rely on multiple retail TV services.  
(B)  Commission’s assessm ent 
(294)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the retail supply of non- linear AV services in Norway, for the 
following reasons.  
(295)  First, the Parties’ combined market shares remain moderate and consistently below 20% when considering value -based market shares. When considering volume -based 
market shares , the combined market shares of the Parties have consistently been 
below 25% since 2018.  
(296)  Second, the Transaction only gives rise to an insignificant marke t shares increment. 
Indeed, in 2020, WarnerMedia already accounted for [10- 20]% market shares by 
volume whereas Discovery only accounted for [0 -5]% market shares by volume. The 
limited change brought along by the merger is further evidenced by HHI calculat ions. Indeed, when considering the market shares by volume, the Delta 
remained below 150 in 2018 and 2019, whereas the pre -Transaction and post -
Transaction HHI in 2020 dropped below 2 000 with a Delta of 156.  
                                                 
149 Form CO, Chapter 4, paragraphs 122 -124.  
150 Form CO, Chapter 4, paragraphs 125 -126.  
151 Form CO, Chapter 4, paragraphs 127 -151.  
152 Form CO, Chapter 4, paragraph s 152 -157. 
 
70 (297)  Third, the Commission notes that after the Transaction, there will remain numerous 
alternative retailers of non -linear pay TV services such as Netflix (with a market 
share of approximately [20- 30]% by volume in 2020), Viaplay (with a market share 
of approximately [10- 20]% by volume in 2020), TV2  (with a market share of 
approximately [10-20]% by volume in 2020), Disney+ (with a market share of 
approximately [5-10]% by volume in 2020), Apple TV, Amazon Prime and C More 
(each with market shares of approximately [0 -5]% by volume in 2020).  
(298)  Finally, the Commission notes that it has not received any substantiated complaints from the respondents to the market investigation regarding the market for the retail supply of non- linear AV services in Norway.  
(299)  Therefore, the Commission concludes that the Transaction does  not raise serious 
doubts as to its compatibility with the internal market as a result of horizontal effects 
on the market for the retail supply of non- linear pay AV services in Norway  and all 
plausible market segmentations thereof . 
5.4.6. Poland 
5.4.6.1. Market for the w holesale supply of TV channels in Poland 
(A) Notifying Part y’s views  
(300)  The Notifying Party submits that the Transaction would not raise competitive 
concerns in the market for the wholesale supply of TV channels in Poland for the 
following reasons.  
(301)  First, the Not ifying Party submits that the Transaction will give rise to an 
insignificant market shares increment.
153 
(302)  Second, the Notifying Party submits that the Parties are not each other’s closest competitors.
154 
(303)  Third, the Notifying Party submits that the merged entity  will be constrained by 
large competitors.155 
(304)  Fourth, the Notifying Party submits that the merged entity will be constrained by large customers.
156 
(B) Commission’s assessment  
(305)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the wholesale supply of TV channels in Poland, for the following 
reasons.  
(306)  First, the Parties’ combined market shares remain mo derate and consistently 
below  30% when considering volume -based market shares.  
                                                 
153 Form CO, Chapter 3, paragraphs 244 -245. 
154 Form CO, Chapter 3, paragraphs 246 -253.  
155 Form CO, Chapter 3, paragraphs 254 -262.  
156 Form CO, Chapter 3, paragraphs 263 -265. 
 
71 (307)  Second, the Transaction only gives rise to an insignificant market shares increment. 
Indeed, in 2020, Discovery already accounted for [20-30]% market shares by volume 
whereas WarnerMedia only accounted for [ 0-5]% market shares by volume. The 
limited change brought along by the merger is further evidenced by HHI 
calculations. Indeed, when considering the market shares by volume, the Delta remains consistently below 55. 
(308)  Third, the Commission notes that after the Transaction, there will remain numerous 
alternative wholesale suppliers of TV channels such as TVP  (with a  market share of 
approximately [30-40]% by volume in 2020), Polsat  (with a  market share of 
approximately [20-30]% by volume in 2020), TV Puls  (with a  market share of 
approximately [5-10]% by volume in 2020), ViacomCBS  (with a market shar e of 
approximately [0-5]% by volume in 2020). Other market participants include  
Disney, Vivendi, Hearst, Sony, BBC, NBCU, AMC, 4Fun Media and Euronews . 
(309)  Finally, the Commission notes that it has not received any substantiated complaints 
from the respondents  to the market investigation regarding the market for the 
wholesale supply of TV channels in Poland. 
(310)  Therefore, the Commission concludes that the Transaction does not raise serious 
doubts as to its compatibility with the internal market as a result of horizontal effects 
on the market for the wholesale supply of TV channels in Poland and all plausible 
market segmentations thereof . 
5.4.6.2. Market for the wholesale supply of pay TV channels in Poland 
(A) Notifying Part y’s views  
(311)  The Notifying Party submits that the Transac tion would not raise competitive 
concerns in the market for the wholesale supply of pay TV channels in Poland for the following reasons.  
(312)  First, the Notifying Party submits that the Transaction will give rise to an insignificant market shares increment.
157 
(313)  Second, the Notifying Party submits that the Parties are not each other’s closest 
competitors.158 
(314)  Third, the Notifying Party submits that the merged entity will be constrained by large competitors.
159 
(315)  Fourth, the Notifying Party submits that the merged entity will be constrained by large customers.
160 
                                                 
157 Form CO, Chapter 3, paragraphs 244 -245.  
158 Form CO, Chapter 3, paragraphs 246 -253.  
159 Form CO, Chapter 3, paragraphs 254 -262.  
160 Form CO, Chapter 3, paragraphs 263 -265. 
 
72 (B) Commission’s assessment  
(316)  The Commission considers that the Transaction does not raise horizontal concerns in 
the market for the wholesale supply of pay TV channels in Poland, for the following reasons.  
(317)  First, the Parties’ combined market shares remain moderate and consistently below  40% when considering volume -based market shares.  
(318)  Second, the Transaction only gives rise to an insignificant market shares increment. 
Indeed, in 2020, Discovery already accounted for [30-40]% market shares by volume 
whereas WarnerMedia only accounted for [0 -5]% market shares by volume. 
Therefore, the change on the market brought about by the Transaction is 
insignificant.  
(319)  Third, the Commission notes that after the Transaction, there will remain numerous 
alternative wholesale suppliers of pay TV channels such as Polsat (with a market 
share of approximately [20- 30]% by volume in 2020), ViacomCBS (with a market 
share of approximately [5 -10]% by volume in 2020), TVP (with a market share of 
approxim ately [5-10]% by volume in 2020), Disney (with a market share of 
approximately [5-10]% by volume in 2020). Other market participants include 
Vivendi, Hearst, Sony, BBC, NBCU, AMC and Euronews.  
(320)  Finally, the Commission notes that it has not received any subs tantiated complaints 
from the respondents to the market investigation regarding the market for the 
wholesale supply of pay TV channels in Poland.  
(321)  Therefore, for the reasons set out above, the Commission concludes that the Transaction does not raise serious  doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for the wholesale supply of pay TV channels in Poland and all plausible market segmentations thereof . 
5.4.6.3. Market for the wholesale supply of TV channels for other content in Poland 
(A) Notifying Part y’s views  
(322)  The Notifying Party submits that the Transaction would not raise competitive concerns in the market for the wholesale supply of TV channels for other content in Poland for the following reasons.  
(323)  First, the Notifying Party submits that the Transaction will give rise to an 
insignificant market shares increment.
161 
(324)  Second, the Notifying Party submits that the Parties are not each other’s closest 
competitors.162 
(325)  Third, the Notifying Party submits that the merged entity will be constrained by large competitors.
163 
                                                 
161 Form CO, Chapter 3, paragraphs 244 -245.  
162 Form CO, Chapter 3, paragraphs 246 -253.  
163 Form CO, Chapter 3, paragraphs 254 -262.  
 
73 (326)  Fourth, the Notifying Party submits that the merged entity will be constrained by 
large customers.164 
(B) Commission’s assessment  
(327)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the wholesale supply of TV channels for other content in Poland, for 
the following reasons.  
(328)  First, the Parties’ combined market shares remain moderate and consistently below  25% when considering volume -based market shares.  
(329)  Second, the Transac tion only gives rise to an insignificant market shares increment. 
Indeed, in 2020, Discovery already accounted for [20-30]% market shares by volume 
whereas WarnerMedia only accounted for [0 -5]% market shares by volume. The 
limited change brought along by the merger is further evidenced by HHI calculations. Indeed, when considering the market shares by volume, the Delta remains consistently below 30. 
(330)  Third, the Commission notes that after the Transaction, there will remain numerous alternative wholesale suppliers of TV channels such as TVP  (with a market share of 
approximately [20-30]% by volume in 2020), Polsat  (with a market share of 
approximately [20-30]% by volume in 2020), TV Puls  (with a market share of 
approximately [5-10]% by volume in 2020), Disney ( with a market share of 
approximately [0-5]% by volume in 2020). Other market participants include 
ViacomCBS, Hearst, Vivendi, Sony, NBCU, BBC, AMC and 4Fun Media.  
(331)  Finally, the Commission notes that it has not received any substantiated complaints from the respondents to the market investigation regarding the market for the wholesale supply of TV channels for other content in Poland.  
(332)  Therefore, for the reasons set out above, the Commission concludes that the Transaction does not raise serious doubts as to it s compatibility with the internal 
market as a result of horizontal effects on the market for the wholesale supply of TV channels for other content in Poland and all plausible market segmentations thereof . 
5.4.6.4. Market for the wholesale supply of pay TV channels for other content in Poland 
(A) Notifying Part y’s views  
(333)  The Notifying Party submits that the Transaction would not raise competitive concerns in the market for the wholesale supply of pay TV channels for other content in Poland for the following reasons.  
(334)  First, the Notifying Party submits that the Transaction will give rise to an 
insignificant market shares increment.
165 
(335)  Second, the Notifying Party submits that the Parties are not each other’s closest competitors.
166 
                                                 
164 Form CO, Chapter 3, paragraphs 263 -265. 
165 Form CO, Chapter 3, paragraphs 244 -245.  
 
74 (336)  Third, the Notifying Party submits that the merg ed entity will be constrained by 
large competitors.167 
(337)  Fourth, the Notifying Party submits that the merged entity will be constrained by 
large customers.168 
(B) Commission’s assessment  
(338)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the wholesale supply of pay TV channels for other content in Poland, for the following reasons. 
(339)  First, the Parties’ combined market shares remain moderate and consistently below 25% when considering volume -based market shares.  
(340)  Second, t he Transaction only gives rise to an insignificant market shares increment. 
Indeed, in 2020, Discovery already accounted for [20-30]% market shares by volume 
whereas WarnerMedia only accounted for [ 0-5]% market shares by volume. The 
limited change brought along by the merger is further evidenced by HHI calculations. Indeed, when considering the market shares by volume, the Delta remains consistently below 110. 
(341)  Third, the Commission notes that after the Transaction, there will remain numerous alternative who lesale suppliers of pay TV channels  for other content  such as Polsat 
(with a market share of approximately [20- 30]% by volume in 2020), TVP (with a 
market share of approximately [10- 20]% by volume in 2020), Disney (with a market 
share of approximately [5 -10]% by volume in 2020), ViacomCBS (with a market 
share of approximately [5-10]% by volume in 2020). Other market participants 
include Hearst, Vivendi, Sony, NBCU, BBC and AMC. 
(342)  Finally, the Commission notes that it has not received any substantiated complai nts 
from the respondents to the market investigation regarding the market for the wholesale supply of pay TV channels for other content in Poland. 
(343)  Therefore, for the reasons set out above, the Commission concludes that the Transaction does not raise seriou s doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for the wholesale supply of pay TV channels for other content in Poland and all plausible market segmentations 
thereof . 
5.4.6.5. Market for the sale of adverti sing space  on TV channels in Poland 
(A) Notifying Part y’s views  
(344)  The Notifying Party submits that the Transaction would not raise competitive concerns in the market for the sale of advertising space on TV channels in Poland for the following reasons.  
                                                                                                                                                      
166 Form CO, Chapter 3, paragraphs 246 -253.  
167 Form CO, Chapter 3, paragraphs 254 -262.  
168 Form CO, Chapter 3, paragraphs 263 -265. 
 
75 (345)  First, the  Notifying Party submits that the Transaction results in a negli geable market 
shares increment.169 
(346)  Second, the Notifying Party submits that buyers will continue to constrain the 
merged entity.170 
(347)  Third, the Notifying Party submits that there are sufficient alternative of large suppliers of advertising space on TV channels in Poland.
171 
(348)  Fourth, the Notifying Party considers that online advertising is steadily growing in Poland.
172 
(349)  Finally, the Notifying Party considers that there are regulatory requirements in Polan d that would constrain the Parties’ advertising activities.
173 
(B) Commission’s assessment  
(350)  The Commission considers that the Transaction does not raise horizontal concerns in 
the market for the sale of advertising space on TV channels in Poland, for the 
followin g reasons.  
(351)  First, the Parties’ combined market shares remain moderate and have been 
consistently declining since 2018, from [40- 50]% in 2018 to approximately 
[30-40]% in 2020.  
(352)  Second , the Transaction only gives rise to an insignificant market shares increm ent. 
Indeed, in 2020, Discovery already accounted for [30- 40]% market shares by value 
whereas WarnerMedia only accounted for [0 -5]% market shares by value. Therefore, 
the change on the market brought about by the Transaction is insignificant.  
(353)  Third , there will remain alternative large sellers of advertising space on TV channels 
in Poland, including Polsat (with approximately [30-40]% market shares  in 2020), 
TVP (with approximately [30 -40]% market shares in 2020) and other sellers which 
account for approxima tely [10 -20]% of the market.  
(354)  Finally, the Commission notes that it has not received any substantiated complaints 
from the respondents to the market investigation regarding the market for the sale of 
advertising space on TV channels in Poland. 
(355)  Therefore, fo r the reasons set out above, the Commission concludes that the 
Transaction does not raise serious doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for the sale of advertising space 
on TV channels in Poland  and all plausible market segmentations thereof . 
                                                 
169 Form CO, Chatper 6, paragraph 103.   
170 Form CO, Chatper 6, paragraph 106.   
171 Form CO , Chatper 6, paragraph 107.   
172 Form CO, Chatper 6, paragraph 113.   
173 Form CO, Chatper 6, paragraph 114.  
 
76 5.4.6.6. Market for the sale of advertising space on pay TV channels in Poland  
(A) Notifying Part y’s views  
(356)  The Notifying Party submits that the Transaction would not raise competitive 
concerns in the market for the s ale of advertising space on pay TV channels in 
Poland for the following reasons.  
(357)  First, the Notifying Party submits that the Transaction results in a negligeable market 
shares increment.174 
(358)  Second, the Notifying Party submits that buyers will continue to constrain the merged entity.
175 
(359)  Third, the Notifying Party submits that there are sufficient alternative of large 
suppliers of advertising space on pay TV channels in Poland.176 
(360)  Fourth, the Notifying Party considers that online advertising is steadily growing in Poland.
177 
(361)  Finally, the Notifying Party considers that there are regulatory requirements in Poland that would constrain the Parties’ advertising activities.
178 
(B)  Commission’s assessment  
(362)  The Commission considers that the Transaction does not raise horizontal concerns in 
the market for the sale of advertising space on pay TV channels in Poland, for the 
following reasons.  
(363)  First, the Parties’ combined market shares remain moderate and have been consistently declining since 2018, from [30- 40]% in 2018 to approximatel y 
[30-40]% in 2020.  
(364)  Second, the Transaction only gives rise to an insignificant market shares increment. Indeed, in 2020, Discovery already accounted for [20- 30]% market shares by value 
whereas WarnerMedia only accounted for [0 -5]% market shares by value. Therefore, 
the change on the market brought about by the Transaction is insignificant.  
(365)  Third, there will remain alternative large sellers of advertising space on pay TV 
channels in Poland, including Polsat (with approximately [10- 20]% market shares  in 
2020), TVP (with approximately [0 -5]%) and other smaller sellers which account for 
approximately [50-60]% of the market.  Smaller sellers include hundreds of small 
pay TV networks owned by players other than Discovery, TVP and Polsat.
179 
(366)  Finally, the Commission n otes that it has not received any substantiated complaints 
from the respondents to the market investigation regarding the market for the sale of 
advertising space on pay TV channels in Poland.  
                                                 
174 Form CO, Chatper 6, paragraph 103.   
175 Form CO, Chatper 6, paragraph 106.   
176 Form CO, Chatper 6, paragraph 107.   
177 Form CO, Chatper 6, paragraph 113.   
178 Form CO, Chatper 6, paragraph 114.  
179 Form CO, Chatper 6, paragraph 110.   
 
77 (367)  Therefore, for the reasons set out above, the Commission concludes that the 
Transaction does not raise serious doubts as to its compatibility with the internal market as a result of horizontal effects on the market for the sale of advertising space on pay TV channels in Poland and all plausible market segmentations th ereof . 
5.4.7. Sweden  
5.4.7.1. Market for the wholesale supply of pay TV channels in Sweden  
(A) Notifying Part y’s views  
(368)  The Notifying Party submits that the Transaction would not raise competitive concerns in the market for the wholesale supply of pay TV channels in Sweden for  
the following reasons.  
(369)  First, the Notifying Party submits that the Transaction will give rise to an 
insignificant market shares increment.
180 
(370)  Second, the Notifying Party submits that the Parties are not each other’s closest 
competitors.181 
(371)  Third, the Notifyin g Party submits that the merged entity will be constrained by 
large competitors.182 
(372)  Fourth, the Notifying Party submits that the merged entity will be constrained by large customers.
183 
(B) Commission’s assessment  
(373)  The Commission considers that the Transaction does  not raise horizontal concerns in 
the market for the wholesale supply of pay TV channels in Sweden , for the 
following reasons.  
(374)  First, the Parties’ combined market shares remain moderate and consistently below  25% when considering volume -based market shares . 
(375)  Second, the Transaction only gives rise to an insignificant market shares increment. Indeed, in 2020, Discovery already accounted for [20-30]% market shares by volume 
whereas WarnerMedia only accounted for  [0-5]% market shares by volume. The 
limited chan ge brought along by the merger is further evidenced by HHI 
calculations. Indeed, when considering the market shares by volume, the Delta remains consistently below 125. 
(376)  Third, the Commission notes that after the Transaction, there will remain numerous alternative wholesale supply of pay TV channels such as NENT  (with a market share 
of approximately [30- 40]% by volume in 2020), TV4Media  (with a  market share of 
approximately [20-30]% by volume in 2020), Disney  and Viacom CBS ( each with a 
market share of appro ximately [0-5]% by volume in 2020). Other market 
participants include BBC, Hearst, RTVE and TV2 . 
                                                 
180 Form CO, Chapter 3, paragraphs 270 -272 . 
181 Form CO, Chapter 3, paragraphs 273 -278.  
182 Form CO, Chapter 3, paragraphs 279 -283.  
183 Form CO, Chapter 3, paragraphs 284 -286. 
 
78 (377)  Finally, the Commission notes that it has not received any substantiated complaints 
from the respondents to the market investigation regarding the market for t he 
wholesale supply of pay TV channels in Sweden . 
(378)  Therefore, for the reasons set out above, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market as a result of horizontal effects on th e market for the wholesale supply of pay 
TV channels in Sweden  and all plausible market segmentations thereof . 
5.4.7.2. Market for the retail supply of non- linear AV services in Sweden  
(A) Notifying Part y’s views  
(379)  The Notifying Party submits that the Transaction would not raise competitive concerns in the market for the retail supply of non- linear AV services in Sweden for 
the following reasons.  
(380)  First, the Notifying Party submits that the Transaction results in a negligeable market shares increment.
184 
(381)  Second, the Notifyin g Party submits that the retail services offered by the Parties do 
not compete particularly closely.185 
(382)  Third, the Notifying Party submits that the Parties face strong competition from many sources, including commercial and publicly funded broadcasters, thir d-party 
pay TV, SVOD and other OTT platforms.
186 
(383)  Fourth, the Notifying Party submits that consumers are willing to switch between different retail offerings.
187 This is notably due to the insignificance and reduction in 
switching costs and to changing consumer  habits who rely on multiple retail TV 
services.  
(B) Commission’s assessment  
(384)  The Commission considers that the Transaction does not raise horizontal concerns in the market for the retail supply of non- linear AV services in Sweden, for the 
following reasons.  
(385)  First, the Parties’ combined market shares remain moderate and consistently 
below  20% when considering value -based market shares. When considering volume -
based market shares, the combined market shares of the Parties have consistently been below 25% since 2018. 
(386)  Second, the Transaction only gives rise to an insignificant market shares increment. Indeed, in 2020, WarnerMedia already accounted for [10- 20]% market shares by 
volume whereas Discovery only accounted for [0 -5]% market shares by volume. The 
limited c hange brought along by the merger is further evidenced by HHI 
                                                 
184 Form CO, Chapter 4, paragraphs 122 -124.  
185 Form CO, Chapter 4, paragraphs 125 -126.  
186 Form CO, Chapter 4, paragraphs 127 -151.  
187 Form CO, Chapter 4, paragraphs 152 -157. 
 
79 calculations. Indeed, when considering the market shares by volume, the Delta 
remained consistently below 150 since 2018.  
(387)  Third, the Commission notes that after the Transaction, there will remain numerous alternative retailers of non -linear pay TV services such as Netflix (with a market 
share of approximately [20- 30]% by volume in 2020), Viaplay (with a market share 
of approximately [20- 30]% by volume in 2020), C More (with a market share of 
approximately [5-10]% by volume in 2020), AppleTV+ (with a market share of 
approximately [5-10]% by volume in 2020), Amazon Prime Video (with a market 
share of approximately [0-5]% by volume in 2020), Canal Digital  Video (with a 
market share of approximately [ 0-5]% by volume in 2020). Other smaller market 
participants include Boxer and DAZN.  
(388)  Finally, the Commission notes that it has not received any substantiated complaints 
from the respondents to the market investigation regarding the market for the retail 
supply of non- linear AV services in Sweden.  
(389)  Therefore, for the reasons set out above, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the internal 
market as a result of horizontal effects on the market for the retail supply of non-
linear pay AV services in Sweden  and all plausible market segmentations thereof . 
5.5. Vertical Assessment  
5.5.1. Introduction  
(390)  In this Section, the Commission will assess whether the proposed T ransaction would 
give rise to  foreclosure in a ny of the markets that are vertically affected.  A merger  is 
said to result in foreclosure where actual or potential rivals' access to supplies or 
markets is hampered or eliminated as a result of  the Transaction , thereby reducing 
these companies' ability  and/or incentive to compete.
188 
(391)  Two forms of foreclosure can be distinguished. The first is where the merger is 
likely to raise the costs of downstream rivals by restricting their access to an 
important input (input foreclosure). The second is where the merger  is likely to result 
in foreclosure of upstream rivals by restricting their access to a sufficiently large 
customer base (customer foreclosure).  
(392)  Input foreclosure arises where, post -merger, the merged  entity would be likely to 
restrict access to the produ cts or services that it would have otherwise supplied 
absent the merger, thereby raising its downstream rivals' costs by making it harder 
for them to obtain supplies of the input under similar prices and c onditions as absent 
the merger.189 
(393)  In assessing the l ikelihood of an anticompetitive input foreclosure scenario, the 
Commission examines, first, whether the merged entity would have, post -merger, the 
ability to substantially foreclose access to inputs, second, whether it would have the 
                                                 
188   Non-Horizontal Merger Guidelines, paragraph 29. 
189   Non-Horizontal Merger Guidelines, paragraph  31. 
 
80 incentive to do so, and third, whether a foreclosure strategy would have a significant 
detrimental effect on competition downstream.190 
(394)  Customer foreclosure may occur when a supplier integrates with an important custom er in the downstream market . Because of this downstream presence, the 
merged entity may foreclose access to a sufficient customer base to its actual or potential rivals in the upstream market (the input market) and reduce their ability or incentive to compete.
191 
(395)  In assessing the likelihood of an anticompetitive custom er foreclosure scenario, the 
Commission examines  the three following cumulative elements: first, whether the 
merged entity would have the ability to foreclose access to downstream markets by 
reducing its purchases from its upstream rivals; second , whether it would have the 
incentive to reduce its purchases upstream;  and third , whether a foreclosure strategy 
would have a significant detrimental effect on consumers in the downstream market 
intertwined.192 
5.5.2. Vertically affected markets arising from the relationships between the markets for 
the production of AV content (upstream), and the markets for the wholesale supply of TV channels (downstream)  
(396)  The Transaction gives rise to affected markets arising from the relationships between the markets for the production of  AV content (upstream), and the markets for the 
wholesale supply of TV channels (downstream ) in Finland, Germany, Italy, Poland, 
and Spain. In each of these Member States, the market investigation led to very similar outcomes with respect to all of  the rel evant vertically affected markets , and 
irrespective of any possible market segmentation . In light of the results of the market 
investigation, in the following recitals, the Commission provides a joint assessment of the risk of anticompetitive foreclosure t hat could arise from the relationships 
between the markets for the production of AV content (upstream), and the markets for the wholesale supply of TV channels (downstream) , in Finland, Germany, Italy, 
Poland, and Spain.  
5.5.2.1. Identification of the vertically affected markets in the relevant Member States   
(A) Finland  
(397)  In Finland, t he upstream market for the production of commissioned AV content 
(where only Warner Media is active with a presence of [5 -10]% in revenue) is 
vertically affected due to its connection with  the downstream markets for (i) the 
wholesale supply of pay TV channels (where only Discovery is active with [40- 50]% 
market share in TV audience), and (ii) the wholesale supply of pay TV channels for other content (where only Discovery is active with [70- 80]% market share in TV 
audience).  
(B) Germany  
(398)  In Germany, t he upstream market for the production of commissioned AV content 
(where the Parties’ marginal combined market share is [0 -5]% in revenue), and the 
                                                 
190   Non-Horizontal Merger Guidelines, paragraph 32.  
191   Non-Horizontal Merger Guidelines, paragraph 58.  
192   Non-Horizontal Merger Guidelines, paragraph 59. 
 
