Opinion of the Advisory Committee on Concentrations given at its 113th meeting on 20 March 2003 concerning a draft decision relating to case COMP/M.2876 — NewsCorp/Telepiù (Text with EEA relevance)
Date: 2003-03-20
Institutions: Advisory Committee on Restrictive Practices and Dominant Positions
Subjects: advisory committee (EU), broadcasting, cable distribution, economic concentration, film production, opinion, pay television, press, satellite

28.4.2004

EN

Official Journal of the European Union

C 102/25

Opinion of the Advisory Committee on Concentrations given at its 113th meeting on 20 March
2003 concerning a draft decision relating to case COMP/M.2876 — NewsCorp/Telepiù

(2004/C 102/08)

(Text with EEA relevance)

(Commission Decision 2004/311/EC — OJ L 110, 16.4.2004)

1. The Advisory Committee agrees with the Commission that the notified operation constitutes a concen-
tration within the meaning of Article 3(1)(b) of the Merger Regulation and has a Community
Dimension as defined by Article 1 (2) of that Regulation.

2. The Advisory Committee agrees with the Commission that the relevant product and geographic

market comprises the market for pay TV in Italy.

3. The Advisory Committee further agrees with the Commission's definitions of relevant upstream
markets affected by the concentration as (a) acquisition of exclusive rights on premium films; (b)
acquisition of exclusive rights on football events that take place every year where national teams
participate; (c) acquisition of exclusive rights on other sports events; (d) acquisition of TV channels;
and that the relevant geographic market for each of these is confined to Italy.

4. The Advisory Committee agrees with the Commission that the notified transaction would lead to the

creation or strengthening of a dominant position in the Italian pay-TV market.

5. The Advisory Committee agrees with the Commission's analysis of the relevant upstream markets.

6. The Advisory Committee agrees with the Commission that the transaction does not satisfy the
conditions for the ‘failing company defence’, and that therefore there is a causal link between the
concentration and its effect on competition.

7. The majority of the Advisory Committee agrees with the Commission that the set of undertakings
submitted by Newscorp on March 13 2003, are sufficient to remedy the competition concerns in all of
the relevant markets where the concentration would lead to the creation or strengthening of a
dominant position. A minority disagrees.

8. The majority of the Advisory Committee agrees with the Commission that the presence of Telecom
Italia as a 19.9 % shareholder is such that the Commission is entitled to carry out a competitive
assessment of the effect of this presence. A minority disagrees.

9. The majority of the Advisory Committee agrees with the Commission that the market investigation
further
has not provided sufficient evidence to conclude that
the combined platform on the pay-TV market; and (b)
strengthen the dominant position of
Telecom ltalia's dominant position on telecom markets will be strengthened, and that accordingly
the undertakings offered on March 13 relating to Telecom ltalia should not constitute obligations or
conditions of this Decision. A minority disagrees.

(a) Telecom ltalia's presence will

10. The majority of the Advisory Committee agrees with the Commission's draft Decision that, subject to
full compliance with these commitments, the concentration should be declared compatible with the
common market and the functioning of the EEA agreement. A minority disagrees.

11. The Advisory Committee recommends publication of its opinion in the Official Journal of the European

Union.

12. The Advisory Committee asks the Commission to take into account the remarks and comments made

by the Advisory Committee.