CELEX: 32020M9802
Language: en
Date: 2020-08-12 00:00:00
Title: Commission Decision of 12/08/2020 declaring a concentration to be compatible with the common market (Case No COMP/M.9802 - LIBERTY GLOBAL / DPG MEDIA / JV) according to Council Regulation (EC) No 139/2004 (Only the English text is authentic)

EUROPEAN COMMISSION
                                                                 Brussels, 12.8.2020
                                                                 C(2020) 5643 final
                                                                                 PUBLIC VERSION
                                                                 To the notifying parties
Subject:             Case M.9802 – Liberty Global / DPG Media / JV
                     Commission decision pursuant to Article 6(1)(b) of Council Regulation
                     No 139/2004 1 and Article 57 of the Agreement on the European Economic
                     Area2
Dear Sir or Madam,
(1)       On 7 July 2020, the European Commission received notification of a proposed
          concentration pursuant to Article 4 of the Merger Regulation by which Liberty
          Global plc (‘Liberty Global’, United Kingdom) and DPG Media NV (‘DPG Media’,
          Belgium) acquire within the meaning of Articles 3(1)(b) and 3(4) of the Merger
          Regulation joint control of a newly created joint venture (‘JV’, Belgium) (the
          “Transaction”). 3 Liberty Global and DPG Media are designated hereinafter as the
          “Notifying Parties” and each individually as “Notifying Party”. The Notifying
          Parties together with the JV are designated hereinafter as the “Parties”.
1     OJ L 24, 29.1.2004, p. 1 (the “Merger Regulation”). With effect from 1 December 2009, the Treaty on the
      Functioning of the European Union (“TFEU”) has introduced certain changes, such as the replacement of
      “Community” by “Union” and “common market” by “internal market”. The terminology of the TFEU will
      be used throughout this decision.
2     OJ L 1, 3.1.1994, p. 3 (the “EEA Agreement”).
3     Publication in the Official Journal of the European Union No C 233, 15.07.2020, p. 5.
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.
 ---pagebreak--- 1.     THE PARTIES
(2)    Liberty Global, through its subsidiary Telenet, is a cable and mobile network
       operator in Belgium and parts of Luxembourg. Telenet supplies broadband internet,
       fixed telephony services and cable television (“TV”) primarily in Flanders and parts
       of Brussels, as well as mobile telecommunications services in the whole of Belgium.
       In addition, Telenet operates (i) Dutch-language pay TV channels and video-on-
       demand services (Play, Play More and Play Sports), free-to-air TV channels (Vier,
       Vijf, Zes), and a radio station (NRJ Vlaanderen), (ii) the advertising sales house SBS
       Sales Belgium, and (iii) the production company Woestijnvis.
(3)    DPG Media belongs to DPG Media Group, which operates media companies in
       Belgium, the Netherlands and Denmark. The activities of DPG Media are, in
       Belgium: (i) the supply of Dutch-language daily newspapers (Het Laatste Nieuws,
       De Morgen) and magazines (e.g. Dag Allemaal, Goed Gevoel, Humo), (ii) the
       operation of TV channels (VTM, Q2, Vitaya, CAZ, and VTM Kids), an advertising-
       based video on demand service (VTM Go) and radio stations (Q-music and Joe), and
       (iii) the operation of a telecom mobile virtual network (Mobile Vikings).
(4)    The JV will provide a subscription video on demand (“SVOD”) service in Belgium
       under a new and independent brand focused on Dutch-speaking consumers (i)
       directly to customers in Belgium via an over the top (“OTT”) platform (including
       website and smart phone app) and (ii) on an exclusive wholesale basis to Telenet, for
       distribution by Telenet through its cable platform (integrated in Telenet’s channel
       packages and/or set top box interface). The JV will acquire content from the
       Notifying Parties, third parties, and will also commission new original content for its
       SVOD service. The JV’s offering will primarily consist of local and international
       films and series. It will neither include (i) sports or adult content, nor (ii) linear
       channels (of Telenet and/or DPG Media and/or of third parties) 4 and ancillary
       services linked thereto (e.g. catch up services).
2.     THE OPERATION AND THE CONCENTRATION
(5)    The Transaction will take place pursuant to a binding Memorandum of
       Understanding (“MoU”) concluded by DPG Media and Telenet on 12 February
       2020.
2.1.   Joint control
(6)    Telenet and DPG Media will each own 50% of the shares of the JV, and have the
       ability to exercise decisive influence over the JV. In particular, the Notifying Parties
       will each appoint an equal number of directors. An independent (non-executive)
       chairman of the board will be appointed by unanimity. The board will decide by
       simple majority, except for specific items for which approval of each
       shareholder/director is required (but not of the independent chairman). These include
       inter alia [Details of the JV agreement]. 5
4   Form CO, paragraph 372.
5   Form CO, Annex 5.1.a, MoU, Annex 3
                                                   2
 ---pagebreak--- (7)      Therefore, as a result of the Transaction, Liberty Global and DPG Media will jointly
         control the JV within the meaning of Article 3(1)(b) of the Merger Regulation.
2.2.     Full-functionality
(8)      The JV will be fully functional. First, the JV will employ its own management
         dedicated to its day-to-day operations, and have access to sufficient resources,
         including finance, staff and assets that will enable it to operate independently on the
         market for the retail supply of audiovisual (“AV”) services, performing the functions
         normally carried out by undertakings operating on the same market. In particular,
         both Parties will contribute to the JV certain content agreements and staff so as to
         allow the JV to be (both financially and operationally) self-sustaining (through the
         revenues deriving from its operations with third parties and its own borrowing
         capacity on the market).
(9)      Second, the JV is intended to operate as an autonomous entity and will have its own,
         independent access to and presence on the markets for (wholesale and retail) supply
         of SVOD services. Its activities will not be limited to the distribution or sale of its
         parent companies' products, as the JV will supply its own SVOD offering to end
         customers, as a fully independent company with its own personnel (20-25
         employees). In addition, the JV has negotiated and/or will negotiate agreements with
         its parents (e.g. a wholesale agreement and IT/back-end services agreement with
         Telenet; and a long-form video platform agreement with DPG Media) on an arm’s
         length basis, reflecting the normal market conditions it practices with third parties.
(10)     Third, the JV and will not only purchase from and/or supply to its own parents. It
         will have direct contractual relationships with third party licensors and will not be
         reliant on its parents for licensing relationships. It will also commission original
         productions from TV production studios, the majority of which will be sourced from
         third party TV production studios. In addition, the JV will source additional and new
         SVOD licenses to content mainly from third party content providers. 6
(11)     Finally, the JV is intended to operate on a lasting basis. Due to applicable corporate
         law restrictions, the shareholders agreement currently has a duration of [Details of
         the JV shareholder agreement].
(12)     Therefore, the Transaction will lead to the creation of a full-function joint venture
         within the meaning of Article 3(4) of the Merger Regulation.
3.       EU DIMENSION
(13)     The undertakings concerned have a combined aggregate worldwide turnover of more
         than EUR 5 000 million (Liberty Global: EUR 12,277 million; DPG Media: EUR
         1,601 million; combined: EUR 13,878 million). Each of them has an EU-wide
         turnover in excess of EUR 250 million (Liberty Global: EUR 11,082 million; DPG
         Media: EUR 1,601 million), but they do not achieve more than two-thirds of their
         aggregate EU-wide turnover within one and the same Member State.
6   The Notifying Parties estimate that the accounting value of individual content licensed from the parents
    will represent [JV’s content portfolio] of the accounting value of the JV’s total content portfolio.
                                                            3
 ---pagebreak--- (14)    The Transaction therefore has a Union dimension pursuant to Article 1(2) of the
        Merger Regulation.
4.      RELEVANT MARKETS
4.1.    Introduction
(15)    The Transaction concerns all the levels of the AV value chain, namely: (i) the
        production of AV content; (ii) the licensing of broadcasting rights for individual AV
        content; (iii) the wholesale supply of TV channels; and (iv) the retail supply of AV
        services.
(16)    Providers of retail AV services offer end users packages of linear and/or non-linear
        AV services. Linear services are services that broadcast scheduled programs, not
        streamed by a specific user. Non-linear services, or video-on-demand (“VOD”)
        services, are services provided for the viewing of programmes at the moment chosen
        by the users and at their individual request, on the basis of a catalogue of
        programmes. AV services may be offered either on a free-to-air (“FTA”) or pay-TV
        basis. Providers of retail AV services deliver their content to end customers via a
        number of technical means: (i) traditional networks, such as cable, satellite (“direct-
        to-home” or “DTH”), internet protocol television (“IPTV”), and to a lesser extent,
        digital terrestrial TV (“DTT”) and/or (ii) the “Over-The-Top” (“OTT”) distribution
        technology which allows AV content to be delivered through the use of open
        internet.
(17)    In addition, the Transaction concerns: (v) the retail supply of fixed internet access
        services; (vi) the retail supply of mobile telecommunications services; (vii) the retail
        supply of multiple play services; and (viii) the sale of advertising space.
4.2.    The AV value chain
(18)    In previous cases, the Commission set out the different levels of the AV value chain
        as follows: (i) the (upstream) markets for the production and the licensing of AV
        content, (ii) the (intermediate) market for the wholesale supply of TV channels, and
        (iii) the (downstream) market for the retail supply of AV services. 7
(19)    The market investigation confirmed that this three-layer classification with regard to
        the chain of supply of AV content is still applicable today. 8
4.3.    Market for the production of AV content
(20)    This part of the value chain concerns the production of new AV content. The supply
        side of the market comprises AV production companies while the demand side
7   Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 113; of 6 February 2018 in case M.8665 - Discovery/Scripps, recital 12.
8   Responses to questionnaires Q1 to content providers, question 5 ; and Q2 to AV market participants,
    question 7.
                                                         4
 ---pagebreak---         comprises companies (TV broadcasters or content platform operators) that can
        commission the production of AV content or hire AV production services. 9
(21)    The Parties’ activities and those of the JV overlap on the demand side of the market
        only. On the supply side, while Telenet is active in the production of content through
        its subsidiary Woestijnvis, and DPG Media is active but exclusively for captive use.
        DPG Media has no plans to enter the merchant market for the production of TV
        content in the near future. The JV will not produce any AV content.
4.3.1. Product market definition
4.3.1.1. Previous Commission decisions
(22)    The Commission has consistently considered that the production of AV content
        should be distinguished from the licensing of broadcasting rights for AV content. 10
        The Commission has also found the product market for the production of TV content
        to be limited to non-captive TV production, thereby excluding content produced by
        TV broadcasters for use on their own channels. 11
(23)    In addition, in its 2015 case Liberty Global/Corelio/W&W/De Vijver Media, the
        Commission considered that the market for the production of TV content could be
        further segmented depending on the type of TV content (that is films, sports or
        other) or exhibition window (namely SVOD, transaction-based VOD (“TVOD”),
        Pay Per View (“PPV”), Fist pay TV window, Second pay TV window, FTA), but
        ultimately left those possible segmentations open. 12 In subsequent cases, the
        Commission either did not consider further segmentations or left open the question
        whether the market for the production of AV content should be further segmented. In
        particular, the question was left open whether the market for production of general
        entertainment TV content should be further segmented: (i) by genre; (ii) between
        scripted and non-scripted content; and (iii) between commissioned TV production or
        TV production for-hire. 13
9   In most cases, TV production companies produce TV content tailored to the needs of their customers.
    However, in some instances, TV production companies are hired by TV broadcasters or content platform
    operators to simply provide the technical production means and deliver the finished programme based on
    a TV format owned or acquired by the hiring company (so-called ‘production for-hire’).
10  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 121; of 6 November 2018 in case M.8785 – Disney/Fox, recital 70; of 7 April 2017 in
    case M.8354 – Fox/Sky, recital 62; of 24 February 2015 in case M.7194 – Liberty
    Global/Corelio/W&W/De Vijver Media, recital 60.
11  Commission decisions of 20 June 2016 in case M.7865 – Lov Group/De Agostini/JV, recital 18; ; of 9
    October 2014 in case M.7360 - 21st Century Fox/Apollo/JV, recital 36; of 22 September 2006 in case
    M.4353 - Permira/All3Media Group, recitals 11–12.
12  Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver
    Media, recital 69. See also Commission decision of 23 November 2018 in case M.8944 - Liberty Global /
    De Vijver Media and Liberty Global (SBS) / Mediahuis / JV, recital 53.
13  Commission decision of 20 January 2016 in case M.7865 Lov Group Invest/De Agostini/JV, recital 31.
                                                         5
 ---pagebreak--- 4.3.1.2. Notifying Parties’ view
(24)    The Notifying Parties submit, in accordance with the Commission’s position in case
        Liberty Global/Corelio/W&W/De Vijver Media, that the precise product market
        definition for the production of AV content can be left open. 14
4.3.1.3. Commission’s assessment
(25)    A majority of respondents to the market investigation indicated that, in Belgium, the
        distinction between the market for the production of AV content on the one hand,
        and the market for the licensing of broadcasting rights for pre-existing individual AV
        content on the other hand is at present appropriate. 15 In addition, nothing in the
        Commission’s file gives reasons to depart from the previous approach of considering
        that the product market for the production of AV content is limited to non-captive
        AV production. Further, the results of the market investigation were mixed as to
        whether the market for the production of AV content needs to be subdivided by
        content type 16 or exhibition window. 17 Last, nothing in the Commission’s file gives
        reasons to depart from the previous approach that the question whether the market
        should be further segmented (i) between scripted and non-scripted content; and (ii)
        between commissioned AV production or AV production for-hire is to be left
        open.
(26)    In light of the above, the Commission concludes that, for the purpose of this decision
        and in line with its previous practice, it is appropriate to consider as relevant the
        market for the non-captive production of AV content, while the question whether
        that relevant product marked needs to be further sub-segmented on the basis of
        content type or exhibition windows, or between scripted and non-scripted content,
        and between commissioned AV production or AV production for-hire can be left
        open, since the Transaction does not raise serious doubts as to its compatibility with
        the internal market or the functioning of the EEA Agreement under any such
        plausible product market definitions.
4.3.2. Geographic market definition
4.3.2.1. Previous Commission decisions
(27)    In previous cases, the Commission considered that the question whether the
        geographic scope of the market for the production of TV content was national or
        regional (the Flemish Region or the combination of the Flemish Region and the
        Brussels Capital Region) could be left open. 18 The Belgian Competition Authority
        (“BCA”) has either previously considered that the geographic market for the
14  Form CO, paragraph 275.
15  Responses to questionnaires Q1 to content providers, question 6; and Q2 to AV market participants,
    question 8.
16  Responses to questionnaires Q1 to content providers, question 7.1; and Q2 to AV market participants,
    question 9.1.
17  Responses to questionnaires Q1 to content providers, question 8.1; and Q2 to AV market participants,
    question 10.1.
18  Commission decisions of 23 November 2018 in case M.8944 - Liberty Global / De Vijver Media and
    Liberty Global (SBS) / Mediahuis / JV, recital 75; of 24 February 2015 in case M.7194 – Liberty
    Global/Corelio/W&W/De Vijver Media, recital 76.
                                                       6
 ---pagebreak---         production of Dutch-language TV content was (i) national, 19 or (ii) Telenet’s
        footprint, 20 or (iii) left the exact geographic scope of the market open. 21
4.3.2.2. Notifying Parties’ view
(28)    The Notifying Parties submit, in accordance with the Commission’s position in case
        Liberty Global/Corelio/W&W/De Vijver Media, that the precise geographic market
        definition can be left open. 22
4.3.2.3. Commission’s assessment
(29)    The results of the market investigation were mixed as to whether the geographic
        scope of the market for the production of AV content is national or by linguistic
        area. 23
(30)    In light of the above, the Commission considers that, for the purpose of this decision
        and in line with its previous practice, the question whether the relevant geographic
        market for the production of AV content, including all the possible sub-segments, is
        national or by linguistic area (the Dutch-speaking areas of Belgium), can be left
        open, since the Transaction does not raise serious doubts as to its compatibility with
        the internal market or the functioning of the EEA Agreement under any such
        plausible geographic market definitions.
4.4.    Market for the licensing of broadcasting rights of pre-existing individual AV
        content
(31)    The Notifying Parties’ activities overlap on both the demand and supply side of the
        market. The JV will be active on the demand side, and have minimal activities on the
        supply side of the market. 24
4.4.1. Product market definition
(32)    This part of the value chain concerns the licensing of (i) broadcasting rights relating
        to pre-existing individual AV content, which is made available ‘off-the-shelf’ by the
        rights holder, and (ii) broadcasting rights for sports events. The broadcasting rights
        can belong to either (or a combination of) the rights holder to the AV format, the
        production company that produced the content, the company that commissioned the
        production of the content, or a third party distributor to which the rights were
        licensed by the original owner. The rights holders license rights to AV broadcasters,
        or content platform operators which retail the content to end-users on a non-linear
        basis (e.g., SVOD service providers).
19  BCA decision of 7 September 2011 in case 2011-C/C-24 - De Vijver Media.
20  BCA decision of 13 May 2019 in case BMA-2019-C/C-16 – Telenet/DVM.
21  BCA decision of 6 March 2018 in case BMA-2018-C/C-07 – Mediafin.
22  Form CO, paragraph 275.
23  Responses to questionnaires Q1 to content providers, question 15; and Q2 to AV market participants,
    question 34.
24  The JV’s activities as a supplier of individual content will be limited to the supply of rights in its original
    TV productions, in other windows (e.g. FTA), which according to the business plan will translate into a
    market share of less than [0-5]%.
                                                           7
 ---pagebreak--- 4.4.1.1. Previous Commission decisions
(33)     In its 2015 case Liberty Global/Corelio/W&W/De Vijver Media, the Commission
         considered that the market for the licensing of broadcasting rights to TV content
         could be further segmented depending on the type of TV content or exhibition
         window, but ultimately left the question open. 25 In subsequent cases, the
         Commission again considered a further segmentation of the market according to (i)
         content type (films, sports, other AV content), 26 and (ii) exhibition window, 27 and
         left the exact market definition open. The question whether AV content could be
         further sub-divided by distinguishing premium and non-premium content, or scripted
         and non-scripted content was also left open. 28
4.4.1.2. Notifying Parties’ view
(34)     The Notifying Parties submit that the question whether the market for the licensing
         of individual AV content should be sub-segmented by exhibition window can be left
         open. However, they submit that this market should be sub-segmented (i) by content
         type, distinguishing between at least sports rights and other types of content, given -
         inter alia - the different competitive dynamics of the sale of sports rights, and (ii)
         according to premium vs. non-premium, given that premium and non-premium
         content have different economic values and that these types of content are generally
         offered and negotiated separately by licensors. As to the distinction between scripted
         and non-scripted content, they submit that it can be left open, in particular since the
         JV will primarily focus on scripted content. 29
4.4.1.3. Commission’s assessment
(35)     The results of the market investigation were mixed as to whether the market for the
         licensing of broadcasting rights for pre-existing individual AV content needs to be
         subdivided by content type (films, sports, other), 30 or exhibition windows. 31 In
         addition, nothing in the Commission’s file provided reasons to depart from its
         previous approach as to whether the market should be further segmented: (i) between
         scripted and non-scripted content; and (ii) between premium and non-premium
         content.
25  Commission decision of 24 February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver
    Media, recital 69. See also Commission decision of 23 November 2018 in case M.8944 - Liberty
    Global/De Vijver Media and Liberty Global (SBS)/Mediahuis/JV, recital 53.
26  Commission decisions of 13 November 2019 in case M.9064 - Telia/Bonnier, recital 125, of 6 November
    2018 in case M.8785 - The Walt Disney Company/Twenty-First Century Fox, recital 68; of 15 June 2018
    in case M.8861 - Comcast/Sky, recitals 38-39.
27  Commission decisions of 5 September 2019 in case M.9416 - Bolloré Group/M7 Group, recials 32-33; of
    6 November 2018 in case M.8785 - The Walt Disney Company/Twenty-First Century Fox, recitals 68-71;
    of 30 May 2018 in case M.7000 - Liberty Global/Ziggo, recital 79; of 7 April 2017 in case M.8354 -
    Fox/Sky, recitals 67-68; of 20 January 2016 in case M.7865 - Lov Group Invest/De Agostini/JV, recitals
    40 and 43. The BCA also left this segmentation open (BCA decision of 13 May 2019 in case BMA-2019-
    C/C-16 – Telenet/DVM).