81 upstream market for the production of non- captive  commissioned AV content 
(where the Parties’ combined market share is [5 -10]% in revenue) are vertically 
affected due to their connection with the downstream market for the wholesale 
supply of pay TV channels for children content (where only WarnerMedia is act ive 
with [90- 100]% market share in TV audience).  
(C) Italy  
(399)  In Italy, t he upstream market for the production of commissioned AV content (where 
only Discovery is active with a marginal presence of less than [0 -5]% in revenue) is 
vertically affected due to its connection with the downstream markets for (i) the wholesale supply of TV channels for children content (where the Parties’ combined market share is [50- 60]% in TV audience), and (ii) the wholesale supply of FTA TV 
channels for children content (where the P arties’ combined market share is [50- 60]% 
in TV audience).  
(D) Poland 
(400)  In Poland, t he upstream market for the production of commissioned AV content 
(where only Discovery is active with a marginal market share of [0 -5]% in revenue), 
and the upstream market for t he production of non- captive commissioned AV 
content (where only Discovery is active with a marginal market share of [0 -5]% in 
revenue), are vertically affected due to their connection with the downstream market for the wholesale supply of pay TV channels (where the Parties’ combined market share is [30- 40]% in TV audience).  
(E) Spain  
(401)  In Spain, t he upstream market for the p roduction of commissioned AV content 
(where he Parties’ marginal combined market share is [0 -5]% in revenue), and the 
upstream market for t he production of non- captive commissioned AV content 
(where he Parties’ marginal combined market share is [0 -5]% in revenue) are 
vertically affected due to their connection with the downstream market for the wholesale supply of FTA TV channels for children (where only WarnerMedia is 
active with a market share of [30- 40]% in TV audience).  
5.5.2.2. The Notifying Party’s view  
(402)  As regards input foreclosure , the Notifying Party notes that, for all the countries 
considered, due to the merged  entity’s limited presence in th e upstream market s 
post-Transaction, there is no risk of input foreclosure.  
(403)  As regards customer foreclosure , the Notifying Party notes that , for all the countries 
considered, the merged entity would have neither the ability nor the incentive to 
pursue a total or partial customer foreclosure strategy, and that any such customer foreclosure strategies would have no significant effect on effective competition. 
(404)  From the outset, the Notifying Party submits that already today and independently of 
the Transaction,  both Parties are active at several levels of the audio -visual content 
supply chain, in Finland, Germany, Italy, Poland and Spain. Notwithstanding this vertical integration, there has not been any evidence to da te of any foreclosure 
concerns, and t his will not change post -Transaction.  The Parties both already own a 
portfolio of channels in addition to being present upstream in the production of 
 
82 commissioned A V content , and external commissioned AV content,  and that 
therefore, there is a significantly reduced set of pre -existing customer relationships 
between the Part ies as individual broadcasters, and third- party producers of 
commissioned TV content.  
(405)  Additionally, the Notifying Party note s that, in all the relevant countries,  the merged 
entity  will not be a ble to afford to pursue a customer foreclosure strategy, as this 
would reduce the breadth and quality content offered and included in its TV 
channels, and undermine the attractiveness of its wholesale channels . Any increment 
in market share resulting from the Transaction will not beget a commensurate 
increase in the merged entity ’s market and bargaining power, especially since the 
Parties and other wholesale suppliers of TV channels are operating in an increasingly 
competitive environment, and will continue  to require a broad content line -up to 
retain their customers.  
(406)  Post-Transaction, the merged entity’s  OTT platforms would, if anything, provide an 
incentive to the Parties to increase their acquired audio -visual content from upstream 
rival producers, both w ith regard to its OTT platforms and in its capacity as a 
broadcaster. Ensuring the distribution of a wide range of third- party content via its 
TV channels, the merged entity will attract additional customers for its OTT 
platforms. Ensuring the distribution of third -party audio- visual content from rival 
upstream producers via its TV channels is therefore likely to increase demand for its own flagship OTT products, which constitute a core rationale of the Transaction , and 
applies to all countries where the Pa rties are active. 
(407)  Lastly, t he Notifying Party observes that, in all of the relevant countries, AV content 
produced upstream is increasingly available via non- traditional services delivered via 
the internet instead of being broadcasted, and that all of thes e services offer viewers 
the option to stream TV channels live, as well as interactive and on -demand video 
streaming services. Therefore, any refusal to acquire commissioned content from 
competing providers would not have any material impact (foreclosure e ffects). Rival 
content providers can supply content to the wide variety of companies active post -
Transaction on the and retail markets, including OTT platforms, as well as set up their own retail platform.  
5.5.2.3. The Commission’s assessment  
(408)  With respect to the risk of input foreclosure, the Commission observes that, in all of the relevant Member States, the presence of the merged entity in the upstream markets is small and therefore, that the merged entity would not have the ability to 
engage in input foreclosure after the Transaction.  
(409)  With respect to the r isk of customer foreclosure, the Commission considers that , in 
all of the relevant Member States,  a number of factors indicate that the merged entity 
would likely have no ability, nor incentive, to foreclose acc ess to the downstream 
market for the wholesale supply of TV channels , irrespective of any possible market 
definition . 
(A) Ability to engage in total or partial customer foreclosure  
(410)  The Commission considers that , in all of the relevant Member States,  the merged  
entity will not have the ability  to engage in foreclosure by restricting access  to the 
merged entity’s TV channels,  irrespective of any possible market definition,  to rival 
 
83 suppliers active in the upstream markets for the  market for the  production of 
comm issioned AV content , and external commissioned AV content , for the 
following reasons.  
(411)  First, the Commission’s investigation  in Germany , Finland, Italy, and Poland, 
suggests that the Transaction would likely have no material impact on the markets  
for the pr oduction of AV content . In Spain, where the market investigation yields 
mixed results, market participants raised concerns related to input foreclosure rather 
than customer foreclosure. Additi onally, i n all of these countries  no market 
participants put for ward evidence suggesting that the Transaction would affect any 
of the potential segments differently.193  
(412)  Second, f or customer foreclosure to be a concern,  the vertical merger must involve  a 
company which is an important customer with a significant degree o f market power 
in the downstream market .194 Except for Finland, in all of the vertical links 
conside red, there is always one Party that is present both upstream and downstream . 
Therefore, for those countries, the Commission observes that the affected vertica l 
relationship is pre -existing to the Transaction, and there is no evidence of a customer 
foreclosure strategy currently in place. Additionally, considering the very limited 
market shares (and increments when relevant) in the upstream markets, t here is no 
evidence to suggest that the Transaction will alter the existing risk of anticompetitive customer foreclosure in any of the relevant Member State.  
(413)  Third, competition concerns regarding customer foreclosure are unlikely to arise when there is a sufficiently  large customer base, at present or in the future, that is 
likely to turn to other suppliers  active in the upstream market.
195 In that regard, the 
market for the wholesale supply of TV channels, irrespective of any possible market definition, is not a necess ary intermediary for undertakings active in the markets for 
the production of commissioned AV content , and external commissioned  AV 
content , to make their product available to end consumers. Notably, recent 
technological advances and evolving consumers’ ha bits have largely affected the 
landscape of the distribution of AV content. Indeed, the Commission observes that digitalisation has lowered entry barriers to the distribution of content, such that 
content producers can easily reach viewers through Direct t o Consumers (DTC) 
technologies (e.g., for instance through the internet by supplying their content to an 
OTT AV retailer).  The traditional distribution infrastructure (involving for instance 
TV towers, cable systems, etc.) , which  requir es AV content to be  aggregated into TV 
channels  before being supplied, is no longer a necessary means of distribution for 
AV content to reach consumers.
196  
                                                 
193   Responses to questionnaire Q1 – Questionnaires to market participantsnparticipants in the A V sector (Italy), 
question 49; Responses to questionnaire Q5 –  Questionnaires to market participants in the AV sector (Germany), 
question 21; Responses to questionnaire Q8 – Questionnaires to market participants in the AV sector (Finland), 
question 27; Res ponses to questionnaire Q10 – Questionnaires to market participants in the AV sector (Poland), 
question 27; Responses to questionnaire Q11 – Questionnaires to market participants in the AV sector (Spain), 
question 27.  
194   Non-Horizontal Merger Guidelines, paragraph 60.  
195   Non-Horizontal Merger Guidelines, paragraph 60.  
196   NERA, The Impact of Online Video Distribution on the Global Market for Digital Content, 3, available at 
https://www.nera.com/content/dam/nera/publications/2019/NERA -The-Impact -of-Online -Video -Distribution.pdf .  
 
84 (414)  Moreover, in all of the relevant Member States, the market investigation confirmed 
that the traditional three -layer clas sification197 fails to properly take into account the 
markets dynamics resulting from Direct -to-Consumer broa dcasting, as the frontiers 
between the different layers are becoming increasingly blurred as a consequence of 
the global market trend for vertical in tegration.  In particular, in Germany, one 
respondent explained that: “ the respective levels of the value chain obviously mix 
with one another, because the upstream market […] also engages in the downstream market for the retail supply of AV services toward s end -customers […]. Therefore, in 
particular the upstream market also competes with the intermediate and the downstream market for end- customer products for AV content .”
198 In Finland, one 
respondent indicated that: “ the content owners, such as film studios  and sports rights 
owners are building their own direct -to-consumer retail offerings, “bypassing” 
broadcasters, competing broadcasters and teleoperators.”199 
(415)  Furthermore, i n Italy one respondent explained  that: “ the competitive landscape has 
changed consider ably in the recent past. More specifically, the downstream market 
for the retail supply of AV services should no longer be segmented according to 
traditional drivers; and vertical integration is now widespread, which in turn has 
implications on the availability of AV content to be purchased at the upstream and intermediate levels of the supply chain.”
200 In Spain, one respondent also stated  that: 
“We consider that the frontiers between the different models or markets of AV 
content are becoming more and more blurred ”201 Finally in Poland, one respondent 
indicated that: “ The traditional value chain […] is more and more challenged by 
market developments and changing consumer behaviour, particularly the switch to non-linear and OTT viewing. Content providers are inc reasingly by -passing channel 
providers and traditional distribution platforms and offering their content directly to the consumer via an app on an OTT basis .”
202 
(416)  Fourth, the market investigation showed that market participants active in the 
production of com missioned content, and external commissioned content, in the 
Member States concerned , are largely vertically integrated  and also active in the 
retail market, such that any third party is not an absolute necessity for them to make their content available to  end consumers. This is for instance the c ase of RAI -  
Radiotelevisione italiana S.p.A., Sky Italia, Telecom Italia (TIM) in Italy;
203 of 
Deutsche Telekom AG, ARD, The Walt Disney Company, or Sky Deutschland GmbH in Germany;
204 or of NBC Universal, and Radio T elevision Española (RTVE) 
in Spain.205  
(417)  Therefore, the Commission considers that , in all of the relevant Member States,  there 
are sufficient economic alternatives for the upstream rivals to sell their output, without incurring significantly higher costs, and  that the merged entity would lack 
                                                 
197   The three layer classification is defined in paragraph (7)  of this decision. It comprises i) the production and 
supply of AV content; (ii) the wholesale supply of TV channels, and; (iii) the retail supply of AV services to end 
customers.  
198  Responses to questionnaire Q5 –  Questionnaires to market participants in th e AV sector (Germany), questions 5, 
5.1, 5.2.   
199   Responses to questionnaire Q8 – Questionnaires to market participants in the AV sector (Finland), question 5.1.  
200   Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (I taly), question 5.1.  
201   Responses to questionnaire Q11 –  Questionnaires to market participants in the AV sector (Spain), question 5.1. 
202   Responses to questionnaire Q10 –  Questionnaires to market participants in the AV sector (Poland), question 5.1. 
203   Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (Italy), question 4.   
204  Responses to questionnaire Q5 – Questionnaires to market participants in the AV sector (Germany), question 4.  
205   Responses to questionnaire Q11  – Questionnaires to market participants in the AV sector (Spain), question 4.  
 
85 the ability to engage into a customer foreclosure strategy , irrespective of the market 
definition . 
(B) Incentive to engage in total or partial customer foreclosure  
(418)  The Commission considers that , in all of the relevant Member States,  the merged 
entity will likely not have the incentives  to engage in foreclosure by restricting 
access  to the merged entity’s TV channels, ir respective of any possible market 
definition, to rival suppliers active in the upstream markets for the  market for the  
production of commissioned AV content , and external commissioned AV content , 
for the following reasons . 
(419)  First, in all of the countries considered, the presence of the Parties upstream in the 
markets for the production of commissioned content, and external commissioned 
content, is very limited, and therefore that the current incentives to acquire content 
from upstream producers will remain largely unchanged post -Transaction. More 
particularly, the Commission observes that the market for the retail supply of AV 
services is very dynamic.  Retail suppliers have strong incentives to provide access to 
a large variety and volume of content, more specifically to original content, in order 
to be sufficiently competitive in the market. In particular, in 2015 the European 
Audiovisual Observatory (EAO) already observed that: “ The provision of original 
content for the online world is a relatively new development, which appears to be 
growing exponentially, alongside the other market indicators. New content is of particular value for competing SVOD operators in order to create new brands of programming and distinguish them from other services. ”
206 During the market 
investigation, a large majority of market participants confirmed that the need for 
original and comprehe nsively attractive content to efficiently compete at all level of 
the AV value chain is still relevant today.  
(420)  Second , if the merged  entity plans to further develop its OTT activities on the market 
for the retail supply of AV services in Finland, Germany, I taly, Poland, and Spain, it 
will have incentive post -Transaction to acquire a wide range of content to 
consolidate the service and attract a broad range of viewers, and would lack the 
incentive  to engage into a customer foreclosure strategy.   
(421)  In any event,  given the lack of ability to foreclose, it is not necessary to conclude as 
to whether the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing rivals active in the market for the production of 
commissioned content, and external commissioned content, from accessing its TV 
channels , irrespective of any possible market definition,  in Finland, Germany , Italy, 
Poland, and Spain. 
(C) Conclusion 
(422)  In view of the above, the Commission concludes  that the Transaction does not raise 
serious doubts as to its compatibility with the internal market in relation to potential 
customer foreclosure with respect to :  
(a) the vertical relationship s between the market s for the production of 
commissioned AV content and the production of non- captive commissioned 
                                                 
206   D. Kevin, “Investments in original content by audiovisual services”, EAO, November 2015, page 43, available at 
https://rm.coe.in t/16807835ca .  
 
86 content  (upstream), and the market s for the wholesale supply of pay TV 
channels  and pay TV channels  for other  content  (downstream) in Finland;  
(b) the vertical relationship s between the market s for the production of 
commissioned AV content and the production of non- captive commissioned 
content  (upstream), and the market for the wholesale supply of pay TV 
channels for children content  (downstream) in Germany;  
(c) the vertical relationship s between the market for the production of 
commissioned AV content  (upstream), and the market s for the wholesale 
supply of TV channels for children content and FTA TV channels for 
children content (downstream) in Italy;  
(d) the vertical relationship s between the market s for the production of 
commissioned AV content and the production of non- captive commissioned 
content  (upstream), and the market for the wholesale supply of pay TV 
channels (downstream) in Poland; and 
(e) the vertical relationship s between the market s for the production of 
commissioned AV content and the production of non- captive commissioned 
content  (upstream), and the market for the wholesale supply of FTA  TV 
channels  for children content  (downstream) in Spain. 
5.5.3. Vertically affected markets arising from the relationships between the markets for the licensing  of AV content (upstream), and the markets for the wholesale supply of 
TV channels (downstream ) 
(423)  The Transaction gives rise to affected markets arising from the relationships between the markets for the licensing  of AV content (upstream), and the markets for the 
wholesale supply of TV channels (downstream ) in Bulgaria, Finland, Germany, 
Italy, Poland, Romania, and Spain. In each of these Member States, the market investigation led to very similar outcomes with respect to all of the relevant vertically affected mark ets, and ir respective of any possible market segmentation . In 
light of the results of the market investigation, in the following recitals, the Commission provides a joint assessment of the risk of anticompetitive foreclosure that could arise from the relat ionships between the markets for the licensing  of AV 
content (upstream), and the markets for the wholesale supply of TV channels (downstream), in Bulgaria, Finland, Germany, Italy, Poland, Romania, and Spain.  
5.5.3.1. Identification of the vertically affected mark ets in the relevant Member States  
(A) Bulgaria  
(424)  In Bulgaria, the following markets are vertically affected due to their connection with the downstream market for the wholesale supply of pay TV channels for children content (where only WarnerMedia is active wit h [30-40]% market shares): 
(i) the upstream markets for the licensing of broadcasting rights for other AV content (where the Parties’ combined market share is below 20%), (ii) the licensing of broadcasting rights for sports AV content (where only Discovery  is active with 
market share below 30%), (iii) the licensing of broadcasting rights for children AV content (where the Parties’ combined market share is below 20%), (iv) the licensing of broadcasting rights for AV content in the first pay exhibition window  (where the 
Parties’ combined market share is below 20%), and (v) the licensing of broadcasting 
 
87 rights for AV content in the second pay exhibition window (where the Parties’ 
combined market share is below 20%).  
(B) Finland  
(425)  In Finland, the following upstream m arkets are vertically affected due to their 
connection with the downstream markets for : (i) the wholesale supply of pay TV 
channels (where only Discovery is active with [40- 50]% market share), and (ii) the 
wholesale supply of pay TV channels for other cont ent (where only Discovery is 
active with [70- 80]% market share)  (i) the licensing of broadcasting rights for AV 
content (excluding sports and news content, and where the Parties’ combined market share is [0 -5]%), (ii) the licensing of broadcasting rights f or films AV content (where 
only WarnerMedia is active with market share below 30%), (iii) the licensing of 
broadcasting rights for US films AV content (where only WarnerMedia is active 
with market share below 30%), (iv) the licensing of broadcasting rights  for non- US 
films AV content (where only WarnerMedia is active with market share below 30%), 
(v) the licensing of broadcasting rights for other AV content (where only the Parties’ combined market share is below 20%), (vi) the licensing of broadcasting rights for 
children AV content (where only the Parties’ combined market share is below 20%), 
(vii) the licensing of broadcasting rights for AV content in the first pay exhibition 
window (where the Parties’ combined market share is below 20%), and (viii) the licensing of broadcasting rights for AV content in the second pay exhibition window (where the Parties’ combined market share is below 20%).  
(C) Germany  
(426)  In Germany, the following upstream markets are vertically affected due to their 
connection with the downstre am market for the wholesale supply of pay TV 
channels for children content (where only WarnerMedia is active with [90- 100]% 
market share):  (i) the licensing of broadcasting rights for AV content (excluding 
sports and news content, and where the Parties’ combined market share is [10-20]%), (ii) the licensing of broadcasting rights for films AV content (where only 
WarnerMedia is active with market share below 30%), (iii) the licensing of broadcasting rights for US films AV content (where only WarnerMedia is a ctive 
with market share below 30%), (iv) the licensing of broadcasting rights for non- US 
films AV content (where only WarnerMedia is active with market share below 30%), 
(v) the licensing of broadcasting rights for other AV content (where only the Parties’  
combined market share is below 20%), (vi) the licensing of broadcasting rights for 
children AV content (where only the Parties’ combined market share is below 20%), (vii) the licensing of broadcasting rights for AV content in the first pay exhibition 
wind ow (where the Parties’ combined market share is below 20%), and (viii) the 
licensing of broadcasting rights for AV content in the second pay exhibition window 
(where the Parties’ combined market share is below 20%).  
(D) Italy 
(427)  In Italy, the following upstream m arkets are vertically affected due to their 
connection with the downstream markets for (i) the wholesale supply of TV channels for children content (where the Parties’ combined market share is [50- 60]%), and 
(ii) the wholesale supply of FTA TV channels for  children content (where the 
Parties’ combined market share is [50-60]%): (i) the licensing of broadcasting rights 
for AV content (excluding sports and news content, and where the Parties’ combined market share is [10- 20]%), (ii) the licensing of broadcast ing rights for films AV 
 
88 content (where only WarnerMedia is active with market share below 30%), (iii) the 
licensing of broadcasting rights for US films AV content (where only WarnerMedia is active with market share below 30%), (iv) the licensing of broadca sting rights for 
non-US films AV content (where only WarnerMedia is active with market share 
below 30%), (v) the licensing of broadcasting rights for other AV content (where only the Parties’ combined market share is below 20%), (vi) the licensing of broadcasting rights for children AV content (where only the Parties’ combined market share is below 20%), (vii) the licensing of broadcasting rights for sports AV content (where only Discovery is active with share below 30%), and (viii) the licensing of broadca sting rights for AV content in the FTA exhibition window 
(where the Parties’ combined market share is below 20%).  
(E) Poland 
(428)  In Poland, the following upstream markets are vertically affected due to their 
connection with the downstream market for the wholesale supply of pay TV channels (where the Parties’ combined market share is [30- 40]%): (i) the licensing of 
broadcasting rights for AV content (excluding sports and news content, and where 
the Parties’ combined market share is [0 -5]%), (ii) the licensing of bro adcasting 
rights for films AV content (where only WarnerMedia is active with market share 
below 30%), (iii) the licensing of broadcasting rights for US films AV content (where only WarnerMedia is active with market share below 30%), (iv) the licensing of broadcasting rights for non- US films AV content (where only WarnerMedia is 
active with market share below 30%), (v) the licensing of broadcasting rights for other AV content (where only the Parties’ combined market share is below 20%), (vi) the licensing of  broadcasting rights for children AV content (where only the 
Parties’ combined market share is below 20%), (vii) the licensing of broadcasting rights for sports AV content (where only Discovery is active with share below 30%), (viii) the licensing of broad casting rights for AV content in the first pay exhibition 
window (where the Parties’ combined market share is below 20%), and (ix) the licensing of broadcasting rights for AV content in the second pay exhibition window (where the Parties’ combined market s hare is below 20%) . 
(F) Romania  
(429)  In Romania, the following upstream markets are vertically affected due to their 
connection with the downstream market for the wholesale supply of pay TV channels for children (where the Parties’ combined market share is [30- 40]%): (i) the 
licensing of broadcasting rights for AV content (excluding sports and news content, and where the Parties’ combined market share is [0 -5]%), (ii) the licensing of 
broadcasting rights for other AV content (where only the Parties’ combined market 
share is below 20%), (iii) the licensing of broadcasting rights for children AV 
content (where only the Parties’ combined market share is below 20%), (iv) the licensing of broadcasting rights for sports AV content (where only Discovery is active with share  below 30%), (v) the licensing of broadcasting rights for AV 
content in the first pay exhibition window (where the Parties’ combined market share is below 20%), and (vi) the licensing of broadcasting rights for AV content in the second pay exhibition window (where the Parties’ combined market share is below 20%).  
 
89 (G) Spain  
(430)  In Spain, the  following  upstream markets are vertically affected due to their 
connection with the downstream market for the wholesale supply of FTA TV 
channels children (where the Parties’ co mbined market share is [30- 40]%): (i) the 
licensing of broadcasting rights for AV content (excluding sports and news content, and where the Parties’ combined market share is [5 -10]%), (ii) the licensing of 
broadcasting rights for other AV content (where only the Parties’ combined market 
share is below 20%), (iii) the licensing of broadcasting rights for children AV 
content (where only the Parties’ combined market share is below 20%), (iv) the licensing of broadcasting rights for sports AV content (where onl y Discovery is 
active with share below 30%), and (v) the licensing of broadcasting rights for AV 
content in the FTA exhibition window (where the Parties’ combined market share is 
below 20%).  
5.5.3.2. The Notifying Party’s view  
(431)  As regards input foreclosure, the Noti fying Party notes that, for all the countries 
considered, due to the merged entity’s limited presence in the upstream markets 
post-Transaction, there is no risk of input foreclosure.  
(432)  As regards customer foreclosure, the Notifying Party notes that, for all the countries 
considered, the merged entity would have neither the ability nor the incentive to pursue a total or partial customer foreclosure strategy, and that any such customer foreclosure strategies would have no significant effect on effective competi tion. 
(433)  From the outset, the Notifying Party submits that already today and independently of the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain, in Bulgaria, Finland, Germany, Italy, Poland, Romania, and Spain. Notwithstanding this vertical integration, there has not been any evidence to date of any foreclosure concerns, and this will not change post -Transaction. The Parties both 
already own a portfolio of channels in addition to being present upstream in the licensing of broadcasting rights for AV content, including all possible market 
definition, and that therefore, there is a significantly reduced set of pre -existing 
customer relationships between the Parties as individual broadcasters, and third-party licens ers of broadcasting rights for AV content.  
(434)  Additionally, the Notifying Party notes that, in all the relevant countries, the merged 
entity will not be able to afford to pursue a customer foreclosure strategy, as this 
would reduce the breadth and quality content offered and included in its TV 
channels, and undermine the attractiveness of its wholesale channels. Any increment in market share resulting from the Transaction will not beget a commensurate 
increase in the merged entity’s market and bargaining powe r, especially since the 
Parties and other wholesale suppliers of TV channels are operating in an increasingly 
competitive environment, and will continue to require a broad content line -up to 
retain their customers.  
(435)  Post-Transaction, the merged entity’s OTT  platforms would, if anything, provide an 
incentive to the Parties to increase their acquired audio -visual content from upstream 
rival licensers, both with regard to its OTT platforms and in its capacity as a broadcaster. Ensuring the distribution of a wide range of third -party content via its 
TV channels, the merged entity will attract additional customers for its OTT platforms. Ensuring the distribution of third- party audio- visual content from rival 
 
90 upstream licensers via its TV channels is therefore like ly to increase demand for its 
own flagship OTT products, which constitute a core rationale of the Transaction, and 
applies to all countries where the Parties are active.  
(436)  Lastly, the Notifying Party observes that, in all of the relevant countries, AV conten t 
licensed upstream is increasingly available via non -traditional services delivered via 
the internet instead of being broadcasted, and that all of these services offer viewers 
the option to stream TV channels live, as well as interactive and on -demand video 
streaming services. Therefore, any refusal to acquire commissioned content from 
competing licensers would not have any material impact (foreclosure effects). Rival AV content licenser can supply content to the wide variety of companies active post -
Trans action on the and retail markets, including OTT platforms, as well as set up 
their own retail platform.  
5.5.3.3. The Commission’s assessment  
(A) Ability to engage in total or partial customer foreclosure  
(437)  The Commission considers that, in all of the relevant Member States  and irrespective 
of any possible market definition, the merged entity will not have the ability to engage in foreclosure by restricting access to the merged entity’s TV channels, to rival suppliers active in the upstream markets for the licensing of AV content, for the 
following reasons.  
(438)  First, in all of the relevant Member States, the market investigation yields mixed results as regards the impact of the Transaction on the markets for the licencing of 
AV content. However, the majority of the concerns ra ised relate to input foreclosure 
rather than customer foreclosure.
207  
(439)  Second, competition concerns regarding customer foreclosure are unlikely to arise when there is a sufficiently large customer base, at present or in the future, that is likely to turn to other suppliers active in the upstream market.
208 In that regard, the 
market for the wholesale supply of TV channels, irrespective of any possible market definition, is not a necessary intermediary for undertakings active in the markets for the licensing of AV content, irrespective of the market definition, to make their product available to end consumers. Notably, recent technological advances and evolving consumers’ habits have largely affected the landscape of the distribution of AV content. D igitalisation  has lowered entry barriers to the distribution of content, 
such that content licensors  can easily reach viewers through Direct to Consumers 
(DTC) technologies (e.g., for instance through the internet by supplying their content to an OTT AV retailer).  The traditional distribution infrastructure (involving for 
instance TV towers, cable systems, etc.), which requires AV content to be 
                                                 
207   Responses to questionnaire Q1 –  Questionnaires to market participants in the AV sector (Italy); Responses to 
questionnaire Q5 – Questionnaires to market participants in the AV sector (Germany); Responses to 
questionnaire Q6 –  Questionna ires to market participants in the AV sector (Romania); Responses to 
questionnaire Q7 –  Questionnaires to market participants in the AV sector (Bulgaria); Responses to questionnaire 
Q8 – Questionnaires to market participants in the AV sector (Finland); Res ponses to questionnaire Q10 – 
Questionnaires to market participants in the AV sector (Poland); Responses to questionnaire Q11 – 
Questionnaires to market participants in the AV sector (Spain).  
208   Non-Horizontal Merger Guidelines, paragraph 60.   
 
91 aggregated into TV channels before being supplied, is no longer a necessary means 
of distribution for AV content to reach consumers .209  
(440)  Moreover, in all of the relevant Member States, the market investigation confirmed that the traditional three -layer classification fails to properly take into account the 
markets dynamics resulting from Direct -to-Consumer broadcasting, as the front iers 
between the different layers are becoming increasingly blurred as a consequence of the global market trend for vertical integration. In particular, in Germany, one respondent explained that: “ the respective levels of the value chain obviously mix 
with one another, because the upstream market […] also engages in the downstream 
market for the retail supply of AV services towards end- customers […]. Therefore, in 
particular the upstream market also competes with the intermediate and the downstream market f or end- customer products for AV content.”
210 In Finland, one 
respondent indicated that: “ the content owners, such as film studios and sports rights 
owners are building their own direct -to-consumer retail offerings, “bypassing” 
broadcasters, competing broadcasters and teleoperators.”211 
(441)  Furthermore, in Italy one respondent explained that: “ the competitive landscape has 
changed considerably in the recent past. More specifically, the downstream market 
for the retail supply of AV services should no longer be segmented according to 
traditional drivers; and vertical integration is now widespread, which in turn has 
implications on the availability of AV content to be purchased at the upstream and 
intermediate levels of the supply chain.”212 In Spain, one respondent also provided 
that: “ We consider that the frontiers between the different models or markets of AV 
content are becoming more and more blurred”213 Finally in Poland, one respondent 
indicated that: “ The traditional value chain […] is more and more challenged by 
mark et developments and changing consumer behaviour, particularly the switch to 
non-linear and OTT viewing. Content providers are increasingly by -passing channel 
providers and traditional distribution platforms and offering their content directly to 
the consum er via an app on an OTT basis .”214215 
(442)  Third, from the market investigation, the Commission understands that, in the Member States con cerned , market participants active in the licensing of broadcasting 
rights for AV content, irrespective of the market definitio n, are largely vertically 
integrated and also active in the retail market, such that any third party is not an 
absolute necessity for them to make their content available to end consumers. This is 
for instance the case of RAI -  Radiotelevisione italiana S. p.A., Sky Italia, Telecom 
Italia (TIM) in Italy;
216 of Deutsche Telekom AG, ARD, The Walt Disney Company, 
                                                 
209   NERA, T he Impact of Online Video Distribution on the Global Market for Digital Content, 3, available at  
https://www.nera.com/content/dam/nera/publications/2019/NERA -The-Impact -of-Online -Video -
Distribution.pdf.  
210   Responses to questionnaire Q5 –  Questionnaires to  market participants in the AV sector (Germany), questions 5, 
5.1, 5.2.  
211   Responses to questionnaire Q8 – Questionnaires to market participants in the AV sector (Finland), question 5.1. 
212   Responses to questionnaire Q1 – Questionnaires to market partici pants in the AV sector (Italy), question 5.1.   
213   Responses to questionnaire Q11 –  Questionnaires to market participants in the AV sector (Spain), question 5.1.  
214   Responses to questionnaire Q10 –  Questionnaires to market participants in the AV sector (P oland), question 5.1.   
215   Responses to questionnaire Q6 –  Questionnaires to market participants in the AV sector (Romania), and 
Responses to questionnaire Q7 –  Questionnaires to market participants in the AV sector (Bulgaria), also confirm 
the views that the market is undergoing rapid changes with respect to the ways content is supplied to end-
consumers.  
216   Responses to questionnaire Q1 – Questionnaires to market participants in the AV sector (Italy), question 4.   
 
92 or Sky Deutschland GmbH in Germany;217 or of NBC Universal, and Radio 
Television Española (RTVE) in Spain.218  
(443)  Therefore, the Commission considers that, in all of the relevant Member States, there 
are sufficient economic alternatives for the upstream rivals to sell their output, 
without incurring significantly higher costs, and that the merged entity would lack the ability to engage into a customer foreclosur e strategy, irrespective of the market 
definition. 
(B) Incentive to engage in total or partial customer foreclosure  
(444)  The Commission considers that, in all of the relevant Member States, the merged 
entity will likely not have the incentives to engage in foreclos ure by restricting 
access to the merged entity’s TV channels, irrespective of any possible market definition, to rival suppliers active in the upstream markets for the market for the licensing of AV content, irrespective of the market definition, for the f ollowing 
reasons.  
(445)  First, in all of the countries considered, the presence of the Parties upstream in the markets for the licensing of AV content, irrespective of the market definition, is not sufficient to provide market power, and therefore that the curre nt incentives to 
acquire content from upstream producers will remain largely unchanged post -
Transaction. More particularly, the market for the retail supply of AV services is very dynamic, and retail suppliers have strong incentives to provide access to a large variety and volume of content, more specifically to original content, in order to be sufficiently competitive in the market. In particular, in 2015 the European Audiovisual Observatory (EAO) already observed that: “ The provision of original 
content f or the online world is a relatively new development, which appears to be 
growing exponentially, alongside the other market indicators. New content is of particular value for competing SVOD operators in order to create new brands of programming and distinguish them from other services. ”
219 During the market 
investigation, a large majority of market participants confirmed that the need for 
original and comprehensively attractive content to efficiently compete at all level of 
the AV value chain is still relevant today.  
(446)  Second, if the merged entity plans to further develop its OTT activities on the market 
for the retail supply of AV services in Bulgaria, Finland, Germany, Italy, Poland, 
Romania, and Spain, it will have incentive post -Transaction to acquire a wide range 
of content to consolidate the service and attract a broad range of viewers, and would 
lack the incentive to engage into a customer foreclosure strategy.  
(447)  In any event, given the lack of ability to foreclose, it is not necessary to conclude as 
to whet her the merged entity will have the incentive to implement a strategy aimed 
at foreclosing competing rivals active in the market for the licensing of AV content, irrespective of the market definition, from accessing its TV channels, irrespective of 
any pos sible market definition, in Bulgaria, Finland, Germany, Italy, Poland, 
Romania, and Spain. 
                                                 
217  Responses to questionnaire Q5 – Questi onnaires to market participants in the AV sector (Germany), question 4.   
218   Responses to questionnaire Q11 –  Questionnaires to market participants in the AV sector (Spain), question 4.   
219   D. Kevin, “Investments in original content by audiovisual service s”, EAO, November 2015, page 43, available at 
https://rm.coe.int/16807835ca .  
 
93 (C) Conclusion 
(448)  In view of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market in rela tion to potential 
customer foreclosure with respect to:  
(a) the vertical relationship between the markets for (i) the licensing of broadcasting rights for other AV content (excluding sports and news 
content), (ii) the licensing of broadcasting rights for spor ts AV content, 
(iii) the licensing of broadcasting rights for children AV content, (iv) the 
licensing of broadcasting rights for AV content in the first pay exhibition 
window, and (v) the licensing of broadcasting rights for AV content in the second pay ex hibition window, (all upstream); and the market for the 
wholesale supply of pay TV channels for children content (downstream), in 
Bulgaria.  
(b) the vertical relationship between the markets for (i) the licensing of 
broadcasting rights for AV content (excluding  sports and news content), 
(ii) the licensing of broadcasting rights for films AV content, (iii) the 
licensing of broadcasting rights for US films AV content, (iv) the licensing of 
broadcasting rights for non- US films AV content, (v) the licensing of 
broadcasting rights for other AV content, (vi) the licensing of broadcasting 
rights for children AV content, (vii) the licensing of broadcasting rights for AV content in the first pay exhibition window, and (viii) the licensing of broadcasting rights for AV content in the second pay exhibition window, (all upstream); and the markets for (i) the wholesale supply of pay TV channels, and (ii) the wholesale supply of pay TV channels for other content, (all downstream), in Finland;  
(c) the vertical relationship between the markets for (i) the licensing of broadcasting rights for AV content (excluding  sports and news content), 
(ii) the licensing of broadcasting rights for films AV content, (iii) the 
licensing of broadcasting rights for US films AV content, (iv) the licensi ng of 
broadcasting rights for non- US films AV content, (v) the licensing of 
broadcasting rights for other AV content, (vi) the licensing of broadcasting 
rights for children AV content, (vii) the licensing of broadcasting rights for 
AV content in the first pay exhibition window, and (viii) the licensing of 
broadcasting rights for AV content in the second pay exhibition window, (all 
upstream); and the market for the wholesale supply of pay TV channels for children content (downstream), in Germany.  
(d) the vertica l relationship between the markets for (i) the licensing of 
broadcasting rights for AV content (excluding sports and news content), (ii) the licensing of broadcasting rights for films AV content, (iii) the 
licensing of broadcasting rights for US films AV c ontent, (iv) the licensing of 
broadcasting rights for non- US films AV content, (v) the licensing of 
broadcasting rights for other AV content, (vi) the licensing of broadcasting 
rights for children AV content, (vii) the licensing of broadcasting rights for 
sports AV content, and (viii) the licensing of broadcasting rights for AV content in the FTA exhibition window, (all ups tream); and the markets for 
(i) the wholesale supply of TV channels for children content, and (ii) the 
wholesale supply of FTA TV channe ls for children content, (all downstream), 
in Italy.  
 
94 (e) the vertical relationship between the markets for (i) the licensing of 
broadcasting rights for AV content (excluding  sports and news content), 
(ii) the licensing of broadcasting rights for films AV conte nt, (iii) the 
licensing of broadcasting rights for US films AV content, (iv) the licensing of broadcasting rights for non- US films AV content, (v) the licensing of 
broadcasting rights for other AV content, (vi) the licensing of broadcasting rights for chil dren AV content, (vii) the licensing of broadcasting rights for 
sports AV content, (viii) the licensing of broadcasting rights for AV content in the first pay exhibition window, and (ix) the licensing of broadcasting rights for AV content in the second pay  exhibition window, (all upstream); 
and the market for the wholesale supply of pay TV channels (downstream), in Poland.  
(f) the vertical relationship between the markets for (i) the licensing of broadcasting rights for AV content (excluding sports and news content), (ii) the licensing of broadcasting rights for other AV content, (iii) the 
licensing of broadcasting rights for children AV content, (iv) the licensing of broadcasting rights for sports AV content, (v) the licensing of broadcasting rights for AV con tent in the first pay exhibition, and (vi) the licensing of 
broadcasting rights for AV content in the second pay exhibition window, (all upstream); and the market for the wholesale supply of pay TV channels for children (downstream), in Romania. 
(g) the vertic al relationships between the markets for (i) the licensing of 
broadcasting rights for AV content (excluding  sports and news content), 
(ii) the licensing of broadcasting rights for other AV content, (iii) the 
licensing of broadcasting rights for children AV  content, (iv) the licensing of 
broadcasting rights for sports AV content, and (v) the licensing of broadcasting rights for AV content in the FTA exhibition window, (all upstream); and the market for the wholesale supply of FTA TV channels children (downst ream), in Spain. 
5.5.4. Vertically affected markets arising from the relationships between the markets for the wholesale supply of TV channels (upstream), and the markets for the retail supply of AV services (downstream)  
5.5.4.1. Bulgaria  
(449)  In Bularia, t he upstream market f or the wholesale supply of pay TV channels for 
children content (where only Warner Media is active with  [30-40]% market share in 
TV audience) is vertically affected due to its connection with the downstream markets for (i) the retail supply of pay AV servi ces (where the Parties’ combined 
market share is [0 -5]% in revenue), and (ii) the retail supply of non- linear pay AV 
services or SVOD services ( where the Partie’s combined market share is [5 -10]% in 
subscriptions ). 
(A) The Notifying Party’s view  
(450)  As regards customer  foreclosure, the Notifying Party notes that, due to the merged  
entity’s limited presence in the downstream  market s post-Transaction, there is no 
risk of customer  foreclosure.  
 
95 (451)  As regards input  foreclosure, the Notifying Party notes that the merged  entity would 
have neither the ability nor the incentive to pursue a total or partial input  foreclosure 
strategy, and that any such input  foreclosure strategies would have no significant 
effect on effective competition.  
(452)  From the outset, the Notifying Party submits that already today and independently of 
the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain. Notwithstanding this vertical integration, there has not been any 
evidence to date of any foreclosure concerns , and this will not change post -
Transaction.  There is only one Party present in the upstream market, and both Parties 
are present pre- Transaction in the downstream markets, such that there are  no new 
link created by the Transaction. This means that the Transaction does not create (or, 
if there was any ability pre- Transaction, add to) the ability to engage in vertical 
foreclosure.  
(453)  Additionally, the Notifying Party argues that , to sustain a theory of harm based on 
input  foreclosure, the increase in the downst ream share would need to be sufficient 
to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in downstream share and hence it not 
plausible in the Parties’ view that such a modest increase could create such an 
incentive to foreclose.  
(B) The Commission’s assessment  
(454)  With respect to the risk of customer  foreclosure, the Commission observes that the 
presence of the merged entity in the downstream market is below 30% and therefore, 
that the merged  entity would not have the ability to engage in input foreclosure after 
the Transaction. 
(455)  With respect to the risk of input foreclosure, the Commission considers that a 
number of factors indicate that the merged entity would likely have no abil ity, nor 
incentive, to foreclose access to the upstream  market for the wholesale supply of pay 
TV channels for children content . 
(B.i) Ability to engage in total or partial input foreclosure  
(456)  The Commission considers that the merged entity will not have the ability to engage in foreclosure by restricting access to the merged entity’s pay TV channels for 
children content, to rival retailers  active downstream  in the retail supply of pay AV 
services, and the retail supply o f non- linear pay AV services ( SVOD services ), for 
the following reasons . 
(457)  First, input foreclosure may raise competition problems only if it concerns an 
important input for the downstream product, for instance because it is a critical component, or because it is a significant source of product differ entiation.
220 The 
affected vertical relations hip links an upstream market as narrowly defined on the 
basis of its thematic content, with downstream markets which, to the contrary, 
include various type s of thematic content. During the market investigation , a 
majority of the respondents explained  that the segmentation of TV channels by 
thematic content is not relevant to assess the situation in Bulgaria today, and that 
                                                 
220   Non-Horizontal Merger Guidelines, paragraph 34.   
 
96 there are many TV channels offered in th e market which are not specialis ed by 
genre. Additionally,  none of the market participants consider ed that TV channels 
specialised in content targeted to children constitute an input of particular 
importance to compete in the market for the retail supply of AV services.221 This 
suggest s that pay TV channel s specialized in content targeted to children cannot be 
considered to be  particularly important inputs for  the downstream markets for (i) the 
retail supply of pay AV services, and (ii) the retail supply of non- linear pay AV 
services ( or SVOD services ) in Bulga ria.  
(458)  Second , for an input foreclosure concern to arise, the vertically integrated firm 
resulting from the merger must have a significant degree of market power in the 
upstream market, such that reducing access to the merged entity’s upstream product 
could negatively affect the overall availability of inputs or the downstream markets 
in terms of price or quality.222 However, the Transaction will not strengthen the 
merged entity’s position in the relevant upstream market because only WarnerMedia 
is active in t he wholesale supply of pay TV channels for children content , with a 
market share that is below 40% , and therefore not in itself representative of a very 
large market position.223 Additionally, the presence of sufficient existing or potential 
alternatives in the market for the wholesale supply of TV channels for children 
content is supported by the market investigation where one respondent explained 
that: “ broadcasters  [of non- genre specific TV channels  can easily start producing 
specialized TV channels – they already have different types of content and can easily 
acquire further content of a given genre – provided that this is profitable due to the 
current market situation.”224 
(459)  Third , the Commission observes that the affected vertical relationship is pre -existin g 
to the Transaction , as WarnerMedia is also active in the downstream markets, and 
there is no evidence of an input foreclosure strategy currently in place. Additionally, considering the very limited combined market shares and increments in the two 
downstr eam markets considered, there is no evidence to suggest that the Transaction 
will alter any  existing risk of anticompetitive input  foreclosure.  
(460)  Therefore, the Commission considers that there are sufficient economic alternatives for the downstream  rivals to  have adequate access to inputs , without incurring 
significantly higher costs, and that the merged entity would lack the ability to engage into a n input  foreclosure strategy.  
(B.ii) Incentive to engage in total or partial input foreclosure  
(461)  The Commission consider s that the merged entity will likely not have the incentives 
to engage in foreclosure by restricting access to the merged entity’s pay TV channels for children content, to rival suppliers active in the downtream  markets  for (i) the 
retail supply of pay AV services  and (ii) the retail supply of non- linear pay AV 
services.  
                                                 
221   Responses to questionnaire Q7 – Questionnaires to market participants in th e AV sector (Bulgaria), questions 11, 
11.1, 11.1.1, 14.2, and 14.2.1.    
222   Non-Horizontal Merger Guidelines, paragraph 35 and 36.  
223   Horizontal Merger Guidelines, paragraph 17.  
224   Responses to questionnaire Q7 –  Questionnaires to market participants in  the AV sector (Bulgaria), 
question  11.1.1.   
 
97 (462)  The presence of the Parties downstream  in the markets the r etail supply of pay AV 
services, and  the retail supply of non- linear pay AV services ( or SVOD services ), is 
very limited, and ther efore that the current incentives to supply  content to 
downstream  retailers  will remain largely unchanged post -Transaction.  More 
particularly, the Commission observes that the P arties would bear the full cost of a 
hypothetical input foreclosure strategy, but would reap only a small fraction of any 
hypothetical benefits with such a low combined share in the downstream markets 
(below [5-10]%). The Parties’ low combined share suggests that customers 
switching from an AV retail supplier that the Parties tried to foreclose would be more likely to switch to rivals than to the merged entity . 
(463)  In any event, given the lack of ability to foreclose, it is not necessary to conclude as 
to whether the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the market s for the r etail 
supply of pay AV services, and the retail supply of non- linear pay AV services ( or 
SVOD services ), from accessing its pay TV channels for children content in 
Bulgaria . 
(B.iii)  Conclusion 
(464)  In view of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market in relation to potential 
input  foreclosure with respect to the vertical r elationships between the market  for the 
wholesale supply of pay TV channels for children content  (upstream), and the 
market s for (i) the r etail supply of pay AV services, and (ii) the retail supply of non-
linear pay AV services or SVOD services , (downstream) in Bulgaria.  
5.5.4.2. Finland  
(465)  In Finland, the upstream market s for (i) the wholesal e supply of pay TV channels 
(where only Discovery is active with  [40-50]% market share in TV audience) , 
(ii) the wholesal e supply of pay TV channels for sports content (where only 
Discovery is active with  [40-50]% m arket share in TV audience) , and (iii) the 
wholesale supply of pay TV channels for other content (where only Discovery is 
active with  [70-80]% market share in TV audience) ; are vertically affected due to 
their connection with the downstream markets for (i)  the retail supply of pay AV 
services (where the Parti es’ combined market share is [5 -10]% in revenue ), and 
(ii) the retail supply of non- linear pay AV services (or SVOD services)  (where the 
Parti e’s combined market share is [20- 30]% in subscriptions ). 
(A) The Notifying Party’s view  
(466)  As regards customer foreclosure, the Notifying Party notes that, due to the merged 
entity’s limited presence in the downstream markets post- Transaction  (always below 
30%) , there is no risk of customer foreclosure.  
(467)  As regards input f oreclosure, the Notifying Party notes that the merged entity would 
have neither the ability nor the incentive to pursue a total or partial input foreclosure 
strategy, and that any such input foreclosure strategies would have no significant 
effect on effect ive competition.  
(468)  From the outset, the Notifying Party submits that already today and independently of 
the Transaction, both Parties are active at several levels of the audio -visual content 
 
98 supply chain. Notwithstanding this vertical integration, there has not been any 
evidence to date of any foreclosure concerns, and that this will not change post -
Transaction. There is only one Party present in the upstream market, and both Parties are present pre -Transaction in the downstream markets, such that there is no new 
link created by the Transaction. This means that the Transaction does not create (or, if there was any ability pre- Transaction, add to) the ability to engage in vertical 
foreclosure.  
(469)  Additionally, the Notifying Party argues that, to sustain a theory of harm based on input foreclosure, the increase in the downstream share would need to be sufficient to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in downstream share (notably in the 
market for the retail supply of pay AV services) and hence it is not plausible in the 
Parties’ view that such a modest increase could create such an incentive to foreclose.  
(470)  With respect to the market for the retail supply of non- linear pay  AV services (or 
SVOD services), where the merged entity’s market share will be slightly higher, the 
Notifying Party submits that in Finland, the Parties do not supply downstream SVOD competitors with linear channels. Therefore, the Parties have no ability  to 
engage in input foreclosure. The Notifying Party also argues that in any event, retail 
platforms can source their content (in the form of programs, formats, series, films, 
etc. and not merely TV channels)  from a wide range of sources,  locally or 
intern ationally,  and hence that wholesale suppliers of TV channels  are constrained 
by a multitude of AV suppliers.
225 
(B) The Commission’s assessment  
(471)  With respect to the risk of customer  foreclosure, the Commission observes that the 
presence of the merged entity in th e downstream market is below 30% and therefore, 
that the merged  entity would not have the ability to engage in customer  foreclosure 
after the Transaction.  
(472)  With respect to the risk of input foreclosure, the Commission considers that a 
number of factors indi cate that the merged entity would likely have no ability, nor 
incentive, to foreclose access to the upstream  market s for (i) the wholesale supply of 
pay TV channels , (ii) the  wholesale supply of pay TV channels for sports content, 
and (iii) the wholesale s upply of pay TV channels for other  content . 
(B.i) Ability to engage in total or partial input  foreclosure  
(473)  The Commission considers that the merged entity will not have the ability to engage in foreclosure by restricting access to the merged entity’s pay TV chann els, pay TV 
channels  for sports content, and pay TV channels for other content;  to rival retailers 
active downstream in the retail supply of pay AV services, and the retail supply of non-linear pay AV services (SVOD services), for the following reasons.  
(474)  First, input foreclosure may raise competition problems only if it concerns an 
important input for the downstream product, for instance because it is a critical component, or because it is a significant source of product differentiation.
226 Except 
for the upst ream  market s for the wholesale supply of pay TV channels , the affected 
                                                 
225   Chapter 7 to the Form CO, paragraph 131.   
226   Non-Horizontal Merger Guidelines, paragraph 34.  
 
99 vertical relations hips link  upstream market s which are narrowly defined on the basis 
of their thematic content, with downstream markets which, to the contrary, include 
various type of t hematic content. During the market investigation, a majority of the 
respondents explained that the segmentation of TV channels by thematic content is 
not relevant to assess the situation in Finland today, and that there are many TV 
channels offered in the market which are not specialised by genre. Additionally, 
none  of the market participants raised the concern  that TV channels specialised in 
sports content and/or other content  constitute an input of particular importance to 
compete in the market for the re tail supply of AV services.227 This suggest that pay 
TV channel s specialized in sports content and/or other content  cannot be considered 
to be particularly important inputs for the downstream markets for (i) the retail 
supply of pay AV services, and (ii) the  retail supply of non- linear pay AV services 
(or SVOD services) in Finland. 
(475)  Second for input foreclosure to be a concern, the vertically integrated firm resulting 
from the merger must have a significant degree of market power in the upstream 
market, such t hat reducing access to the merged  entity’s upstream product could 
negatively affect the overall availability of inputs or the downstream markets in terms of price or quality.
228 However, the Transaction will not strengthen the merged  
entity’s position in the  relevant upstream market s becaus e only Discovery is active 
in (i) the wholesale supply of pay TV channels, (ii) the wholesale supply of pay TV 
channels for sports content, and (iii) the wholesale supply of pay TV channels for other content. Additionally, the Commission observes that the affected vertical 
relationship is pre -existing to the Transaction, as Discovery  is also active in the 
downstream markets, and there is no evidence of an input foreclosure strategy currently in place.  
(476)  Third, considering the  very limited combined market shares and increments on the 
the downstream market for the retail supply of pay AV services , there is no evidence 
to suggest that the Transaction will alter the existing risk of anticompetitive input foreclosure.  
(477)  Fourth, the downstream market for the retail supply of non- linear pay AV services 
(SVOD services),  where the Parties have a higher combined market share, is a 
relatively recent and dynamic market which has been largely impacted by the technological advances (e.g., inte rnet accessibility), and evolving consumer habits 
(e.g., consumption of on demand content). TV channels do not represent the most important input for retailers of SVOD services, which can also acquire valuable input in the form of un- aggregated content dir ectly from other actors active in the 
market for the production of AV content or the market for the licensing of AV content. The  market investigation also confirmed that the traditional three -layer 
classification fails to properly take into account the mar kets dynamics resulting from 
Direct -to-Consumer services , as the frontiers between the different layers are 
becoming increasingly blurred as a consequence of the global market trend for vertical integration. In particular, one respondent explained that:  “Examples of the 
recent and significant changes in the AV value chain are […] SVOD providers like Netflix competing directly with pay TV for end -costumers and operating as vertically 
integrated service providers […]; and Broadcasters operating in retail with their 
                                                 
227  Responses to questionnaire Q3 –  Questionnaires to market participants in the AV sector (Finland), questions 1 1.1 
and 11.1.1.  
228   Non-Horizontal Merger Guidelines, paragraph 35 and 36. 
 
100 own DtC (direct to consumer) streaming services (digital subscriptions), thereby 
bypassing traditional distributors for end- customer relationships.”229 
(478)  Therefore, the Commission considers that there are sufficient economic alternatives for the downstr eam rivals to have adequate access to inputs, without incurring 
significantly higher costs, and that the merged entity would lack the ability to engage 
into an input foreclosure strategy.  
(B.ii) Incentive to engage in total or partial input foreclosure  
(479)  The Commis sion considers that the merged entity will likely not have the incentives 
to engage in foreclosure by restricting access to the merged entity’s pay TV 
channels , pay TV channels for sports content, and pay TV channels for other 
content , to rival suppliers a ctive in the downs tream markets for (i) the retail supply 
of pay AV services and (ii) the retail supply of non- linear pay AV services, for the 
following reasons . 
(480)  First, the presence of the P arties , and therefore the current incentives to supply 
content to downstream retailers on the downstream market for  the retail supply of 
pay AV serviceswill remain largely unchanged post -Transaction. More particularly, 
the Commission observes that the Parties would bear the full cost of a hypothetical input foreclosure strategy, but would reap only a small fraction of any hypothetical benefits with such a low combined share in the downstream markets ( around  
[5-10]%). The Parties’ low combined share suggests that customers switching from 
an AV retail supplier that the Par ties tried to foreclose would be more likely to 
switch to rivals than to the merged  entity.  
(481)  Second, both Parties are active on  to the downstream market for the retail supply of 
non-linear pay AV services (or SVOD services), where the Parties have a higher 
combined market share, through platforms of very di fferentiated focus. Discovery 
only has [0 -5]% market share with the Discovery+ and Eurosport  Player SVOD 
services, focusing on general entertainment and sports content. WarnerMedia has 
[20-30]% market shar e with the SVOD services associated with HBO, focusing on 
premium films  and TV series content. Post -Transacion, any additional market power 
downstream would come fr om WarnerMedia’s SVOD services. Additionally, 
WarnerMedia’s SVOD services are not likely to benefit from Disc overy’s TV 
channels which, due to their focus, would not represent a critical input. Therefore, 
the current incentives to supply content to downstream retailers will remain largely unchanged post -Transaction. More particularly, the Commiss ion observes that the 
Parties would bear the full cost of a hypothetical input foreclosure strategy, but would reap only a small fract ion of any hypothetical benefits, as Discovery’s TV 
channels are not likely to lead to a significant increase in the number of subscribers of the merged entity’s SVOD services.  
(482)  In any event, given the lack of ability to foreclose, it is not necessary to conclude as to whether the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the markets for the retail supply of pay AV services, and the retail supply of non- linear pay AV services (or 
SVOD services), from accessing its pay TV channels , pay TV channels for sports 
content, and pay TV channels for other cont ent, in Finland.  
                                                 
229   Responses to questionnaire Q3 – Questionnaires to market participants in the AV sector (Finland), question 5.1.   
 
101 (B.iii)  Conclusion 
(483)  In view of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market in relation to potential input  foreclosure with respect to the vertical r elation ships between  the markets for (i) 
the wholesale supply of pay TV channels  (upstream) , (ii) the wholesale supply of 
pay TV channels for sports content ( upstream ), and (iii) the wholesale supply of pay 
TV channels for other content ( upstream ); and the market s for (i) the retail supply of 
pay AV services ( downstream ), and (ii) the retail supply of non -linear pay AV 
services (or SVOD services) ( downstream ), in Finland. 
5.5.4.3. Italy 
(484)  In Italy, the upstream markets for (i) the wholesale supply of TV channels for 
children  content (where the Parties’ combined market share is [50- 60]% in TV 
audience),  and (ii) the wholesale supply of FTA TV channels for children content 
(where the Parties’ combined market share is [50- 60]% in TV audience); are 
vertically affected due to thei r connection with the downstream markets for (i) the 
retail supply of pay AV services (where only Discovery is active with [0 -5]% market 
share revenue), (ii) the retail supply of non- linear pay AV services (or SVOD 
services) (where only Discovery is active  with [0-5]% market share in 
subscriptions ), and (iii)  the retail supply of non- linear FTA AV services (or A VOD 
services) (where only Discovery is active with [0 -5]% market share Revenue) . 
(A) The Notifying Party’s view  
(485)  As regards customer  foreclosure, the Not ifying Party notes that, due to the merged  
entity’s limited presence in the downstream  market s post-Transaction, there is no 
risk of customer  foreclosure.  
(486)  As regards input  foreclosure, the Notifying Party notes that the merged  entity would 
have neither the  ability nor the incentive to pursue a total or partial input  foreclosure 
strategy, and that any such input  foreclosure strategies would have no significant 
effect on effective competition.  
(487)  From the outset, the Notifying Party submits that already today an d independently of 
the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain. Notwithstanding this vertical integration, there has not been any 
evidence to date of any foreclosure concerns, and this will not change  post-
Transaction.  There is only one Party present in the upstream market, and both Parties 
are present pre -Transaction in the downstream markets, such that there is no new 
link created by the Transaction. This means that the Transaction does not create (o r, 
if there was any ability pre- Transaction, add to) the ability to engage in vertical 
foreclosure.  
(488)  Additionally, the Notifying Party argues that , to sustain a theory of harm based on 
input  foreclosure, the increase in the downstream share would need to be  sufficient 
to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in downstream share and hence it  is 
not plausible in the Parties’ view that such a modest increase could cre ate such an 
incentive to foreclose.  
 