28  Commission decisions of 6 November 2018 in case M.8785 The Walt Disney Company/Twenty-First
    Century Fox, recital 68; of 7 April 2017 in case M.8354 - Fox/Sky, recitals 65-66.
29  Form CO, paragraphs 307-310.
30  Responses to questionnaires Q1 to content providers, question 7.2; and Q2 to AV market participants,
    question 9.2.
31  Responses to questionnaires Q1 to content providers, question 8.2; and Q2 to AV market participants,
    question 10.2.
                                                          8
 ---pagebreak--- (36)    In light of the above, the Commission considers that, for the purpose of this decision
        and in line with the previous practice, a relevant market for the licensing of
        broadcasting rights for pre-existing individual AV content has to be considered,
        while the question whether this relevant product marked needs to be further sub-
        segmented on the basis of content type or exhibition windows, or between scripted
        and non-scripted content, and between premium and non-premium content can be
        left open, since the Transaction does not raise serious doubts as to its compatibility
        with the internal market or the functioning of the EEA Agreement under any such
        plausible product market definitions.
4.4.2. Geographic market definition
4.4.2.1. Previous Commission decisions
(37)    In previous cases, the Commission left open the question whether the geographic
        scope of the market for the licensing of broadcasting rights for TV content was
        national or regional (the Flemish Region or the combination of the Flemish Region
        and the Brussels Capital Region) left open. 32
(38)    The BCA has either previously (i) decided that the markets for the licensing of
        premium film or sports content in Belgium had to be divided by language group, 33
        (ii) decided that this market was national, 34 or (iii) delineated the geographic market
        to the footprint of Telenet. 35
4.4.2.2. Notifying Parties’ view
(39)    The Notifying Parties submit that the precise scope of the geographic market can be
        left open. 36
4.4.2.3. Commission’s assessment
(40)    According to a majority of respondents to the market investigation, the geographic
        scope of agreements for the licensing of individual broadcasting rights for AV
        content is either national or by linguistic area. 37
(41)    In light of the above, the Commission considers that, for the purpose of this decision
        and in line with its precedents, the question whether the relevant geographic market
        for the licensing of individual broadcasting rights for AV content, including all the
        possible sub-segments, is national or by linguistic area (the Dutch-speaking areas of
        Belgium), can be left open, since the Transaction does not raise serious doubts as to
        its compatibility with the internal market or the functioning of the EEA Agreement
        under any such plausible geographic market definitions.
32  Commission decision of 23 November 2018 in case M.8944 - Liberty Global/De Vijver Media and
    Liberty Global (SBS)/Mediahuis/JV, recital 75; of 24 February 2015 in case M.7194 – Liberty
    Global/Corelio/W&W/De Vijver Media, recital 76
33  BCA decision of 12 November 2003 in case n°2003-C/C-89 N.V. Telenet Bidco - N.V. Canal+.
34  BCA decision of 31 October 2008 in case n° 2008-C/C-57 Tecteo - BeTV / ACM.
35  BCA decision of 13 May 2019 in case BMA-2019-C/C-16 – Telenet/DVM.
36  Form CO, paragraph 313.
37  Responses to questionnaires Q1 to content providers, question 15; and Q2 to AV market participants,
    question 34.
                                                      9
 ---pagebreak--- 4.5.     Wholesale supply of TV channels
(42)     The Notifying Parties both supply TV channels. Telenet and DPG Media (through its
         retail OTT service Stievie, which will be discontinued as of 1 September 2020 38) are
         also purchasers of TV channels for their activities on the market for the retail supply
         of AV services. 39 The JV will not offer or purchase TV channels.
4.5.1. Product market definition
(43)     TV broadcasters package the AV content and broadcasting rights for AV content that
         they have produced in-house or acquired into linear TV channels, which are
         broadcast to end users either on a FTA basis or on a pay TV basis. Ancillary services
         have gradually been associated to TV channels in order to complement the TV
         offering and enhance the viewer experience of traditional linear TV channels.
4.5.1.1. Previous Commission decisions
(44)     In its past decisional practice, the Commission identified a wholesale market for the
         supply of TV channels. Within that market, in certain decisions, the Commission
         further identified two separate product markets for (i) FTA TV channels, and (ii) pay
         TV channels. 40 The Commission further stated that within the pay TV channels
         market, there could be different segments for (i) basic pay TV channels; and (ii)
         premium pay TV channels, 41 for which end customers pay a premium in addition to
         their basic subscription fee.
(45)     In other decisions, the Commission concluded that at the level of the wholesale
         supply of TV channels there were two separate product markets, one consisting of
         the wholesale supply of premium pay TV channels and one consisting of the
         wholesale supply of FTA and basic pay TV channels. 42 In its decision of 24
         February 2015 in case M.7194 – Liberty Global/Corelio/W&W/De Vijver Media, the
         Commission has considered that, given that (i) FTA channels were mostly supplied
         together with basic pay TV channels, and (ii) the competitive assessment would
         remain the same even if FTA channels were regarded as belonging to a separate
         product market from that of basic pay TV, it was not necessary to make a distinction
38  Form CO, paragraph 372.
39  VTM Go only includes DPG Media’s TV channels. Through this free AVOD platform, DPG Media offers
    live access to its own linear TV channels and its radio channel Qmusic, as well as reviewing on demand
    until approx. 30 days after the linear broadcast. In addition, there is a catalogue with popular, older AV
    content which can be reviewed, as well as a Kids Corner with content targeted at the younger population.
    In cooperation with Walter Presents, VTM Go offers a number of international series (Form CO,
    paragraph 102).
40  Commission decisions of 20 September 2013 in case M.6990 – Vodafone/Kabel Deutschland, recital 41
    (identifying separate markets); of 30 May 2018 in case M.7000 Liberty Global/Ziggo, recital 111 (leaving
    open the question as to whether FTA and Pay TV belong to separate markets, because of peculiarities of
    the Dutch TV market); of 7 April 2017 in case M.8354 – Fox / Sky, recital 85 (leaving open the question
    whether the market for the wholesale supply of TV channels should be further segmented among FTA,
    basic pay TV and premium pay TV).
41  Commission decisions of 6 November 2018 in case M.8785 – Disney/Fox, recital 77; of 15 June 2018 in
    case M.8861 – Comcast/Sky, recital 50; of 6 February 2018 in case M.8665 - Discovery/Scripps, recitals
    19- 20; of 7 April 2017 in case M.8354 - Fox/Sky, recitals 80- 81.
42  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 157; of 24 February 2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver
    Media, recitals 90 and 91.
                                                          10
 ---pagebreak---          between FTA and basic pay TV channels on the market for wholesale supply of TV
         channels in that case.
(46)     In addition, in previous decisions including its recent decision of 12 November 2019
         in case M.9064 – Telia Company/Bonnier Broadcasting Holding, the Commission
         considered that there was no need to draw a distinction between linear TV channels
         and their ancillary services, which are licensed by TV broadcasters to TV
         distributors along with, or in addition to those linear TV channels. 43
(47)     Further, in previous decisions, the Commission examined a number of other
         potential additional segmentations, including genre or thematic content (such as
         sports, films, general entertainment, news, youth, and others), and ultimately left the
         market definition open, in these regards. 44
(48)     Last, in its recent decision of 12 November 2019 in case M.9064 – Telia
         Company/Bonnier Broadcasting Holding, the Commission considered that the
         market for wholesale supply of TV channels, and any other possible segmentation,
         should not be further segmented according to the type of infrastructure used for the
         delivery to the viewer (cable, satellite, terrestrial TV and IPTV). 45
4.5.1.2. Notifying Parties’ view
(49)     The Notifying Parties submit that the precise product market definition can be left
         open, since the JV will not be active in the wholesale supply of TV channels. 46
4.5.1.3. Commission’s assessment
(50)     A majority of respondents to the market investigation indicated that it remains
         appropriate to segment the wholesale supply of TV channels between FTA and
         basic pay TV channels on the one hand, and premium pay TV channels on the
         other hand in Belgium. 47
(51)     In addition, the results of the market investigation indicated that the wholesale
         supply of pay TV channels could be further divided according to genre (e.g., films,
         sports, youth, general entertainment, news). 48 Indeed, most respondents stressed that
         distributors would seek to offer a variety of genres to end-customers.
(52)     With regard to a possible distinction between linear TV channels and their ancillary
         services, the results of the market investigation did not provide reasons to depart
43  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 163; of 24 February 2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver
    Media, recital 94.
44  Commission decisions of 7 April 2017 in case M.8354 – Fox/Sky, recital 82-83; of 24 February 2015 in
    case M.7194 - Liberty Global/Corelio/W&W/De Vijver Media, recital 92; of 2 April 2003 in case M.2876
    - Newscorp/Telepiù, 2 April 2003, recital 76; of 18 July 2007 in case M.4504 - SFR/Télé 2 France,
    recitals 41–42; of 26 August 2008 in case M.5121 - News Corp/Premiere, recital 35; of 21 December
    2010 in case M.5932 - News Corp/BskyB, recital 81; of 10 October 2014 in case M.7000 - Liberty
    Global/Ziggo, recital 89.
45  Commission decision of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 162.
46  Form CO, paragraph 361.
47  Responses to questionnaire Q2 to AV market participants, question 13.
48  Responses to questionnaire Q2 to AV market participants, question 14.
                                                       11
 ---pagebreak---         from the Commission's previous approach, as the results of the market investigation
        indicated that ancillary services (e.g., TVE, catch-up, PVR, etc.) are associated to
        TV channels in Belgium in order to complement the TV offering and enhance the
        viewer experience of traditional linear channels. 49
(53)    With regard to distribution technologies, a majority of respondents to the market
        investigation considered that the market for the wholesale supply of TV channels
        should not be further segmented according to distribution forms. 50
(54)    In light of the above, the Commission concludes that, for the purpose of this decision
        and in line with its precdents, the wholesale supply of FTA/basic pay TV channels,
        and of premium pay TV channels should be considered as constituting two separate
        product markets, each including its ancillary services. The Commission also
        considers that each of these markets should not be further segmented based on the
        distribution technology of the channel in question. In that respect, the question
        whether these markets can be further segmented by genre can be left open, since the
        Transaction does not raise serious doubts as to its compatibility with the internal
        market or the functioning of the EEA Agreement under any such plausible product
        market definitions.
4.5.2. Geographic market definition
4.5.2.1. Previous Commission decisions
(55)    The Commission recently considered that the geographic market for the wholesale
        supply of TV channels might remain the footprint of Telenet's cable network as in
        the 2015 case Liberty Global/Corelio/W&W/De Vijver Media, but that it also might
        be enlarged to a regional or national scope. The exact geographic delineation of the
        market (i.e. whether it corresponds to Telenet's footprint, is regional or national) was
        left open. 51
4.5.2.2. Notifying Parties’ view
(56)    The Notifying Parties submit that the geographic market for the wholesale supply of
        TV channels could be Telenet’s footprint, or alternatively regional or national in
        scope, and that the precise geographic market definition can be left open, since the
        JV will not be active in the wholesale supply of TV channels. 52
4.5.2.3. Commission’s assessment
(57)    The results of the market investigation indicated that it is still relevant to consider
        that the relevant geographic markets for both (i) the wholesale supply of FTA/basic
49  Responses to questionnaires Q1 to content providers, question 11; and Q2 to AV market participants,
    question 18.
50  Responses to questionnaires Q1 to content providers, question 14; and Q2 to AV market participants,
    question 21.
51  Commission of 23 November 2018 in case M.8944 - Liberty Global / De Vijver Media and Liberty Global
    (SBS) / Mediahuis / JV, recital 82.
52  Form CO, paragraphs 366-368.
                                                      12
 ---pagebreak---          pay TV channels, and (ii) the wholesale supply of premium pay TV channels might
         be Telenet's footprint, or enlarged to a regional or national scope. 53
(58)     In light of the above, the Commission concludes that, for the purpose of this decision
         and in light of its previous practice, the relevant geographic market for the wholesale
         supply of TV channels, including all the possible sub-segments, is either the local
         footprint of Telenet's cable network, or its enlarged regional or national scopes. In
         that respect, the Commission considers that the exact geographic market definition
         (i.e. whether it corresponds to Telenet's footprint, is regional or national) can be left
         open, since the Transaction does not raise serious doubts as to its compatibility with
         the internal market or the functioning of the EEA Agreement under any such
         plausible geographic market definitions.
4.6.     Retail supply of AV services
(59)     The Notifying Parties and the JV supply AV services to end customers.
4.6.1. Product market definition
(60)     Retail providers of AV services offer packages of linear AV services and/or non-
         linear AV services to end customers. Such linear and non-linear AV services can be
         augmented with ancillary services, such as catch-up TV or TV everywhere. Retail
         AV services can be delivered to end-users though a number of technical means
         including cable, satellite, IPTV and OTT.
4.6.1.1. Previous Commission decisions
(61)     In its past decisional practice, the Commission considered the retail supply of FTA
         TV and pay TV as separate markets, but ultimately left open the product market
         definition. 54 The Commission also considered whether pay TV could be segmented
         further according to: (i) linear vs non-linear pay TV services; 55 (ii) premium vs basic
         pay TV services. 56 However, the Commission left open the market definition with
         regard to each of these potential sub-segments.
53  Responses to questionnaire Q2 to AV market participants, question 36.
54  Commission decisions; of 6 November 2018 in case M.8785 - Disney/Fox, recital 98; of 8 October 2018
    in case M.8842 – Tele2/ComHem, recital 37; of 30 May 2018 in case M.7000 – Liberty Global/Ziggo,
    recital 137; of 6 February 2018 in case M.8665 - Discovery/Scripps, recital 33; of 7 April 2017 in case
    M.8354 – Fox/Sky, recital 101; of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV,
    recital 56; of 24 February 2015 in case M.7194 - Liberty Global/Corelio/W&W/De Vijver Media, recital
    152.
55  Commission decisions of 18 July 2019 in case M.8864 - Vodafone/certain Liberty Global assets, recitals
    79 and 83; of 6 November 2018 in case M.8785 - Disney/Fox, recital 98; of 8 October 2018 in case
    M.8842 – Tele2/ComHem, recital 37; of 15 June 2018 in case M. 8861 - Comcast/Sky, recital 59; of 30
    May 2018 in case M.7000 – Liberty Global/Ziggo, recital 137; of 6 February 2018 in case M.8665 -
    Discovery/Scripps, recital 32; of 7 April 2017 in case M.8354 – Fox/Sky, recitals 98 and 101; of 3 August
    2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 58; of 24 February 2015 in case
    M.7194 - Liberty Global/Corelio/W&W/De Vijver Media, recital 124.
56  Commission decisions of 18 July 2019 in case M.8864 - Vodafone/certain Liberty Global assets, recitals
    79 and 83; of 6 November 2018 in case M.8785 - Disney/Fox, recitals 94 and 98; of 15 June 2018 in case
    M. 8861 - Comcast/Sky, recital 59. of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, recitals 135
    and 137; of 6 February 2018 in case M.8665 - Discovery/Scripps, recital 33; of 7 April 2017 in case
    M.8354 - Fox/Sky, recitals 100-101; of 24 February 2015 in case M.7194 - Liberty
    Global/Corelio/W&W/De Vijver Media, recital 119.
                                                          13
 ---pagebreak--- (62)    In addition, the Commission considered a possible segmentation of the market for
        the retail supply of AV services according to distribution technology (for example,
        cable, OTT, satellite, IPTV or terrestrial). In its decisions of 12 November 2019 in
        case M.9064 – Telia Company/Bonnier Broadcasting Holding, and of 30 May 2018
        in case M.7000 – Liberty Global/Ziggo, the Commission considered that all the
        different distribution technologies were part of the same product market, 57 while
        leaving the exact product market definition open in a number of other decisions. 58
4.6.1.2. Notifying Parties’ view
(63)    The Notifying Parties submit that the relevant product market should include all
        distribution technologies including OTT. 59 In addition, they submit that the question
        whether the relevant product market should (i) be further segmented between the
        retail supply of basic pay and premium pay TV channels, and (ii) include non-linear
        services, can be left open. 60 The Notifying Parties also submit that if linear and non-
        linear AV services are not regarded as part of the same market, non-linear offers do
        at least exert some competitive pressure on more traditional AV offers. 61
4.6.1.3. Commission’s assessment
(64)    A majority of respondents to the market investigation indicated that the retail
        provision of FTA/basic pay AV services currently constitutes a market separate
        from the retail provision of premium pay AV services in Belgium. 62
(65)    The results of the market investigation were mixed as regards a possible
        segmentation between linear and non-linear pay AV services. 63 Indeed, some
        respondents indicated that the market for the retail supply of AV services should be
        further segmented between linear services (namely TV channels) and non-linear
        services, such as SVOD, as pure OTT non-linear offers are an alternative to linear
        offers for a limited, bespoke group of customers only, and the SVOD success is
        more likely to become an alternative to premium pay AV service while
        complementing basic pay AV services. One other respondent claimed that linear and
        non-linear services are part of the same markets given that both types of services
        provide access to identical programming, and compete for viewing time.
(66)    As regards distribution technologies, a majority of respondents to the market
        investigation considered that end customers perceive the distribution forms (e.g.
57  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 200; of 30 May 2018 in case M.7000 – Liberty Global/Ziggo, recital 137. See also
    Commission decision of 21 December 2010 in case M.5932 - News Corp/BskyB, recital 105.
58  Commission decisions of 18 July 2019 in case M.8864 - Vodafone/certain Liberty Global assets, recitals
    80, 81 and 83; of 6 November 2018 in case M.8785 - Disney/Fox, recital 98; of 8 October 2018 in case
    M.8842 – Tele2/ComHem, recital 37; of 6 February 2018 in case M.8665 - Discovery/Scripps, recital 33;
    of 7 April 2017 in case M.8354 – Fox/Sky, recitals 99 and 101; of 3 August 2016 in case M.7978 –
    Vodafone/Liberty Global/Dutch JV, recital 62.
59  Form CO, paragraph 384.
60  Form CO, paragraphs 386 and 390.
61  Form CO, paragraph 392.
62  Responses to questionnaire Q2 to AV market participants, questions 22 and 23.
63  Responses to questionnaire Q2 to AV market participants, questions 25 and 30.
                                                       14
 ---pagebreak---         cable, IPTV, satellite, terrestrial, or OTT) through which they access AV content in
        Belgium as alternative to each other. 64
(67)    In light of the foregoing, the Commission concludes that, for the purpose of this
        decision and in light of its previous practice, the relevant product market at retail
        level is to be considered the market for the retail supply of AV services
        encompassing all distribution technologies. Moreover, the Commission considers
        that, in any case, the question whether the retail supply of AV services should be
        further segmented between (i) FTA and pay AV services can be left open, as well as
        also the question whether in turn the retail supply of pay AV services should be
        segmented according to (ii) linear and non-linear pay AV services, and (iii) premium
        and basic pay AV services can be left open, since the Transaction does not raise
        serious doubts as to its compatibility with the internal market or the functioning of
        the EEA Agreement under any such plausible product market definitions.
4.6.2. Geographic market definition
4.6.2.1. Previous Commission decisions
(68)    In previous decisions, the Commission considered that the relevant geographic
        market for the retail provision of TV services to end users was the footprint of
        Telenet’s cable network. 65
4.6.2.2. Notifying Parties’ view
(69)    The Notifying Parties consider that there are strong indicators for a national
        geographic market, since cable operators such as Telenet compete with retail AV
        providers such as Proximus and Orange, which are active nationally and apply
        uniform pricing across all regions of Belgium. 66
4.6.2.3. Commission’s assessment
(70)    The results of the market investigation indicated that it is still relevant to consider
        that the relevant geographic market for the retail supply of AV services to end users
        is Telenet's footprint. 67
(71)    In light of the foregoing, the Commission concludes that, for the purpose of this
        decision and account taken of its previous decisional practice, the relevant
        geographic market for the retail supply of AV services, including all possible sub-
        segments, is the one encompassing Telenet’s footprint.
4.7.    Retail supply of fixed internet access services
(72)    Only Telenet is active as a retail supplier of fixed internet access services.
64  Responses to questionnaire Q2 to AV market participants, question 31.
65  Commission decisions of 23 November 2018 in case M.8944 - Liberty Global / De Vijver Media and
    Liberty Global (SBS) / Mediahuis / JV, paragraph 86; of 24 February 2015 in case M.7194 Liberty
    Global/Corelio/W&W/De Vijver Media, paragraph 139.