102 (B) The Commission’s assessment  
(489)  With respect to the risk of customer foreclosure, the Commission observes that the 
presence of the merged entity in the downstream market is below 30% and therefore, that the merged entity would not have the ability to engage in customer foreclosure 
after the Transaction.  
(490)  With respect to the risk of input foreclosure, the Commission considers that a 
number of factors indicate that the merged entity would likely have no ability, nor 
incentive, t o foreclose access to the upstream market s for (i) the wholesale supply of 
TV channels for children content, and (ii) the wholesale supply of FTA TV channels 
for children content.  
(B.i) Ability to engage in total or partial input  foreclosure  
(491)  The Commission consi ders that the merged entity will not have the ability to engage 
in foreclosure by restricting access to the merged entity’s pay TV channels for children content, to rival retailers  active downstream  in the retail supply of pay AV 
services, the retail suppl y of non -linear pay AV services ( SVOD services ), and the 
retail supply of non -linear FTA AV services (A VOD services ), for the following 
reasons . 
(492)  First, input foreclosure may raise competition problems only if it concerns an 
important input for the downstre am product, for instance because it is a critical 
component, or because it is a significant source of product differentiation.
230 The 
affected vertical relationship s link  upstream market s which are  narrowly defined on 
the basis thematic content, with downstr eam markets which, to the contrary, include 
various type of thematic content. During the market investigation, a lthough a 
majority of the respondents explained that the segmentation of TV channels by thematic content could be  relevant to assess the situati on in Italy  today, the market 
investigation also suggested that providers of retail AV services  wish to offer a 
complementary range of genres, and have flexibility regarding the composition of their offering .
231 This suggests that TV channels specialized in content targeted to 
children cannot be considered to be particularly important inputs for the downstream markets for (i) the retail supply of pay AV services, (ii) the retail supply of non-linear pay AV services ( or SVOD services ),  and (iii) the retail su pply of non- linear 
FTA  AV services (or A VOD services ) in Italy.  
(493)  Second , for input foreclosure to be a concern, the vertically integrated firm resulting 
from the merger must have a significant degree of mark et power in the upstream 
market, such that reduci ng access to the merged entity’s upstream product could 
negatively affect the overall availability of inputs or the downstream markets in terms of price or quality.
232 However , as already explained in Section 5.4.4, the 
Transactio n will not strengthen the merged entity’s position in the relevant upstream 
market s, notably due to the existence of sufficient alternative suppliers, the 
competitive constraint exercised by retail AVOD service on FTA TV channels, and the fact that WarnerM edia’s FTA TV channels for children content available in Italy 
                                                 
230   Non-Horizontal Merger Guidelines, paragraph 34.   
231   Respo nses to questionnaire Q1 – Questionnaires to market participants in the AV se ctor (Italy), question 15.1 
and 15.1.1.     
232   Non-Horizontal Merger Guidelines, paragraph 35 and 36. 
 
103 are solely supplied through Boing with Mediaset , [DURATION OF THE 
AGREEMENT BETWEEN WARNERMEDIA AND MEDIASET] .  
(494)  Third, the Commission observes that the affected vertical relationship is pre -existing 
to the Transaction , as Discovery  is also active in the downstream markets, and there 
is no evidence of an input foreclosure strategy currently in place. Additionally, 
considering the very limited combined market shar es and increments i n the two 
downs tream  markets considered, there is no evidence to suggest that the Transaction 
will alter the existing risk of anticompetitive input  foreclosure.  
(495)  Therefore, the Commission considers that the merged entity would lack the ability to engage into a n input  foreclosure strategy.  
(B.ii) Incentive to engage in total or partial input foreclosure  
(496)  The Commission considers that the merged entity will likely not have the incentives 
to engage in foreclosure by restricting access to the merged entity’s TV  channels for 
children c ontent and FTA TV channels for children content, to rival suppliers active 
in the downtream  markets  for (i) the r etail supply of pay AV services  and (ii) the 
retail supply of non -linear pay AV services.  
(497)  The presence of the Parties downstream  in the markets  the r etail supply of pay AV 
services, and  the retail supply of non- linear pay AV services ( or SVOD services ), is 
very limited, and therefore that the current incentives to supply  content to 
downstream  retailers  will remain largely unchanged post -Transacti on. More 
particularly, the Commission observes that the P arties would bear the full cost of a 
hypothetical input foreclosure strategy, but would reap only a small fraction of any 
hypothetical benefits with such a low combined share in the downstream market s 
(below [0-5]%). The Parties’ low combined share suggests that customers switching 
from an AV retail supplier that the Parties tried to foreclose would be more likely to 
switch to rivals than to the merged entity . 
(498)  In any event, given the lack of ability t o foreclose, it is not necessary to conclude as 
to whether the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the market s for the r etail 
supply of pay AV services, and the retail sup ply of non- linear pay AV services ( or 
SVOD services ), from accessing its TV channels for children content and FTA TV 
channels for children content in Italy.  
(B.iii)  Conclusion 
(499)  In view of the above, the Commission concludes that the Transaction does not raise serio us doubts as to its compatibility with the internal market in relation to potential 
input foreclosure with respect to the vertical relationships between the markets for (i) the wholesale supply of TV channels for children content ( upstream ), (ii) the 
whole sale supply of FTA TV channels for children content ( upstream); and  (i) the 
retail supply of pay AV services ( downstream ), (ii) the retail supply of non- linear 
pay AV services (or SVOD services) ( downstream), and (iii)  the retail supply of 
non-linear FTA A V services (or A VOD services) ( downstream), in Italy. 
 
104 5.5.4.4. Norway  
(500)  In Norway, the upstream ma rket for the wholesale supply of pay TV channels for 
sports content (where only  Discovery is active with  [40-50]% market share in TV 
audience), is vertically affected du e to its  connection with the downstream markets 
for (i) the retail supply of pay AV services (where the Parti es’ combined market 
share is [5 -10]% in Revenue ), and (ii) the retail supply of non- linear pay AV services 
(or SVOD services) (where the Partie’s c ombined market share is [20- 30]% in 
subscriptions ). 
(A) The Notifying Party’s view  
(501)  As regards customer foreclosure, the Notifying Party notes that, due to the merged 
entity’s limited presence in the downstream markets post- Transaction, there is no 
risk of cust omer foreclosure.  
(502)  As regards input foreclosure, the Notifying Party notes that the merged entity would 
have neither the ability nor the incentive to pursue a total or partial input foreclosure strategy, and that any such input foreclosure strategies would have no significant effect on effective competition.  
(503)  From the outset, the Notifying Party submits that already today and independently of the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain. Notwithstanding t his vertical integration, there has not been any 
evidence to date of any foreclosure concerns, and that this will not change post -
Transaction. There is only one Party present in the upstream market, and both Parties are present pre -Transaction in the downs tream markets, such that there is no new 
link created by the Transaction. This means that the Transaction does not create (or, if there was any ability pre- Transaction, add to) the ability to engage in vertical 
foreclosure.  
(504)  Additionally, the Notifying Part y argues that, to sustain a theory of harm based on 
input foreclosure, the increase in the downstream share would need to be sufficient to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in downstream share (notably in the market for the retail supply of pay AV services) and hence it is not plausible in the Parties’ view that such a modest increase could create such an incentive to foreclose.  
(505)  With respect to the market for  the retail supply of non- linear pay AV services (or 
SVOD services), where the merged entity’s market share will be slightly higher, the 
Notifying Party submits that in Norway, the Parties do not supply downstream SVOD competitors with linear channels . The refore, the Parties have no ability to 
engage in input foreclosure. The Notifying Party also argues that in any event, retail 
platforms can source their content (in the form of programs, formats, series, films, 
etc. and not merely TV channels) from a wide range of sources, locally or 
internationally, and hence that wholesale suppliers of TV channels are constrained by a multitude of AV suppliers.
233 
                                                 
233   Chapter 7 to the Form CO, paragraph 165.   
 
105 (B) The Commission’s assessment  
(506)  With respect to the risk of customer  foreclosure, the Commission observes that the 
presence of the merged entity in the downstream market is below 30% and therefore, 
that the merged  entity would not have the ability to engage in customer  foreclosure 
after the Transaction.  
(507)  With respect to the risk of input foreclosure, the Commission cons iders that a 
number of factors indicate that the merged entity would likely have no ability, nor 
incentive, to foreclose access to the upstream  market for the wholesale supply of pay 
TV channels  for sports content. 
(B.i) Ability to engage in total or partial input  foreclosure  
(508)  The Commission considers that the merged entity will not have the ability to engage 
in foreclosure by restricting access to the merged entity’s pay  TV channels for sports 
content, to rival retailers active downstream in the retail supply of pay AV services, 
and the retail supply of non- linear pay AV services (SVOD services), for the 
following reasons.  
(509)  First, input foreclosure may raise competition problems only if it concerns an 
important input for the downstream product, for instance because  it is a critical 
component, or because it is a significant source of product differentiation.234 The 
affected vertical relationships link one upstream market  which is narrowly defined 
on the basis of its  thematic content, with downstream markets which, to t he contrary, 
include various type of thematic content. During the market investigation, a majority 
of the respondents explained that the segmentation of TV channels by thematic content is not relevant to assess the situation in Norway  today, and that there  are 
many TV channels offered in the market which are not specialised by genre. Additionally, none  of the market participants raised the concern that TV channels 
specialised in sports content constitute an input of particular importance to compete in the m arket for the retail supply of AV services.
235 This suggest that pay TV 
channels specialized in sports content cannot be considered to be particularly important inputs for the downstream markets for (i) the retail supply of pay AV services, and (ii) the retail supply of non- linear pay AV services (or SVOD services) 
in Norway . 
(510)  Second for input foreclosure to be a concern, the vertically integrated firm resulting 
from the merger must have a significant degree of market power in the upstream 
market, such that reducing access to the merged  entity’s upstream product could 
negatively affect the overall availability of inputs or the downstream markets in 
terms of price or quality.
236 However, the Transaction will not strengthen the merged  
entity’s position in the relev ant upstream markets becau se only Discovery is active 
in the wholesale supply of pay  TV channels for sports content . Additionally, the 
Commission observes that the affected vertical relationship is pre -existing to the 
Transaction, as Discovery is also acti ve in the downstream markets, and there is no 
evidence of an input foreclosure strategy currently in place.  
                                                 
234   Non-Horizontal Merger Guide lines, paragraph 34. 
235   Responses to questionnaire Q9 –  Questionnaires to market participants in th e AV sector (Norway), 
questions  11.1 and 11.1.1.   
236   Non-Horizontal Merger Guidelines, paragraph 35 and 36.  
 
106 (511)  Third, with respect to the downstream market for the retail supply of pay AV 
services, considering the very limited combined market shares and incr ements on the 
market, there is no evidence to suggest that the Transaction will alter the existing risk of anticompetitive input foreclosure.  
(512)  Fourth, the downstream market for the retail supply of non- linear pay AV services 
(SVOD services), where the Parti es have a higher combined market share,  is a 
relatively recent and dynamic market which has been largely impacted by the 
technological advances (e.g., internet accessibility), and evolving consumer habits 
(e.g., consumption of on demand content). TV channels do not represent the most important input for retailers of SVOD services, which can also acquire valuable input in the form of un- aggregated content directly from other actors active in the 
market for the production of AV content or the market for the licensing of AV 
content. The market investigation also confirmed that the traditional three -layer 
classification fails to properly take into account the markets dynamics resulting from 
Direct -to-Consumer services, as the frontiers between the different lay ers are 
becoming increasingly blurred as a consequence of the global market trend for 
vertical integration.
237 
(513)  Therefore, the Commission considers that there are sufficient economic alternatives for the downstream rivals to have adequate access to inputs, wi thout incurring 
significantly higher costs, and that the merged entity would lack the ability to engage 
into an input foreclosure strategy .  
(B.ii) Incentive to engage in total or partial input foreclosure  
(514)  The Commission considers that the merged entity will like ly not have the incentives 
to engage in foreclosure by restricting access to the m erged entity’s pay TV channels 
for sports content , to rival suppliers active in the downtream markets for (i) the retail 
supply of pay AV services and (ii) the retail supply of non- linear pay AV services, 
for the following reasons.  
(515)  First, the presence of the Parties, and therefore the current incentives to supply 
content to downstream retailers will remain largely unchanged post -Transaction on 
the downstream market for the ret ail supply of pay AV services, . More particularly, 
the Commission observes that the Parties would bear the full cost of a hypothetical 
input foreclosure strategy, but would reap only a small fraction of any hypothetical 
benefits with such a low combined s hare in the downstream markets ( below  
[5-10]%). The Parties’ low combined share suggests that customers switching from 
an AV retail supplier that the Parties tried to foreclose would be more likely to 
switch to rivals than to the merged  entity . 
(516)  Second, both Parties are active in the market on the downstream market for the retail 
supply of non- linear pay AV services (or SVOD services), where the Parties have a 
higher combined market share, through platforms of very differentiat ed focus. 
Discovery only has [1 0-20]% market share with the Discovery+ and Euros port 
Player SVOD services, focusing on general entertainment and sp orts content. 
WarnerMedia has [10- 20]% market share with the SVOD services associated with 
HBO, focusing on premium film s and TV series cont ent. Post -Transacion, any 
                                                 
237   Responses to questionnaire Q9 –  Questionna ires to market participants in the AV sector (Norway), questions 5.1 
and 5.2.   
 
107 additional market power downstream would come from WarnerMedia’s SVOD 
services. Additionally, WarnerMedia’s SVOD services are not likely to beneficiate from Discovery’s TV channels which, due to their focus, would not represent a critical input. Therefore, the current incentives to supply content to downstream retailers will remain largely unchanged post -Transaction. More particularly, the 
Commission observes that the Parties would bear the full cost of a hypothetical input foreclo sure strategy, but would reap only a small fraction of any hypothetical 
benefits, as Discovery’s TV channels are not likely to lead to a significant increase in the number of subscribers of the merged  entity’s SVOD services . 
(517)  In any event, given the lack of  ability to foreclose, it is not necessary to conclude as 
to whether the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the markets for the retail 
supply of pay AV services, and the retail supply of non- linear pay AV services (or 
SVOD services), from accessing its pay TV channels, pay TV channels for sports 
content, and pay TV channels for other content, in Norway.  
(B.iii)  Conclusion 
(518)  In view of the above, the Commission concludes that the Tra nsaction does not raise 
serious doubts as to its compatibility with the internal market in relation to potential input foreclosure with respect to the vertical relationships between the market for the wholesale supply of pay TV channels for sports content ( upstream); and (i) the retail 
supply of pay AV services ( downstream ), and (ii) the retail supply of non- linear pay 
AV services (or SVOD services) ( downstream), in Norway.  
5.5.4.5. Poland 
(519)  In Poland, the upstream markets for (i) the  wholesale supply of TV channels f or 
news  content (where only  Discovery is active with  [40-50]% market share in TV 
audience), (ii) the wholesale supply of pay TV channels (where the Parties’ 
combined market share is [30- 40]% in TV audience) , (iii) the  wholesale supply of 
pay TV channels fo r sports content (where only  Discovery is active with  [30-40]% 
market share in TV audience),  and (iv) the  wholesale supply of  pay TV channels for 
news content (where only  Discovery is active with  [70-80]% market share in TV 
audience),  are vertically affect ed due to their  connection with the downstream 
markets for (i) the retail supply of pay AV services (where the Parti es’ combined 
market share is [ 0-5]% in r evenue), and (ii) the retail supply of non- linear pay AV 
services (or SVOD services) (where the Part ie’s combined market share is [5 -10]% 
in subscriptions ). 
(A) The Notifying Party’s view  
(520)  As regards customer  foreclosure, the Notifying Party notes that, due to the merged  
entity’s limited presence in the downstream  market s post-Transaction, there is no 
risk of  customer  foreclosure.  
(521)  As regards input  foreclosure, the Notifying Party notes that the merged  entity would 
have neither the ability nor the incentive to pursue a total or partial input  foreclosure 
strategy, and that any such input  foreclosure strategies w ould have no significant 
effect on effective competition.  
 
108 (522)  From the outset, the Notifying Party submits that already today and independently of 
the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain. Notwithstanding this vertical integration, there has not been any evidence to date of any foreclosure concerns, and this will not change post -
Transaction.  There is at least  one Party present in the upstream market s, and both 
Parties are present pre -Transaction in the downstream markets, such that there is no 
new link created by the Transaction. This means that the Transaction does not create 
(or, if there was any ability pre -Transaction, add to) the ability to engage in vertical 
foreclosure.  
(523)  Additionally, the Notifying  Party argues that , to sustain a theory of harm based on 
input  foreclosure, the increase in the downstream share would need to be sufficient 
to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in downstream share and hence it not plausible in the Parties’ view that such a modest increase could create such an incentive to foreclose.  
(B) The Commission’s assessment  
(524)  With respect to the risk of customer  foreclosure, the Commission observes that the 
presence of the merged entity in the downstream market is below 30% and therefore, 
that the merged  entity would not have the ability to engage in customer  foreclosure 
after the Transaction.  
(525)  With respect to the risk of input foreclosure, the Commission considers that a 
number of factors indicate that the merged entity would likely have no ability, nor incentive, to foreclose access to the upstream  market s for (i) the  wholesale supply of 
TV channels for news content , (ii) the wholesale supply  of pay TV channels, (iii) the  
wholesale supply of pay TV channels for sports content , and (iv) the  wholesale 
supply of  pay TV channels for news content.  
(B.i) Ability to engage in total or partial input  foreclosure  
(526)  The Commission considers that the merged entit y will not have the ability to engage 
in foreclosure by restricting access to the merged entity’s TV channels for news content, pay TV channels, pay TV channels for sports content, and pay TV channels for news  content, to rival retailers  active downstream  in the retail supply of pay AV 
services, and the retail supply o f non- linear pay AV services ( SVOD services ), for 
the following reasons . 
(527)  First, input foreclosure may raise competition problems only if it concerns an 
important input for the downstream produ ct, for instance because it is a critical 
component, or because it is a significant source of product differentiation.
238 Except 
for the wholesale supply of pay TV channels, t he affected vertical relationship s link  
upstream market s which are narrowly defined  on the basis of thematic content, with 
downstream markets which, to the contrary, include various type of thematic content . During the market investigation, a majority of the respondents explained 
that the segmentation of TV channels by thematic content i s not relevant to assess 
the situation in Poland today.
239 This suggest s that specialised  TV channels should 
                                                 
238   Non-Horizontal Merger Guidelines, paragraph 34.   
239   Responses to questionnaire Q10 – Questionnaires to market participants in the AV sector (Poland), questions 11 
and 11.1.    
 
109 not be considered to be particularly important inputs for the downstream markets for 
(i) the retail supply of pay AV services, and (ii) the retail su pply of non- linear pay 
AV services (or SVOD services) in Poland.  
(528)  Second , for input foreclosure to be a concern, the vertically integrated firm resulting 
from the merger must have a significant degree of mark et power in the upstream 
market, such that reduc ing access to the merged entity’s upstream product could 
negatively affect the overall availability of inputs or the downstream markets in 
terms of price or quality.240 However, the Transaction will not strengthen the merged 
entity’s position in the relevant  upstream market as  the Commission observes that 
the affected vertical relationship is pre- existing to the Transaction . Indeed,  whenever 
one Party is active upstream, it  is also active in the downstream markets, and there is 
no evidence of an input foreclo sure strategy currently in place. Additionally, 
considering the very limited combined market shares and increments in  the 
downstream  markets considered, there is no evidence to suggest that the Transaction 
will alter the existing risk of anticompetitive in put foreclosure.  
(529)  Third, from the market shares provided by the Parties, the Commission observes that 
in all of the relevant upstream markets where the merged entity will be active in 
Poland, several alternative suppliers will continue to exercise sufficien t competitive 
constraint on the Parties . More particularly, the competitor Polsat will represent a 
major competitor to the merged entity in in the upstream markets for (i) the wholesale supply of TV channels for news content, (ii) the wholesale supply of pay TV channels, (iii) the wholesale supply of pay TV channels for sports content, and (iv) the wholesale supply of pay TV channels for news content .
 241 
(530)  Therefore, the Commission considers that there are sufficient economic alternatives for the downstream  rivals to have adequate access to inputs , without incurring 
significantly higher costs, and that the merged entity would lack the ability to engage into a n input  foreclosure strategy.  
(B.ii) Incentive to engage in total or partial input foreclosure  
(531)  The Commission c onsiders that the merged entity will likely not have the incentives 
to engage in foreclosure by restricting access to the merged entity’s TV channels for 
news, pay TV channels, pay TV channels for news content, and pay TV channels for sports content , to ri val suppliers active in the downtream  markets  for (i) the r etail 
supply of pay AV services  and (ii) the retail supply of non -linear pay AV services.  
(532)  The presence of the Parties downstream  in the markets the r etail supply of pay AV 
services, and  the retail supply of non- linear pay AV services ( or SVOD services ), is 
very limited, and therefore the current incentives to supply  content to downstream  
retailers  will remain largely unchanged post -Transaction.  More particularly, the 
Commission observes that the P arties would bear the full cost of a hypothetical input 
foreclosure strategy, but would reap only a small fraction of any hypothetical benefits with such a low combined share in the downstream markets (below 
[5-10]% ). The Parties’ low combined share suggests  that customers switching from 
an AV retail supplier that the Parties tried to foreclose would be more likely to 
switch to rivals than to the merged entity . 
                                                 
240   Non-Horizontal Merger Guidelines, paragraph 35 and 36. 
241   See the relevant market shares in Section 5.3.8  of this decision.  
 
110 (533)  In any event, given the lack of ability to foreclose, it is not necessary to conclude as 
to whether  the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the market s for the r etail 
supply of pay AV services, and the retail supply of non- linear pay AV services ( or 
SVOD services ), from  accessing its TV channels for news content, pay TV channels, 
pay TV channels for news content, and pay TV channels for sports content, in 
Poland. 
(B.iii)  Conclusion 
(534)  In view of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market in relation to potential input foreclosure with respect to the vertical relationships between the markets for 
(i) the wholesale supply of TV channels for news content (up stream) , (ii) the 
wholesale supply of  pay TV channels (upstream), (iii) the wholesale supply of pay 
TV channels for sports content (upstream), and (iv) the  wholesale supply of  pay TV 
channels for news content (upstream) ; and (i) the retail supply of pay AV services 
(downstream), and (ii) the retail supply of non- linear pay AV services (or SVOD 
services) (downstream), in Poland.  
5.5.4.6. Romania  
(535)  In Romania , the upstream ma rket for the wholesale supply of pay TV channels for 
children  content (where only  WarnerMedia is active with [30-40]% market share i n 
TV audience), is vertically affected due to its  connection with the downstream 
markets for (i) the retail supply of pay AV services (where the Parti es’ combined 
market share is [0 -5]% in revenue), and (ii) the retail supply of non- linear pay AV 
services (or SVOD services) (where the Parties ’ combined market share is [5 -10]% 
in subscriptions ). 
(A) The Notifying Party’s view  
(536)  As regards customer foreclosure, the Notifying Party notes that, due to the merged  
entity’s limited presence in the downstream markets pos t-Transaction, there is no 
risk of customer foreclosure.  
(537)  As regards input foreclosure, the Notifying Party notes that the merged  entity would 
have neither the ability nor the incentive to pursue a total or partial input foreclosure strategy, and that any s uch input foreclosure strategies would have no significant 
effect on effective competition.  
(538)  From the outset, the Notifying Party submits that already today and independently of 
the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain. Notwithstanding this vertical integration, there has not been any 
evidence to date of any foreclosure concerns, and that this will not change post -
Transaction. There is only one Party present in the upstream market, and both Parties 
are present pre -Transaction in the downstream markets, such that there is no new 
link created by the Transaction. This means that the Transaction does not create (or, if there was any ability pre- Transaction, add to) the ability to engage in vertical 
forecl osure.  
(539)  Additionally, the Notifying Party argues that, to sustain a theory of harm based on input foreclosure, the increase in the downstream share would need to be sufficient 
 
111 to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in downstream share and hence it not 
plausible in the Parties’ view that such a modest increase could create such an incentive to foreclose.  
(B) The Commission’s assessment  
(540)  With respect to the risk of cust omer  foreclosure, the Commission observes that the 
presence of the merged entity in the downstream market is below 30% and therefore, 
that the merged  entity would not have the ability to engage in customer  foreclosure 
after the Transaction.  
(541)  With respect to  the risk of input foreclosure, the Commission considers that a 
number of factors indicate that the merged entity would likely have no ability, nor 
incentive, to foreclose access to the upstream  market for the wholesale supply of pay 
TV channels for childr en content.  
(B.i) Ability to engage in total or partial input  foreclosure  
(542)  The Commission considers that the merged entity will not have the ability to engage 
in foreclosure by restricting access to the merged entity’s pay TV channels for children content, to rival retailers  active downstream  in the retail supply of pay AV 
services, and the retail supply o f non- linear pay AV services ( SVOD services ), for 
the following reasons . 
(543)  First, input foreclosure may raise competition problems only if it concerns an 
important  input for the downstream product, for instance because it is a critical 
component, or because it is a significant source of product differentiation.
242 The 
affected vertical relationship links an upstream market narrowly defined on the basis 
of its thematic  content, with downstream markets which, to the contrary, include 
various type of thematic content. During the market investigation, a majority of the 
respondents explained that the segmentation of TV channels by thematic content is not relevant to assess the situation in Romania  today, and that there are many TV 
channels offered in the market which are not specialised by genre. Additionally, non 
of the market participants consider that TV channels specialised in content targeted 
to children constitute an i nput of particular importance to compete in the market for 
the retail supply of AV services.
243 This suggest that pay TV channels specialized in 
content targeted to children cannot be considered to be particularly important inputs 
for the downstream markets for (i) the retail supply of pay AV services, and (ii) the 
retail supply of non -linear pay AV services (or SVOD services ) in Romania .  
(544)  Second  for input foreclosure to be a concern, the vertically integrated firm resulting 
from the merger must have a signif icant degree of mark et power in the upstream 
market, such that reducing access to the merged entity’s upstream product could 
negatively affect the overall availability of inputs or the downstream markets in 
terms of price or quality.244 However, the Transact ion will not strengthen the merged 
entity’s position in the relevant upstream market because only WarnerMedia is 
active in the wholesale supply of pay TV channels for children content , with a 
                                                 
242   Non-Horizontal Merger Guidelines, paragraph 34.   
243   Responses to question naire Q6 –  Questionnaires to market participants in the  AV sector (Romania), 
questions  11.1 and 11.1.1.   
244   Non-Horizontal Merger Guidelines, paragraph 35 and 36.  
 