66  Form CO, paragraph 395.
67  Responses to questionnaire Q2 to AV market participants, question 38.
                                                       15
 ---pagebreak--- 4.7.1. Product market definition
4.7.1.1. Previous Commission decisions
(73)    In recent cases, the Commission considered but ultimately left open possible
        segmentations according to (i) product type (distinguishing narrowband, broadband,
        and dedicated access), and (ii) distribution technology (distinguishing xDSL, fibre,
        cable). Moreover, the Commission acknowledged that the retail market for fixed
        internet access services should not be divided according to download speed. 68
(74)    The Commission also considered, but ultimately left open, possible segmentations as
        to customer type, distinguishing between residential and small business customers,
        on the one hand, and larger business and public authorities, on the other hand. 69
4.7.1.2. Notifying Party’s view
(75)    The Notifying Parties do not provide any views as to the relevant product market
        definition.
4.7.1.3. Commission’s assessment
(76)    With regard to a possible segmentation of the market for the retail provision of fixed
        internet access services according to product and customer type or according to
        distribution technology (that is to say, xDSL, cable or fibre), nothing in the
        Commission’s file provided reason to depart from its approach in previous cases.
(77)    In light of the foregoing, the Commission does not depart from its previous
        assessment, and concludes, for the purposes of this Decision, that the exact scope of
        the product market definition in relation to the provision of retail fixed internet
        access services can be left open, as the Transaction does not raise serious doubts as
        to its compatibility with the internal market or the functioning of the EEA
        Agreement under any plausible product market definition.
4.7.2. Geographic market definition
4.7.2.1. Previous Commission decisions
(78)    In its previous decisions, the Commission concluded that the retail market for the
        provision of fixed internet services was national in scope. 70
68  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 218; of 8 October 2018 in case M.8842 – Tele2/Com Hem, paragraph 26; of
    3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 38; of 20 September 2013 in
    case M.6990 - Vodafone/Kabel Deutschland, recital 194.
69  Commission decisions of 8 October 2018 in case M.8842 - Tele2/Com Hem, paragraph 26; of
    7 October 2016 in case M.8131 - Tele2 Sverige/TDC Sverige, recital 32; of 19 May 2015 in case M.7421
    - Orange/Jazztel, recital 42; of 10 October 2014 in case M.7000 - Liberty Global/Ziggo, recital 132.
70  Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 239; of 8 October 2018 in case M.8842 – Tele2/Com Hem; of 3 August 2016 in case
    M.7978 – Vodafone/Liberty Global/Dutch JV, recital 40; of 20 September 2013 in case M.6990 -
    Vodafone/Kabel Deutschland, recital 197.
                                                          16
 ---pagebreak--- 4.7.2.2. Notifying Party’s view
(79)     The Notifying Parties submit that the market for the retail supply of fixed internet
         access services should be regarded as national. 71
4.7.2.3. Commission’s assessment
(80)     The market investigation did not provide any indication that the Commission should
         depart from its findings in previous cases, according to which the geographic market
         should be national.
(81)     In light of the foregoing, the Commission concludes that it is appropriate not to
         depart from its previous practice, and considers that, for the purpose of this decision,
         the relevant market for the provision of fixed internet services is national in scope.
4.8.     Retail supply of mobile telecommunication services
(82)     Both Telenet and DPG Media are active as suppliers of retail mobile
         telecommunication services. Telenet operates a mobile telecommunication network
         covering the entire territory of Belgium, and DPG Media operates as a Mobile
         Virtual Network Operator (“MVNO”) under the brand Mobile Vikings. MVNOs are
         operators without their own network, which require access to a network of a Mobile
         Network Operator (“MNO”) in order to provide retail mobile services to end
         customers.
4.8.1. Product market definition
4.8.1.1. Previous Commission decisions
(83)     The Commission has previously considered that there is an overall retail market for
         mobile telecommunications services constituting a separate market from retail fixed
         telecommunication services. 72 The Commission did not further segment the overall
         retail mobile market based on the type of service (voice calls, SMS, MMS, mobile
         internet data services), or the type of network technology (for example, 2G/3G/4G).
         The Commission considered distinctions within the overall retail market for mobile
         telecommunication services between pre-paid or post-paid services and private
         customers or business customers, concluding that these did not constitute separate
         product markets but represent rather market segments within an overall retail
         market. 73
71  Form CO, paragraph 437.
72  Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, paragraph 10; of
    11 May 2016 in case M.7612 – Hutchison 3G UK/Telefónica UK, recital 252; of 10 October 2014 in case
    M.7000 – Liberty Global/Ziggo, recital 141; of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-
    Plus, recital 64.
73  Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital 47; of
    1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV, recitals 149 and 161; of 3 August 2016
    in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 74; of 11 May 2016 in case M.7612 –
    Hutchison 3G UK/Telefónica UK, recitals 255, 261, 270, 279, 287; of 2 July 2014 in case M.7018 –
    Telefónica Deutschland/E-Plus, recitals 31 to 55; of 10 October 2014 in case M.7000 – Liberty
    Global/Ziggo, recital 141; of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland,
    recital 141; of 12 December 2012 in case M.6497 – Hutchison 3G Austria/Orange Austria, recital 58.
                                                        17
 ---pagebreak--- 4.8.1.2. Notifying Parties’ view
(84)     The Notifying Parties do not provide any views as to the relevant product market
         definition.
4.8.1.3. Commission’s assessment
(85)     Nothing in the Commission's file indicated that the market for retail supply of
         mobile telecommunications services should be further segmented according to the
         type of services, the type of customers or the network technology used.
(86)     In light of the foregoing, the Commission concludes that it is appropriate to not
         depart from its previous practice, and considers that, for the purpose of this decision,
         the relevant product market is the overall retail market for mobile
         telecommunications services without any further segmentations.
4.8.2. Geographic market definition
4.8.2.1. Previous Commission decisions
(87)     In its previous decisions, the Commission concluded that the retail market for the
         provision of mobile telecommunications services was national in scope. 74
4.8.2.2. Notifying Parties’ view
(88)     The Notifying Parties do not provide any views as to the relevant geographic market
         definition.
4.8.2.3. Commission’s assessment
(89)     The market investigation in the present case did not provide any indication that the
         Commission should depart from its previous findings.
(90)     In light of the foregoing, the Commission concludes that it is appropriate to not
         depart from its previous practice, and considers that, for the purpose of this decision,
         the relevant market for the retail provision of mobile telecommunications services is
         national in scope.
4.9.     Retail supply of multiple play bundles
(91)     Only Telenet is active as a provider of multiple play bundles.
4.9.1. Product market definition
(92)     The term "multiple play" relates to offers comprising two or more of the following
         services provided to retail consumers: mobile telecommunication services, fixed
74  Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital 49; of
    1 September 2016 in case M.7758 – Hutchison 3G Italy/Wind/JV, recital 166; of 3 August 2016 in
    case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 76; of 11 May 2016 in case M.7612 –
    Hutchison 3G UK/Telefónica UK, recital 293; of 10 October 2014 in case M.7000 – Liberty
    Global/Ziggo, recital 143; of 2 July 2014 in case M.7018 – Telefónica Deutschland/E-Plus, recital 74; in
    case M.6497 – Hutchison 3G Austria/Orange Austria, recital 73; in case M.5650 – T Mobile/Orange UK,
    recitals 25-26; of 28 May 2014 in case M.6992 – Hutchison 3G UK/Telefónica Ireland, recital 164.
                                                        18
 ---pagebreak---         telephony, fixed internet access and TV services. Multiple play comprising two,
        three or four of these services is referred to as dual play ("2P"), triple play ("3P") and
        quadruple play ("4P") respectively.
4.9.1.1. Previous Commission decisions
(93)    In previous decisions, the Commission has considered but ultimately left open the
        question as to whether there exist one or more multiple play markets, which are
        distinct from each of the underlying individual telecommunication services. 75
        Moreover, in previous decisions, the Commission has noted that due to different
        services, delivered over different infrastructures (fixed for dual play and triple play
        or fixed and mobile for quadruple play), that are included in the different multiple
        play bundles, instead of one possible market for multiple play, there could be several
        possible multiple play markets: a market for fixed bundles (dual play, and triple
        play) and another separate market for fixed-mobile convergence bundles. The
        Commission has also noted that the possibility for several mobile subscriptions to be
        included in a quadruple play bundle further complicates the picture. 76
4.9.1.2. Notifying Parties’ view
(94)    The Notifying Parties submit that the question whether a separate market for
        multiple play bundles including retail TV services exists can be left open, as (i) the
        JV will not be active on any possible multiple play markets, and (ii) with a few
        exceptions, 77 Telenet does not include SVOD services in its multiple play bundles
        with a TV component in Belgium, and has no immediate plans to change the bundle
        line up. 78
4.9.1.3. Commission’s assessment
(95)    The market investigation in the case at hand provided no clear evidence as to the
        substitutability between multiple play services on the one hand and combinations of
        standalone services on the other hand.
(96)    In light of the foregoing, the Commission concludes that it is appropriate not to
        depart from its previous decisional practice, and considers that, for the purpose of
        this decision, the question as to whether there exist one or more multiple play
        markets which are distinct from each of the underlying individual
        telecommunications services can be left open, since the Transaction does not raise
        serious doubts as to its compatibility with the internal market or the functioning of
        the EEA Agreement under any such plausible product market definitions.
75  Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital 60; of 3 August 2016
    in case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 108; of 4 February 2016 in case M.7637 –
    Liberty Global/BASE Belgium, recital 96; of 19 May 2015 in case M.7421 – Orange/Jazztel, recitals 86
    and 91.
76  Commission decisions of 8 October 2018 in case M.8842 – Tele2/Com Hem, recital; of 3 August 2016 in
    case M.7978 – Vodafone/Liberty Global/Dutch JV, recital 107.
77  Telenet has historically not included its SVOD offerings in its multiple play bundles. Play and Play More
    are offered as additional paid options to Telenet’s retail AV subscribers. The only exception is Yugo, a
    bundle consisting of a fixed internet subscription, a number of linear TV channels and the SVOD service
    Play. [number of Yugo subscribers in 2019] (Form CO, paragraph 658 and footnote 517).
78  Form CO, paragraph 417.
                                                           19
 ---pagebreak--- 4.9.2. Geographic market definition
4.9.2.1. Previous Commission decisions
(97)    In previous decisions, the Commission considered that the geographic scope of any
        possible retail market for multiple play services would be national since the
        components of the multiple play offers are offered individually at a national level,
        and the bundling of the services would not change the geographic scope of the
        components. 79
4.9.2.2. Notifying Parties’ view
(98)    The Notifying Parties submit that the question whether a separate market for
        multiple play bundles including retail TV services exists in Belgium can be left
        open. 80
4.9.2.3. Commission’s assessment
(99)    The market investigation in the present case did not provide any indication that the
        Commission should depart from its findings in previous cases.
(100) In light of the foregoing, the Commission concludes that it is appropriate not to
        depart from its previous decisional practice, and considers that, for the purpose of
        this decision, any possible market for the retail supply of multiple play services
        would be national in scope.
4.10.   Supply of advertising: (i) TV advertising, (ii) radio advertising and (iii) online
        advertising
(101) The Notifying Parties are both active in the supply of TV advertising on the Dutch-
        language TV channels in Flanders. Both Telenet and DPG Media sell advertising
        space on their own FTA TV channels (Vier, Vijf, Zes for Telenet and VTM, Q2,
        Vitaya, CAZ, CAZ 2 and VTM Kids for DPG Media). Both of them act as sales
        representatives for third party TV channels. Both parties are active in the selling of
        online advertising space, namely on websites related to their TV channels and
        publications. In addition, DPG Media is active in the supply of radio advertising
        space. It sells advertising space on its own traditional radio channels (mainly Qmusic
        and Joe, and, to a more limited extent, on the digital radio channels it operates). The
        Notifying Parties and the JV will also be active as purchasers of such advertising
        space.
79  Commission decisions of 3 August 2016 in case M.7978 – Vodafone/Liberty Global/Dutch JV,
    paragraphs 112; of 19 May 2015 in case M.7421 - Orange/Jazztel, recitals 89-90; of 10 October 2014 in
    case M.7000 - Liberty Global/Ziggo, recitals 152-153; of 20 September 2013 in case M.6990 -
    Vodafone/Kabel Deutschland, paragraphs 263-265; of 16 June 2011 in case M.5900 - LGI/KBW,
    paragraphs 183-186.
80  Form CO, paragraph 417.
                                                     20
 ---pagebreak--- 4.10.1. Product market definitions
4.10.1.1. Previous Commission decisions
(102) The Commission has previously defined the sale of advertising space on TV, the sale
        of advertising space on radio and the sale of advertising space on websites as distinct
        product markets, rather than forming part of a wider advertising market
        (incorporating, among others, also print advertising). 81
(103) With respect to the market for TV advertising, the Commission has also considered
        whether sales of advertising space on pay TV and FTA TV channels are part of the
        same market, and whether the sale of advertising space on AVOD services is part of
        the same market as the sale of advertising space on TV channels. It ultimately left
        this question open. 82
(104) The BCA has previously defined a separate market for the sale of advertising space
        on national TV channels and a separate market for the sale of advertising space on
        national radio channels, i.e. covering the entire Belgian territory. In these decisions,
        it also limited the markets to Dutch-language advertisements. 83 In 2018, the BCA
        also found strong indications to conclude that a separate market for online
        adverisements may exist and conducted its analysis on that basis. 84
4.10.1.2. Notifying Parties’ view
(105) The Notifying Parties submit that the fact that the Commission has defined radio
        advertising and TV advertising as separate product markets does not mean that they
        are not subject to competitive pressures from advertising on other media, notably
        online advertising. 85 They consider that the market has evolved significantly towards
        online advertising (leading to an erosion of the importance of traditional media for
        advertising), and that a separate market for the sale of online advertising space
        should be determined. 86
(106) In addition, the Notifying Parties consider that the market for TV advertising should
        not be further segmented between the sale of advertising space on Pay and FTA TV
        channels. Furthermore, the Parties believe that the sale of advertising space on
81 Commission decisions of 24 February 2015 in Case M.7194 Liberty Global/Corelio/W&W/De Vijver
   Media, paragraph 143; of 21 December 2016 in Case M.8180 Verizon/Yahoo, paragraphs 22 and 25; of 7
   April 2017 in Case M/8354 Fox/Sky, paragraph 114; of 12 November 2019 in Case M.9064 Telia
   Company/Bonnier Broadcasting Holding, paragraph 276; of 6 February 2018 in Case M.8665
   Discovery/Stripps, paragraphs 39-40.
82 Commission Decision of 12 November 2019 in Case M.9064 Telia Company/Bonnier Broadcasting
   Holding, paragraph 276.
83 BCA decision of 7 September 2011 in Case 2011-C/C-24, De Vijver Media NV/Waterman&Waterman
   Comm.VA, Corelio NV, Sanoma Corporation, paragraph 30; BCA Decision of 28 January 2016 in Case
   2016-C/C-03, Jim Mobile/Medialaan; BCA Decision of 26 April 2017 in Case 2017-C/C-14, Mediahuis
   3.0, paragraph 23; BCA Decision of 13 May 2019 in Case 2019-C/C-16, Telenet Group BVBA/De Vijver
   Media NV, paragraph 219.
84 BCA Decision of 6 March 2018 in case BMA-C/C-07, Mediafin, paragraphs 192-193.
85 Form CO, paragraphs 499 and 530.
86 Form CO, paragraph 515.
                                                     21
 ---pagebreak---         AVOD services should be considered as part of the online advertising market (for
        sale of advertising space on Dutch-language websites). 87
4.10.1.3. Commission’s assessment
(107) The market investigation in the present case did not provide any indication that the
        Commission should depart from its findings in previous cases. The majority of
        respondents responding to this question indicated that these findings (distinction of
        online vs. offline advertising and segmentation of advertising market by media
        channel) are still accurate in Belgium today. 88
(108) In light of the foregoing, the Commission concludes that, for the purpose of this
        decision and to follow its previous decisional practice, the market for TV
        advertising, the market for radio advertising and the market for online advertising
        constitute separate markets. The Commission also concludes that the question
        whether the market for TV advertising includes both Pay and FTA TV channels
        and/or AVOD services or whether it can be divided into those two segments can be
        left open, since the Transaction does not raise serious doubts as to its compatibility
        with the internal market or the functioning of the EEA Agreement under any such
        plausible product market definitions.
4.10.2. Geographic market definitions
4.10.2.1. Previous Commission decisions
(109) The Commission previously considered that the geographic markets for (i) TV
        advertising, (ii) radio advertising and (iii) online advertising are either national or
        regional (along linguistic lines; in Belgium concerning the Flemish region,
        potentially including the Brussels-capital region). 89 The BCA has previously
        determined the geographic scope of the TV and radio advertising markets as
        comprising the Flemish Community (and left open the exact geographic scope of the
        online advertising market). 90
4.10.2.2. Notifying Parties’ view
(110) The Notifying Parties did not provide any views on the geographic scope of these
        advertising markets.
87  Form CO, paragraph 500.
88  Responses to Questionnaire Q2 to AV market participants, questions 32-33 ; Responses to Questionnaire
    Q3 to purchasers of advertising space, questions 5-6.
89  Commission Decision of 14 June 2013 in Case M.6866 Time Warner/CME, paragraph 63; Commission
    Decision of 24 February 2015 in Case M.7194 Liberty Global/Corelio/W&W/De Vijver Media, paragraph
    147; Commission Decision of 21 December 2016 in Case M.8180 Verizon/Yahoo, paragraph 27;
    Commission Decision of 6 February 2018 in Case M.8665 Discovery/Scripps, paragraph 43.
90  BCA Decision of 7 September 2011 in Case n°2011-C/C-24, De Vijver Media NV/Waterman &Waterman
    Comm. VA, Corelio NV, Sanoma Corporation, paragraph 30; BCA Decision of 28 January 2016 in Case
    BMA-2016-C/C-03 Jim Mobile/Medialaan, paragraphs 81 to 84 and 88 to 90; BCA Decision of 26 April
    2017 in Case BMA-2017-C/C-14 Mediahuis 3.0, paragraph 23; BCA Decision of 6 March 2018 in case
    BMA-C/C-07, Mediafin, paragraph 197.
                                                          22
 ---pagebreak--- 4.10.2.3. Commission’s assessment
(111) The majority of respondents responding to the question indicated that they
          sell/purchase advertising on the basis of the linguistic region. 91 One market
         respondent indicated that “in practice suppliers of advertising space generally focuss
         on respectively the Dutch speaking market or the French speaking market”, while
         another responded that “[l]anguage is the first criteria when choosing a media
         channel.” 92 One other market respondent stated that “[t]his is the most logical
         approach to try to get the broadest advertising reach.” 93
(112) In light of the foregoing, the Commission concludes that, for the purpose of this
         decision, the relevant market for TV, radio and online advertising, including all the
         possible sub-segments, is regional in scope encompassing the Flemish region and
         possibly also the Brussels-capital region.
(113) Consequently, the Commission considers it appropriate to assess the possible effects
         of the Transaction on the markets for the sale of advertising spaces on (i) Dutch
         language TV channels, (ii) Dutch language radio channels and (iii) Dutch language
         websites in Belgium, which correspond to the two regional delinations indicated
         above (Flemish region or the Flemish region and the Brussels-capital region).
5.       COMPETITIVE ASSESSMENT
(114) As explained in paragraph 4, the only activity of the JV will be to provide a SVOD
         service in Belgium.
(115) In order to provide its SVOD service, the JV will acquire content from [JV’s
         commercial strategy]. The JV will not acquire linear channels and ancillary services
         of the Notifying Parties and/or of third parties.
(116) In order to market its SVOD service, the JV will acquire advertising space from a
         series of suppliers, [JV’s commercial strategy]. The JV’s SVOD service will not
         carry advertising.
(117) The stated rationale of the transaction is to create a local SVOD player that can
         locally compete with international established players like Netflix and Amazon as
         well as with future entrants in the SVOD market like Disney and HBO. 94
5.1.     Identification of the affected markets
(118) The Transaction gives rise to the following horizontally affected markets:
       i.         the market for the production of AV content in Flanders (demand side) 95 and
                  possibly more narrowly defined markets; 96
91  Responses to Questionnaire Q2 to AV market participants, question 39 ; Responses to Questionnaire Q3
    to purchasers of advertising space, question 7.
92  Responses to Questionnaire Q3 to purchasers of advertising space, question 7.1.
93  Responses to Questionnaire Q2 to AV market participants, question 39.1.
94  Form CO, paragraphs 30-31.
                                                       23
 ---pagebreak---       ii.         the market for the licensing of broadcasting rights for pre-existing individual
                  AV content in Flanders (demand side) 97 and possibly more narrowly defined
                  markets; 98 and
     iii.         the market for the retail supply of AV services (including SVOD services) in
                  Telenet’s footprint and possibly more narrowly defined markets. 99
(119) The markets under i) and ii), including the possible narrower markets, would also be
         affected if the geographic market was defined as a) Flanders and the Brussels Capital
         Region together or as b) Telenet’s footprint, both of which largely correspond to the
         Dutch-speaking part of Belgium. In addition, some of the narrower product markets
95 There is no affected market for the supply of production of AV content. Telenet has a share of [5-10]% by
   value (2019), DPG Media’s entire AV content production is captive, and the JV will not be active.
96 Such narrower markets include A) markets based on a segmentation by content type (i.e. i) the market for
   the production of films in Flanders (demand side) ii) the market for the production of sport content in
   Flanders (demand side) iii) the market for the production of other AV content in Flanders (demand side)
   B) markets based on a segmentation by exhibition window (i.e. i) the market for the production of AV
   content for TVOD in Flanders (demand side) ii) the market for the production of AV content for
   SVOD/first pay TV window in Flanders (demand side) iii) the market for the production of AV content
   for SVOD library in Flanders (demand side) iv) the market for the production of AV content for FTA
   window in Flanders (demand side), v) the market for the production of AV content for the premium
   sports window; C) markets based on the distinction between scripted and non-scripted content (i.e. i) the
   market for the production of scripted AV content in Flanders (demand side) and the ii) the market for the
   production of non-scripted AV content in Flanders (demand side); D) markets based on commissioned AV
   content versus AV content production for hire (i.e. i) the market for the production of commissioned AV
   content in Flanders (demand side) and the ii) market for the production of AV content for hire in Flanders
   (demand side); and any combination of the segmentations in A) B) C) or D).
97 There is no affected market for the supply of licensing of individual AV content. Telenet and DPG Media
   have respective market shares of [0-5]% and [0-5]% by value (2019). For 2023, the following provisional
   market shares were provided by the Parties: Telenet: [0-5]%, DPG Media: [0-5]%, JV: [0-5]%.
98 Such narrower markets include A) markets based on a segmentation by content type (i.e. i) the market for
   the licensing of broadcasting rights for films in Flanders (demand side) ii) the market for the licensing of
   broadcasting rights for sport content in Flanders (demand side) iii) the market for the licensing of
   broadcasting rights for other content in Flanders (demand side); B) out of the markets based on a
   segmentation by exhibition window, the i) market for the licenseing of broadcasting rights for content in
   the SVOD/First pay TV window in Flanders (demand side), the ii) market for the licenseing of
   broadcasting rights for content in the SVOD library window in Flanders (demand side), and the iii) market
   for the licenseing of broadcasting rights for content in the FTA window in Flanders (demand side); C)
   markets based on the distinction between scripted and non-scripted content (i.e. i) the market for the
   licensing of broadcasting rights for scripted content in Flanders (demand side) and the ii) the market for
   the licensing of broadcasting rights for non-scripted content in Flanders (demand side); D) markets based
   premium vs non-premium content (i.e. i) the market for the licensing of broadcasting rights for premium
   content in Flanders (demand side) and the ii) the market for the licensing of broadcasting righst for non-
   premium content in Flanders (demand side); and any combination of the segmentations in A) B) C) or D).
99 Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s
   footprint, distinct from the market for the retail supply of FTA AV services, which is not affected; B)
   markets based on a segmentation of the retail pay AV services between basic pay and premium pay AV
   services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii) the
   market for the retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a
   segmentation of the retail pay AV services between linear and non-linear pay AV services (i.e. i) the
   market for the retail supply of linear AV services in Telenet’s footprint and ii) the market for the retail
   suplly of non-linear AV services in Telenet’s footprint). In addition, if both segmentations B) and C)
   apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of
   linear basic pay AV services in Telenet’s footprint and the ii) market for the retail supply of non-linear
   premium pay AV services in Telenet’s footprint.
                                                           24
 ---pagebreak---          under ii) would also be affected if the geographic market was defined as c) the whole
         of Belgium. 100
(120) In each of these horizontally affected markets, the Notifying Parties will also remain
         active independently.
(121) The Transaction also gives rise to the following non-horizontally affected markets:
       i.         The upstream market for AV content production in Flanders (supply side),
                  and possible narrower markets, 101 where Telenet is active, due to the
                  combined share of both Notifying Parties and the JV on the downstream
                  market for AV content production in Flanders (demand side) and possible
                  narrower markets 102 (customer foreclosure). The upstream product markets,
                  including the potential narrower markets, would also be affected if the
                  geographic scope of the downstream markets were defined as a) Flanders and
100 These markets include A) out of the markets based on a segmentation by content type i) the market for the
    licensing of broadcasting rights for films (demand side) ii) the market for the licensing of broadcasting
    rights for sport content (demand side) B) out of the markets based on a segmentation by exhibition
    window, the i) market for the licenseing of broadcasting rights for content in the FTA window C) markets
    based on the distinction between scripted and non-scripted content (i.e. i) the market for the licensing of
    broadcasting rights for scripted content (demand side), and the ii) the market for the licensing of
    broadcasting rights for non-scripted content (demand side); D) markets based on the distinction between
    premium and non-premium content (i.e. i) the market for the licensing of broadcasting rights for premium
    content (demand side) and the ii) ) the market for the licensing of broadcasting rights for non-premium
    content (demand side); and any combination of the segmentations in A) B) C) and D).
101 These markets include A) markets based on a segmentation by content type (i.e. i) the market for the
    production of films in Flanders (supply side), ii) the market for the production of sport content in Flanders
    (supply side), iii) the market for the production of other AV content in Flanders (supply side); B) markets
    based on a segmentation by exhibition window (i.e. i) the market for the production of AV content for the
    TVOD window in Flanders (suuply side), ii) the market for the production of AV content for the
    SVOD/first pay TV window in Flanders (supply side), iii) the market for the production of AV content for
    SVOD library window in Flanders (supply side), iv) the market for the production of AV content for FTA
    AV window in Flanders (supply side); C) markets based on the distinction between scripted and non-
    scripted content (i.e. i) the market for the production of scripted AV content in Flanders (supply side) and
    the ii) the market for the production of non-scripted AV content in Flanders (supply side); D) markets
    based on commissioned AV content versus AV content production for hire (i.e. i) the market for the
    production of commissioned AV content in Flanders (supply side) and the ii) market for the production of
    AV content for hire in Flanders (supply side); and any combination of the segmentations in A) B) C) or
    D).
102 These narrower markets include: A) markets based on a segmentation by content type (i.e. i) the market
    for the production of films in Flanders (demand side) ii) the market for the production of sport content in
    Flanders (demand side) iii) the market for the production of other AV content in Flanders (demand side);
    B) markets based on a segmentation by exhibition window (i.e. i) the market for the production of AV
    content for the TVOD window in Flanders (demand side), ii) the market for the production of AV content
    for SVOD/first pay TV window in Flanders (demand side), iii) the market for the production of AV
    content for SVOD library in Flanders (demand side), iv) the market for the production of AV content for
    FTA window in Flanders (demand side); C) markets based on the distinction between scripted and non-
    scripted content (i.e. i) the market for the production of scripted AV content in Flanders (demand side)
    and the ii) the market for the production of non-scripted AV content in Flanders (demand side); D)
    markets based on commissioned AV content versus AV content production for hire (i.e. i) the market for
    the production of commissioned AV content in Flanders (demand side) and the ii) market for the
    production of AV content for hire in Flanders (demand side); and any combination of the segmentations in
    A) B) C) or D).
                                                            25
 ---pagebreak---                    the Brussels Capital Region together or as b) Telenet’s footprint, both of
                   which largely correspond to the Dutch-speaking part of Belgium. 103
       ii.         The upstream market for the licensing of broadcasting rights for pre-existing
                   individual AV content in Flanders (supply side), and possibly more narrowly
                   defined markets, 104 where both Notifying Parties are active, due to the
                   individual or combined share of the Notifying Parties and the JV on the
                   downstream market for the licensing of broadcasting rights for pre-existing
                   individual AV content in Flanders (demand side), or possibly more narrowly
                   defined markets 105 (customer foreclosure). The upstream product markets,
                   including the potential narrower markets, would also be affected if the
                   geographic scope of the downstream markets were defined as a) Flanders and
                   the Brussels Capital Region together or as b) Telenet’s footprint, both of
                   which largely correspond to the Dutch-speaking part of Belgium. If the
                   geographic scope of the downstream markets were defined as c) the whole of
                   Belgium, only some of the more narrowly defined upstream markets 106
                   would be affected. 107
103 The geographic market of the upstream markets may also be different, i.e. it could be a) Flanders and the
    Brussels Capital Region and b) Telenet’s footprint; however, this would have no bearing on the fact that
    they are affected.
104 Such narrower markets include A) markets based on a segmentation by content type (i.e. i) the market for
    the licensing of broadcasting rights for films in Flanders (supply side) ii) the market for the licensing of
    broadcasting rights for sport content in Flanders (supply side) iii) the market for the licensing of
    broadcasting rights for other content in Flanders (supply side); B) markets based on a segmentation by
    exhibition window (i.e. i) market for the licensing of broadcasting rights for the TVOD window in
    Flanders (supply side), ii) market for the licensing of broadcasting rights for the SVOD/First pay TV
    window in Flanders (supply side), iii) market for the licensing of broadcasting rights for the SVOD library
    window in Flanders (supply side), iv) market for the licensing of broadcasting rights for the FTA window
    in Flanders (supply side), v) market for the licensing of broadcasting rights for the premium sports
    window in Flanders (supply side); C) markets based on the distinction between scripted and non-scripted
    content (i.e. i) the market for the licensing of broadcasting rights for scripted content in Flanders (supply
    side) and the ii) the market for the licensing of broadcasting rights for non-scripted content in Flanders
    (supply side); D) markets based on premium vs non-premium content (i.e. i) the market for licensing of
    broadcasting rights for premium content in Flanders (supply side) and ii) the market for licensing of
    broadcasting rights for non-premium content in Flanders (supply side); and any combination of the
    segmentations in A) B) C) or D).
105 Such narrower markets include A) markets based on a segmentation by content type (i.e. i) the market for
    the licensing of broadcasting rights for films in Flanders (demand side) ii) the market for the licensing of
    broadcasting rights for sport content in Flanders (demand side) iii) the market for the licensing of
    broadcasting rights for other content in Flanders (demand side); B) markets based on a segmentation by
    exhibition window i.e. the i) market for the licenseing of broadcasting rights for content in the TVOD
    window in Flanders (demand side), ii) market for the licenseing of broadcasting rights for content in the
    SVOD/First pay TV window in Flanders (demand side), iii) market for the licenseing of broadcasting
    rights for content in the SVOD library window in Flanders (demand side), iv) market for the licenseing of
    broadcasting rights for content in the FTA window in Flanders (demand side), v) market for the licenseing
    of broadcasting rights for content in the premium sports window in Flanders (demand side); C) markets
    based on the distinction between scripted and non-scripted content (i.e. i) the market for the licensing of
    broadcasting rights for scripted content in Flanders (demand side) and the ii) the market for the licensing
    of broadcasting rights for non-scripted content in Flanders (demand side); D) markets based premium vs
    non-premium content (i.e. i) the market for the licensing of broadcasting righst for premium content in
    Flanders (demand side) and the ii) the market for the licensing of broadcasting righst for non-premium
    content in Flanders (demand side); and any combination of the segmentations in A) B) C) or D).
106 These markets include A) out of the markets based on a segmentation by content type i) the market for the
    licensing of broadcasting rights for films (supply side) ii) the market for the licensing of broadcasting
    rights for sport content (supply side); B) out of the markets based on the distinction based on exhibition
                                                           26
 ---pagebreak---      iii.          The downstream market for the retail supply of AV services (including
                   SVOD services) in Telenet’s footprint, and possibly more narrowly defined
                   markets, 108 (where both the JV and the Notifying Parties will be active), due
                   to the the Notifying Parties’ upstream activities on the market for wholesale
                   supply of FTA/basic pay TV channels, and possible narrower markets, 109 in
                   Telenet’s footprint (input foreclosure). The downstream product markets,
                   including the potential narrower markets, would also be affected if the
                   geographic scope of the upstream market were defined as a) Flanders and the
                   Brussels Capital Region together, as b) Flanders or as c) the whole of
                   Belgium.
      iv.          The market for the retail supply of mobile telecommunication, fixed internet
                   and multiple play services in Belgium, and possibly more narrowly defined
                   markets, 110 where Telenet is active, due to the Parties’ strong presence in the
                   market for the retail supply of AV services (including SVOD services) in
                   Telenet’s footprint, and possible narrower markets 111 (conglomerate effects).
    windows, the i) market for the licenseing of broadcasting rights for content in the TVOD window (supply
    side), ii) market for the licenseing of broadcasting rights for content in the FTA window in (supply side),
    v) market for the licenseing of broadcasting rights for content in the premium sports window (supply
    side); C) out of the markets based on the distinction between scripted and non-scripted content, the market
    for the licensing of broadcasting rights for non-scripted content (supply side); D) out of the markets based
    on the distinction between premium and non-premium content, the market for the licensing of
    broadcasting rights for premium content (supply side); and any combination of the segmentations in A) B)
    C) and D).
107 The geographic market of the affected upstream markets may also be different, i.e. it could be a) Flanders
    and the Brussels Capital Region and b) Telenet’s footprint; however, this would have no bearing on the
    fact that they are affected.
108 Such narrower markets include i) the market for the retail supply of pay AV services in Telenet’s
    footprint, distinct from the market for the retail supply of FTA AV services, which is not affected. If pay
    AV retail services are further segmented between basic pay and premim pay retail AV services, or
    between linear and non-linear basic pay AV services, then ii) the market for the retail supply of basic pay
    AV services in Telenet’s footprint and the iii) market for the retail supply of linear pay AV services in
    Telenet’s footprint are also affected. In addition, if both of these segmentations apply, then the iv) market
    for the retail supply of linear basic pay AV services in Telenet’s footprint will be affected and the v)
109 The narrower market would be based on a segmentation by genre. Under such segmenatation the
    Notifying Parties would have presumptive market power on the market for the wholesale supply of
    FTA/basic pay general entertainment channels in Telenet’s footprint.
110 As the market for the retail supply of mobile telecommunication services is not segmented further,
    narrower markets include the possible segmentation of fixed internet services according to product type
    (i.e. i) the market for the retail supply of narrowband fixed internet services in Belgium, ii) the market for
    the retail supply of broadband fixed internet services in Belgium and iii) the market for the retail supply of
    dedicated fixed internet services in Belgium) or distribution technology (i.e. the iv) market for the retail
    supply of fixed internet services via xDSL in Belgium, the v) market for the retail supply of fixed internet
    services via fibre in Belgium and the vi) market for the retail supply of fixed internet services over cable
    in Belgium), as well as the possible combinations of these segments (i.e. all combinations narrowband
    over fibre or cable). Provided multiple play telecommunications markets exist, they can be potentially
    segmented to the narrower markets of vii) fixed bundles in Belgium and viii) fixed-mobile bundles in
    Belgium.
111 Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s
    footprint, distinct from the market for the retail supply of FTA AV services, which is not affected; B)
    markets based on a segmentation of the retail pay AV services between basic pay and premium pay AV
    services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii) the
    market for the retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a
    segmentation of the retail pay AV services between linear and non-linear pay AV services (i.e. i) the
    market for the retail supply of linear AV services in Telenet’s footprint and ii) the market for the retail
                                                            27
 ---pagebreak---        v.          The market for the the retail supply of AV services (including SVOD
                   services) in Telenet’s footprint, and possibly more narrowly defined
                   markets, 112 where Telenet and the JV are active, due to Telenet’s strong
                   presence in the retail supply of mobile telecommunication, fixed internet
                   access and multiple play services, and possible narrower markets. 113
                   (conglomerate effects)
      vi.          The downstream market for the retail supply of AV services (including
                   SVOD services) in Telenet’s footprint, and possibly more narrowly defined
                   markets, 114 where the JV and both Notifying Parties are active, due to the
                   Notifying Parties’ upstream activities on the market for the sale of TV
                   advertising space on TV channels in Flanders, as well as the possibly more
                   narrowly defined markets, 115 and DPG Media’s upstream activities on the
                   market for the sale of radio advertising space in Flanders (input foreclosure).
                   The downstream product markets, including the potential narrower markets,
    suplly of non-linear AV services in Telenet’s footprint). In addition, if both segmentations B) and C)
    apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of
    linear basic pay AV services in Telenet’s footprint and the ii) market for the retail supply of non-linear
    premium pay AV services in Telenet’s footprint.
112 Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s
    footprint, distinct from the market for the retail supply of FTA AV services, which is not affected; B)
    markets based on a segmentation of the retail pay AV services between basic pay and premium pay AV
    services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii) the
    market for the retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a
    segmentation of the retail pay AV services between linear and non-linear pay AV services (i.e. i) the
    market for the retail supply of linear AV services in Telenet’s footprint and ii) the market for the retail
    suplly of non-linear AV services in Telenet’s footprint). In addition, if both segmentations B) and C)
    apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of
    linear basic pay AV services in Telenet’s footprint and the ii) market for the retail supply of non-linear
    premium pay AV services in Telenet’s footprint.
113 As the market for the retail supply of mobile telecommunication services is not segmented further,
    narrower markets include the possible segmentation of fixed internet services according to product type
    (i.e. i) the market for the retail supply of narrowband fixed internet services in Belgium, ii) the market for
    the retail supply of broadband fixed internet services in Belgium and iii) the market for the retail supply of
    dedicated fixed internet services in Belgium) or distribution technology (i.e. the iv) market for the retail
    supply of fixed internet services via xDSL in Belgium, the v) market for the retail supply of fixed internet
    services via fibre in Belgium and the vi) market for the retail supply of fixed internet services over cable
    in Belgium), as well as the possible combinations of these segments (i.e. all combinations narrowband
    over fibre or cable). Provided multiple play telecommunications markets exist, they can be potentially
    segmented to the narrower markets of vii) fixed bundles in Belgium and viii) fixed-mobile bundles in
    Belgium.
114 Such narrower markets include A) the market for the retail supply of pay AV services in Telenet’s
    footprint, distinct from the market for the retail supply of FTA AV services, which is not affected; B)
    markets based on a segmentation of the retail pay AV services between basic pay and premium pay AV
    services (i.e. i) the market for the retail supply of basic pay AV services in Telenet’s footprint and ii) the
    market for the retail supply of premium pay AV services in Telenet’s footprint); C) markets based on a
    segmentation of the retail pay AV services between linear and non-linear pay AV services (i.e. i) the
    market for the retail supply of linear AV services in Telenet’s footprint and ii) the market for the retail
    suplly of non-linear AV services in Telenet’s footprint). In addition, if both segmentations B) and C)
    apply, then two of the four possible markets are affected, namely D) i) the market for the retail supply of
    linear basic pay AV services in Telenet’s footprint and the ii) market for the retail supply of non-linear
    premium pay AV services in Telenet’s footprint.
115 Such markets include the potential subsegments of the market for TV advertising where one or more of
    the Notifying Parties has a strong presence, i.e. i) the market for the supply of TV advertising space on
    FTA channels in Flanders including AVOD and ii) the market for the supply of TV advertising space on
    FTA channels in Flanders excluding AVOD.
                                                            28
 ---pagebreak---                  would also be affected if the geographic scope of the upstream markets were
                 defined as Flanders and the Brussels Capital Region together, given that in
                 both cases the geographic market corresponds to the Dutch linguistic area in
                 Belgium.
(122) None of these vertical links is newly created by the Transaction since the Notifying
        Parties are autonomously active in the downstream markets where the JV will be
        active. The JV will merely give rise to an increase of the combined market share
        downstream.