112 market share that is below 40%, and therefore not in itself repr esentative of a very 
large market position.245 Additionally, the presence of sufficient existing or potential 
alternatives in the market for the wholesale supply of TV channels for children 
content is supported by the market investigation where one respondent explained that: “there is a high degree of supply -side substitutability regarding channel 
content. Wholesale suppliers of TV channels in Romania tend to produce both general TV channels (which are not genre -specific) and specialized TV channels .”, 
and indicated that: “ Many of the channels offered on the market do not specialize in 
certain genre, but they offer a mix of general interest content, which includes (among others) films, content for youth, sports and news .”
246 
(545)  Third, the Commission observes that the affected vertical relationship is pre- existing 
to the Transaction , as WarnerMedia is also active in the downstream markets, and 
there is no evidence of an input foreclosure strategy currently in place. Additionally, considering the very limited combined  market shares and increments on the two 
downstream  markets considered, there is no evidence to suggest that the Transaction 
will alter the existing risk of anticompetitive input  foreclosure.  
(546)  Therefore, the Commission considers that there are sufficient ec onomic alternatives 
for the downstream  rivals to have adequate access to inputs , without incurring 
significantly higher costs, and that the merged entity would lack the ability to engage 
into a n input  foreclosure strategy.  
(B.ii) Incentive to engage in total or partial input foreclosure  
(547)  The Commission considers that the merged entity will likely not have the incentives to engage in foreclosure by restricting access to the merged entity’s pay TV channels 
for children content, to rival suppliers active in the downtr eam markets  for (i) the 
retail supply of pay AV services  and (ii) the retail supply of non- linear pay AV 
services , for the following reason.  
(548)  First, the presence of the Parties downstream  in the markets the r etail supply of pay 
AV services, and  the retail s upply of non -linear pay AV services ( or SVOD 
services ), is very limited, and therefore that the current incentives to supply  content 
to downstream  retailers  will remain largely unchanged post -Transaction.  More 
particularly, the Commission observes that the  Parties would bear the full cost of a 
hypothetical input foreclosure strategy, but would reap only a small fraction of any hypothetical benefits with such a low combined share in the downstream markets 
(below [5-10]% ). The Parties’ low combined share sugg ests that customers 
switching from an AV retail supplier that the Parties tried to foreclose would be 
more likely to switch to rivals than to the merged entity . 
(549)  In any event, given the lack of ability to foreclose, it is not necessary to conclude as 
to whe ther the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the market s for the r etail 
supply of pay AV services, and the retail supply of non- linear pay AV services ( or 
SVOD services ), from accessing its pay TV channels for children content in 
Romania.  
                                                 
245   Horizontal Merger Guidelines, paragraph 17.   
246   Responses to questionnaire Q6 –  Questi onnaires to market participants in the AV sector (Romania), 
question  11.1.1.  
 
113 (B.iii)  Conclusion 
(550)  In view of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to its compatibility with the internal market in relation to potential input  foreclosure with respect to the vertical relationships between the markets for 
the wholesale supply of pay TV channels for children content  (upstream); and (i) the 
retail supply of pay AV services (downstream), and (ii) the retail supply of non -
linear pay  AV services (or SVOD services) (downstream), in Romania.  
5.5.4.7. Spain  
(551)  In Spain , the upstream markets for (i) the wholesale supply of FTA  TV channels for 
children  content (where only  WarnerMedia is active with [30-40]% market share in 
TV audience), and (ii) the w holesale supply of pay TV channels for sports content 
(where only Discovery is active with [40- 50]% market share in TV audience); are 
vertically affected due to their  connection with the downstream markets for (i) the 
retail supply of pay AV services (wher e the Parti es’ combined market share is 
[0-5]% in revenue ), and (ii) the retail supply of non- linear pay AV services (or 
SVOD services) (where the Parties’ combined market share is [5 -10]% in revenue ).  
(552)  Furthermore, the wholesale supply of FTA  TV channels for children content (where 
only WarnerMedia is active with [30- 40]% market share in TV audience),  is also 
vertically affected due to its connection the wholesale supply of non- linear FTA AV 
services (or AVOD services) (where only Discovery is active with [0 -5]% market 
share in revenue) .  
(A) The Notifying Party’s view  
(553)  As regards customer foreclosure, the Notifying Party notes that, due to the merged  
entity’s limited presence in the downstream markets post- Transaction, there is no 
risk of customer foreclosure.  
(554)  As regards input foreclosure, the Notifying Party notes that the merged  entity would 
have neither the ability nor the incentive to pursue a total or partial input foreclosure strategy, and that any such input foreclosure strategies would have no significant effect on effective competition.  
(555)  From the outset, the Notifying Party submits that already today and independently of the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain. Notwithstanding this vertical integration, there has not been any 
evidence to date of any foreclosure concerns, and that this will not change post -
Transaction. There is only one Party present in the upstream market, and both Parties 
are present pre -Transaction in the downstream markets, suc h that there is no new 
link created by the Transaction. This means that the Transaction does not create (or, 
if there was any ability pre- Transaction, add to) the ability to engage in vertical 
foreclosure.  
(556)  Additionally, the Notifying Party argues that, to sustain a theory of harm based on 
input foreclosure, the increase in the downstream share would need to be sufficient to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in  downstream share and hence it not 
plausible in the Parties’ view that such a modest increase could create such an incentive to foreclose.  
 
114 (B) The Commission’s assessment  
(557)  With respect to the risk of customer  foreclosure, the Commission observes that the 
presen ce of the merged entity in the downstream market is below 30% and therefore, 
that the merged  entity would not have the ability to engage in customer  foreclosure 
after the Transaction.  
(558)  With respect to the risk of input foreclosure, the Commission considers that a 
number of factors indicate that the merged entity would likely have no ability, nor 
incentive, to foreclose access to the upstream  market s for (i) the wholesale supply of 
FTA TV channels for children content, and (ii) the wholesale supply of pay TV 
channels for sports content. 
(B.i) Ability to engage in total or partial input  foreclosure  
(559)  The Commission considers that the merged entity will not have the ability to engage 
in foreclosure by restricting access to the merged entity’s FTA T V channels for 
childre n content and pay TV channels for sports  content, to rival retailers  active 
downstream  in the retail supply of pay AV services, the retail supply of non- linear 
pay AV services ( SVOD services ), and the retail supply of non- linear FTA AV 
services (AVOD servi ces), for the following reasons . 
(560)  First, input foreclosure may raise competition problems only if it concerns an 
important input for the downstream product, for instance because it is a critical 
component, or because it is a significant source of product di fferentiation.247 The 
affected vertical relationship s link upstream market s wich are  narrowly defined on 
the basis of its thematic content, with downstream markets which, to the contrary, include various type of thematic content. T he market investigation  yielded mixed 
results  as to whether  the segmentation of TV channels by thematic content is 
relevant or not to assess the situation in Spain  today , and a few market participants 
considered that sports content could constitute a relevant segmentation  in the mar ket 
in Spain. However , none  of the market participants consider that TV channels 
specialised in content targeted to children constitute an input of particular importance to compete in the market for the retail supply of AV services.
248 This 
suggest s that FTA  TV channels specialized in content targeted to children , cannot be 
considered to be particularly important inputs for the downstream markets for (i) the retail supply of pay AV services, (ii) the retail supply of non- linear pay AV services 
(or SVOD servic es), and the retail supply of non -linear FTA  AV services (or A VOD 
services ), in Spain .  
(561)  Second , for input foreclosure to be a concern, the vertically integrated firm resulting 
from the merger must have a significant degree of market power in the upstream market, such that reducing access to the merged  entity’s upstream product could 
negatively affect the overall availability of inputs or the downstream markets in terms of price or quality.
249 However, with respect to FTA TV channels specialized 
in children content, the Transaction will not strengthen the merged  entity’s position 
in the relevant upstream market because only WarnerMedia is active in the wholesale supply of pay TV channels for children content, with a market share that 
                                                 
247   Non-Horizontal Merger Guidelines, paragraph 34.   
248   Responses to questionnaire Q11 – Questionnaires to market participants in the AV sector (Spain), questions 11.1, 
and 11.1.1.    
249   Non-Horizontal Merger Guidelines, paragraph 35 and 36.  
 
115 is below 40%, and therefore  not in itself representative of a very large market 
position.250 
(562)  With respect to pay TV channels specialized in sports content, while sports has been 
identified as a relevant segmentation to assess the market in Spain by a few respondents to the market inve stigation, sufficient alternatives to Discovery’s pay 
TV channels specialis ed in sports currently exist in the market. For instance  in 2020, 
Telefónica was the number one actor in the market for the supply of pay TV channels specialised in sports content w ith [50-60]% market share. The Commission 
also observes that, based on the market shares submitted by the Notifying Party, in the first two quarters of 2021, the market shares of both Discovery and Telefónica decreased as the DAZN group entered the market,  with [0-5]% market shares in the 
first quarter of 2021, and [30- 40]% market shares in the second quarter  (just below 
Telefónica, which had [30 -40]% market share in the second quarter of 2021, and 
Discovery, which had [30- 40]%).
251 This suggests that Discove ry does not hold 
enough market power to significantly affect the overall market’s access to pay TV 
channels specialised in sports, following a potential foreclosure strategy.  
(563)  Additionally, the Commission observes that, when considering the market for the 
supply of both pay and FTA TV channels specialised in sports in Spain, there are a several other actors in the market with substantial market shares such as  Mediapro 
(with [40-50]% market share in 2020), and RTVE (with [20- 30]% market share in 
2020), while  Discovery only has [5 -10]% market share in that market in 2020. The 
market investigation, further suggests that FTA TV channels also exercise competitive constraint on pay TV channels,
 252 and therefore that Discovery’s mrket 
share in the supply of pay TV c hannels specialised in sports is not indicative of a 
high market power in the narrow segmentation for sports content .  
(564)  Third, the Commission observes that the affected vertical relationship is pre -existing 
to the Transaction , as with respect to FTA TV channels for children, WarnerMedia is 
also active in the downstream markets, and with respect to pay TV channels for 
sports content, Discovery is also active in the downstream markets, and there is no 
evidence of an input foreclosure strategy currently in place. Additionally, 
considering the very limited combined market shares and increments on the downstream  markets considered, there is no evidence to suggest that the Transaction 
will alter the existing risk of anticompetitive input  foreclosure.  
(565)  Therefore, the  Commission considers that there are sufficient economic alternatives 
for the downstream  rivals to have adequate access to inputs , without incurring 
significantly higher costs, and that the merged entity would lack the ability to engage into a n input  forec losure strategy.  
(B.ii) Incentive to engage in total or partial input foreclosure  
(566)  The Commission considers that the merged entity will likely not have the incentives 
to engage in foreclosure by restricting access to the merged entity’s FTA  TV 
channels for childre n content and pay TV channels for sports content, to rival 
suppliers active in the downtream  markets  for (i) the r etail supply of pay AV 
                                                 
250   Horizontal Merger Guidelines, paragraph 17.   
251   Annex 10 to Chapter 3 of the Form CO. 
252   Responses to questionnaire Q11 – Questionnaires to market participants in the AV sector (Spain),  questions 6.1 
and 21.   
 
116 services, (ii) the retail supply of non- linear pay AV services , and (iii) the retail 
supply of non- linear FTA AV servic es. 
(567)  The presence of the Parties downstream  in the markets the r etail supply of pay AV 
services, the retail supply of non- linear pay AV services (or SVOD services ), and the 
retail supply of non- linear FTA  AV services ( or AVOD services ), is very limited, 
and therefore that the current incentives to supply  content to downstream  retailers  
will remain largely unchanged post -Transaction.  More particularly, the Commission 
observes that the P arties would bear the full cost of a hypothetical input foreclosure 
strate gy, but would reap only a small fraction of any hypothetical benefits with such 
a low combined share in the downstream markets (below [5-10]%). The Parties’ low 
combined share suggests that customers switching from an AV retail supplier that 
the Parties tr ied to foreclose would be more likely to switch to rivals than to the 
merged entity ..  
(568)  In any event, given the lack of ability to foreclose, it is not necessary to conclude as 
to whether the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the market s for the r etail 
supply of pay AV services, and the retail supply of non- linear pay AV services ( or 
SVOD services ), from accessing its pay TV channels for children content in Spain . 
(B.iii)  Conclusi on 
(569)  In view of the above, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market in relation to potential input foreclosure with respect to the vertical relationships between the markets for 
(i) the wholesale supply of FTA  TV channels for children content (upstream) , and 
(ii) the wholesale supply of pay TV channels for sports content (upstream) ; and 
(i) the retail supply of pay AV services (downstream), and (ii) the retail supply of non-linear pay AV services (or SVOD services) (downstream), in Spain .  
(570)  The Commission also concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market in relation to potential input foreclosure with respect to th e vertical relationships between the markets for  the wholesale 
supply of FTA  TV channels for children content (upstream) ; and the retail supply of 
non-linear FTA AV services (or A VOD services) (downstream), in Spain.  
5.5.4.8. Sweden  
(571)  In Sweden , the upstream markets for (i) the wholesale supply of TV channels for 
news  content (where only  WarnerMedia is active with [40- 50]% market share in TV 
audience), and (ii) the  wholesale supply of  pay TV channels for news content (where 
only WarnerMedia is active with [90- 100]% ma rket share in TV audience); are  
vertically affected due to their  connection with the downstream markets for (i) the 
retail supply of pay AV services (where the Parti es’ combined market share is 
[5-10]% in revenue), and  (ii) the retail supply of non- linear pay AV services (or 
SVOD services) (where the Partie’s combined market share is [20 -30]% in 
subscriptions ). 
(572)  Furthermore, the wholesale supply of TV channels for news content (where only  
WarnerMedia is active with [40- 50]% market share in TV audience)  is ve rtically 
affected due to its connection with the retail supply of non- linear FTA AV services 
 
117 (or A VOD services) (where only Discovery is active with [0 -5]% market share in 
revenue ). 
(A) The Notifying Party’s view  
(573)  As regards customer foreclosure, the Notifying Party notes that, due to the merged 
entity’s limited presence in the downstream markets post- Transaction (always below 
30%), there is no risk of customer foreclosure.  
(574)  As regards input foreclosure, the Notifying Party notes that the merged entity would 
have  neither the ability nor the incentive to pursue a total or partial input foreclosure 
strategy, and that any such input foreclosure strategies would have no significant 
effect on effective competition.  
(575)  From the outset, the Notifying Party submits that alre ady today and independently of 
the Transaction, both Parties are active at several levels of the audio -visual content 
supply chain. Notwithstanding this vertical integration, there has not been any evidence to date of any foreclosure concerns, and that thi s will not change post -
Transaction. There is only one Party present in the upstream market, and both Parties are present pre -Transaction in the downstream markets, such that there is no new 
link created by the Transaction. This means that the Transaction does not create (or, if there was any ability pre- Transaction, add to) the ability to engage in vertical 
foreclosure.  
(576)  Additionally, the Notifying Party argues that, to sustain a theory of harm based on input foreclosure, the increase in the downstream share  would need to be sufficient 
to create an incentive to engage in vertical foreclosure post -Transaction. By contrast, 
the Transaction leads to only a modest increase in downstream share (notably in the market for the retail supply of pay AV services) and he nce it is not plausible in the 
Parties’ view that such a modest increase could create such an incentive to foreclose.  
(577)  With respect to the market for the retail supply of non- linear pay AV services (or 
SVOD services), where the merged entity’s market share will be slightly higher, the 
Notifying Party submits that in Sweden, the Parties do not supply downstream SVOD competitors with linear channels. Therefore, the Parties have no ability to engage in input foreclosure. The Notifying Party also argues that in any event, retail 
platforms can source their content (in the form of programs, formats, series, films, 
etc. and not merely TV channels) from a wide range of sources, locally or 
internationally, and hence that wholesale suppliers of TV channels are constra ined 
by a multitude of AV suppliers.
253 
(B) The Commission’s assessment  
(578)  With respect to the risk of customer  foreclosure, the Commission observes that the 
presence of the merged entity in the downstream market is below 30% and therefore, 
that the merged  entity w ould not have the ability to engage in customer  foreclosure 
after the Transaction.  
(579)  With respect to the risk of input foreclosure, the Commission considers that a 
number of factors indicate that the merged entity would likely have no ability, nor 
                                                 
253   Additional submission to the Form CO on non-horizontals, received on 26 November 2021.  
 
118 incentive,  to foreclose access to the upstream  market s for (i) the wholesale supply of 
TV channels for news content, and (ii) the wholesale supply of pay TV channels for 
news content.  
(B.i) Ability to engage in total or partial input  foreclosure  
(580)  The Commission considers t hat the merged entity will not have the ability to engage 
in foreclosure by restrictin g access to the merged entity’s TV channels  for news 
content and pay TV channels  for news content ; to rival retailers active downstream 
in the retail supply of pay AV ser vices, the retail supply of non- linear pay AV 
services (SVOD services) , and the retail supply of non -linear FTA AV services 
(AVOD services) , for the following reasons.  
(581)  First,  input foreclosure may raise competition problems only if it concerns an 
important  input for the downstream product, for instance because it is a critical 
component, or because it is a significant source of product differentiation.254 The 
affected vertical relations hips link  upstream market s which are  narrowly defined on 
the basis of thei r thematic content, with downstream markets which, to the contrary, 
include various type of thematic content , and TV channel s specialized in news  
content cannot be considered to be particularly important inputs for the downstream 
markets for (i) the retail  supply of pay AV services, (ii) the retail supply of non-
linear pay AV services (or SVOD services) , and (i ii) the retail supply of non- linear 
FTA  AV s ervices (or AVOD services),  in Sweden . 
(582)  Second , for input foreclosure to be a concern, the vertically inte grated firm resulting 
from the merger must have a significant degree of market power in the upstream market, such that reducing access to the merged  entity’s upstream product could 
negatively affect the overall availability of inputs or the downstream mark ets in 
terms of price or quality.
255 However, the Transaction will not strengthen the merged  
entity’s position in the relevant upstream markets because only WarnerMedia is 
active in (i) the wholesale supply of TV channels  for news content , and (ii) the 
whole sale supply of pay TV channels for news content . Additionally,  the 
Commission observes that the affected vertical relationship is pre -existing to the 
Transaction, as WarnerMedia is also active in the downstream markets, and there is 
no evidence of an input  foreclosure strategy currently in place.  
(583)  Third, considering the very limited combined market shares and increments on the  
downstream market s for the retail supply of pay AV services , and the retail supply of 
non-linear FTA AV services,  there is no evide nce to suggest that the Transaction 
will alter the existing risk of anticompetitive input foreclosure.  
(584)  Fourth, the retail supply of non- linear pay AV services (SVOD services), where the 
Parties have a higher combined market share,  is a relatively recent and dynamic market which has been largely impacted by the technological advances (e.g., internet accessibility), and evolving consumer habits (e.g., consumption of on demand content). TV channels do not represent the most important input for retailers of SVOD services, which can also acquire valuable input in the form of un- aggregated 
content directly from other actors active in the market for the production of AV content or the market f or the licensing of AV content, such that the traditional three -
                                                 
254   Non-Horizontal Merger Guidelines, paragraph 34. 
255   Non-Horizontal Merger Guidelines, paragraph 35 and 36.  
 
119 layer cl assification fails to properly take into account the market dynamics resulting 
from Direct -to-Consumer services, as the frontiers between the different layers are 
becoming increasingly blurred as a consequence of the global market trend for 
vertical integr ation.  
(585)  Moreover, the Commission observes that WarnerMedia’s high market share in the news segment in 2020 corresponds to an unusual high peak, which can be explained 
by the occurrence of the US Presidential election  in 2020. First, the Commission 
notes there are not many channels available in the narrow market for TV channels 
specialised in news content in Sweden. Indeed, the main TV channel, and only FTA 
TV channel specialised in news content, is the SVT TV channel which ha s market 
shares above [80-90]% in the market for the wholesale supply of TV channels 
specialised in news content both in 2018 and 2019. WarnerMedia’s channel, CNN, is 
the other main TV channel specialised in news in Sweden and is a pay TV channel, 
which had market shares around [10- 20]% both in 2018 and 2019, and only reached 
[40-50]% in the second quarter of 2020.
256 From the market shares provided by the 
Parties, the Commission understands that CNN’s market share in the second quarter 
of 2021 was equal to [10 -20]% in the market for the wholesale supply of TV channel 
for news content, which suggest s that Discovery does not hold significant market 
power in the provision of news TV channel s.  
(586)  Therefore, the Commission considers that there are sufficient economic alternatives 
for the downstrea m rivals to have adequate access to inputs, without incurring 
significantly higher costs, and that the merged entity would lack the ability to engage into an input foreclosure strategy.  
(B.ii) Incentive to engage in total or partial input foreclosure  
(587)  The Commission considers that the merged entity will likely not have the incentives to engage in foreclosure by restricting access to the merged entity’s TV channel CNN, to rival suppliers active in the downtream markets for (i) the retail supply of pay AV services, ( ii) the retail supply of non- linear pay AV services,  and (iii) the 
retail supply of non -linear FTA AV services,  for the following reasons . 
(588)  First, on the downstream market s for the retail supply of pay AV services  and the 
retail supply of retail supply of non- linear FTA AV services , the presence of the 
Parties , and therefore the current incentives to supply content to downstream 
retailers will remain largely unchanged post -Transaction. More particularly, the 
Commission observes that the Parties would bear the full cost of a hypothetical input foreclosure strategy, but would reap only a small fraction of any hypothetical benefits with such a low combined share in the downstream markets ( below 
[5-10]%). The Parties’ low combined share suggests that customers sw itching from 
an AV retail supplier that the Parties tried to foreclose would be more likely to 
switch to rivals than to the merged  entity.  
(589)  Second, both Parties are active in the market through platforms of very differentiated 
focus  on the downstream market  for the retail supply of non -linear pay AV services 
(or SVOD services), where the Parties have a higher combined market shar e. 
Discovery only has [0-5]% market share with the Discovery+ and Eurosport  Player 
SVOD services, focusing on general entertainment  and sports content. WarnerMedia 
                                                 
256   Annex 10 to Chapter 3 of the Form CO 
 
120 has [10-20]% market share with the SVOD services associated with HBO, focusing 
on premium films and TV series content. Post -Transacion, any additional market 
power downstream would come from WarnerMedia’s SVOD services. Additionally, 
WarnerMedia’s SVOD services are not likely to beneficiate from the CNN  TV 
channel  which, due to its  focus, would not represent a critical input. Therefore, the 
current incentives to supply content to downstream retailers will remain largely unchanged post -Transaction. More particularly, the Commission observes that the 
Parties would bear the full cost of a hypothetical input foreclosure strategy, but would reap only a small fract ion of any hypothetical benefits, as Discovery’s TV 
channel  is not likely to lead to a significant increase in the number of subscribers of 
the merged entity’s SVOD services.  
(590)  In any event, given the lack of ability to foreclose, it is not necessary to conclude as 
to whether the merged  entity will have the incentive to implement a strategy aimed 
at foreclosing competing downstream rivals active in the markets for the retail 
supply of pay AV services, and the retail supply of non- linear pay AV services (or 
SVOD services), from accessing its pay TV channels , pay TV channels for sports 
content, and pay TV channels for other content , in Sweden.  
(B.iii)  Conclusion 
(591)  In view of the above, the Commission concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market in relation to potential input  foreclosure with respect to the vertical relationships between the markets for  (i) 
the wholesale supply of TV channels for news content (upstream) , and (ii) the 
wholesale supply of pay TV channels for news content (upstream) ; and (i) the retail 
supply of pay AV services (downstream), and (ii) the retail supply of non- linear pay 
AV services (or SVOD services) (downstream), in Sweden.  
(592)  The Commission also concludes that the Transaction does not raise serious doubts as to its compatibility with the internal market in relation to potential input foreclosure with respect to the vertical relationships between the markets for  the wholesale 
supply of TV channels for news content (upstream) ; and the retail supply of non-
linear FTA AV services (or AVOD services) (dow nstream), in Sweden.  
5.6. Conglomerate  Assessment  
(593)  The Non- Horizontal Guidelines
257 indicate that competition concerns can arise in  
circumstances where a merger involves companies that are active in closely related  
markets. While in the majority of circumstances conglomerate mergers will not lead  
to any competition problems, in certain circumstances they can lead to  
anticompetitive effects. One such example is when the combination of products in  
related markets would give the merged entity the ability and incentiv e to leverage a  
strong market position in one of the markets to the other market by means of tying or  
bundling. Where tying or bundling is likely to lead to a reduction in actual or  
potential rivals’ ability or incentive to compete it may reduce competitiv e pressure  
on the merged entity, allowing it to increase prices. 
(594)  The Commission’s assessment of conglomerate effects, in light of the results of the 
market investigation, is set out in the following recitals. For this purpose, consistent 
                                                 
257  Non-Horizontal Merger Guidelines, Section V.A. 
 
121 with paragraph 94 of the Non- Horizontal Merger Guidelines, in relation to each of 
these practices, the Commission examines, (i) whether the merged entity would 
have, post -transaction, the ability to foreclose its rivals, (ii) whether it would have 
the incentive to do so, an d (iii) whether a foreclosure strategy would have an overall 
negative impact on effective competition.  
5.6.1. Belgium  
5.6.1.1. Possible foreclosure of competing wholesale suppliers of TV channels for news, 
sports, children and other content  
(595)  In the present section, the Com mission analyses whether the Parties would have the 
ability and incentive to foreclose rival wholesale suppliers of TV channels for news, 
sports, children and other content in Belgium by engaging in potential tying or 
bundling strateg ies, then assesses whe ther such foreclosure strateg ies would have an 
impact  on effective competition in those possible markets  in Belgium . 
(A) The Notifying Part y’s views  
(A.i) Ability  to foreclose  
(596)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in Belgium and that the Transaction will not give them this ability for the following 
reasons . 
(597)  First, the Notifying Party submis that the possible markets where the Parties, alone 
or collectively, have more than a 30% market share do not constitute relevant 
product market s from a market definition perspective and, consequently, the market 
shares calculated are artificial and in no way a display of any possible market power on the side of the merged entity.  
(598)  Irrespective of the above element, the Notifying Party  adds that  the Parties’ shares of 
those possible relevant markets do not establish any market power that the merged entity would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possi ble content genre 
markets.  In that respect, the Notifying Party further  submits  that the absence of a 
“must have” channel for the Parties in Belgium is the fact that, while being a fairly 
successful sports channels supplier, Euro sport is not retained in the respective 
channel line -up of both Orange and VOO, two  of the largest pay TV distributors in 
Belgium.  The Notifying Party therefore concludes that the Parties do not control any 
“must have channel” in Belgium and that without such a “must have” channel, the Parties cannot engage in anticompetitive leveraging strategies.   
(599)  The Parties continue to face strong competition in the  sports content segment of the 
market such as  Telenet  and Eleven.
258  
(A.ii) Incentive to foreclose  
(600)  The Notifying Party considers that the Par ties have no incentive to engage in 
foreclosure strategies  and that the Transaction will not give them any incentive to do 
so primarily given the competitive constraint that non -linear alternatives impose on 
                                                 
258  Notifying Party’s response to Q1 of RFI 9 on 11 December 2021.  
 
122 linear TV. The Notifying Party submits that, if the Parties were to attempt to engage 
in a foreclosure strategy through leveraging practices and thereby attempt to make a 
pay TV provider take extra channels (at extra cost), that pay TV provider could either, if it decided to take the bundle, increase pr ices to its own customers, or, if it 
decided not to take the bundle, drop certain channels and reduce its offering accordingly. The Notifying Party submits that either reaction by the pay TV services  
provider  could result in end- users leaving that linear T V service for another one. 
However, the Notifying Party argues that there is no reason to believe that those end -
users exit ing the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, would actually switch to the merged entity’s own non-linear 
services post -Transaction given, in particular , its (very) low market shares at retail 
level in Belgium ( [0-5]% combined).
259  
(A.iii)  Effects  on competition 
(601)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Belgium as the Parties  will 
not have the ability or the incentive to engage in anti -competitive leveraging . 
(B) Commission’s assessment  
(B.i) Ability  to foreclose  
(602)  The Commission considers that the merged entity will not have the ability to engage 
in foreclosure  strategies  by leveraging its potential market power in the possible 
markets for the wholesale supply of TV channels for news and/or sports content to the possible markets for the wholesale supply of T V channels for children and/or 
other content in Belgium for the reasons  set out below . 
(603)  In the  Commission’s market investigation , a number of respondents considered that, 
as a result of the Transaction, the merged entity would have the ability to degrade the terms and conditions at which they purchase TV channels through anti -competitive 
bundling/tying practices .
260  
(604)  According to these respondents, such practices would entail forcing purchasers to 
take packages/bundles of TV channels/programmes including less desired/performing channels through the leveraging of premium channels . Some 
respondents  further argued that this “all or nothing” practice would also result in 
marginalising other suppliers, thereby progressively reducing choice and quality in addition to increased prices.
261  
(605)  The Commission considers that these concerns are not justified , as there is no 
indication that any of the Parties ’ channels on their own c ould be considered as a 
“must have” asset in Belgium. E ven if, when considered exclusively on a g enre 
basis, one of the Parties might have a high share of such possible markets  like 
Discovery in the wholesale supply of channels for sports content with its Eurosport channel, none of the respondents to the Commission’s market investigation  
mentioned that such channel would constitute a “must have” channel  due to the fact 
that most of the popular sporting events (such as, for instance, the matches of 
                                                 
259  Form CO, Chapter 7, Annex 1. 
260  Responses to questionnaire Q2 – Questionnaire to market participants in the AV sector (Belgiu m), question 19.  
261  Responses to questionnaire Q2 – Questionnaire to market participants in the AV sector (Belgium), question 20. 
 