(123) The Notifying Parties will remain independently active in a number of the same
        markets as the JV, notably: (i) the production of AV content (demand side) 116, in
        particular in the segment for production for hire; (ii) the licensing of individual AV
        content (supply and demand side), in particular in the first PayTV and library SVOD
        exhibition window segments; and (iii) the retail supply of AV services, in particular
        in the non-linear segments. The Notifying Parties will also remain independently
        active in a number of markets closely related to the activities of the JV, notably: (i)
        the licensing of individual AV content (supply and demand side), in particular in the
        FTA, TVOD, Premium Sports and series SVOD segments; (ii) the retail supply of
        AV services, in particular in the linear segments 117; (iii) the sale of advertising space
        on Dutch language TV channels and websites; (iv) the wholesale supply of TV
        channels; and (v) the retail supply of mobile communications services.
(124) Each of these potential effects is separately discussed in the following sections. After
        setting out the market shares in the relevant markets and possible sub-segments
        (section 5.2), the Commission will first assess the potential horizontal non-
        coordinated effects stemming from the Transaction (section 5.3). Then the
        Commission will assess the potential non-horizontal effects stemming from the
        Transaction (section 5.4). Finally, the Commission will assess the potential
        cooperative effects of the Transaction (section 5.5).
5.2.    Market shares
(125) According to the Horizontal Merger Guidelines and the Non-Horizontal Merger
        Guidelines, 118 in the assessment of the effects of a merger, market shares constitute a
        useful first indication of the structure of the markets at stake and of the competitive
        importance of the relevant market players.
116 On the supply side of this market, DPG Media is only active for captive use and the JV is not active.
117 Including the supply of library SVOD content.
118 Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of
    concentrations between undertakings ("Horizontal Merger Guidelines"), OJ C 31, 05.02.2004, paragraph
    14; Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control
    of concentrations between undertakings ("Non-Horizontal Merger Guidelines"), OJ C 265, 18.10.2008,
    paragraph 24.
                                                        29
 ---pagebreak--- 5.2.1. Production of AV content (demand side) 119
5.2.1.1. Overall market in Flanders
(126) The Parties’ and their main competitors’ shares in the market for the acquisition of
         Dutch-language AV content production in Flanders are summarised in Table 1
         below. 120 The Commission notes that the Parties have a significant presence in
         Belgium with combined market shares by value, exceeding [50-60]%. The Parties
         submit that the JV will have modest activities on the demand side, which will
         represent a market share of [5-10]% in 2023. This is also indicated in Table 1.
         Table 1: Market shares in the market for the acquisition of AV content production by value in Flanders
                     Company                       Overall market 2019                 Overall market 2023
          Telenet                                        [20-30]%                            [10-20]%
          DPG Media                                      [30-40]%                            [30-40]%
          JV                                                   -                              [5-10]%
          Combined                                       [50-60]%                            [60-70]%
          VRT                                            [40-50]%                            [40-50]%
         Source: Form CO table 6.1.3
5.2.1.2. Alternative market definitions
(127) If the product market is unchanged but the geographic scope of the market was
         defined as a) Flanders and Brussels Capital Region together or b) as Telenet’s
         footprint, the market shares indicated in Table 1 would not change materially. 121
(128) If the product market was defined more narrowly and separate markets were defined
         based on the distinction by exhibition window (TVOD window, SVOD/first pay TV
         window, SVOD library window, FTA window and premiums sports window), the
         market shares would be very similar to those in Table 1. 122 This is because the party
         purchasing original AV content generally purchases the rights for all exhibition
         windows at the time of the production agreement.
(129) Likewise, market shares would be similar if separate markets were defined based on
         the distinction between commissioned AV production and AV production for hire, as
         purchasers are estimated to acquire these types of contents in similar proportions. 123
         The only difference to Table 1 is that the JV will not be active in the market for the
         production of AV content for hire, i.e. it will not purchase such content.
(130) If the market was defined more narrowly and separate markets were defined based
         on the distinction between scripted and non-scripted AV production, the relevant
         market shares are indicated in Tables 2 and 3.
119 The supply side of AV content production is not affected horizontally. It is affected vertically as the
    Parties’ individual or combined downstream share is in excess of 30%. As such, the Notifying Parties
    individual or combined market shares are only relevant on the downstream, demand side of the AV
    content production market.
120 The estimated market shares do not take into account the AV content production spend of Proximus, a
    number of smaller Flemish/Dutch language broadcasters active in Belgium and international OTT players
    such as Netflix (that are obliged to invest in AV productions on the basis of the Flemish Media Decree)
    (Form CO, paragraph 295).
121 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a). The shares
    would decrease somewhat as Telenet’s footprint and the Brussels Capital Region would also include
    French language content purchases, which would dilute slightly the shares indicated.
122 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a)
123 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a)
                                                           30
 ---pagebreak---         Table 2 Market shares in the market for the acquisition
        of scripted AV content production in Flanders
                  Company                 Market share, 2019
         Telenet                                  [5-10]%
         DGP Media                               [40-50]%
         Combined                               [40-50]%
         VRT                                     [50-60]%
        Source: Notifying Parties response to the Commission’s
        Request for Information RFI 12, question 1.a)
        Table 3 Market shares in the market for the acquisition
        of non-scripted AV content production in Flanders
                  Company                 Market share, 2019
         Telenet                                 [20-30]%
         DGP Media                               [30-40]%
         Combined                               [50-60]%
         VRT                                     [40-50]%
        Source: Notifying Parties response to the Commission’s
        Request for Information RFI 12, question 1.a)
(131) Exact shares are not available for separate markets by content type (i.e. separate
        markets for the production of film content, sport content and other content – demand
        side). However, given the concentrated nature of the market the combined share of
        the Notifying Parties are well in excess of 30% in Flanders. 124 Likewise combined
        market share of the Notifying Parties would be in excess of 30% for any
        combination of the these segmentations. 125
(132) In the case of all the alternative product market definitions, the market shares would
        not change materially if the geographic market was defined as a) Flanders and
        Brussels Capital Region together or b) as Telenet’s footprint. 126
5.2.2. Licensing of broadcasting rights for pre-existing individual AV content (demand
        side)
5.2.2.1. Overall market in Flanders
(133) The Parties’ and their main competitors’ shares in the market for the acquisition of
        individual AV content in Flanders are summarised in Table 4 below. The
        Commission notes that the Parties have a significant presence in Belgium, with
        combined shares, by value, exceeding [50-60]%. The Parties submit that the JV will
        have a share of around [10-20]% in 2023.
124 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a)
125 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a)
126 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.a). The shares
    would decrease somewhat as Telenet’s footprint and the Brussels Capital Region would also include
    French language content purchases, which would dilute slightly the shares indicated.
                                                          31
 ---pagebreak---         Table 4 Market shares in the market for the licensing of broadcasting rights for pre-existing individual AV
        content in Flanders (demand side, by value)
                      Company                         Overall market 2019                 Overall market 2023
          Telenet                                            [40-50]%                            [20-30]%
          DPG Media                                          [10-20]%                            [10-20]%
          JV                                                      -                              [10-20]%
          Combined                                           [50-60]%                            [50-60]%
          VRT                                                 [5-10]%                             [5-10]%
          Proximus                                           [10-20]%                            [10-20]%
          OTT international                                  [10-20]%                            [20-30]%
          Other Dutch-language channels                        [0-5]%                              [0-5]%
        Source: Table 6.1.9 of the Form CO
5.2.2.2. Alternative market definitions
(134) If the product market is unchanged but the geographic scope of the market was
        defined as a) Flanders and Brussels Capital Region together or b) as Telenet’s
        footprint, the market shares indicated in Table 1 would not change materially. 127
(135) If the product market was defined more narrowly and separate markets were defined
        based on the distinction by content type (film, sport, other), the resulting market
        shares are indicated in Table 5. As indicated, market shares would exceed 30 % in all
        markets defined this way and would be particulary high in films and sports.
        Table 5: Market shares in the market for the licensing of broadcasting rights for pre-existing individual
        AV content by content type (film, sport, others) in Flanders (demand side, by value) in 2019.
                                                           Film                Sport                  Other
          Telenet                                       [30-40]%            [50-60]%                [20-30]%
          DPG                                           [20-30]%             [5-10]%                [10-20]%
          Combined                                     [50-60]%             [60-70]%                [30-40]%
          VRT                                            [5-10]%            [10-20]%                [10-20]%
          Proximus                                       [5-10]%            [20-30]%                [10-20]%
          Netflix                                       [20-30]%              [0-5]%                [30-40]%
          Amazon Prime                                    [0-5]%              [0-5]%                 [0-5]%
          Other Dutch language channels                   [0-5]%              [0-5]%                 [0-5]%
          Total                                            100%                100%                   100%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b)
(136) The market shares in Table 5 would not change materially if the geographic market
        was defined as a) Flanders and the Brussels Capital Region together or as b)
        Telenet’s footprint, both of which largely correspond to the Dutch-speaking part of
        Belgium. The market shares under a geographic scope corresponding to the whole of
        Belgium are indicated in Table 6. As indicated by Table 6, the market for film
        licensing (demand side) and the market for sport licensing (demand side) would still
        be horizontally affected and the corresponding upstream licensing markets (supply
        side) would be vertically affected. The market for the licensing of broadcast rights
        for “other” content would cease to be affected horizontally and the corresponding
        upstream supply side would also not be affected.
127 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b). The shares
    would decrease somewhat as Telenet’s footprint and the Brussels Capital Region would also include
    French language content purchases, which would dilute slightly the shares indicated.
                                                             32
 ---pagebreak---         Table 6: Market shares in the market for the licensing of broadcasting rights for pre-existing individual
        AV content by content type (film, sport, others) in Belgium (demand side, by value) in 2019.
                                                           Film                 Sport           Other
          Telenet                                       [20-30]%             [30-40]%         [10-20]%
          DPG                                           [10-20]%               [0-5]%          [5-10]%
          Combined                                      [30-40]%            [40-50]%          [10-20]%
          VRT                                             [0-5]%              [5-10]%          [5-10]%
          Proximus                                      [10-20]%             [30-40]%         [10-20]%
          Netflix                                       [20-30]%               [0-5]%         [30-40]%
          Amazon Prime                                    [0-5]%               [0-5]%           [0-5]%
          Other Dutch language channels                   [0-5]%               [0-5]%           [0-5]%
          RTBF                                           [5-10]%               [0-5]%          [5-109%
          RTL                                            [5-10]%               [0-5]%          [5-109%
          AB Group                                        [0-5]%               [0-5]%           [0-5]%
          VOO                                            [5-10]%             [10-20]%           [0-5]%
          Orange                                          [0-5]%               [0-5]%           [0-5]%
          Other French language channels                  [0-5]%               [0-5]%           [0-5]%
          Other OTT (Canal+)                              [0-5]%               [0-5]%           [0-5]%
          Total                                            100%                 100%             100%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b)
(137) If the product market was defined more narrowly and separate markets were defined
        based on the distinction by exhibition window (TVOD window, SVOD/first pay TV
        window, SVOD library window, FTA window and premiums sports window), the
        resulting market shares are indicated in Table 7. As indicated in Section 5.1, under
        such definitions only the market for the licensing of broadcasting rights for AV
        content in the FTA window would be affected horizontally. However, also as
        indicated Section 5.1, on the supply side the TVOD, First Pay TV/SVOD, SVOD
        library, FTA and premium sports windows would all be vertically affected (customer
        foreclosure).
        Table 7: Market shares in the market for the licensing of broadcasting rights for pre-existing individual
        AV content in different exhibition windows in Flanders (demand side, by value) in 2019.
                       Telenet       DPG        Combined       VRT           Proximus      International     Other
                                                                                           OTT               Dutch
                                                                                           purchasers        purchasers
    TVOD               [60-70]%      [0-5]%     [60-70]%       [0-5]%        [30-40]%      [0-5]%            [0-5]%
    First Pay TV /     [30-40]%      [0-5]%     [30-40]%       [0-5]%        [10-20]%      [50-60]%          [0-5]%
    SVOD
    SVOD library       [30-40]%      [0-5]%     [30-40]%       [0-5]%        [10-20]%      [50-60]%          [0-5]%
    FTA                [20-30]%      [40-       [70-80]%       [20-30]%      [0-5]%        [0-5]%            [5-10]%
                                     50]%
    Premium            [60-70]%      [0-5]%     [60-70]%       [0-5]%        [30-40]%      [0-5]%            [0-5]%
    Sports
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b)
(138) The market shares in Table 7 would not change materially if the geographic market
        was defined as a) Flanders and the Brussels Capital Region together or as b)
        Telenet’s footprint, both of which largely correspond to the Dutch-speaking part of
        Belgium. As indicated in Section 5.1. if the scope of the geographic market was
        Belgium, only the market for licensing AV content in the FTA window would be
        horizontally affected on the demand side and only the corresponding TVOD, FTA
        and premium sports licensing markets on the supply side would be vertically
        affected.
(139) If the product market was defined more narrowly and separate markets were defined
        based on the distinction between scripted and non-scripted content, the resulting
        market shares are indicated in Table 8.
                                                             33
 ---pagebreak---       Table 8 Market shares in the market for the licensing of broadcasting rights for pre-existing
      individual scripted and non-scripted AV content in Flanders (demand side, by value) in 2019.
                                               Scripted content             Non-scripted content
        Telenet                                         [30-40]%                     [40-50]%
        DPG Media                                       [10-20]%                      [5-10]%
        Combined                                       [40-50]%                     [50-60]%
        VRT                                              [5-10]%                     [10-20]%
        Proximus                                        [10-20]%                     [10-20]%
        Netflix                                         [20-30]%                      [5-10]%
        Amazon Prime                                      [0-5]%                       [0-5]%
        Other Ducth language channels                     [0-5]%                       [0-5]%
        Total                                              100%                         100%
      Source: Notifying Parties response to the Commission’s Request for Information RFI
      12, question 1.b)
(140) The market shares in Table 8 would not change materially if the geographic market
      was defined as a) Flanders and the Brussels Capital Region together or as b)
      Telenet’s footprint, both of which largely correspond to the Dutch-speaking part of
      Belgium. The market shares under a geographic scope corresponding to the whole of
      Belgium are indicated in Table 9. As indicated in Section 5.1. under this geographic
      market definition, both of these markets would still be horizontally affected.
      However, under this geographic market definition only the upstream market for the
      licensing of broadcasting rights for pre-existing individual non-scripted AV content
      (supply side) would still be vertically affected (customer foreclosure).
      Table 9 Market shares in the market for the licensing of broadcasting rights for pre-existing
      individual scripted and non-scripted AV content in Belgium (demand side, by value) in 2019.
                                               Scripted content         Non-scripted content
        Telenet                                      [10-20]%                     [20-30]%
        DPG Media                                     [5-10]%                      [5-10]%
        Combined                                    [20-30]%                      [30-40]%
        VRT                                            [0-5]%                      [5-10]%
        Proximus                                     [10-20]%                [10-20]+[10-20]%
        Netflix                                      [20-30]%                 [5-10]+[5-10]%
        Amazon Prime                                   [0-5]%                       [0-5]%
        Other Ducth language channels                  [0-5]%                       [0-5]%
        RTBF                                          [5-10]%                      [5-10]%
        RTL                                           [5-10]%                      [5-10]%
        Ab Groupe                                      [0-5]%                       [0-5]%
        VOO                                           [5-10]%                      [5-10]%
        Orange                                         [0-5]%                       [0-5]%
        Other French language channels                 [0-5]%                       [0-5]%
        Other OTT (Canal+)                             [0-5]%                       [0-5]%
        Total                                           100%                         100%
      Source: Notifying Parties response to the Commission’s Request for Information RFI
      12, question 1.b)
(141) If the product market was defined more narrowly and separate markets were defined
      based on the distinction between premium and non-premium content, the resulting
      market shares are indicated in Table 10.
                                                             34
 ---pagebreak---         Table 10 Market shares in the market for the licensing of broadcasting rights for pre-existing
        individual premium and non-premium AV content in Flanders (demand side, by value) in 2019.
                                                      Premium content               Non-premium content
          Telenet                                           [50-60]%                       [20-30]%
          DPG Media                                           [0-5]%                       [20-30]%
          Combined                                         [50-60]%                        [40-50]%
          VRT                                                 [0-5]%                       [20-30]%
          Proximus                                          [10-20]%                       [10-20]%
          Netflix                                           [20-30]%                        [5-10]%
          Amazon Prime                                        [0-5]%                         [0-5]%
          Other Ducth language channels                       [0-5]%                         [0-5]%
          Total                                                100%                           100%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b)
(142) The market shares in Table 10 would not change materially if the geographic market
        was defined as a) Flanders and the Brussels Capital Region together or as b)
        Telenet’s footprint, both of which largely correspond to the Dutch-speaking part of
        Belgium. The market shares under a geographic scope corresponding to the whole of
        Belgium are indicated in Table 11. As indicated in Section 5.1, under this geographic
        market definition both of these markets would still be horizontally affected.
        However, under this geographic market definition only the upstream market for the
        licensing of broadcasting rights for pre-existing individual premium AV content
        (supply side) would still be vertically affected (customer foreclosure).
        Table 11 Market shares in the market for the licensing of broadcasting rights for pre-existing
        individual premium and non-premium AV content in Belgium (demand side, by value) in 2019.
                                                      Premium content               Non-premium content
          Telenet                                           [30-40]%                       [10-20]%
          DPG Media                                           [0-5]%                       [10-20]%
          Combined                                         [30-40]%                        [20-30]%
          VRT                                                 [0-5]%                       [10-20]%
          Proximus                                          [20-30]%                       [10-20]%
          Netflix                                           [20-30]%                        [5-10]%
          Amazon Prime                                        [0-5]%                         [0-5]%
          Other Ducth language channels                       [0-5]%                         [0-5]%
          RTBF                                                [0-5]%                       [10-20]%
          RTL                                                 [0-5]%                       [10-20]%
          Ab Groupe                                           [0-5]%                         [0-5]%
          VOO                                                [5-10]%                        [5-10]%
          Orange                                              [0-5]%                         [0-5]%
          Other French language channels                      [0-5]%                         [0-5]%
          Other OTT (Canal+)                                  [0-5]%                         [0-5]%
          Total                                                100%                           100%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.b
5.2.3. Wholesale supply of FTA/basic pay TV channels
5.2.3.1. Overall market in Telenet’s footprint
(143) The Parties’ and their main competitors’ shares for the wholesale supply of
        FTA/basic pay TV channels by value in Telenet’s footprint are summarised in Table
        12 below. The Commission notes that the Parties have a market strong position with
        combined shares of [30-40]%, by value. The only other significant competitor is the
        public broadcaster VRT.
                                                             35
 ---pagebreak---         Table 12 Market sheares in the market for the wholesale supply of TV channels (Telenet’s footprint
        by value)
                           Company                                      Market share, 2019
         Telenet                                                               [5-10]%
         DPG Media                                                            [20-30]%
         Combined                                                             [30-40]%
         VRT                                                                  [20-30]%
         Others                                                               [30-40]%
         Total                                                                  100%
        Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.c)
5.2.3.2. Alternative market definitions
(144) Table 13 summarises the relevant market shares if the product market is unchanged
        but the geographic scope of the market was defined differently. As shown by Table
        13, the market shares would not change materially relative to Telenet’s footprint if
        the geographic market is defined as a) Flanders or b) Flanders and Brussels Capital
        Region together and all. The combined shares would be significantly lower if the
        geographic market share was defined as c) Belgium.
        Table 13 Market shares in the market for the wholesale supply of FTA/basic pay TV channels under
        different geographic market definitions by value (2019)
          Company        Market share          Market share in Flemish and Brussels               Market share
                          in Flanders                Capital regions together                         Belgium
         Telenet             [5-10]%                           [5-10]%                                [5-10]%
         DPG                [20-30]%                          [20-30]%                               [10-20]%
         Media
         Combined           [30-40]%                          [30-40]%                               [20-30]%
         Others             [60-70]%                          [60-70]%                               [70-80]%
         Total                100%                              100%                                   100%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.c)
(145) If the market was defined more narrowly and separate markets were defined based
        on genre, the market shares in the general entertainment genre (i.e. in the market for
        the wholesale supply of FTA/basic pay general entertainment TV channels) would
        not be materially different from those indicated in Table 12 (for Telenet’s footprint)
        and Table 13 (for Flanders, the Flemish and Brussels Capital regions together and
        Belgium). This is because the Notifying Parties are either not present in other genres
        (news, sports or the residual “other” genres 128) or have minimal viewership/presence
        (youth/kids genre). 129
5.2.4. Retail supply of AV services
5.2.4.1. Overall market
(146) The Parties’ and their main competitors’ shares in the overall market for the retail
        supply of AV services in Telenet’s footprint are included in Table 14 below. Based
        on the Parties’ business plan, in 2023 the JV is expected to have a share of around
        [5-10]% by value, which is also indicated in Table 14.
128 The category of “other” genre consists primarily of music channels, see Notifying Parties response to the
    Commission’s Request for Information RFI 12, question 1.c)
129 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.c)
                                                            36
 ---pagebreak---         Table 14 Market shares in the market for the retail supply of AV services in Telenet’s footprint by value
                                                         Market share 2019                  Market share 2023
         Telenet                                            [50-60]%                             [40-50]%
         DPG Media                                            [0-5]%                               [0-5]%
         JV                                                      -                                [5-10]%
         Combined                                           [50-60]%                             [50-60]%
         Proximus                                           [20-30]%                             [10-20]%
         Orange                                               [0-5]%                               [0-5]%
         Netflix                                            [10-20]%                             [10-20]%
         Amazon                                               [0-5]%                               [0-5]%
         Disney                                               [0-5]%                               [0-5]%
         Other                                               [5-10]%                              [5-10]%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 8
5.2.4.2. Alternative market definitions
(147) If the market was defined more narrowly and separate markets were defined based
        on FTA AV and pay AV services, the Parties would only be active in the market for
        the retail supply of pay AV services. Their market share on this market would not be
        materially different from those indicated in Table 14 as only the French language
        public broadcaster supplies AV services on an FTA basis 130 and its share in the
        Telenet’s footprint (which largely corresponds to the Dutch speaking parts of
        Belgium) is necessarily modest.
(148) If the market for the retail supply of pay AV services was further segmented and
        separate markets were defined for basic pay AV and premium pay AV services, the
        resulting market shares for both markets are included in Table 15 below.
        Table 15 - Market shares in the market for the retail supply of basic pay and premium pay AV services in
        Telenet’s footprint (by value)
                                       Basic pay retail AV services            Premium pay retail AV services
                                                     2019                                     2019
         Telenet                                   [70-80]%                                [40-50]%
         DPG Media (Stievie)                        [0-5]%                                      -
         Combined                                  [70-80]%                                [40-50]%
         Proximus                                  [20-30]%                                 [5-10]%
         Orange                                     [0-5]%                                   [0-5]%
         Pay Sat                                    [0-5]%                                   [0-5]%
         Netflix                                    [0-5]%                                 [30-40]%
         Other OTT (Apple                           [0-5]%                                  [5-10]%
         TV, Amazon Prime)
         Total                                       100%                                     100%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.d)
(149) The Commission notes that currently DPG Media’s presence in basic pay retail AV
        services (and indeed in any retail AV services) is limited to Stievie, an OTT platform
        with very limited viewership, which will be discontinued as of 1 September 2020. 131
        Thus, the horizontal overlap results entirely from the JV, which is not indicated in
        Table 15 in the absence of a forecast taking these narrower markets as a basis. The
        Commission also notes that the market shares assume that Netflix’s SVOD service is
        part of the premium pay retail AV services market, although this is not entirely clear
        on the basis of the market investigation as some respondents consider SVOD
130 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.d)
131 Form CO, paragraph 372.
                                                            37
 ---pagebreak---         services as a substitute for even basic pay retail AV services. 132 The same applies to
        the JV’s SVOD service.
(150) If the market for the retail supply of pay AV services was further segmented and
        separate markets were defined for linear and non-linear (e.g.SVOD) retail AV
        services, the market shares in the market for the retail supply of linear AV services
        would be similar to the shares in basic pay retail AV services in Table 15. 133 The
        Commission notes again that this assumes that non-linear SVOD services do not
        compete with basic pay retail AV services, which is not certain. The market for the
        retail supply of non-linear AV services in Telenet’s footprint is indicated in Table 16
        below.
        Table 16 - Market shares in the market for the retail supply of non-linear AV services in Telenet’s
        footprint (by value)
                          Company                                       Market share, 2019
          Telenet                                                             [30-40]%
          DPG Media (VTMGO)                                                     [0-5]%
          Combined                                                            [30-40]%
          Netflix                                                              [50-60]%
          Amazon                                                               [5-10]%
          Apple TV+                                                             [0-5]%
          VRTNU                                                                 [0-5]%
          Total                                                                  100%
        Source: Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.d)
(151) As regards Table 16, the Commission notes that the JV will add to the Parties’
        market shares by 2023, even though this is not indicated in the table due to the
        absence of a forecast taking this hypothetical market as a basis. However, given that
        the size of this market is much smaller than the overall retail AV services market (in
        Telenet’s footprint), the increment brought about by the JV is will be significantly
        more than [5-10]% by 2023 if the business plan is realized.
5.2.5. Retail supply of fixed internet services
5.2.5.1. Overall market
(152) The Parties’ and their main competitors’ shares in the overall market for the retail
        supply of fixed internat services in Belgium is indicated in Table 17 below. These
        are volume shares (i.e. share of subscribers) but the Parties estimate that the value
        based market shares (i.e. market shares based on revenues) for the retail supply of
        fixed internet access in Belgium are similar to the market shares based on
        subscribers 134
132 See Section 4.6.
133 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1.d)
134 Form CO, paragraph 441.
                                                            38
 ---pagebreak---         Table 17 Market shares in the market for the retail supply of fixed internet access services in Belgium
        by volume
                          Company                                        Market share, 2019
         Telenet                                                                [30-40]%
         Proximus                                                               [40-50]%
         Orange                                                                  [5-10]%
         Voo                                                                    [10-20]%
         Other                                                                   [0-5]%
         Total                                                                    100%
        Source: Form CO Table 6.1.22
5.2.5.2. Alternative market definitions
(153) As discussed in Section 4.7., in the case of retail supply of fixed internet services,
        potentially separate markets could be distinguished based on product type
        (narrowband, broadband, dedicated line), distribution technology (xDSL, cable or
        fibre) and customer types (residential, small businesses, large businesses, public
        authorities).
(154) Of these potential narrower markets, the Notifying Parties have only been able to
        submit market shares for the broadband segment (product type), the cable segment
        (distribution technology), and the residential and business customer segments
        (customer type). These market shares are indicated in Tables 18 and 19 below.
        Table 18 Market shares in the market for the retail supply of broadband internet access services in
        Belgium and in the market for the retail supply of fixed internet via cable in Belgium (by volume)
                    Company                     Broadband 2019                         Cable 2019
                                                   (Belgium)                            (Belgium)
         Telenet                                   [30-40]%                             [70-80]%
         Proximus                                   [40-50]%                              [0-5]%
         Orange                                      [5-10]%                             [10-20]%
         VOO                                        [10-20]%                             [10-20]%
         Other                                        [0-5]%                              [0-5]%
        Source: Form CO, table 6.1.23
        Table 19 Market shares in the market for the retail supply of fixed internet access services to
        residential customers and business customers in Belgium (2019 by volume)
                    Company                 Residential customers 2019            Business customers 2019
                                                       (Belgium)                           (Belgium)
         Telenet                                       [30-40]%                            [50-60]%
         Proximus                                       [40-50]%                            [30-40]%
         Orange                                          [5-10]%                             [5-10]%
         VOO                                              [0-5]%                              [0-5]%
         Other                                          [10-20]%                            [10-20]%
        Source: Form CO, tables 6.1.28 and 6.1.29
5.2.6. Retail supply of mobile telecommunication services
(155) The Parties’ and their main competitors’ shares in the overall market for the retail
        supply of mobile telecommunications services in Belgium is indicated in Table 20
        below.
                                                              39
 ---pagebreak---         Table 20 – Market shares in the market for the retail supply of mobile telecommunication services in
        Belgium (by volume and by value)
                       Company                      Market share 2019 –            Market share 2019 – Value
                                                             Volume
          Telenet (including wholesale) 135                 [20-30]%                          [20-30]%
          DPG Media                                           [0-5]%                           [0-5]%
          Combined                                          [30-40]%                          [20-30]%
          Proximus                                          [30-40]%                          [40-50]%
          Orange                                            [20-30]%                          [20-30]%
          VOO                                                 [0-5]%                           [0-5]%
        Source: Form CO, tables 6.1.34
5.2.7. Retail supply of multiple play bundles
(156) Table 21 below contains the market shares, in Belgium, in the potential markets for
        i) all multiplay bundles ii) only fix bundles (i.e. double-play and triple play bundles
        together) and iii) fixed-mobile convergence bundles (quad-play bundles).
        Table 21 – Market shares in the potential markets for different multiplay bundles in Belgium (by
        volume, 2019)
          Company         All bundles               Fix bundles only              4-play (3P+M) bundles
                          Market share             Market share 2019                Market share (2019
                               2019
          Telenet           [30-40]%                     [30-40]%                         [40-50]%
          Proximus          [40-50]%                     [40-50]%                         [50-60]%
          Orange             [5-10]%                      [0-5]%                            [0-5]%
          VOO               [10-20]%                     [10-20]%                          [5-10]%
        Form CO, figures 6.1.e and 6.1 f, Notifying Parties response to the Commission’s Request for Information RFI
        12, question 1.e)
5.2.8. Supply of advertising (TV, radio and online advertising markets)
5.2.8.1. TV advertising
        Overall market
(157) The Parties’ and their main competitors’ shares in the overall market for the sale of
        TV advertising space in Flanders is indicated in Table 22 below. This overall market
        includes the sale of advertsing space from AVOD services.
        Table 22 Market share for the sale of TV advertising space in
        Flanders, including AVOD (2019)
                    Company                         Market share
          Telenet                                      [20-30]%
          DPG Media                                    [60-70]%
          Combined                                    [90-100]%
          VAR                                           [5-10]%
          Transfer                                       [0-5]%
        Source: Notifying Parties response to the Commission’s Request for
        Information RFI 12, question 1 f)
        Alternative market definitions
(158) If the product market is unchanged but but the geographic scope of the market was
        defined as a) Flanders and Brussels Capital Region together, the market shares
135 “Other Telenet Wholesale” refers to the Mobile Virtual Network Operators (MVNOs), and more precisely
    LycaMobile, Destiny (Fuzer), Vectone, Effortel, United Telecom, Tellink and IP Nexia.
                                                               40
 ---pagebreak---         indicated in Table 22 would not change materially as in both cases the market would
        roughly correspond to the Dutch linguistic area and advertising on Dutch language
        TV channels.
(159) If the product market is defined more narrowly such that the sale of advertising
        space on AVOD services is excluded, the resulting market shares are included in
        Table 23. As shown by Table 23, the market shares do not change materially relative
        to the overall market.
        Table 23 Market share for the sale of TV advertising space in
        Flanders, excluding AVOD (2019)
                    Company                         Market share
          Telenet                                     [20-30]%
          DPG Media                                   [60-70]%
          Combined                                   [90-100]%
          VAR                                          [5-10]%
          Transfer                                      [0-5]%
        Source: Notifying Parties response to the Commission’s Request for
        Information RFI 12, question 1 f)
(160) The product market could also be further segmented on the basis of FTA or pay TV
        channels, i.e. separate markets could be defined for the sale of TV advertising space
        on FTA channels and for the sale of advertising space on pay TV channels. If this
        segmentation is applied, the market for the sale of advertising space on pay TV
        channels is not significant as the content is financed mainly by subscription/license
        fees. 136 For example the Parties submitted that gross spending on advertsing space
        on pay TV channels amount to less than [Parties’ advertising spend] compared to the
        total spend on FTA advertising channels. 137 By contrast FTA channels are mainly
        financed through advertising and thus advertisement spent on these channels is much
        greater. It follows that the market shares on the market for the sale of TV advertising
        space on FTA channels is not materially different from the shares included in Table
        23 (excuding AVOD) and in Table 22 (including AVOD).
(161) The market shares on the alternative product markets would not change materially if
        the geographic scope of the market was Flanders and the Brussels Capital Region
        together 138 as in both cases the market would roughly correspond to the Dutch
        linguistic area and advertising on Dutch language TV channels.
(162) Thus under all possible market definitions the Parties’ combined market share is
        very high.
5.2.8.2. Radio advertising
(163) Table 24 below presents the market shares on the market for the sale of radio
        advertising in Flanders.
136 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1 f)
137 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1 f)
138 Notifying Parties response to the Commission’s Request for Information RFI 12, question 1 f)
                                                             41
 ---pagebreak---         Table 24 Market share for the sale of radio advertising space in
        Flanders
                    Company                          Market share
          DPG Media                                    [40-50]%
          VAR                                          [50-60]%
          IP Belgium                                    [5-10]%
        Source: Notifying Parties response to the Commission’s Request for
        Information RFI 12, question 1 f)
(164) If the product market is unchanged but but the geographic scope of the market was
        defined as a) Flanders and Brussels Capital Region together, the market shares
        indicated in Table 24 would not change materially as in both cases the market would
        roughly correspond to the Dutch linguistic area in Belgum and advertising on Dutch
        language radio channels.
5.2.8.3. Online advertising
(165) Table 25 below presents the market shares on the market for the sale of online
        advertising in Flanders.
        Table 25 Market shares in the market for online advertising in
        Flanders
                     Company                    Market share for the sale of
                                                 advertising space on Dutch
                                                    language websites in
                                                       Belgium (2019)
         DPG Media                                          [5-10]%
         Telenet                                             [0-5]%
         Combined                                         [10-20]%
         Google                                            [40-50]%
         Facebook                                          [10-20]%
         Other                                             [20-30]%
        Source Form CO, tables 6.1.39-40.
(166) If the product market is unchanged but the geographic scope of the market was
        defined as a) Flanders and Brussels Capital Region together, the market shares
        indicated in Table 25 would not change materially as in both cases the market would
        roughly correspond to the Dutch linguistic area in Belgium and advertising on Dutch
        language websites.
5.3.    Horizontal assessment
5.3.1. Introduction
(167) Article 2 of the Merger Regulation requires the Commission to examine whether
        notified concentrations are compatible with the internal market, by assessing whether
        they would significantly impede effective competition in the internal market or in a
        substantial part of it, in particular through the creation or strengthening of a
        dominant position.
(168) The Commission Guidelines on the assessment of horizontal mergers under the
        Merger Regulation (the "Horizontal Merger Guidelines") distinguish between two
        main ways in which mergers between actual or potential competitors on the same
        relevant market may significantly impede effective competition, namely non-
        coordinated effects and coordinated effects.
(169) Non-coordinated effects may significantly impede effective competition by
        eliminating the competitive constraint imposed by each merging party on the other,
                                                               42
 ---pagebreak---          as a result of which the Integrated Company would have increased market power
         without resorting to coordinated behaviour. The Horizontal Merger Guidelines list a
         number of factors 139 which may influence whether or not significant non-
         coordinated effects are likely to result from a merger, such as the large market shares
         of the merging firms, the fact that the merging firms are close competitors, the
         limited possibilities for customers to switch suppliers, or the fact that the merger
         would eliminate an important competitive force. Not all of these factors need to be
         present for significant non-coordinated effects to be likely. The list of factors, any
         one of which is not necessarily decisive, is also not an exhaustive list.
5.3.2. Horizontal non-coordinated effects in the production of AV content (demand side) 140
(170) The Notifying Parties’ activities and those of the JV significantly overlap on the
         demand side of the market. The Parties have a 2019 combined market share by value
         of [50-60]% (Liberty Global: [20-30]%; DPG Media: [30-40]%), and expect to have
         a in 2023 combined market share by value of [60-70]% (Liberty Global: [10-20]%;
         DPG Media: [30-40]%; JV: [5-10]%), in the acquisition of Dutch-language AV
         content production in Belgium.
5.3.2.1. Notifying Parties’ view
(171) The Notifying Parties submit that the Transaction does not raise horizontal
         competition concerns on the basis of any plausible definition of the relevant product
         and geographic market for the reasons set out below. 141
(172) First, the Notifying Parties submit that the JV will have modest activities on the
         demand side of the AV content production market. Its market share would amount to
         approximately [5-10]% in 2023. Therefore, the scope of the agreements put in place
         regarding collaboration between the JV and each of its parents regarding AV content
         production would also be necessarily limited. In addition, [JV’s commercial
         strategy].
(173) Second, the Notifying Parties claim that Telenet and DPG Media’s activities on the
         AV content production market will continue to take place outside of the JV post-
         Transaction, and that they will continue to be active as independent purchasers of
         AV content production services.
(174) Third, the Notifying Parties submit that there will continue to be strong buyers on
         the demand side of the market, such as VRT, Proximus and international providers
         like Netflix.
139 Horizontal Merger Guidelines, paras 24 et seqq.
140 With regard to horizontal coordinated effects, the Notifying Parties claim that the Transaction will not
    give rise to any concerns because of the market conditions on the demand side of the market for the
    production of AV content, namely (i) heterogeneous services, (ii) confidential and bilateral negotiations of
    AV production agreements, (iii) entry of new buyers, (iv) presence of strong competing buyers, and (v)
    countervailing bargaining power of some AV production companies which are part of larger international
    AV production groups (Form CO, paragraph 600). The Commission considers that coordinated effects on
    this market can be excluded for similar arguments as why cooperative effects are excluded in this market
    in section 5.5.
141 Form CO, paragraphs 594-598.
                                                        43
 ---pagebreak--- 5.3.2.2. Commission’s assessment
(175) The Commission considers that the Transaction does not give rise to serious doubts
        as to its compatibility with the internal market as a result of horizontal effects on the
        market for the production of AV content (demand side), or any possible narrower
        affected markets, regardless of precise market definition, for the following reasons.
(176) First, the JV will be a new additional purchaser of AV content production. In 2023, it
        will only represent [5-10]% of the demand (by value) in the market for the
        production of Dutch-language AV content in Belgium. Therefore, the merger
        specific change brought about by the Transaction will be limited. 142
(177) Second, the results of the market investigation indicated that the JV would have a
        positive impact on the market for the production of AV content by increasing the
        demand for AV content. 143 One content provider contended that “The whole sector,
        especially the producers, […] are welcoming this JV. […] Non-linear platforms are
        growing. International players take over big chunks of the eyeball-market.
        Something has to be done locally. The only way to stand up locally is by uniting
        forces. That is what Telenet and DPG are doing.” Another one claimed that “If the
        JV operates completely independently, there will be no increase in bargaining
        power. The buyer would provide us with an extra opportunity and the sum of
        windows (JV + on air, in negotiation with producer) could even enable more
        expensive (mainly scripted) content.”Another respondent indicated that it hoped the
        Transaction would create more capacity to purchase AV content and a competitive
        platform that will attract the viewers.
(178) Third, both Telenet and DPG Media will retain activities on the demand side of the
        market for AV content production, and will continue to be active as independent
        purchasers of AV content production services post-Transaction (except for the pay
        TV and SVOD windows – see paragraph 180 below). Consequently, the Parties’
        (and the JV’s) market power cannot be simply aggregated.
(179) Fourth, the Commission notes that strong alternative purchasers will remain active
        on the demand side of the market. Indeed, VRT currently represents [40-50]% of the
        demand (by value) in the market for the production of AV content in Flanders.
        VRT’s market share and thus its purchasing power remains strong under any of the
        alternative market definitions discussed in Section 5.1 and Section 5.2.1. In addition,
        the market shares provided in Section 5.2.1 do not take into account the AV content
        production spend of Proximus, a number of smaller Flemish/Dutch language
        broadcasters active in Belgium and international OTT players such as Netflix (that
        are obliged to invest in AV productions on the basis of the Flemish Media
        Decree). 144
(180) The Commission notes that most respondents to the market investigation indicated
        that post-Transaction, the bargaining power of the Parties on the demand side of the
        market for the production of AV content will significantly change vis-à-vis the
142 As the JV will purchase scripted content, the increment would be larger if the market was defined as the
    market for the acquisition of scripted AV content production in Flanders. However, even in that case the
    market share increase is limited in size, gradual and only expected and not guaranteed.
143 Responses to questionnaire Q1 to content providers, questions 17.1 and 29.
144 Form CO, paragraph 295.
                                                           44
 ---pagebreak---          supply side of that same market. 145 In this respect, the Commission considers it
         important that the JV and the Notifiying Parties will be active as independent
         purchasers of AV content production services post-Transaction. 146 The only situation
         where there may be a joint acquisition of AV content is in the situation where the JV
         will acquire both pay TV and SVOD rights and sublicense, at arm’s length, the pay
         TV rights to Telenet. 147 Historically these two exhibition windows have been offered
         together. However, to the extent that this joint acquisition of rights could potentially
         lead to increased bargaining power vis-à-vis content providers, the content providers
         could debundle the two exhibition windows to mitigate any potential increased
         bargaining power of the Parties. 148
(181) In light of the above, the Commission concludes that the Transaction does not give
         rise to serious doubts as to its compatibility with the internal market as a result of
         horizontal effects on the market for the production of AV content in Flanders
         (demand side) or on any other alternative product or geographic market discussed in
         relation to AV content production in Section 5.1. and Section 5.2.1.