123 Belgium’s national football team or the Tour de France and the annual cycling 
classics) are broadcast on g eneralist (essentially public) channels.  Consequently, the 
results of the Commission’s market investigation did not indicate that the Eurosport channel could be used in the context of anti -competitive leveraging strategies .  
(606)  Excluding the Eurosport channe l discussed in the preceding paragrap h, the 
Transaction only adds one genre, that of channels for other content, to 
WarnerMedia’s pre -Transaction portfolio of channels. In addition, the merged 
entity’s market share on that possible market is (very) low (at [5-10]%). This 
confirms the absence of ability of the Parties, as a result of the Transaction, to 
engage in anti -competitive leveraging practices across their channels portfolio. 
(607)  For the reasons set out above, the Commission concludes that the merged enti ty 
would not have the ability to engage in foreclosure strategies by leveraging its 
potential market power in the possible markets for the wholesale supply of TV 
channels for news and/or sports content to the possible markets for the wholesale supply of TV  channels for children and/or other content in Belgium . 
(B.ii) Incentive to foreclose  
(608)  The Commission considers that the merged entity will not have the incentive to 
engage in foreclosure  strategies  by leveraging its potential market power in the 
possible markets for the wholesale supply of TV channels for news and/or sports content to the possible markets for the wholesale supply of TV channels for children and/or other content in Belgium for the reasons  set out below . 
(609)  The Commission considers that any such attempt would be mostly counter -
productive and unprofitable  for the Parties for the following main reasons: (i) the 
customers that the Parties would try to harm could decide to drop the Parties ’ 
channels and find alternative individual and/or bundled content opt ions from 
competitors of the Parties
262, and/or (ii) the customers that the Parties would try to 
harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers and see these leave for other offline or online alterna tive 
retail TV services without the guarantee for the Parties that such customers would choose their own retail service given the Parties’ limited market share
263 of the retail 
market in Belgium ([0-5]% combined) .  This very low market share can be 
considere d as inversely proportionate to the losses of revenues and profitability the 
merged entity would incur should it decide to pursue such hypothetical strategy.  
(610)  For the reasons set out above, the Commission concludes that the merged entity 
would not have the  incentive to engage in foreclosure strategies by leveraging its 
potential market power in the possible markets for the wholesale supply of TV channels for sports content to the possible markets for the wholesale supply of TV 
channels for children, news  and/or other content in Belgium . 
                                                 
262  This is confirmed by a customer responding to questionnaire Q2 – Questionnaire to market participants in the 
AV sector (Bel gium), question 20.1 and indicating “ Wholesale supply of TV channels: [respondent] currently 
has separate deals with Discovery, and WarnerMedia. After the Transaction this will be reduced to one. 
[Respondent] still has deals with more than 50 other broadcasters”.   
263  Form CO, Chapter 7, Annex 1.  
 
124 (B.iii)  Effect s on competition 
(611)  The Commission considers that due to the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate relationships brought  about by the Transaction in Belgium would have 
a negative impact on effective competition.  
(612)  In any event , the Commission considers that a potential foreclosure strategy of 
competing wholesale suppliers of TV channels in Belgium would have no significant 
detrimental effect on competition because (i) bundling  being recognized by the 
respondents to the Commission’s market investigation as a common practice in the industry ,
264 customers will always  be able to rely on alternative packaged deals, 
whether larger or  narrower in scope, from other international and local suppliers that 
will continue to offer significant competition to the merged entity at all genre levels 
in Belgium, and (ii) customer s that would find it more constraining from a 
commercial perspective to deal with the merged entity on the markets for the wholesale supply of TV channels for the various types of content, could always 
decide to develop counter -strategies such as creating or commissioning content for 
their own use as a number of market play ers have done over the last few years.  
(C) Conclusion 
(613)  In light of the above, the Commission concludes that the Transaction does not raise serious doubts as to the compatibility with the internal market with respect to any possible  foreclosure practices  result ing from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for sports, news,  
children and other content under any of the alternative product markets in Belgium given the lack of ability , incentive or poss ible effects of such strategy to foreclose 
competing wholesale suppliers of such TV channels. 
5.6.2. Bulgaria 
5.6.2.1. Possible foreclosure of competing wholesale suppliers of TV channels for children, sports and other content  
(614)  In the present section, the Commission analys es whether the Parties would have the 
ability and incentive to foreclose rival wholesale suppliers of TV channels for 
children, sports and other content in Bulgaria by engaging in possible  tying or 
bundling strateg ies, then assesses whether such foreclosur e strategies  would have an 
impact  on effective competition in those markets  in Bulgaria . 
(A) The Notifying Party’s views  
(A.i) Ability to foreclose  
(615)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in Bulgaria and that the Transaction will not give them this ability for the reasons  set 
out below. 
                                                 
264  Responses to questionnaire Q2 – Questionnaire to market participants in the AV sector (Belgium), questions 17 
and 18. 
 
125 (616)  The Notifying Party submits that the possible markets where the Parties, alone or 
collectively, have more than a 30% market share do not constitute relevant product 
markets from a market d efinition perspective and, consequently, the market shares 
calculated are artificial and in no way a display of any possible market power on the side of the merged entity.   
(617)  Irrespective of the above element, the Notifying Party adds that  the Parties’ shares of 
those possible relevant markets do not establish any market power that the merged 
entity would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possible genre markets. The Notify ing Party submits , in that respect, that , with [30-40]%, the Parties’ market 
shares on the possible relevant market for the wholesale supply of TV channels for 
children content is merely above the threshold beyond which the Commission 
considers the possibl e anti -competitive effects of conglomerate relationships 
between neighbouring markets and that, as such, that level of market share cannot 
logically be considered as a position of possible market power that would, in turn, enable leveraging strategies.  In that respect, the Notifying Party adds that, when all 
genres are part of one and the same market, the merged entity’s market share of the 
pay TV channels in Bulgaria is only [10- 20]% and just [0 -5]% in the overall (pay 
and FTA) TV channels segment. T he Not ifying Party therefore submits that, 
irrespective of how the markets are segmented, the merged entity does not ow n any 
“must have” channel in Bulgaria and is consequently not able to engage in any 
foreclosure strategy based on the leveraging of market powe r.  
(618)  The Notifying Party further submits that the merged entity faces competition in the 
wholesale supply of TV channels in Bulgaria from large multinational companies such as MTG (with [20 -30]%), CME (with [20-30]%), Disney (with [10- 20]%), 
ViacomCBS (with  [5-10]%) and others local and regional players
265 and, that, as a 
consequence, the merged entity can hardly be considered as enjoying any position of market power with such numerous and well established competitors. 
(A.ii) Incentive to foreclose  
(619)  The Notifying Part y considers that the Parties have no incentive to engage in 
foreclosure strategies and that the Transaction will not give them any incentive to do 
so primarily given the competitive constraint that non -linear alternatives impose on 
linear TV. The Notifying  Party submits that, if the Parties were to attempt to engage 
in a foreclosure strategy through leveraging practices and thereby attempt to make a pay TV provider take extra channels (at extra cost), that pay TV provider could either, if it decided to take  the bundle, increase prices to its own customers, or, if it 
decided not to take the bundle, drop certain channels and reduce its offering 
accordingly. The Notifying Party submits that either reaction by the pay TV services  
provider could result in end- users leaving that linear TV service for another one. 
However, the Notifying Party argues that there is no reason to believe that those end-
users exiting the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, would actu ally switch to the merged entity’s ow n non-linear 
services post -Transaction given, in particular, its (very) low market shares at retail 
                                                 
265  Form CO, Chapter 3, Annex 2.  
 
126 level in Bulgaria  ([5-10]% combined on the SVOD segment of the retail TV services 
market and [0 -5]% of the overall subs cription pay TV services ).266  
(A.iii)  Effects on competition  
(620)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Bulgaria  as the Parties will 
not have the ability or the incentive to engage in ant -icompetitive leveraging.  
(B) Commission’s assessment  
(B.i) Ability to foreclose  
(621)  The Commission considers that the merged entity will not have the ability to engage in foreclosure  strategies  by leveraging its potential market power in the possib le 
markets for the wholesale supply of TV channels for children content to the possible 
markets for the wholesale supply of TV channels for sports and/or other content in 
Bulgaria fo r the reasons  set out below . 
(622)  First, the results of the Commission’s market  investigation were rather neutral with 
respect to the merged entity ’s ability to degrade the terms and conditions at which 
customers purchase TV channels through hypothetical anti-competitive 
bundling/tying practices  in Bulgaria , as most respondents did not expect changes 
following the Transaction.
267  
(623)  Second , none o f the Parties ’ channels on their own can  be considered a s a “must 
have” asset in Bulgaria given the Parties ’ limited market shares  on those possible 
individual genres markets . Indeed, e ven when c onsidered exclusively on a genre 
basis, with the single exception of their share of [30 -40]% on the possible market for 
the w holesale supply of pay TV channels for children  content, the Parties ’ market 
shares all remain below the thresholds  relevant for th e identification of conglomerate 
relationships. As such, the  Parties’ position on the children content genre , which is 
the only addition of genre, as a result of the Transaction, to Discovery’ s sports and 
other content channels, can hardly be considered as  a display of market power and 
hence a strong basis from which such power could be leveraged onto the other genres where the Parties are active (sports and other content channels).  
(624)  Therefore, the Commission concludes that the merged entity would not have the ability to engage in foreclosure strategies by leveraging its potential market power in 
the possible markets for the wholesale supply of TV channels for children content to 
the possible markets for the wholesale supply of TV channels for sports and/or other 
content in Bulgaria.  
(B.ii) Incentive to foreclose  
(625)  The Commission considers that the merged entity will not have the incentive  to 
engage in foreclosure  strategies  by leveraging its potential market power in the 
possible markets for the wholesale supply of T V channels for children content to the 
possible markets for the wholesale supply of TV channels for sports and/or other 
content in Bulgaria for the reasons set out below . 
                                                 
266  Form CO, Chapter 7, Annex 1. 
267  Responses to questionnaire Q7 – Questionnaire to market participants in the AV sector (Bulgaria), question 28.  
 
127 (626)  The Commission considers that the Parties do not have the incentive to engage in 
such practices as any such attempt would be mostly counter -productive and 
unprofitable for the Parties for the following main reasons: (i) the customers that the Parties would try to harm could decide to drop the Parties ’ channels and find 
alternative individu al and/or bundled content options from competitors of the Parties  
such as ViacomCBS and/or Disney which are large rivals of the merged entity on the wholesale supply of TV channels for children content in Bulgaria
268, and/or (ii) the 
customers that the Parties would try to harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers and see these leave for other offline or online alternative retail TV services without the guarantee for the 
Parties that such customers would choose their own retail service given the Parties’ 
limited market share s
269 of the retail market in Bulgaria ( [5-10]% combined on the 
SVOD segment of the retail TV services market and [0 -5]% of the overall 
subscription pay TV services ). These limite d market shares  can be considered as 
inversely proportionate to the losses of revenues and profitability the merged entity would incur should it decide to pursue such hypothetical strategy.  
(627)  Therefore, the Commission concludes that the merged entity would not have the incentive to engage in foreclosure strategies by leveraging its potential market power 
in the possible markets for the wholesale supply of TV channels for children content 
to the possible markets for the wholesale supply of TV channels for spor ts and/or 
other content in Bulgaria.  
(B.iii)  Effects on competition  
(628)  The Commission considers that due to the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate relationships brought about by the Transaction in Bulgaria  would have 
a negative impact on effective competition.  
(629)  In any event, the Commission considers that a potential foreclosure strategy of 
competing wholesale suppliers of TV channels in Bulgaria would have no signi ficant 
detrimental effect on competition because , bundling being recognized by the 
respondents to the Commission’s market investigation as a common practice in the industry
270. (i) customers will always be able to rely on alternative packaged deals, 
whether larger or narrower in scope, from other international and local suppliers that 
will continue to offer significant competition to the merged entity at all genre levels in Bulgaria, and (ii) customers  that would find it more constraining from a 
commercial per spective to deal with the merged entity on the markets for the 
wholesale supply of TV channels for the various types of content, could always decide to develop counter -strategies such as creating or commissioning content for 
their own use as a number of ma rket players have done over the last few years.  
(C) Conclusion 
(630)  In light of the above, the Commission concludes that the Transaction does not raise serious doubts as to the compatibility with the internal market with respect to any 
                                                 
268  ViacomCBS is actually the leading supplier of children channels in Bulgaria with [50 -60]% (2020), almost twice 
as much as the merged entity’ share.  
269  Form CO, Chapter 7 , Annex 1. 
270  Responses to questionnaire Q7 – Questionnaire to market participants in the AV sector (Bulgaria), questions 26 
and 27. 
 
128 possible  foreclosure practic es resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for children, sports 
and other content under any of the alternative product markets in Bulgaria  given the 
lack of ability , incentive or possible effects of such strategy to foreclose competing 
wholesale suppliers of such TV channels.  
5.6.3. France  
5.6.3.1. Possible foreclosure of competing wholesale suppliers of TV channels for sports, 
children and other content  
(631)  In the present section, the Commission anal yses whether the Parties would have the 
ability and incentive to foreclose rival wholesale suppliers of TV channels for sports, 
children and other content in France by engaging in potential  tying or bundling 
strateg ies, then assesses whether such foreclosu re strateg ies would have an impact  
on effective competition in those markets  in France . 
(A) The Notifying Party’s views  
(A.i) Ability to foreclose  
(632)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in France and that the Transactio n will not give them this ability for the following 
reasons . 
(633)  The Notifying Party submits that the possible markets where the Parties, alone or 
collectively, have more than a 30% market share do not constitute relevant product 
markets from a market definition perspective and, consequently, the market shares calculated are artificial and in no way a display of any possible market power on the side of the merged entity.  
(634)  Irrespective of the above element, the Notifying Party adds that the Parties’ shares of those possible relevant markets do not establish any market power that the merged 
entity would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possible genre markets. 
The Notifying Par ty submits, in that respect, that, with [30-40]%, the Parties’ market 
shares on the possible relevant market for the wholesale supply of TV channels for 
sports content is merely above the threshold beyond which the Commission considers the possible anti -competitive effects of conglomerate relationships 
between neighbouring markets and that, as such, that level of market share cannot 
logically be considered as a position of possible market power that would, in turn, 
enable leveraging strategies.  In that resp ect, the Notifying Party adds that, when all 
genres are part of one and the same market, the merged entity’s market share of the pay TV channels in France is only [10- 20]% and in competition with other strong 
pay TV players including Next Radio TV (with [2 0-30]%), the RTL Group (with 
[10-20]%), Mediawan (with [10- 20]%), Viacom CBS (with [5 -10]%) and others.
271 
(635)  The Notifying Party therefore submits that, irrespective of how the markets are segmented, the merged entity does not own any “must have” channel in France and 
                                                 
271  Notifying Party’s response to Q9 of RFI 7 on 16 November 2021. 
 
129 is consequently not able to engage in any foreclosure strategy based on the 
leveraging of market power.  
(A.ii) Incentive to foreclose  
(636)  The Notifying Party considers that the Parties have no incentive to engage in foreclosure strategies and that the Trans action will not give them any incentive to do 
so primarily given the competitive constraint that non -linear alternatives impose on 
linear TV. The Notifying Party submits that if the Parties were to attempt to engage 
in a foreclosure strategy through levera ging practices and thereby attempt to make a 
pay TV provider take extra channels (at extra cost), that pay TV provider could 
either, if it decided to take the bundle, increase prices to its own customers, or, if it decided not to take the bundle, drop cert ain channels and reduce its offering 
accordingly. The Notifying Party submits that either reaction by the pay TV service 
provider could result in end- users leaving that linear TV service for another one. 
However, the Notifying Party argues that there is no reason to believe that those end -
users exiting the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, would actually switch to the merged entity’s ow n non-linear 
services post -Transaction given, in particular, its ( very) low market shares at retail 
level in France  ([0-5]% combined on the SVOD segment of the retail TV services 
market and [0 -5]% of the overall subscription pay TV services).
272  
(A.iii)  Effects on competition  
(637)  The Notifying Party submits that there will be no adve rse effects on competition in 
the markets affected by the conglomerate relationships in France as the Parties will 
not have the ability or the incentive to engage in anti -competitive leveraging.  
(B) Commission’s assessment  
(B.i) Ability to foreclose  
(638)  The Commission c onsiders that the merged entity will not have the ability to engage 
in foreclosure  strategies  by leveraging its potential market power in the possible 
markets for the wholesale supply of TV channels for sports content to the possible 
markets for the wholes ale supply of TV channels for children and/or other content in 
France fo r the following  reasons.  
(639)  The Commission’s market investigation indicated that a number of respondents considered that, as a result of the Transaction, the merged entity would have the 
ability to degrade the terms and conditions at which they purchase TV channels 
through anti -competitive bundling/tying practices.
273  
(640)  According to these respondents, such practices would entail forcing purchasers to 
take packages/bundles of TV channels/progr ammes including less 
desired/performing channels through the leveraging of premium channels /programmes. Some respondents further argued that this “all or nothing” 
practice would also result in marginalising other suppliers, thereby progressively 
                                                 
272  Form CO, Chapter 7, Annex 1.  
273  Responses to questionnaire Q4 – Questionnaire to market participants in the AV sector (France), question 19.  
 
130 reducing choice and quality (as well as cultural diversity) in addition to increased 
prices.274  
(641)  The Commission considers however that these concerns are not justified , as there is 
no indication that any of the Parties ’ channels/programmes on their own could be 
considered as a “must have” asset in France given the Parties’ limited market shares on those possible individual genres markets. Indeed, even when considered exclusively on a genre basis, with the single exception of their share of [30 -40]% on 
the possible mark et for the w holesale supply of pay TV channels for sports  content, 
the Parties’ market shares all remain below the thresholds relevant for the identification of conglomerate relationships. As such, the Parties’ position on the sports  content genre  can hard ly be considered as a display of market power and 
hence a strong basis from which such power could be leveraged onto the other genres where the Parties are active ( children  and other content channels).  
(642)  Therefore, the Commission concludes that the merged e ntity would not have the 
ability to engage in foreclosure strategies by leveraging its potential market power in 
the possible markets for the wholesale supply of TV channels for sports content to the possible markets for the wholesale supply of TV channels  for children and/or 
other content in France.  
(B.ii) Incentive to foreclose  
(643)  The Commission considers that the merged entity will not have the incentive  to 
engage in foreclosure  strategies  by leveraging its potential market power in the 
possible markets for the wholesale supply of TV channels for sports content to the possible markets for the wholesale supply of TV channels for children and/or other 
content in France .  
(644)  The Commission considers that any such attempt would be mostly counter -
productive and unprofitabl e for the Parties for the following main reasons: (i) the 
customers that the Parties would try to harm could decide to drop the Parties ’ 
channels and find alternative individual and/or bundled content options from competitors of the Parties
275, and/or (ii) t he customers that the Parties would try to 
harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers and see these leave for other offline or online alternative retail TV services without the guarantee for th e Parties that such customers would 
choose their own retail service given the Parties’ limited market share s
276 of the 
retail market in France ([0-5]% combined on the SVOD segment of the retail TV 
services market and [0 -5]% of the overall subscription pay TV  services).  These very 
low market shares  can be considered as inversely proportionate to the losses of 
revenues and profitability the merged entity would incur should it decide to pursue 
such hypothetical strategy. Therefore, the Commission concludes that t he merged 
entity would not have the incentive to engage in foreclosure strategies by leveraging 
its potential market power in the possible markets for the wholesale supply of TV 
                                                 
274  Responses to questionnaire Q4 – Questionnaire to market participants in the AV sector (France), question 20. 
275  In that respect, a customer responding to Question 17. 1 of Questionnaire 4 for France indicates that the 
Transaction does not change the situation much as, already pre-Transaction, “ [it] can not have access to 
Discovery’s portfolio of premium brands in France as long as they are still provided to [another cus tomer] on an 
exclusive basis ”. 
276  Form CO, Chapter 7, Annex 1.  
 
131 channels for sports content to the possible markets for the wholesale supply of TV 
channels for children and/or other content in France. 
(B.iii)  Effects on competition  
(645)  The Commission considers that due to the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate relationships brought about by the Transaction in France would have a 
negative impact on effective competition.  
(646)  In any event, the Commission considers that a potential foreclosure strategy of competing wholesale suppliers of TV channels in France w ould have no significant 
detrimental effect on competition because , bundling being recognized by the 
respondents to the Commission’s market investigation as a common practice in the 
industry
277, (i) customers will always be able to rely on alternative packag ed deals, 
whether larger or narrower in scope, from other international and local suppliers that 
will continue to offer significant competition to the merged entity at all genre levels in France, and (ii) customers  that would find it more constraining from  a commercial 
perspective to deal with the merged entity on the markets for the wholesale supply of 
TV channels for the various types of content, could always decide to develop 
counter -strategies such as creating or commissioning content for their own use as a 
number of market players have done over the last few years.  
(C) Conclusion 
(647)  In light of the above, the Commission concludes that the Transaction does not raise serious doubts as to the compatibility with the internal market with respect to any possible  foreclosure practices resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for sports, children and other content under any of the alternative product markets in France given the lack of ability , incentive or possible effects of such strategy to foreclose competing 
wholesale suppliers of such TV channels.  
5.6.4. Germany  
5.6.4.1. Possible foreclosure of competing wholesale suppliers of TV channels for sports, child ren and other content  
(648)  In the present section, the Commission analyses whether the Parties would have the ability and incentive to foreclose rival wholesale suppliers of TV channels for sports, 
children and other content in Germany  by engaging in potential  tying or bundling 
strateg ies, then assesses whether such foreclosure strateg ies would have an impact  
on effective competition in those markets  in Germany . 
                                                 
277  Responses to questionnaire Q4 –  Questionnaire to market participants in the AV sector (France), questions 17 
and 18. 
 
132 (A) The Notifying Party’s views  
(A.i) Ability to foreclose  
(649)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in Germany and t hat the Transaction will not give them this ability for the reasons  
set out below.  
(650)  First, the Notifying Party submits that the possible markets where the Parties, alone 
or collectively, have more than a 30% market share do not constitute relevant 
product markets from a market definition perspective and, consequently, the market 
shares calculated are artificial and in no way a display of any possible market power 
on the side of the merged entity.  
(651)  Irrespective of the above element, the Notifying Party adds that  the Parties’ shares of 
those possible relevant markets do not establish any market power that the merged 
entity would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possible ge nre markets. 
In that respect, the Notifying Party further submits that the Parties’ market shares of [90-100]% on the possible relevant market for the wholesale supply of pay TV 
channels for children content (with WarnerMedia’s Boomerang and Cartoon 
Networ k channels ) is vastly overestimated. The Notifying Party indeed considers 
that, i n Germany, pay  TV is particularly closely constrained by FTA TV due to 
German FTA broadcasting regulations and the broad availability of FTA channels  
which, i n addition to the  pay TV competitors
278, share almost [80-90]% of the 
audiences via important FTA players such as ARD -ZDF , RTL Group and 
ProSiebenSat.1 Media .279 The Notifying Party therefore rather submits that the 
merged entity’ share of all linear children’s TV channels in Germany (pay  TV and 
FTA)  is only approximately  [0-5]%280 and he nce nowhere near that of 
Disney  ([30-40]%), ARD -ZDF  ([10-20]%), ViacomCBS  ([10-20]%) or the RTL 
Group ( [10-20]%).281 
(A.ii) Incentive to foreclose  
(652)  The Notifying Party considers that the Parties have no incentive to engage in foreclosure strategies and that the Transaction will not give them any incentive to do so primarily given the competitive constraint that non -linear alternatives impose on 
linear TV. The Notifying Party submits that if the Parties were  to attempt to engage 
in a foreclosure strategy through leveraging practices and thereby attempt to make a pay TV provider take extra channels (at extra cost), that pay TV provider could either, if it decided to take the bundle, increase prices to its own customers, or, if it decided not to take the bundle, drop certain channels and reduce its offering accordingly. The Notifying Party submits that either reaction by the pay TV services  
provider could result in end- users leaving that linear TV service for an other one. 
However, the Notifying Party argues that there is no reason to believe that those end-users exiting the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, would actually switch to the merged entity’s ow n non-linear 
                                                 
278  Such as NBCU, Disney, Sky Group, RTL Group and Hearst.  
279  Form CO, Cha pter 3, paragraph 91.    
280  [0-5]% in Q4/2020. See Form CO, Chapter 3, Annex 2 (Germany).   
281  Form CO, Chapter 3, Annex 2 (Germany).  
 