5.3.3. Horizontal non-coordinated effects in the market for the licensing of broadcasting
         rights of pre-existing individual AV content (demand side) 149
(182) The Notifying Parties’ activities and those of the JV overlap on the demand side of
         the market. The Parties have a 2019 combined market share by value of [50-60]%
         (Liberty Global: [40-50]%; DPG Media: [10-20]%), and expect to have a in 2023
         combined market share by value of [50-60]% (Liberty Global: [20-30]%; DPG
         Media: [10-20]%; JV: [10-20]%), in the acquisition of broadcasting rights of pre-
         existing individual AV content for a Dutch-language audience in Belgium.
5.3.3.1. Notifying Parties’ view
(183) The Notifying Parties submit that the Transaction does not raise horizontal
         competition concerns on the basis of any plausible definition of the relevant product
         and geographic market for the reasons set out below. 150
(184) First, the Notifying Parties claim that Telenet’s market share of around [40-50]% on
         the demand side is for more than [Parties’ sports content spend] determined by its
         spend on the acquisition of sports content. The JV will not offer any sports content.
145 Responses to questionnaires Q1 to content providers, question 17; and Q2 to AV market participants,
    questions 40 and 40.1.
146 Cooperative effects are assessed in Section 5.5.
147 Form CO, paragraph 610.
148 Normally, content providers may also be interested in joint licensing. However, under the assumption that
    the buyers’ bargaining power increases because of joint purchasing, debundling would help counter such
    pressure.
149 With regard to horizontal coordinated effects, the Notifying Parties claim that the Transaction will not
    give rise to any concerns because of the market conditions on the demand side of the market for the
    licensing of individual AV content, namely (i) heterogeneous products, (ii) confidential and bilateral
    negotiations of AV content licenses, (iii) entry of new buyers, (iv) presence of strong competing buyers,
    and (v) strong bargaining power of licensors (in particular major Hollywood studios).(Form CO,
    paragraph 616). The Commission considers that coordinated effects on this market can be excluded for
    similar arguments as why cooperative effects are excluded in this market in section 5.5.
150 Form CO, paragraphs 614-615.
                                                          45
 ---pagebreak---         Therefore, the Transaction will not change anything vis-à-vis providers of sports
        content.
(185) Second, the Notifying Parties submit that (i) several competitors (such as VRT and
        Proximus) will continue to be strong buyers of individual AV content in Belgium,
        and (ii) since 2015, additional buyers of individual content have entered or expanded
        their activities in the market, including Netflix and Amazon, which negotiate multi-
        country basis, and regularly outbid local players such as Telenet for the acquisition
        of rights in film and series.
(186) Third, the Notifying Parties claim that the licensors of AV content will continue to
        have strong bargaining power as far as premium content is concerned. For instance,
        the Belgian (let alone the Flemish) market would not have any real significance for
        the major Hollywood studios, while retail suppliers of AV services would be very
        keen on securing attractive content such as the movies and series offered by the
        Hollywood majors.
(187) Fourth, the Notifying Parties submit that the Transaction will not lead to increased
        bargaining power of the Parties or the JV on the market, given that (i) they will
        continue to be active as separate and independent purchasers of individual AV
        content post-Transaction, and the Parties will not overlap in the exhibition windows
        in which the JV will be acquiring individual AV content (i.e. the SVOD and pay TV
        windows); (ii) while rights in pay TV and SVOD windows are generally negotiated
        together, any concerns regarding the bundling of negotiations for these rights are not
        merger-specific since Telenet already bundles its purchases in this respect and DPG
        Media is not active in these windows; and (iii) licenses for the FTA TV window and
        the pay TV/SVOD windows are generally negotiated separately, and rights in the
        FTA TV window will be acquired by the parents whereas rights in the SVOD and
        pay TV windows will be acquired by the JV.
5.3.3.2. Commission’s assessment
(188) The Commission considers that the Transaction does not give rise to serious doubts
        as to its compatibility with the internal market as a result of horizontal effects on the
        market for the licensing of broadcasting rights for pre-existing individual AV
        content (demand side), or on any of the possible alternative affected markets
        discussed in Sections 5.1 and 5.2.2., for the following reasons.
(189) First, the JV will be a new licensee of individual AV content. In 2023 it will only
        represent [10-20]% of the demand (by value) in the market for the licensing of
        Dutch-language AV content in Belgium. Therefore, the merger specific increment
        brought about by the Transaction will be limited. 151
(190) Second, both Telenet and DPG Media will retain activities on the demand side of the
        market for the licensing of individual AV content, and will continue to be active as
151 As the JV will purchase mainly scripted content, film or content in the SVOD window, if the market was
    defined more narrowly along these lines (i.e. market for the licensing of broadcasting rights for scripted
    AV content (demand side); market for the licensing of broadcasting rights for film content (demand side);
    market for the licensing of broadcasting rights for content in the SVOD window (demand side)) the
    increment would be larger. However, even in that case the market share increase is limited in size, gradual
    and only expected and not guaranteed. In any event the parents and the JV will remain independent
    purchasers. (see paragraph 191)
                                                         46
 ---pagebreak---          independent licensees of individual AV content post-Transaction. 152 The only
         situation where there may be a joint licensing of AV content is in the situation where
         the JV will acquire both pay TV and SVOD rights and sublicense, at arm’s length,
         the pay TV rights to Telenet. 153 Historically these two exhibition windows have been
         offered together. However, to the extent that this joint acquisition of rights could
         potentially lead to increased bargaining power vis-à-vis content providers, the
         content providers could debundle the two exhibition windows to mitigate any
         potential increased bargaining power of the Parties. 154
(191) Third, the Commission notes that strong alternative licensees will remain active on
         the demand side of the market. Indeed, Proximus and the international OTT players
         respectively represent [10-20]% and [10-20]% of the demand (by value) in the
         market for the licensing of broadcasting rights for individual pre-exiting content in
         Flanders. The international OTT players are expected to represent an increasing
         share of the demand in the coming years ([20-30]% in 2023). These players will be
         strong purchasers regardless of which of the alternative market definition discussed
         in Sections 5.1 and 5.2.2 is used.
(192) In light of the above considerations, the Commission considers that the Transaction
         does not give rise to serious doubts as to its compatibility with the internal market as
         a result of horizontal effects on the market for the licensing of individual AV content
         (demand side), or any possible narrower affected markets, regardless of its precise
         geographic scope.
5.3.4. Horizontal non-coordinated effects in the retail supply of AV services 155
         The Notifying Parties and the JV’s activities overlap in the overall market for the
         retail supply of AV services (including SVOD services) in Telenet’s footprint and in
         a number of more narrowly defined product markets listed in Section 5.1. The
         geographic scope of all of these narrower product markets is also Telenet’s footprint.
         On the overall retail AV services market, the Parties have a 2019 combined market
         share by value of [50-60]% (Liberty Global: [50-60]%; DPG Media: [0-5]%) and
         expect to have a combined market share of [50-60]% by 2023 (Liberty Global: [40-
         50]%, JV [5-10]% DPG Media [0-5]%). When considering market shares by
         volume, the Parties have a 2019 combined market share of [40-50]% (Liberty
         Global: [40-50]%; DPG Media: [0-5]%), and expect to have in 2023 a combined
         market share of [30-40]% (Liberty Global: [20-30]%; DPG Media: [0-5]%; JV: [10-
         20]%), in the retail supply of AV services in Telenet’s footprint. 156
152 Cooperative effects are assessed in Section 5.5.
153 Form CO, paragraph 610.
154 Normally, content providers may also be interested in joint licensing. However, under the assumption that
    the buyers’ bargaining power increases because of joint purchasing, debundling would help counter such
    pressure.
155 The Notifying Parties do not provide any specific views relating to horizontal coordinated effects in the
    retail supply of AV services. The Commission considers that that coordinated effects on this market can
    be excluded for similar arguments as why cooperative effects are excluded in this market in section 5.5
156 Excluding AVOD services but including SVOD services. The Commission notes that the Notifying
    Parties’ and the JV’s activities do not overlap if SVOD services were excluded, as only Telenet is active
    in that market. However, based on Section 4.6. both AVOD and SVOD services are part of the overall
    retail AV services market.
                                                         47
 ---pagebreak--- 5.3.4.1. Notifying Parties’ view
(193) The Notifying Parties submit that the Transaction does not raise horizontal
         competition concerns on the basis of any plausible definition of the relevant product
         and geographic market for the reasons set out below. 157
(194) First, the Notifying Parties submit that Telenet and DPG Media are not actual
         competitors in the market for the retail supply of AV services because DPG Media is
         today not active in the market, but that DPG Media could be regarded as a potential
         competitor in respect of the retail provision of SVOD services since it has
         contemplated the launch of its own SVOD service.
(195) Second, the merger with a potential competitor would not have any significant anti-
         competitive effects, given that (i) in case of a standalone market entry, it would take
         DPG Media much longer to acquire the necessary scope and scale to become an
         effective competitive constraint, and (ii) there will be a sufficient number of actual
         or potential competitors, including Netflix, Amazon Prime, Apple+, Disney+, HBO
         Max, with far deeper pockets who will exercise significant competitive pressure on
         the JV post-Transaction.
5.3.4.2. Commission’s assessment
(196) The Commission considers that the Transaction does not give rise to serious doubts
         as to its compatibility with the internal market as a result of horizontal effects on the
         market for the retail supply of AV services in Telenet’s footprint, or any possible
         narrower affected markets, for the following reasons.
(197) First, the JV will be a new retail supplier of AV services. In 2023 it will only have a
         market share of [5-10]% (by value) in the overall market for the retail supply of AV
         services in Telenet’s footprint. Therefore, the merger specific increment of the
         overlap brought about by the Transaction will be limited. 158
(198) Second, both Telenet and DPG Media will retain activities in the overall market for
         the supply of AV services, but DPG Media’s activities will remain extremely
         limited. Indeed, as it will discontinue its linear FTA/basic pay OTT service “Stievie”
         as of 1 September 2020, DPG Media will only be active through its AVOD offer
         VTMGO.
(199) Third, the Commission notes that strong players will remain active in the market for
         the supply of AV services. Indeed, Proximus and international OTT players (i.e.,
         Netflix and Amazon) have respective market shares of [20-30]% and [10-20]% (by
         value) in the overall market for the retail supply of AV services in Telenet’s
         footprint. The latter are expected to represent an increasing share of the supply in the
         coming years ([20-30]% in 2023). In addition, Disney has announced that it will
157 Form CO, paragraphs 630-635 .
158 As the JV’s service will be non-linear, if the market is defined as the market for the retail supply of non-
    linear AV services, the increment will be higher. Likewise if the market is defined as the market for the
    retail supply of premium pay or basic pay AV services, the increment will be higher depending on
    whether SVOD service is a substitute of premium pay or basic pay retail AV services. However, even in
    that case the market share increase is limited in size, gradual and only expected and not guaranteed.
                                                            48
 ---pagebreak---         launch its SVOD service “Disney+” in Belgium on 15 September 2020. 159 These
        players are strong retail AV services suppliers under any of the alternative market
        definitions discussed in Section 5.1. and Section 5.2.4. In addition, their market
        shares on some of these narrower markets (non-linear retail AV services, or premium
        pay or basic pay retail services depending on whether SVOD is a substitute of
        premium pay or basic pay retail AV services) is much higher than [20-30]% or [10-
        20]%.
(200) In light of the above consideration, the Commission considers that the Transaction
        does not give rise to serious doubts as to its compatibility with the internal market as
        a result of horizontal effects on the market for the retail supply of AV services in
        Telenet’s footprint, or any possible narrower affected markets.
5.4.    Non-horizontal assessment
5.4.1. Introduction
(201) A merger between companies which operate at different levels of the supply chain
        may significantly impede effective competition if such merger gives rise to
        foreclosure. 160 Foreclosure occurs where actual or potential competitors' access to
        supplies or markets is hampered or eliminated as a result of the merger, thereby
        reducing those companies' ability and/or incentive to compete. 161 Such foreclosure
        may discourage entry or expansion of competitors or encourage their exit. 162
(202) The Non-Horizontal Merger Guidelines distinguishes between two forms of vertical
        foreclosure. Input foreclosure occurs where the merger is likely to raise the costs of
        downstream competitors by restricting their access to an important input. Customer
        foreclosure occurs where the merger is likely to foreclose upstream competitors by
        restricting their access to a sufficient customer base. 163
(203) In addition, conglomerate mergers are mergers between firms that are in a
        relationship which is neither purely horizontal (as competitors in the same relevant
        market) nor vertical (as supplier and customer). In practice, the focus is on mergers
        between companies that are active in closely related markets (e.g. mergers involving
        suppliers of complementary products or of products which belong to a range of
        products that is generally purchased by the same set of customers for the same end
        use). 164
5.4.1.1. Input foreclosure
(204) Pursuant to the Non-Horizontal Merger Guidelines, input foreclosure arises where,
        post-merger, the new entity would be likely to restrict access to the products or
        services that it would have otherwise supplied absent the merger, thereby raising its
159 See Disney’s website : https://preview.disneyplus.com/lu?lang=fr-lu&cid=DTCI-Synergy-DDN-Site-
    Awareness-Announce-BE-DisneyPlus-DisneyPlus-FR-NavLink-fr.disney.be_Announcement_navbar-NA
160 Non-Horizontal Merger Guidelines, paragraphs 17-18.
161 Non-Horizontal Merger Guidelines, paragraph 18.
162 Non-Horizontal Merger Guidelines, paragraph 29.
163 Non-Horizontal Merger Guidelines, paragraph 30.
164 Non-Horizontal Merger Guidelines, paragraph 91.
                                                      49
 ---pagebreak---         downstream rivals' costs by making it harder for them to obtain supplies of the input
        under similar prices and conditions as absent the merger. 165
(205) For input foreclosure to be a concern, the vertically integrated firm should have a
        significant degree of market power in the upstream market. Only when the merged
        firm has such a significant degree of market power, can it be expected that it will
        significantly influence the conditions of competition in the upstream market and
        thus, possibly, the prices and supply conditions in the downstream market. 166
(206) In assessing the likelihood of an anticompetitive input foreclosure scenario, the
        Commission examines, first, whether the merged entity would have, post-merger, the
        ability to substantially foreclose access to inputs, second, whether it would have the
        incentive to do so, and third, whether a foreclosure strategy would have a significant
        detrimental effect on competition downstream. 167
5.4.1.2. Customer foreclosure
(207) Pursuant to the Non-Horizontal Merger Guidelines, customer foreclosure may occur
        when a supplier integrates with an important customer in the downstream market and
        because of this downstream presence, the merged entity may foreclose access to a
        sufficient customer base to its actual or potential rivals in the upstream market (the
        input market) and reduce their ability or incentive to compete, which in turn, may
        raise downstream rivals' costs by making it harder for them to obtain supplies of the
        input under similar prices and conditions as absent the merger. This may allow the
        merged entity profitably to establish higher prices on the downstream market. 168
(208) For customer foreclosure to be a concern, a vertical merger must involve a company
        which is an important customer with a significant degree of market power in the
        downstream market. If, on the contrary, there is a sufficiently large customer base, at
        present or in the future, that is likely to turn to independent suppliers, the
        Commission is unlikely to raise competition concerns on that ground. 169
(209) In assessing the likelihood of an anticompetitive customer foreclosure scenario, the
        Commission examines, first, whether the merged entity would have the ability to
        foreclose access to downstream markets by reducing its purchases from its upstream
        rivals, second, whether it would have the incentive to reduce its purchases upstream,
        and third, whether a foreclosure strategy would have a significant detrimental effect
        on consumers in the downstream market. 170
5.4.1.3. Conglomerate effects
(210) According to the Non-Horizontal Merger Guidelines, in most circumstances,
        conglomerate mergers do not lead to competition problems. 171
165 Non-Horizontal Merger Guidelines, paragraph 31.
166 Non-Horizontal Merger Guidelines, paragraph 35.
167 Non-Horizontal Merger Guidelines, paragraph 32.
168 Non-Horizontal Merger Guidelines, paragraph 58.
169 Non-Horizontal Merger Guidelines, paragraph 61.
170 Non-Horizontal Merger Guidelines, paragraph 59.
171 Non-Horizontal Merger Guidelines, paragraph 92.
                                                    50
 ---pagebreak--- (211) However, foreclosure effects may arise when the combination of products in related
        markets may confer on the merged entity the ability and incentive to leverage a
        strong market position from one market to another closely related market by means
        of tying or bundling or other exclusionary practices. The Non-Horizontal Merger
        Guidelines distinguish between bundling, which usually refers to the way products
        are offered and priced by the merged entity 172 and tying, usually referring to
        situations where customers that purchase one good (the tying good) are required to
        also purchase another good from the producer (the tied good).
(212) Tying and bundling as such are common practices that often have no anticompetitive
        consequences. Nevertheless, in certain circumstances, these practices may lead to a
        reduction in actual or potential rivals’ ability or incentive to compete. Foreclosure
        may also take more subtle forms, such as the degradation of the quality of the
        standalone product. 173 This may reduce the competitive pressure on the merged
        entity allowing it to increase prices. 174
(213) In assessing the likelihood of such a scenario, the Commission examines, first,
        whether the merged firm would have the ability to foreclose its rivals, 175 second,
        whether it would have the economic incentive to do so 176 and, third, whether a
        foreclosure strategy would have a significant detrimental effect on competition, thus
        causing harm to consumers. 177 In practice, these factors are often examined together
        as they are closely intertwined.
(214) In order to be able to foreclose competitors, the merged entity must have a
        significant degree of market power, which does not necessarily amount to
        dominance, in one of the markets concerned. The effects of bundling or tying can
        only be expected to be substantial when at least one of the merging parties’ products
        is viewed by many customers as particularly important and there are few relevant
        alternatives for that product. 178 Further, for foreclosure to be a potential concern, it
        must be the case that there is a large common pool of customers, which is more
        likely to be the case when the products are complementary. 179 Finally, bundling is
        less likely to lead to foreclosure if rival firms are able to deploy effective and timely
        counter-strategies, such as single-product companies combining their offers. 180
(215) The incentive to foreclose rivals through bundling or tying depends on the degree to
        which this strategy is profitable. 181 Bundling and tying may entail losses or foregone
        revenues for the merged entity. 182 However, they may also allow the merged entity
172 Within bundling practices, the distinction is also made between pure bundling and mixed bundling. In the
    case of pure bundling the products are only sold jointly in fixed proportions. With mixed bundling the
    products are also available separately, but the sum of the stand-alone prices is higher than the bundled
    price.
173 Non-Horizontal Merger Guidelines, paragraph 33.
174 Non-Horizontal Merger Guidelines, paragraph 93.
175 Non-Horizontal Merger Guidelines, paragraphs 95 to 104.
176 Non-Horizontal Merger Guidelines, paragraphs 105 to 110.
177 Non-Horizontal Merger Guidelines, paragraphs 111 to 118.
178 Non-Horizontal Merger Guidelines, paragraph 99.
179 Non-Horizontal Merger Guidelines, paragraph 100.
180 Non-Horizontal Merger Guidelines, paragraph 103.
181 Non-Horizontal Merger Guidelines, paragraph 105.
182 Non-Horizontal Merger Guidelines, paragraph 106.
                                                          51
 ---pagebreak---         to increase profits by gaining market power in the tied goods market, protecting
        market power in the tying good market, or a combination of the two. 183
(216) It is only when a sufficiently large fraction of market output is affected by
        foreclosure resulting from the concentration that the concentration may significantly
        impede effective competition. If there remain effective single-product players in
        either market, competition is unlikely to deteriorate following a conglomerate
        concentration. 184 The effect on competition needs to be assessed in light of
        countervailing factors such as the presence of countervailing buyer power or the
        likelihood that entry would maintain effective competition in the upstream or
        downstream markets. 185
5.4.2. Possible foreclosure of competing AV content production companies with respect to
        the acquisition of AV content production (customer foreclosure)
(217) Downstream, both Notifying Parties and the JV are active in the acquisition of AV
        content production. Upstream, only Telenet is active in the non-captive production of
        AV content. The merger specific change brought about by the Transaction is the
        addition of the JV’s downstream activities as a purchaser of AV content production.