133 services post -Transaction given, in particular, its (very) low market shares at retail 
level in Germany (maximum of [0 -5]% combined).282  
(A.iii)  Effects on competition  
(653)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Germany as the Parties 
will not have the ability or the incentive to engage in anti -competitive leveraging.  
(B) Commission’s assessment  
(B.i) Ability to foreclose  
(654)  The Commission considers that the merged entity will not have the ability to engage 
in foreclosure  strategies  by leveraging its potential market power in the possible 
markets for the wholesale supply of TV channels for children and/or sports content 
to the possible markets for the wholesale supply of TV  channels for other content in 
Germany fo r the reasons  set out below . 
(655)  In the Commission’s market investigation a number of respondents considered that, 
as a result of the Transaction, the merged entity would have the ability to degrade the 
terms and condit ions at which they purchase TV channels through anti -competitive 
bundling/tying practices.283  
(656)  According to these respondents, such practices would entail forcing purchasers to 
take packages/bundles of TV channels/programmes including less 
desired/performing channels through the leveraging of premium 
channels /programmes. Some respondents further argued that this “all or nothing” 
practice would also result in marginalising other suppliers, thereby progressively reducing choice and quality in addition to increa sed prices .
284  
(657)  The Commission considers that these concerns are not justified , as there is no 
indication that any of the Parties ’ channels/programmes on their own could be 
considered as a “must have” asset in Germany . Even if, when considered exclusively 
on a genre basis, one of the Parties might have a high share of such possible markets 
such as WarnerMedia in the wholesale supply of pay TV channels for children content (with [90- 100]%), the market investigation’s results did not confirm that 
such channel w ould constitute a “must have” channel, let alone that it could be used 
in the context of anti -competitive strategies.  
(658)  Excluding WarnerMedia’s two children channels discussed in the preceding 
paragraph and already dismissed as “must have” channels, the Transaction only adds 
two genres of content to WarnerMedia’s pre- Transaction portfolio of channels, that 
of channels for sports content with Discovery’s Eurosport and that of Discovery’s 
other genre content channels. While the Eurosport channel claims a sizea ble market 
share of around [40- 50]% from a sports genre perspective  ([40-50]% in 2020) , that 
alone does not make it a “must have” channel . Furthermore, the merged entity is not 
even the leading player on the wholesale supply of TV channels for sports conte nt as 
Constantin Medien has a significantly superior share with [50- 60]% (2020) of that 
                                                 
282  Form CO, Chapter 7, Annex 1. 
283  Responses to questionnaire Q5 – Questionnaire to market participants in the AV sector (Ge rmany), question 19.  
284  Responses to questionnaire Q5 – Questionnaire to market participants in the AV sector (Germany), question 20. 
 
134 possible market. Additionally, Discovery’s market shares on the possible market for 
the wholesale supply of channels for other content remains very low at below [0 -
5]%. Those elements together contribute to confirming the absence of ability of the 
Parties, as a result of the Transaction, to engage in anti -competitive leveraging 
practices across their channels portfolio. 
(659)  Therefore, the Commission concludes that the merged entity would not have the 
ability to engage in foreclosure strategies by leveraging its potential market power in 
the possible markets for the wholesale supply of TV channels for children and/or sports content to the possible markets for the wholesale supply of TV channels for other content in Germany.  
(B.ii) Incentive to foreclose  
(660)  The Commission considers that the merged entity will not have the incentive to 
engage in foreclosure  strategies  by leveraging its potential market power in the 
possible markets for the  wholesale supply of TV channels for children and/or sports 
content to the possible markets for the wholesale supply of TV channels for other content in Germany fo r the reasons  set out below . 
(661)  The Commission considers that any such attempt would be mostly c ounter -
productive and unprofitable for the Parties for the following main reasons: (i) the customers that the Parties would try to harm could decide to drop the Parties ’ 
channels and find alternative individual and/or bundled content options from competito rs of the Parties
285, and/or (ii) the customers that the Parties would try to 
harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers and see these leave for other offline or online alternative retail TV serv ices without the guarantee for the Parties that such customers would 
choose their own retail service given the Parties’ limited market share
286 of the retail 
market in Germany (maximum of [0 -5]% combined). This low market share can be 
considered as inversely  proportionate to the losses of revenues and profitability the 
merged entity would incur should it decide to pursue such hypothetical strategy.  
(662)  Therefore, the Commission concludes that the merged entity would not have the incentive to engage in foreclosure  strategies by leveraging its potential market power 
in the possible markets for the wholesale supply of TV channels for children and/or sports content to the possible markets for the wholesale supply of TV channels for 
other content in Germany.  
(B.iii)  Effects on  competition  
(663)  The Commission considers that due to the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate relationships brought about by the Transaction in Germany woul d 
have a negative impact on effective competition.  
                                                 
285   In that respect, a customer responding to questionnaire Q5 –  Questionnaire to market participants in the AV 
sector (Germany), question 19.1 indicates that “the AV sector is intensely competitive at each level of the supply 
chain and will remain so post -Transaction, with numerous alternatives available to the TV channels of Discovery 
and/or WarnerMedia”.  
286  Form CO, Chapte r 7, Annex 1.  
 
135 (664)  In any event, the Commission considers that a potential foreclosure strategy of 
competing wholesale suppliers of TV channels in Germany  would have no 
significant detrimental effect on competition because ,  bundling being recognized by 
the respondents to the Commission’s market investigation as a common practice in the industry
287, (i) customers will always be able to rely on alternative packaged 
deals, whether larger or narrower in scope, from other internat ional and local 
suppliers that will continue to offer significant competition to the merged entity at all genre levels in  Germany , and (ii) customers  that would find it more constraining 
from a commercial perspective to deal with the merged entity on the markets for the wholesale supply of TV channels for the various types of content, could always 
decide to develop counter -strategies such as creating or commissioning content for 
their own use as a number of market players have done over the last few years.  
(C) Conclusion 
(665)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to the compatibility with the internal market with respect to any 
possible  foreclosure practices resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for children, sports 
and other content under any of the alternative product markets in Germany given the lack of ability , incentive or possible effects of such strategy to foreclose com peting 
wholesale suppliers of such TV channels.  
5.6.5. Italy 
5.6.5.1. Possible foreclosure of competing wholesale suppliers of TV channels for children, sports and other content  
(666)  In the present section, the Commission analyses whether the Parties would have the ability and  incentive to foreclose rival wholesale suppliers of TV channels for 
children, sports and other content in Italy by engaging in potential  tying or bundling 
strateg ies, then assesses whether such foreclosure strateg ies would have an impact  
on effective comp etition in those markets  in Italy . 
(A) The Notifying Party’s views  
(A.i) Ability to foreclose  
(667)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in Italy and that the Transaction will not give them this ability for the reasons  set out 
below.  
(668)  The Notifying Party submits that the possible markets where the Parties, alone or 
collectively, have more than a 30% market share do not constitute relevant product markets from a market definition perspective and, consequently, the market shar es 
calculated are artificial and in no way a display of any possible market power on the side of the merged entity.  
(669)  Irrespective of the above element, the Notifying Party adds that the Parties’ shares of those possible relevant markets do not establish an y market power that the merged 
                                                 
287  Responses to questionnaire Q5 –  Questionnaire to market participants in the AV sector (Germany), questions 17 
and 18. 
 
136 entity would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possible genre markets. The Notifying Party submits, in that respect, that, with [50-60]%, the Parties’ market 
shares on the possible relevant market for the wholesale supply of FTA TV channels for children content, while significantly above the threshold beyond which the Commission considers the possible anti -competitive effects of conglomerat e 
relationships between neighbouring markets, that level of market share cannot be considered as a position of possible market power that would, in turn, enable leveraging strategies.  In that respect, the Notifying Party adds that, when all genres 
are part  of one and the same market, the merged entity’s market share of the FTA 
TV channels in Italy is slightly below [5 -10]% and significantly behind market 
leaders RAI (with [40- 50]%) and Mediaset (with [30- 40]%).
288 
(670)  The Notifying Party therefore submits that, irrespective of how the markets are segmented, the merged entity does not own any “must have” channel in Italy.  
(671)  In addition, the Notifying Party submits that children in Italy spend a significant proportion of their time watching content on channels other than children’s FTA 
channels as well as AVOD streaming services which both dilutes any hypothetical 
market power of the Parties in that specific genre.  In addition, the Notifying Party 
argues that WarnerMedia’s share of that possible relevant market is pri marily 
attributable to its channels Boing and Boing Plus through the joint venture with 
Mediaset and concludes, in that respect, that any potential foreclosure strategy by the Parties would therefore be constrained by Mediaset’s presence as a partner in th at 
joint venture.
289 
(672)  Based on the above, the Notifying Party submits that, irrespective of how the markets are segmented, the merged entity is not able to engage in any foreclosure strategy based on the leveraging of market power.  
(A.ii) Incentive to foreclose  
(673)  The Notifying Party considers that the Parties have no incentive to engage in 
foreclosure strategies and that the Transaction will not give them any incentive to do 
so primarily given the competitive constraint that non -linear alternatives, such as, for 
insta nce, AVOD services, impose on linear TV, and FTA channels in particular. The 
Notifying Party submits that if the Parties were to attempt to engage in a foreclosure strategy through leveraging practices and thereby attempt to make a pay TV provider take ext ra channels (at extra cost), that pay TV provider could either, if it decided to 
take the bundle, increase prices to its own customers, or, if it decided not to take the bundle, drop certain channels and reduce its offering accordingly. The Notifying Party  submits that either reaction by the pay TV services  provider could result in 
end-users leaving that linear TV service for another one. However, the Notifying 
Party argues that there is no reason to believe that those end -users exiting the 
degraded service  as a result of the Parties alleged anti -competitive leveraging 
practices, would actually switch to the merged entity’s ow n non-linear services post -
Transaction given, in particular, its very low market shares at retail level in 
                                                 
288 Notifying Party’s response to Q1 of RFI 9 on 11 December 2021. 
289 Notifying Party’s response to Q1 of RFI 9 on 11 December 2021.   
 
137 Italy ([0-5]% combined on t he SVOD segment of the retail TV services market 
and [0-5]% of the overall subscription pay TV services).290  
(A.iii)  Effects on competition  
(674)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Italy as the Parties will not 
have the ability or the incentive to engage in ant -icompetitive leveraging.  
(B) Commission’s assessment  
(B.i) Ability to foreclose  
(675)  The Commission considers that the merged entity will not have the ability to engage 
in foreclosure  strategies  by leveraging its potential market power in the possible 
markets for the wholesale supply of TV channels for children content to the possible 
markets for the wholesale supply of TV channels for sports and/or other content in 
Italy fo r the reasons  set out below . 
(676)  The Commission considers that there is no indication in the results of its market investigation that the merged entity will have the ability to engage in foreclosure practices through tying/bundling on the market for wholesale s upply of channels in 
Italy that would result in a degradation of the terms and conditions at which customers purchase TV channels.
291  
(677)  Indeed, for the reasons set out above in section 5.4.4.2, the Commission’s assessment of the merged entity’s relatively high market share on the possible 
market for the wholsesale supply of FTA TV channels for children content has confirmed that the Transaction does not raise serious doubts as to its compatibility with the internal market as a result of horizontal effects on the market for the wholesale supply of FTA TV channels for children content in Italy.  
(678)  On that basis, it can be considered that the merged entity will not own a “must have” asset on that possible market in Italy an d that, in turn, it will not have the ability to 
leverage any market power onto the other genres where the Parties are active in Italy 
(sports and other content channels).  
(679)  Therefore, the Commission concludes that the merged entity would not have the 
ability to engage in foreclosure strategies by leveraging its potential market power in 
the possible markets for the wholesale supply of TV channels for children content to the possible markets for the wholesale supply of TV channels for sports and/or other 
content in Italy.  
(B.ii) Incentive to foreclose  
(680)  The Commission considers that the merged entity will not have the incentive  to 
engage in foreclosure  strategies  by leveraging its potential market power in the 
possible markets for the wholesale supply of TV channels f or children content to the 
possible markets for the wholesale supply of TV channels for sports and/or other 
content in Italy for the reasons set out below.  
                                                 
290  Form CO, Chapter 7, Annex 1. 
291  Responses to questionnaire Q1 – Questionnaire to market participants in the AV sector (Italy), question 47.  
 
138 (681)  The Commission considers that any such attempt would be mostly counter -
productive and unprofitable f or the Parties for the following main reasons: (i) the 
customers that the Parties would try to harm could decide to drop the Parties ’ 
channels and find alternative individual and/or bundled content options from 
competitors of the Parties, and/or (ii) the c ustomers that the Parties would try to 
harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers and see these leave for other offline or online alternative retail TV services without the guarantee for the Pa rties that such customers would 
choose their own retail service given the Parties’  very low market shares
292 at retail 
level in Italy ( [0-5]% combined on the SVOD segment of the retail TV services 
market and [0 -5]% of the overall subscription pay TV services ). These very low 
market shares  can be considered as inversely proportionate to the losses of revenues 
and profitability the merged entity would incur should it decide to pursue such hypothetical strategy. Therefore, the Commission concludes that the merged  entity 
would not have the incentive to engage in foreclosure strategies by leveraging its 
potential market power in the possible markets for the wholesale supply of TV 
channels for children content to the possible markets for the wholesale supply of TV 
channels for sports and/or other content in Italy.  
(B.iii)  Effects on competition  
(682)  The Commission considers that due to the lack of ability and incentive, it is not necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate rel ationships brought about by the Transaction in Italy would have a 
negative impact on effective competition.  
(683)  In any event, the Commission considers that a potential foreclosure strategy of 
competing wholesale suppliers of TV channels in Italy would have no  significant 
detrimental effect on competition because , bundling being recognized by the 
respondents to the Commission’s market investigation as a common practice in the industry
293, (i) customers will always be able to rely on alternative packaged deals, 
whether larger or narrower in scope, from other international and local suppliers that 
will continue to offer significant competition to the merged entity at all genre levels 
in Italy, and (ii) customers that would find it more constraining from a commercial perspective to deal with the merged entity on the markets for the wholesale supply of TV channels for the various types of content, could always decide to develop counter -strategies such as creating or commissioning content for their own use as a 
number of market players have done over the last few years.  
(C) Conclusion 
(684)  In light of the above, the Commission concludes that the Transaction does not raise serious doubts as to the compatibility with the internal market with respect to any possible  foreclosure practices resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for children, sports and other content under any of the alternative product markets in Italy given the lack 
of ability , incentive or possible effects of such strategy to foreclose competing 
wholesale suppliers of such TV channels.  
                                                 
292  Form CO, Chapter 7, Annex 1. 
293  Responses to questionnaire Q1 – Questionnaire to market participants  in the AV s ector (Italy), questions 45 
and 46. 
 
139 5.6.6. Norway  
5.6.6.1. Possible foreclosure of competing wholesale suppliers of TV channels for sports 
and children content  
(685)  In the present section, the Commission analyses whether the Parties would have the ability and incentive to foreclose rival wholesale suppliers of TV channels for sports 
and children content in Norway by engaging in potential tying or bundling strateg ies, 
then assesses whether such foreclosure strateg ies would have an impact  on effective 
competition in those markets  in Norway . 
(A) The Notifying Party’s views  
(A.i) Ability to foreclose  
(686)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in Norway and that the Transaction will not giv e them this ability for the reasons  set 
out below.  
(687)  First, the Notifying Party submits that the possible markets where the Parties, alone or collectively, have more than a 30% market share do not constitute relevant product markets from a market definition perspective and, consequently, the market 
shares calculated are artificial and in no way a display of any possible market power on the side of the merged entity.  
(688)  Irrespective of the above element, the Notifying Party adds that  the Parties’ shares of 
those possible relevant markets do not establish any market power that the merged 
entity would allegedly enjoy because it would own one or more “must have” channels that it would use to leverage that power onto other possible genre markets. The Notifying Party  submits, in that respect, that, with [40-50]%, the Parties’ market 
shares on the possible relevant market for the wholesale supply of TV channels for sports  content may look high but do not necessarily equate to a position of market 
power that would, in t urn, enable leveraging strategies. Indeed, according to the 
Notifying Party , Discovery’s faces stong competitors on that specific genre in 
Norway such as, among others, Egmont (with [30- 40]%) and NENT (with 
[10-20]%). The Notifying Party argues that the market shares of the merged entity’s 
competitors alone are sufficient to indicate the lack of market power.  
(689)  The Notifying further submits that the lack of the “must have” nature of Discovery’s 
Eurosport channels in Norway is further illustrated by the fact that, while it currently 
owns the rights to Norway’s “Eliteserien” football competition, these will be held by 
Egmont’s TV2 channels from 2023 until 2028. In that context, the Notifying Party adds that it is its other competitior, NENT, that owns the right s to the English 
Premier League.
294 The mere fact that the merged entity will not own any of those 
very important rights can hardly make its Euro sport channel a “must have” in 
Norway.   
(690)  The Notifying Party therefore submits that, irrespective of how the marke ts are 
segmented, the merged entity does not own any “must have” channel in Norway  and 
is consequently not able to engage in any foreclosure strategy based on the leveraging of market power.  
                                                 
294  https://media.sportbusiness.com/2020/02/nents -colossal -premier -league-deal -shakes -up-nordi c-market/     
 
140 (A.ii) Incentive to foreclose  
(691)  The Notifying Party considers that the Pa rties have no incentive to engage in 
foreclosure strategies and that the Transaction will not give them any incentive to do 
so primarily given the competitive constraint that non -linear alternatives impose on 
linear TV. The Notifying Party submits that if the Parties were to attempt to engage in a foreclosure strategy through leveraging practices and thereby attempt to make a 
pay TV provider take extra channels (at extra cost), that pay TV provider could 
either, if it decided to take the bundle, increase pr ices to its own customers, or, if it 
decided not to take the bundle, drop certain channels and reduce its offering 
accordingly. The Notifying Party submits that either reaction by the pay TV services  
provider could result in end- users leaving that linear T V service for another one. 
However, the Notifying Party argues that there is no reason to believe that those end-
users exiting the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, would actually switch to the merged entity’s ow n non-linear 
services post -Transaction given, in particular, its limited  market shares at retail level 
in Norway  ([20-30]% combined on the SVOD segment of the retail TV services 
market and [10- 20]% of the overall subscription pay TV services).
295  
(A.iii)  Effects on competition  
(692)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Norway  as the Parties will 
not have the ability or the incentive to engage in anti -compe titive leveraging.  
(B) Commission’s assessment  
(B.i) Ability to foreclose  
(693)  The Commission considers that the merged entity will not have the ability to engage in foreclosure  strategies  by leveraging its potential market power in the possible 
markets for the wholesale supply of TV channels for sports content to the possible 
markets for the wholesale supply of TV channels for children content in Norway for the reasons  set out below . 
(694)  The Commission considers that there is no indication that the merged entity will have th e ability to engage in foreclosure practices through tying/bundling on the 
market for wholesale supply of channels in Norway.  
(695)  First, the results of the Commission’s market investigation were rather neutral with respect to the merged entity’s ability to deg rade the terms and conditions at which 
customers purchase TV channels through hypothetical anti -competitive 
bundling/tying practices in Norway, as most respondents did not expect changes following the Transaction.
296  
(696)  Second, none of the Parties’ channels on their own can be considered as a “must 
have” asset in Norway. First of all, the merged entity’s activity on the wholesale 
supply of TV channels for children content, which is the only addition of genre as a 
result of the Transaction to Discovery’s Eurosport channel, is limited to [10- 20]% of 
that possible market and, as such, shows no indication of any market power. Then, 
                                                 
295  Form CO, Chapter 7, Annex 1. 
296  Responses to questionnaire Q9 – Questionnaire to market participants in the AV sector (Norway), question 26.  
 
141 with respect to the Eurosport channel itself, despite its relatively high share 
([40-50]%) of the possible market for the wholesale supply of  TV channels for 
sports content, it can not either be considered as a must have channel given (i) the specialist nature of that channel
297, and (ii) the very strong competition it faces from 
Egmont (the owner of TV2) and NENT that are both investing he avily in attractive 
sports content rights.Finally, with regards to the only major sporting event for which 
Discovery holds rights, the Olympics, Discovery is contractually obliged to license 
out at least 100 hours of content for the Winter Olympics, and 200 hours of content 
for the Summer Olympics. That is an additional element that contribute to Eurosport’s lack of exclusive or “must have” channel nature.  
(697)  Therefore, the Commission concludes that the merged entity would not have the 
ability to engage in for eclosure strategies by leveraging its potential market power in 
the possible markets for the wholesale supply of TV channels for sports content to 
the possible markets for the wholesale supply of TV channels for children content in Norway.  
(B.ii) Incentive to for eclose  
(698)  The Commission considers that the merged entity will not have the incentive  to 
engage in foreclosure  strategies  by leveraging its potential market power in the 
possible markets for the wholesale supply of TV channels for sports content to the possible markets for the wholesale supply of TV channels for children content in Norway fo r the reasons set out below . 
(699)  The merged entity’s incentive to engage in hypothetical anti -competitive practices 
through bundling and tying strategies in Norway is very limi ted to the extent that, 
other than in sports channels, the merged entity is only active in the wholesale 
supply of channels for children content in Norway. Consequently, should the merged entity have the incentive to leverage its position in the possible m arket for the 
wholesale supply of channels  for sports content, it could only do it onto the possible 
market for the wholesale supply of channels for children content. Admittedly, while always possible in theory, the much  reduced scope (i.e., two genres onl y) of any 
possible anti -competitive bundle  by the merged entity limits the attractiveness of any 
hypothetical bundling strategy involving those two genres.  
(700)  Notwithstanding the above, t he Commission considers that the Parties do not have 
the incentive to e ngage in such practices as any such attempt would be mostly 
counter -productive and unprofitable for the Parties for the following main reasons: 
(i) the customers that the Parties would try to harm could decide to drop the Parties’ channels  and find alterna tive individual and/or bundled content options from 
competitors of the Parties, and/or (ii) the customers that the Parties would try to harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers and see these leave for other offline or online alternative retail TV services without the guarantee for the Parties that such customers would choose their own retail service given the Parties’ limited  market share of the retail 
                                                 
297  Eurosport position itself as a “specialist” rather than a “generalist” sports channel.  With the  exception of the 
Olympic Games for which Discovery currently holds the rights until 2024, Eurosport does not own rights to other 
“high profile” events and, apart from its deal for the Olympics, Eurosport generally has relatively low licensing 
costs. 
 
142 market in Norway ( [20-30]% combined on the SVOD segment of the retail TV 
services market and [10- 20]% of the overall subscription pay TV services).298   
(701)  Therefore, the Commission concludes that the merged entity would not have the 
incentive to engage in foreclosure strategies by leveraging its pote ntial market power 
in the possible markets for the wholesale supply of TV channels for sports content to 
the possible markets for the wholesale supply of TV channels for children content in 
Norway.  
(B.iii)  Effects on competition  
(702)  The Commission considers that due t o the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate relationships brought about by the Transaction in Norway  would have 
a negative impact on effective competition .  
(703)  In any event, the Commission considers that a potential foreclosure strategy of 
competing wholesale suppliers of TV channels in Norway would have no significant detrimental effect on competition because , bundling being recognized by the 
respondents to t he Commission’s market investigation as a common practice in the 
industry, (i) customers will always be able to rely on alternative packaged deals, 
whether larger or narrower in scope, from other international and local suppliers that will continue to offe r significant competition to the merged entity at all genre levels 
in Norway , and (ii) customers that would find it more constraining from a 
commercial perspective to deal with the merged entity on the markets for the wholesale supply of TV channels for the various types of content, could always decide to develop counter -strategies such as creating or commissioning content for 
their own use as a number of market players have done over the last few years.  
(C) Conclusion 
(704)  In light of the above, the Commission conc ludes that the Transaction does not raise 
serious doubts as to the compatibility with the internal market with respect to any possible  foreclosure practices resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for children and sports content under any of the alternative product markets in Norway given the lack of 
ability , incentive or possible effects of such strategy to foreclose competing 
wholesale suppliers of such TV channels.  
5.6.7. Poland 
5.6.7.1. Possib le foreclosure of competing wholesale suppliers of TV channels for news, 
sports, children and other content  
(705)  In the present section, the Commission analyses whether the Parties would have the ability and incentive to foreclose rival wholesale suppliers of T V channels for news, 
sports, children and other content in Poland by engaging in potential  tying or 
bundling strategies , then assesses whether such foreclosure strategies  would have an 
impact  on effective competition in those markets  in Poland. 
                                                 
298  Form CO, Chapter 7, Annex 1. 
 
143 (A) The Notifyi ng Party’s views  
(A.i) Ability to foreclose  
(706)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in Poland and that the Transaction will not give them this ability for the reasons  set 
out below.  
(707)  First, the Notifying Party submits that the possible markets where the Parties, alone 
or collectively, have more than a 30% market share do not constitute relevant 
product markets from a market definition perspective and, consequently, the market 
shares calculated are artificial and in no  way a display of any possible market power 
on the side of the merged entity.   
(708)  Irrespective of the above element, the Notifying Party adds that the Parties’ shares of 
those possible relevant markets do not establish any market power that the merged 
entity  would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possible genre markets.  
(709)  Indeed, according to the Notifying Party, while the merged entity’ share ( i.e., with its 
CNN Internati onal channel) of the possible market for the wholesale supply of pay 
TV channels for news content may seem significant, it cannot be conside red as a 
“must have” channel in Poland as (i) there is a high number of news TV channels 
available in Poland299 (first  and most importantly, local news TV channels which 
inevitably constitute the main source of news at country level, given the prominence of the local coverage in news reporting), (ii) international news channels such as BBC World, Bloomberg TV and CNBC whi ch, similarly to CNN, report news (in 
English) with largely a global appeal and are widely available in Poland, (iii) general FTA and pay TV channels also broadcast a large amount of (local) news content, and […].
300 
(710)  The Notifying Party equally considers tha t the Eurosport channel is not a “must 
have” channel in Poland as (i) it does not own the rights for the local “Ekstraklasa” football league which, on its own is worth about 3 times more than all of Eurosport’s licensing rights in Poland, (ii) sports conte nt shown on Eurosport is also shown on 
Eurosport Player, Discovery's OTT offering in Poland, and  can, consequently , not be 
considered as an exclusive “must have” asset  for pay TV services providers to the 
extent that their customers could access it elsewhere, and (iii) while Eurosport owns the rights to the World Cup skiing season, it is obligated by local Polish regulations 
to broadcast the ski jumping and cross country ski ing events  on an FTA basis o n the 
Polish television , which it does on its own TVN and Metro FTA channels in 
Poland.
301 Finally, with regards to the only major sporting event for which Discovery 
holds rights, the Olympics, Discovery is contractually  obliged to license out at least 
100 hours of content for the Winter Olympics, and 200 hours of content for the Summer Olympics. That is an additional element that contribute to Eurosport’s lack of exclusive or “must have” channel nature  in Poland.  
                                                 
299  Tvn, TVP 1, TVP 2, TVP 3, TVP Info, Polsat news, Deutsche Welle CNBC, BBC World, France 24, Bloomberg 
TV, KBS World, Euronews. 
300  [INFORMATION RELATED TO WARNERMEDIA’S NEWS CHANNELS DISTRIBUTION STRATEGY 
DURING NEGOTIATIONS WI TH POLISH LICENSEES] . 
301  This obligation has historically been covered through the sublicense of the relevant FTA rights to TVP. The rationale [INFORMATION RELATED TO DISCOVERY’S COMMERCIAL STRATEGY IN POLAND] .
 
 
144 (711)  The Notifying Party therefore submits that, irrespective of how the markets are 
segmented, the merged entity does not own any “must have” channel in Poland and is consequently not able to engage in any foreclosure strategy based on the leveraging of market power.  
(A.ii) Incentive to foreclose  
(712)  The Notifying Party considers that the Parties have no incentive to engage in 
foreclosure strategies and that the Transaction will not give them any incentive to do 
so primarily given the competitive constraint that non -linear alternatives impose on 
linear TV. The Notifying Party submits that if the Parties were to attempt to engage 
in a foreclosure strategy through leveraging practices and thereby attempt to make a 
pay TV provider take extra channels (at extra cost), that pay TV provider could 
either, if it decided to take the bundle, increase prices to its own customers, or, if it 
decided not to take the bundle, drop certain channels and reduce its offering 
accordingly. The Notifying Party submits that either reaction by the pay TV services  
provider could result in end- users leaving that linear TV service for another one. 
However, the Notifying Party argues that there is no reason to believe that those end-
users exiting the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, would actually switch to the merged entity’s ow n non-linear 
services post -Transaction given, in particular, its limited   market shares at retail level 
in Poland ([5-10]% combined on the SVOD segment of the retail TV services 
market and [0 -5]% of the overall subscription pay TV services).
302  
(A.iii)  Effects on competition  
(713)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Poland as the Parties will 
not have the ability or the incentive to engage in anti -competitive leveraging.  
(B) Commission ’s assessment  
(B.i) Ability to foreclose  
(714)  The Commission considers that the merged entity will not have the ability to engage in foreclosure  strategies  by leveraging its potential market power in the possible 
markets for the wholesale supply of TV channels for ne ws and/or sports content to 
the possible markets for the wholesale supply of TV channels for children and/or 
other content in Poland for the reasons  set out below . 
(715)  First, the Commission takes into account the remedy that conditioned its approval 
decision of the Discover/Scripps
303 transaction in February of 2018 and which 
guarantees the availability of Discovery’s leading news channels in Poland to all pay 
TV services providers at retail level until February 2025.304  
                                                 
302  Form CO, Chapter 7, Annex 1. 
303  Decision p ursuant to Article 6(1)(b) in conjunction with Article 6(2) in case M.8665 –  Discovery/Scripps of 6 
February 2018.   
304  The Commitments consist in an obligation to offer retail pay TV distributors in Poland the right to distribute 
TVN24 and/or TVN24 BiS on a non -exclusive and unbundled basis, for inclusion in a basic pay  TV package on 
reasonable commercial terms (and in standard definition, high definition or any other future format that these channels are available in, including ancillary rights offered by  these channels).
 
 
145 (716)  Second, t he Commission considers that there  is no indication in the results of its 
market investigation that the merged entity will have the ability to engage in 
foreclosure practices through tying/bundling on the market for wholesale supply of channels in Poland that  would result in a degradation of the terms and conditions at 
which customers purchase TV channels.
305  
(717)  Indeed, none of the Parties’ channels  on their own can be considered as a “must 
have” asset in Poland. Indeed, even when considered exclusively on a genre basis, 
with the exceptions of the merged entity’ share of [70- 80]% on the possible market 
for the wholesale supply of pay TV channels for news content and its  share of [30-
40]% on the market for the wholesale supply of pay TV channels for sports content, 
the merged entity’s  market shar es all remain below the thresholds relevant for the 
identification of conglomerate relationships.  
(718)  Regarding TVN24, the merged entity’s flagship news channel(s) in Poland, taking 
into account the comments, in paragraph (716)  above, they are available on 
reasonable commercial terms to all pay TV services providers in Poland. Regarding the CNN channel,  the results of the market investigation did not consider it as a 
“must have” channel in Poland as (i) it does not represent the mai n source of news 
for the viewers among the many national and local news and generalist channels in 
Poland, (ii) its viewership is limited due to the lack of local language dubbing, and 
(ii) it faces the competition of various alternative similar internatio nal news channels 
such as Sky News, Euronews, France 24 and BBC World for instance.  
(719)  Regarding Eurosport, it positions itself  as a “specialist” channel rather than a 
generalist sports channel with attractive high -level content as (i) it does not , for 
insta nce, include Poland’s  national football league in its line -up, (ii) outside of the 
Olympics (which it must, contractually, sublicense to some of its competitors), it 
does not own right s to other large worldwide famous sports events such as the World 
Cup, t he Tour de France or the Formula 1 championship, (iii) its market shares 
fluctuate significantly quarter by quarter
306 depending on what content/events 
Eurosport is actually broadcasting, and (iii) Eurosport faces competition from a 
number of local and inter national channels such as  Polsat, TVP and Vivendi/Canal+. 
This last fact is illustrated by Eurosport’s market share decrease (in the second quarter of 2020) to as low as [10- 20]% while Polsat Sport, and Vivendi/Canal+ 
reported market shares of [50- 60]% and  [20-30]% respectively over the same period  
on the wholesale supply of pay TV channels for sports content, not taking into account the [90- 100]% share of TVP Sports on the wholesale supply of FTA TV 
channels for sports content in Poland.
307 This last fact illustrates the very volatile 
nature of the possible market for the wholesale supply of TV channels for sports 
content in Poland and the fact that the Parties do not necessarily have a consistent 
market position to exploit in that genre.  
(720)  Therefore, the Commi ssion concludes that the merged entity would not have the 
ability to engage in foreclosure strategies by leveraging its potential market power in 
the possible markets for the wholesale supply of TV channels for news and/or sports 
                                                 
305  Responses to questionnaire Q10 – Questionnaire to market participants in the AV sector (Poland), questions 26 
and 28. 
306  In Q1/2020 it had a [40-50]% market share while in Q2/2020 and Q3/2020 it had [10-20]% and [20- 30]% 
respectively. Similar fluctuations apply to the first half of 2021.  
307  Form CO, Chapter 7, Annex 1.  
 
146 content to the possible ma rkets for the wholesale supply of TV channels for children 
and/other content in Poland. 
(B.ii) Incentive to foreclose  
(721)  The Commission considers that the merged entity will not have the incentive  to 
engage in foreclosure  strategies  by leveraging its potential marke t power in the 
possible markets for the wholesale supply of TV channels for news and/or sports 
content to the possible markets for the wholesale supply of TV channels for children 
and/or content in Poland for the reasons set out below . 
(722)  The Commission consi ders that any such attempt would be mostly counter -
productive and unprofitable for the Parties for the following main reasons: (i) the 
customers that the Parties would try to harm could decide to drop the Parties’ 
channels  and find alternative individual a nd/or bundled content options from 
competitors of the Parties, and/or (ii) the customers that the Parties would try to 
harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers and see these leave for other o ffline or online alternative 
retail TV services without the guarantee for the Parties that such customers would 
choose their own retail service given the Parties’ limited   market shares
308 at retail 
level  in Poland ( [5-10]% combined on the SVOD segment of the retail TV services 
market and [0 -5]% of the overall subscription pay TV services).  These limited 
market shares can be considered as inversely proportionate to the losses of revenues 
and profitability the merged entity would incur should it decide to pur sue such 
hypothetical strategy.    
(723)  Therefore, the Commission concludes that the merged entity would not have the incentive to engage in foreclosure strategies by leveraging its potential market power 
in the possible markets for the wholesale supply of TV channels for news and/or sports content to the possible markets for the wholesale supply of TV channels for children and/or other content in Poland. 
(B.iii)  Effects on competition  
(724)  The Commission considers that due to the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate relationships brought about by the Transaction in Poland would have a 
negative impact on effective competition.  
(725)  In any event, the Commission considers that a potential foreclosure strategy of competing wholesale suppliers of TV channels in Poland would have no significant 
detrimental effect on competition because , bundling being recognized by the 
respondents to the Commission’s market investigation as a common pr actice in the 
industry, (i) customers will always be able to rely on alternative packaged deals, 
whether larger or narrower in scope, from other international and local suppliers that will continue to offer significant competition to the merged entity at a ll genre levels 
in Poland, and (ii) customers that would find it more constraining from a commercial 
perspective to deal with the merged entity on the markets for the wholesale supply of TV channels for the various types of content, could always decide to develop 
                                                 
308  Form CO, Chapter 7, Annex 1. 
 
147 counter -strategies such as creating or commissioning content for their own use as a 
number of market players have done over the last few years.  
(C) Conclusion 
(726)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to the compatibility with the internal market with respect to any possible  foreclosure practices resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for news, sports, 
children and ot her content under any of the alternative product markets in Poland 
given the lack of ability , incentive or possible effects of such strategy to foreclose 
competing wholesale suppliers of such TV channels. 
5.6.8. Romania 
5.6.8.1. Possible foreclosure of competing wholesale  suppliers of TV channels for children, 
sports and other content  
(727)  In the present section, the Commission analyses whether the Parties would have the 
ability and incentive to foreclose rival wholesale suppliers of TV channels for 
children, sports and other c ontent in Romania by engaging in potential  tying or 
bundling strateg ies, then assesses whether such foreclosure strateg ies would have an 
impact  on effective competition in those markets  in Romania . 
(A) The Notifying Party’s views  
(A.i) Ability to foreclose  
(728)  The Notif ying Party submits that the Parties have no ability to foreclose competitors 
in Romania and that the Transaction will not give them this ability for the reasons  set 
out below. 
(729)  First, the Notifying Party submits that the possible markets where the Parties, alone or collectively, have more than a 30% market share do not constitute relevant product markets from a market definition perspective and, consequently, the market 
shares calculated are artificial and in no way a display of any possible market power 
on the side of the merged entity.  
(730)  Irrespective of the above element, the Notifying Party adds that  the Parties’ shares of 
those possible relevant markets do not establish any market power that the merged 
entity would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possible genre markets. 
The Notifying Party submits, in that respect, that, with [30-40]%, the Parties’ market 
shares on the possible relevant market for the wholesale supply of TV channels for 
children content is merely above the threshold beyond which the Commission considers the possible anti -competitive effects of conglomerate relationships 
between neighbouring markets and that, as such, that level of market share cannot logically be considered as a position of possible market power that would, in turn, 
enable leveraging strategies.  In that respect, the Notifying Party adds  that, when all 
genres are part of one and the same market, the merged entity’s market share of the pay TV channels in Romania  is only [5 -10]% and in competition with other strong 
 
148 regional and international pay TV players including Intact Media (with [30- 40]%), 
CME (with [20- 30]%), Dogan (with [10- 20]%) and others.309 
(731)  The Notifying Party therefore submits tha t, irrespective of how the markets are 
segmented, the merged entity does not own any “must have” channel in Romania 
and is consequently not able to engage in any foreclosure strategy based on the 
leveraging of market power.  
(A.ii) Incentive to foreclose  
(732)  The Noti fying Party considers that the Parties have no incentive to engage in 
foreclosure strategies and that the Transaction will not give them any incentive to do 
so primarily given the competitive constraint that non -linear alternatives impose on 
linear TV. The Notifying Party submits that if the Parties were to attempt to engage 
in a foreclosure strategy through leveraging practices and thereby attempt to make a pay TV provider take extra channels (at extra cost), that pay TV provider could either, if it decide d to take the bundle, increase prices to its own customers, or, if it 
decided not to take the bundle, drop certain channels and reduce its offering 
accordingly. The Notifying Party submits that either reaction by the pay TV services  
provider could result i n end -users leaving that linear TV service for another one. 
However, the Notifying Party argues that there is no reason to believe that those end-
users exiting the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, w ould actually switch to the merged entity’s ow n non-linear 
services post -Transaction given, in particular, its (very) low market shares at retail 
level in Romania ( [5-10]% combined on the SVOD segment of the retail TV 
services market and [0 -5]% of the over all subscription pay TV services).
310  
(A.iii)  Effects on competition  
(733)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Romania as the Parties will not have the ability or the incentive to engage in anticompetitive leveraging.  
(B) Commission’s assessment  
(B.i) Ability to foreclose  
(734)  The Commission considers that the merged entity will not have the ability to engage in foreclosure  strategies  by leveraging its potential market power in the possible 
markets for the wholesale supply of TV channels for children content to the possible 
markets for the wholesale supply of TV channels for sports and/or other content in 
Romania fo r the reasons  set out below . 
(735)  The Commission’s market investigation in dicated that a number of respondents 
considered that, as a result of the Transaction, the merged entity would have the 
ability to degrade the terms and conditions at which they purchase TV channels 
through anti -competitive bundling/tying practices.
311   
                                                 
309  Notifying Party’s response to Q9 of RFI 7 on 16 November 2021. 
310  Form CO, Chapter 7, Annex 1.  
311  Responses to questionnaire Q6 – Quest ionnaire to market participants in the AV sector (Romania), question 19.  
 
149 (736)  Acco rding to these respondents, such practices would entail forcing purchasers to 
take packages/bundles of TV channels/programmes including less 
desired/performing channels through the leveraging of premium channels /programmes. Some respondents further argued that this “all or nothing” 
practice would also result in marginalising other suppliers, thereby progressively reducing choice and quality in addition to increased prices.
312  
(737)  The Commission considers however that these concerns are not justified , as there is  
no indication that any of the Parties’ channels /programmes on their own could be 
considered as a “must have” asset in Romania given the Parties’ limited market shares on those possible individual genres markets. Indeed, even when considered exclusively on  a genre basis, with the single exception of their share of [30 -40]% on 
the possible market for the w holesale supply of pay TV channels for children 
content, the Parties’ market shares all remain below the thresholds relevant for the identification of cong lomerate relationships. As such, the Parties’ position on the 
children  content genre  can hardly be considered as a display of market power and 
hence a strong basis from which such power could be leveraged onto the other genres where the Parties are active (sports and other content channels).  
(738)  Therefore, the Commission concludes that the merged entity would not have the ability to engage in foreclosure strategies by leveraging its potential market power in 
the possible markets for the wholesale supply of TV channels for children content to the possible markets for the wholesale supply of TV channels for sports and/or other content in Romania. 
(B.ii) Incentive to foreclose  
(739)  The Commission considers that the merged entity will not have the incentive  to 
engage in forecl osure  strategies  by leveraging its potential market power in the 
possible markets for the wholesale supply of TV channels for children content to the 
possible markets for the wholesale supply of TV channels for sports and/or other content in Romania for th e reasons set out below . 
(740)  The Commission considers that the Parties do not have the incentive to engage in such practices as any such attempt would be mostly counter -productive and 
unprofitable for the Parties for the following main reasons: (i) the custome rs that the 
Parties would try to harm could decide to drop the Parties’ channels  and find 
alternative individual and/or bundled content options from competitors of the Parties, and/or (ii) the customers that the Parties would try to harm could decide to take the unfavourable bundle, increase the prices to their own end customers/viewers 
and see these leave for other offline or online alternative retail TV services without the guarantee for the Parties that such customers would choose their own retail service given the Parties’ limited market share s of the retail market in Romania ( [5-
10]% combined on the SVOD segment of the retail TV services market and [0 -5]% 
of the overall subscription pay TV services).
313  These limited market shares can be 
considered as in versely proportionate to the losses of revenues and profitability the 
merged entity would incur should it decide to pursue such hypothetical strategy.   
                                                 
312  Responses to questionnaire Q6 – Questionnaire to market participants in the AV sector (Romania), question 20. 
313  Form CO, Chapter 7, Annex 1.  
 
150 (741)  Therefore,  the Commission concludes that the merged entity would not have the 
incentive to engage in fo reclosure strategies by leveraging its potential market power 
in the possible markets for the wholesale supply of TV channels for children content 
to the possible markets for the wholesale supply of TV channels for sports and/or other content in Romania. 
(B.iii)  Effects on competition  
(742)  The Commission considers that due to the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
conglomerate relationships brought about by the Transaction in Rom ania would have 
a negative impact on effective competition.  
(743)  In any event, the Commission considers that a potential foreclosure strategy of 
competing wholesale suppliers of TV channels in Romania would have no 
significant detrimental effect on competition  because , bundling being recognized by 
the respondents to the Commission’s market investigation as a common practice in 
the industry
314, (i) customers will always be able to rely on alternative packaged 
deals, whether larger or narrower in scope, from other international and local 
suppliers that will continue to offer significant competition to the merged entity at all 
genre levels in Romania, and (ii) customers that would find it more constraining from a commercial perspective to deal with the merged entity on the markets for the 
wholesale supply of TV channels for the various types of content, could always decide to develop counter -strategies such as creating or commissioning content for 
their own use as a number of market players have done over the last few  years . 
(C) Conclusion 
(744)  In light of the above, the Commission concludes that the Transaction does not raise serious doubts as to the compatibility with the internal market with respect to any possible  foreclosure practices resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for children, sports and other content under any of the alternative product markets in Romania given the lack of ability , incentive or possible effects of such strategy to foreclose competing 
wholesale suppliers of such TV channels.  
5.6.9. Spain 
5.6.9.1. Possible foreclosure of competing wholesale suppliers of TV channels for sports, children and other content  
(745)  In the present section, the Commission analyses whether the Parties would have the ability and incentive to foreclose rival wholesale suppliers of TV channels for sports, 
children and other content in Spain by engaging in potential  tying or bundling 
strateg ies, then assesses whether such foreclosure strateg ies would have an impact  
on effect ive competition in those markets  in Spain. 
                                                 
314  Responses to questionnaire Q6 –  Questionnaire to market participants in the AV sector (Romania), questions 17 
and 18. 
 
151 (A) The Notifying Party’s views  
(A.i) Ability to foreclose  
(746)  The Notifying Party submits that the Parties have no ability to foreclose competitors 
in Spain and that the Transaction will not give them this ability for the reas ons set 
out below.   
(747)  First, the Notifying Party submits that the possible markets where the Parties, alone 
or collectively, have more than a 30% market share do not constitute relevant 
product markets from a market definition perspective and, consequently, the market 
shares calculated are artificial and in no way a display of any possible market power 
on the side of the merged entity.  
(748)  Irrespective of the above element, the Notifying Party adds that the Parties’ shares of 
those possible relevant markets do not establish any market power that the merged 
entity would allegedly enjoy because it would own one or more “must have” 
channels that it would use to leverage that power onto other possible genre markets. In that respect, the Notifying Party considers tha t the Eurosport channel is not a 
“must have” channel in Spain as (i) it does not own the rights for the local “La Liga” 
football league which, on its own, is worth about close to 200 times more than all of 
Eurosport’s licensing rights for one year in Spain, (ii) with regards to the only major 
sporting event for which Discovery holds rights, the Olympics, Discovery is contractually obliged to license out at least 100 hours of content for the Winter 
Olympics, and 200 hours of content for the Summer Olympics , which c ontribute s to 
Eurosport’s lack of exclusive or “must have” channel nature , and (iii) when all 
genres  are part of one and the same market, Eurosport’s overall market share of all 
channels is just [0 -5]% of all channels in Spain.
315  
(749)  The Notifying Party  therefore submits that, irrespective of how the markets are 
segmented, the merged entity does not own any “must have” channel in Spain  and is 
consequently not able to engage in any foreclosure strategy based on the leveraging of market power.  
(A.ii) Incentive t o foreclose  
(750)  The Notifying Party considers that the Parties have no incentive to engage in foreclosure strategies and that the Transaction will not give them any incentive to do so primarily given the competitive constraint that non -linear alternatives impo se on 
linear TV. The Notifying Party submits that if the Parties were to attempt to engage in a foreclosure strategy through leveraging practices and thereby attempt to make a pay TV provider take extra channels (at extra cost), that pay TV provider could either, if it decided to take the bundle, increase prices to its own customers, or, if it decided not to take the bundle, drop certain channels and reduce its offering accordingly. The Notifying Party submits that either reaction by the pay TV services  
provider could result in end- users leaving that linear TV service for another one. 
However, the Notifying Party argues that there is no reason to believe that those end-
users exiting the degraded service as a result of the Parties alleged anti -competitive 
leveraging practices, would actually switch to the merged entity’s ow n, non- linear 
services post -Transaction given, in particular, its limited market shares at retail level 
                                                 
315  Notifying Party’s response to Q2 of RFI 9 on 11 December 2021.  
 
152 in Spain  ([5-10]% combined on the SVOD segment of the retail TV services market 
and [0 -5]% of the overall subscription pay TV services).316  
(A.iii)  Effects on competition  
(751)  The Notifying Party submits that there will be no adverse effects on competition in 
the markets affected by the conglomerate relationships in Spain  as the Parties will 
not have the  ability or the incentive to engage in anti- competitive leveraging.  
(B) Commission’s assessment  
(B.i) Ability to foreclose  
(752)  The Commission considers that the merged entity will not have the ability to engage in foreclosure  strategies  by leveraging its potential marke t power in the possible 
markets for the wholesale supply of TV channels for sports and/or children content 
to the possible markets for the wholesale supply of TV channels for other content in 
Spain for the reasons  set out below . 
(753)  The Commission considers that there is no indication in the results of its market investigation that the merged entity will have the ability to engage in foreclosure practices through tying/bundling on the market for wholesale supply of channels in 
Spain which would result in a degr adation of the terms and conditions at which 
customers purchase TV channels.
317  
(754)  None  of the Parties’ channels  on their own can be considered as a “must have” asset 
in Spain. Indeed, even when considered exclusively on a genre basis, with the exceptions of t he merged entity’ share of [40- 50]% on the possible market for the 
wholesale supply of pay TV channels for sports  content and its  share of [30- 40]% on 
the market for the wholesale supply of FTA  TV channels for children  content, the 
merged entity’s  market s hares all remain below the thresholds relevant for the 
identification of conglomerate relationships.  
(755)  With respect to the merged entity’s position on the possible market for the FTA TV channels for children content, which is merely above the threshold cons idered by the 
Commission in the context of conglomerate relationships (with [30- 40]%), it can 
hardly be considered as a display of market power and hence a strong basis from which such power could be leveraged onto the other genres where the Parties are active ( essentially other content channels)  as the merged entity faces significant 
competition on that possible market  from, among others, RTVE (with [40- 50]%) and 
The Walt Disney Company (with [20- 30]%). Furthermore, should all children 
channels be lumped t ogether, the merged entity’s  market share would decrease 
to [20- 30]%.
318  
(756)  With respect to  Eurosport, it positions itself  as a “specialist” channel  rather  than a 
generalist sports channel with attractive high -level content as (i) it does not for 
instance propose Spain’s  national football league  (La Liga)  in its line -up, (ii) outside 
of the Olympics (which it must, contractually, sublicense to some of its competitors), it does not own right s to other large worldwide famous sports events such as the 
                                                 
316  Form CO, Chapter 7, Annex 1. 
317  Responses to questionnaire Q11 – Questionnaire to market participants in  the AV sector (Spain), questions 26 and 28.  
318  Notifying Party’s response to Q1 of RFI 9 on 11 December 2021.  
 
153 World Cup, t he Tour de France or the Formula 1 championship, (iii) its market 
shares fluctuate significantly quarter by quarter319 depending on what content/events 
Eurosport is actually broadcasting, and (iii) Eurosport faces competition from a 
number of local and inter national channels such as Telefonica/Movistar, Mediapro  
and the DAZN Group, depending on where the La Liga rights end up. This last fact 
illustrate s the very volatile nature of the possible  market for the wholesale supply of 
TV channels for sports content in Spain and  the fact that the Parties do not 
necessarily have a consistent market position to exploit in that genre .320 
(757)  Therefore,  the Commission concludes that the merged entity would not have the 
ability to engage in foreclosure strategies by leveraging i ts potential market power in 
the possible markets for the wholesale supply of TV channels for sports and/ or 
children content to the possible markets for the wholesale supply of TV channels for 
other content in Spain. 
(B.ii) Incentive to foreclose  
(758)  The Commission c onsiders that the merged entity will not have the incentive  to 
engage in foreclosure  strategies  by leveraging its potential market power in the 
possible markets for the wholesale supply of TV channels for sports and/or children 
content to the possible markets for the wholesale supply of TV channels for other 
content in Spain for the reasons set out below.  
(759)  The Commission considers that any such attempt would be mostly counter -
productive and unprofitable for the Parties for the following main reasons: (i) the  
customers that the Parties would try to harm could decide to drop the Parties’ 
channels  and find alternative individual and/or bundled content options from 
competitors of the Parties, and/or (ii) the customers that the Parties would try to harm could deci de to take the unfavourable bundle, increase the prices to their own 
end customers/viewers and see these leave for other offline or online alternative 
retail TV services without the guarantee for the Parties that such customers would 
choose their own retai l service given the Parties’ limited market shares
321 at retail 
level in Spain ( [5-10]% combined on the SVOD segment of the retail TV services 
market and [0 -5]% of the overall subscription pay TV services).  These limited 
market shares can be considered as i nversely proportionate to the losses of revenues 
and profitability the merged entity would incur should it decide to pursue such 
hypothetical strategy.    
(760)  Therefore,  the Commission concludes that the merged entity would not have the 
incentive to engage in f oreclosure strategies by leveraging its potential market power 
in the possible markets for the wholesale supply of TV channels for sports and/or 
children content to the possible markets for the wholesale supply of TV channels for 
other content in Spain. 
(B.iii)  Effects on competition  
(761)  The Commission considers that due to the lack of ability and incentive, it is not 
necessary  to conclude on the question whether any foreclosure strategy as a result of 
                                                 
319  In Q1/2020 it had a [40-50]% market share while in Q2/2020 and Q3/2020 it had [10-20] % and [20- 30]% 
respectively. Similar fluctuations apply to the first half of 2021.  
320  Notifying Party’s response to Q1 of RFI 9 on 11 December 2021. 
321  Form CO, Chapter 7, Annex 1. 
 
154 conglomerate relationships brought about by the Transaction in Spai n would have a 
negative impact on effective competition.  
(762)  In any event, the Commission considers that a potential foreclosure strategy of 
competing wholesale suppliers of TV channels in Spain would have no significant detrimental effect on competition beca use, bundling being recognized by the 
respondents to the Commission’s market investigation as a common practice in the 
industry, (i) customers will always be able to rely on alternative packaged deals, 
whether larger or narrower in scope, from other international and local suppliers that 
will continue to offer significant competition to the merged entity at all genre levels in Spain, and (ii) customers that would find it more constraining from a commercial perspective to deal with the merged entity on the m arkets for the wholesale supply of 
TV channels for the various types of content, could always decide to develop 
counter -strategies such as creating or commissioning content for their own use as a 
number of market players have done over the last few years.  
(C) Conclusion 
(763)  In light of the above, the Commission concludes that the Transaction does not raise 
serious doubts as to the compatibility with the internal market with respect to any 
possible  foreclosure practices resulting from the conglomerate relationships between 
the Parties’ activities on the wholesale supply of TV channels for sports, children 
and other content under any of the alternative product markets in Spain given the lack of ability , incentive or possible effects of such strategy to foreclose compe ting 
wholesale suppliers of such TV channels.  
6. C
ONCLUSION  
(764)  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