(218) Given that the individual or combined market share of the Parties on the demand
        side of the market for AV content production (i.e. downstream relative to the supply
        side of AV content production) is above 30%, the Commission has assessed the risk
        of customer foreclosure strategies in that market, as well as in all markets under any
        of the possible market definitions discussed in Section 5.1. and Section 5.2.1. 186
5.4.2.1. Notifying Parties’ view
(219) The Notifying Parties submit that the Transaction will not lead to customer
        foreclosure, whereby the JV or its parents would potentially foreclose competing AV
        content production companies on the upstream market, given that (i) the JV will
        have modest activities on the demand side of the AV content production market; (ii)
        the JV’s parents will continue to be active as separate and independent purchasers of
        AV content post-Transaction, and are already currently vertically integrated with
        their own production units; (iii) the JV will have no incentive to purchase content
        exclusively from its parents; and (iv) even in the unlikely hypothesis that the JV
        would exclusively source AV content production services from its parents,
        competing AV content production companies would still have access to different
        alternative potential customers, including VRT and, increasingly, OTT players such
        as Netflix. 187
183 Non-Horizontal Merger Guidelines, paragraph 108.
184 Non-Horizontal Merger Guidelines, paragraph 113.
185 Non-Horizontal Merger Guidelines, paragraph 114.
186 Given that the combined market share of the Parties in the upstream market for the production of AV
    content is below 30%, including in all possible markets based on alternative market definitions, the
    Commission has not assessed the risk of input foreclosure of competing purchasers of content AV
    production.
187 Form CO, paragraphs 604-607.
                                                      52
 ---pagebreak--- 5.4.2.2. Commission’s assessment
         (A)        Ability to engage in foreclosure
(220) The Commission considers that the Parties will not have the ability to engage in
         customer foreclosure of the competing producers of AV content, for the following
         reasons.
(221) First, the merger specific change brought about by the Transaction on the
         downstream market will be limited. By 2023, the JV will only represent [5-10]% of
         the demand (by value) of the production of Dutch-language AV content in Flanders.
         The Transaction will therefore not significantly change the degree of market power
         on the downstream market. 188
(222) Second, the Notifying Parties’ activities on the demand side of the market for AV
         content production will continue outside of the JV post-transaction. Therefore, since
         the Notifying Parties will continue to separately purchase AV content production
         services they will rely on such inputs, post-Transaction. The fact that the Notifying
         Parties remain independent applies regardless of which market definition is retained
         based on Section 5.1. and Section 5.2.1.
(223) Third, strong alternative purchasers will remain active on the demand side of the
         market. Indeed, VRT currently represents [40-50]% of the demand (by value) in the
         market for the production of AV content in Flanders. In addition, the market shares
         provided in Table 1 do not take into account the AV content production spend of
         Proximus, a number of smaller Flemish/Dutch language broadcasters active in
         Belgium and international OTT players such as Netflix (that are obliged to invest in
         AV productions on the basis of the Flemish Media Decree). Strong players would
         remain on any of the alternative markets discussed in Section 5.1. and Section 5.2.1
         and due to the smaller market size, their share and strength would be greater.
         (B)        Incentive to engage in foreclosure
(224) The Commission considers that the Parties will not have any incentive to engage in
         customer foreclosure of competing producers of AV content, for the following
         reasons.
(225) First, Notifying Parties are already vertically integrated and purchase content from
         competing content providers. 189 The limited increment brought about by the
         Transaction on the downstream market is unlikely to change the incentive. 190
188 If certain narrower product market definition applied on the downstream markets (e.g. market for film
    production (demand side); market for the acquisition of production in the SVOD/first pay TV window
    (demand side); the market for the acquisition of scripted content (demand side)) the increase in
    downstream market power would be greater. However, even in that case the market share increase is
    limited in size, gradual and only expected and not guaranteed.
189 Form CO, paragraph 606.
190 As discussed in footnote 188, if certain narrower product market definition applied on the downstream
    markets, (e.g. market for film production (demand side); market for the acquisition of production in the
    SVOD/first pay TV window (demand side); the market for the acquisition of scripted content (demand
    side) the increase in downstream market power would be greater. However, the market share increase
    would be still limited in size, gradual and only expected and not guaranteed. In addition, the current
                                                          53
 ---pagebreak--- (226) Second, the JV will have the interest to offer a wide variety of quality content. To
         achieve this objective, the JV is planning to work with external production
         companies. The business plan confirms that the JV is not planning to purchase AV
         content production services from its parents exclusively. It is clearly spelled out in
         the JV’s business plan that the JV is planning to source content from all relevant
         stakeholders (including private and public broadcasters and production
         companies). 191 The Notifying Parties (as well as third party VRT) currently also
         purchase external AV content production services from third parties notwithstanding
         their internal production capabilities. 192 This reason applies regardless of which
         precise market definition is retained based on Section 5.1. and Section 5.2.1.
         (C)        Impact on effective competition
(227) The Commission considers that due to the lack of ability and incentive, it is not
         needed to assess whether any foreclosure strategy would have a negative impact on
         effective competition, which can be presumed to be negligible.
(228) In any event, should the JV decide to exclusively source AV content production
         services from the parent companies, competing AV content production companies
         would still have access to different alternative potential customers, including the
         Notifying Parties, VRT and increasingly also OTT players such as Netflix, which
         would limit the effects of that decision on competion. 193 This applies regardless of
         which precise market definition is retained based on Section 5.1. and Section 5.2.1.
         as there would be strong buyers in any hypothetical market.
         (D)        Conclusion
(229) In light of the above considerations, the Commission considers that the Transaction
         does not give rise to serious doubts as to its compatibility with the internal market as
         a result of possible strategies for customer foreclosure of competing AV content
         production companies with respect to the acquisition of AV content production,
         regardless of which product and geographic market definition discussed in Section
         5.1. and Section 5.2.1. is retained.
5.4.3. Possible foreclosure of competing AV content production companies with respect to
         the acquisition of the broadcasting rights for pre-existing individual AV content
         (customer foreclosure)
(230) Downstream, both Notifying Parties and the JV are active on the demand side of the
         market for the licensing of broadcasting rights of pre-existing individual AV content.
    vertical integration of the Notifying Parties suggests that regardless of exact market definition, they would
    continue to purchase content from producers competing with their own upstream entities.
191 Form CO, Annex 5.1.a. Annex 2 – Business Plan
192 Form CO, paragraph 606.
193 Form CO, paragraph 607. In 2018, VRT purchased AV content production services from 61 different
    external AV content production companies and had a market share on the demand side of [40-50]%.
    Netflix co-produced the Dutch language series ‘Undercover’ with VRT and De Mensen. ‘Into the Night’,
    Netflix’s first Belgian Original series premiered on Netflix on 1 May 2020 . Netflix is also currently
    working on the co-production projects “The Liberation Route S2’ and ‘Twee Zomers’ which were
    approved by the Flemish Media Regulator VRM in September 2019 and April 2020 in the context of the
    regulatory investment obligations. Hence, any decision by the JV to only purchase AV content production
    services from the production units of its parents would not have a material impact on competition.
                                                            54
 ---pagebreak---          Upstream, both Notifying Parties and the JV are active in the licensing of individual
         AV content to license. The merger specific change brought about by the Transaction
         is limited to the increment of the JV’s (i) downstream activities as a licensee of
         individual AV content, and (ii) upstream activities as a licensor of such content.
(231) Given that the combined market share of the Parties on the demand side of the
         market for the licensing of the broadcasting rights for pre-existing individual
         individual AV content, as well as on a number of markets pursuant to alternative
         market definitions discussed in Section 5.1. and Section 5.2.2, is above 30%, the
         Commission has assessed the risk of customer foreclosure strategies. 194
5.4.3.1. Notifying Parties’ view
(232) The Notifying Parties submit that the Transaction will not lead to customer
         foreclosure, whereby the JV would potentially foreclose competing licensors of
         individual AV content, given that (i) the JV’s market share will amount to around
         [10-20]% in 2023, and the JV would therefore lack the ability to foreclose access to
         customers, (ii) the JV will have no incentive to source exclusively from the its
         parents, and (iii) any attempted foreclosure strategy will have no material impact on
         competing providers of individual AV content who can also set up their own video
         on demand platform (as VRT has done) or distribute content through competing
         SVOD platforms (e.g. Proximus or Netflix). 195
5.4.3.2. Commission’s assessment
         (A)        Ability to engage in foreclosure
(233) The Commission considers that the Parties will not have the ability to engage in
         customer foreclosure of competing licensors of individual AV content, for the
         following reasons.
(234) First, the merger specific change brought about by the Transaction on the
         downstream market will be limited. The JV will only represent around [10-20]% of
         the demand (by value) in the market for the licensing of Dutch-language AV content
         in Belgium by 2023. The Transaction will therefore not significantly change the
         degree of market power on the downstream market. 196
(235) Second, the Notifying Parties’ activities on the demand side of the market for the
         licensing of AV content will continue to take place outside of the JV post-
         transaction. Therefore, the Notifying Parties will continue to be active as separate
194 Given that the individual or combined market share of the Parties in the upstream market for the licensing
    of broadcasting right for pre-existing individual AV content (i.e. on the supply side) is below 30%,
    including in any markets under any plausible market definition, the Commission has not assessed the risk
    of input foreclosure of competing licensees of individual AV content.
195 Form CO, paragraphs 623-626.
196 If certain narrower product market definition applied on the downstream markets (e.g. market for the
    licensing of broadcasting rights for fims (demand side); market for the licensing of broadcasting rights for
    content in the SVOD/first pay TV window (demand side); the market for the licensing of broadcasting
    rights of scripted content (demand side)) the increase in downstream market power would be greater.
    However, even in that case the market share increase is limited in size, gradual and only expected and not
    guaranteed. Further, if the geographic market retained were Belgium, this would cause the increment to be
    smaller again.
                                                          55
 ---pagebreak---          and independent purchasers of AV content production services post-Transaction.
         The fact that the Notifying Parties remain independent applies regardless of which
         precise market definition is retained based on Section 5.1. and Section 5.2.2.
(236) Third, strong alternative licensors will remain active on the demand side of the
         market. Indeed, Proximus and the international OTT players respectively represent
         [10-20]% and [10-20]% of the demand (by value) in the market for the licensing of
         Dutch-language AV content. The international OTT players are expected to
         represent an increasing share of the demand in the coming years ([20-30]% in 2023).
         Strong players would remain on any of the alternative, narrower product markets
         discussed in Section 5.1. and Section 5.2.2.
         (B)       Incentive to engage in foreclosure
(237) The Commission considers that the Parties will not have the incentive to engage in
         customer foreclosure of competing licensors of individual AV content, for the
         following reasons.
(238) First, Notifying Parties are already vertically integrated and license content from
         competing licensors. 197 The limited increment brought about by the Transaction on
         the downstream market is unlikely to change the incentive. 198
(239) Second, the JV plans to offer a wide variety of quality content. To achieve this
         objective, the JV is planning to acquire content from many sources. The business
         plan confirms 199 that the JV is not planning to license individual AV content from its
         parents exclusively, but intends to rely on other supply channels. This reason applies
         regardless of which precise market definition is retained based on Section 5.1. and
         Section 5.2.2.
(240) Third, as set out in annex 1 to the MoU, 200 the JV would be open to, [JV’s
         commercial strategy], the possibility to enter into agreements with other content
         providers, such as VRT, to include some of their content on the JV’s SVOD
         platform. This reason also applies regardless of which precise market definition is
         retained based on Section 5.1. and Section 5.2.2.
         (C)       Impact on effective competition
(241) The Commission considers that due to the lack of ability and incentive, it is not
         needed to assess whether any foreclosure strategy would have a negative impact on
         effective competition.
197 Form CO, paragraph 606.
198 As discussed in footnote 196 if certain narrower product market definition applied on the downstream
    markets, (e.g. market for the licensing of broadcasting rights for fims (demand side); market for the
    licensing of broadcasting rights for content in the SVOD/first pay TV window (demand side); the market
    for the licensing of broadcasting rights of scripted content (demand side)) the increase in downstream
    market power would be greater. However, the market share increase would be still limited in size, gradual
    and only expected and not guaranteed. In addition, the current vertical integration of the Notifying Parties
    suggests that regardless of exact market definition, they would continue to purchase content from
    licensors competing with their own upstream entities.
199 Form CO, Annex 5.1.a. Annex 2 – Business Plan
200 Form CO, Annex 5.1.a. See for example the statement on page 22 of the MoU: ”[Details of the JV
    agreement]”.
                                                          56
 ---pagebreak--- (242) In any event, even if the JV were to exclusively license individual AV content from
         the parent companies, competing AV content production companies would still have
         access to different alternative potential customers, including Proximus and the
         international OTT players respectively represent [10-20]% and [10-20]% of the
         demand (by value) in the market for the licensing of AV content in Flanders
         (demand side). The international OTT players are expected to represent an
         increasing share of the demand in the coming years ([20-30]% in 2023). The
         presence of other customers applies regardless of which precise market definition is
         retained based on Section 5.1. and Section 5.2.2. as there would be strong alternative
         buyers in any hypothetical market.
         (D)       Conclusion
(243) In light of the above considerations, the Commission considers that the Transaction
         does not give rise to serious doubts as to its compatibility with the internal market as
         a result of possible strategies for customer foreclosure of competing licensors of
         individual AV content with respect to the acquisition of broadcasting rights to
         individual AV content, regardless of which precise product and geographic market
         definition discussed in Section 5.1. and Section 5.2.2. applies.
5.4.4. Possible foreclosure of competing suppliers of retail AV services from accessing the
         Notifying Parties’ TV channels (input foreclosure) 201
(244) Both Notifying Parties are active in the market for the wholesale supply of
         FTA/basic pay TV channels. This market is upstream of the overall market for retail
         AV services where the JV will be active. On the other hand, the JV’s offering will be
         limited to a SVOD service and will not include the linear channels of the Notifying
         Parties and/or of third parties, nor it will include any ancillary services linked to the
         linear broadcasting of such channels (e.g. catch up services). The JV will therefore
         not carry any TV channels.
5.4.4.1. Notifying Parties view
(245) The Notifying Parties submit that the Transaction will not give rise to any vertical
         competition concerns, including input foreclosure concerns, on this market for the
         following reasons. 202
(246) First, the JV will not be active as either a supplier or a purchaser of linear TV
         channels, and will thereby not carry any linear channels (neither the channels of
         Telenet and DPG Media nor those of third parties) and it will also not carry any
         ancillary services which are linked to the linear broadcast of such channels (e.g.
         catch up services). The Notifying Parties have confirmed that they do not have the
201 Given that the combined market share of the Parties in the downstream market for the retail supply of AV
    services is above 30%, the Commission has also considered the risk of customer foreclosure strategies in
    this market. The Commission considers that, given that the JV will not supply TV channels, there is no
    change to the incentive regarding any customer foreclosure strategy of competing wholesale suppliers of
    TV channels with respect to the retail supply of AV services. Therefore, the Commission considers that
    the Transaction does not give rise to serious doubts as to its compatibility with the internal market as a
    result of customer foreclosure of competing wholesale suppliers of TV channels with respect to the retail
    supply of AV services, regardless of the precise product and geographic market definition.
202 Form CO, paragraphs 627-629.
                                                         57
 ---pagebreak---          intention to expand the scope of the JV to include such linear channels and/or
         ancillary services within the next 10 years.
(247) Second, the Notifying Parties claim that Telenet and DPG Media will continue to
         exercise their respective activities as suppliers of linear TV channels and ancillary
         non-linear services separately to their respective customers.
(248) Third, the Notifying Parties draw the Commission’s attention onto the fact that, by
         virtue of Decision 19-CC-16 of the BCA in Telenet Group BVBA/De Vijver Media,
         Telenet is bound by a commitment to supply its linear basic pay TV channels Vier,
         Vijf and Zes at FRAND terms to competing suppliers of retail AV services,
         including OTT players. This commitment covers the linear channels and ancillary
         rights needed to offer linked services such as a Multiple Screen service, a Catch Up
         service, a PVR service, a broadcasting on demand service and any other service or
         functionality offered to subscribers simultaneously with the linear transmission or
         shortly before or after such transmission (i.e., 7 days before or after or another short
         customary period) as part of the same channel package. This commitment will
         remain in effect until May 2026.
5.4.4.2. Commission’s assessment
(249) The Commission considers there is no possibility, incentive or likely effects of a
         hypothetical input foreclosure strategy by Telenet or DPG media of other suppliers
         of retail AV services with regard to the wholesale supply of TV channels, regardless
         of the precise product and geographic market definitions (discussed in Section 5.1
         and Section 5.2.3.) is retained, as the JV will not be active in the acquisition or
         supply of TV channels.
(250) The Commission considers that there is nothing in the case file suggesting that the
         JV will include linear channels in the future. 203 The contractual documents as well as
         several internal documents 204 submitted by the Notifying Parties exclusively
         describe the JV’s offer as a SVOD service. They do not refer to the inclusion of
         linear channels.
(251) In particular, Annex 1 of the MoU 205 and Schedule 1 of the Joint Venture
         Agreement 206 describe the different building blocks of the JV’s SVOD offer. Linear
         channels are not included as part of these building blocks.
(252) Also, the Business Plan of the JV 207 does not consider the inclusion of linear
         channels and/or ancillary services. The JV’s service is exclusively described as a
203 In any event, if the JV were to include linear channels at any point in the future, such an expansion of the
    scope of the JV’s activities would likely require a new notification as the JV would become active in the
    market for retail linear AV services and the JV would have to enter into linear carriage agreements with
    the parents in light of paragraph 107 of the Commission’s Consolidated Jurisdictional Notice. The
    Notifying Parties confirm in paragraph 372 of the Form CO that they do not have the intention to expand
    to scope of the JV to include such linear channels and/or ancillary services within the next 10 years and
    should they in the future develop such intentions, they will discuss these intentions and their consequences
    with the Commission prior to their implementation.
204 For instance Form CO, Annex 5.4.a.3, Annex 5.4.a.7, Annex 5.4.b.2 and Annex 5.4.b.10.
205 Form CO, Annex 5.1.a.
206 Form CO, Annex 5.1.c.
207 Form CO, Annex 5.1.a. Annex 2 – Business Plan
                                                          58
 ---pagebreak---         subscription video on demand service. The competitors which are identified [Details
        of the JV agreement] are all SVOD services and do not include linear channels.
        [Details of the JV agreement].
(253) Moreover, Schedule 4 to the Joint Venture Agreement 208 provides that the following
        constitutes a reserved matter: “[Details of the JV agreement]”. Hence, [Details of the
        JV agreement]. However, Telenet does not have any incentive to accept such
        expansion, which would position the JV’s offer as a potential substitute rather than a
        complement to Telenet’s existing TV platforms and would encourage cord cutting
        behaviour.
(254) Finally, the Flemish Media Decree requires broadcasters to notify the Flemish
        Regulator for the Media at least 14 days in advance of the launch of their non-linear
        television services. Such notification should include a clear description of the
        services which will be provided. In the event of a future expansion of such services,
        a new notification will be required. The JV will be subject to this notification
        requirement and will, as soon as merger control clearance has been obtained and the
        JV has been launched, submit a notification for non-linear services. This supports the
        Parties’ intention not to include linear services in the offering of the JV.
(255) In any event, pre-Transaction the Notifying Parties provide OTT rights to the TV
        channels to third parties. Given the JV will not purchase the TV channels, there is no
        change to the incentives. In addition, by virtue of Decision 19-CC-16 of the BCA in
        Telenet Group BVBA/De Vijver Media, Telenet is bound by a commitment to
        supply its linear basic Pay TV channels Vier, Vijf and Zes at FRAND terms to
        competing providers of retail AV services, including OTT players.                                    This
        commitment covers the linear channels and ancillary rights needed to offer linked
        services such as a Multiple Screen service, a Catch Up service, a PVR service, a
        broadcasting on demand service and any other service or functionality offered to
        subscribers simultaneously with the linear transmission or shortly before or after
        such transmission (i.e., 7 days before or after or another short customary period) as
        part of the same channel package. This commitment will remain in effect until May
        2026. 209 Therefore, not providing access to its linear channels would be a breach of
        its vis-à-vis the BCA.
(256) In light of the above considerations, the Commission considers that the Transaction
        does not give rise to serious doubts as to its compatibility with the internal market as
        a result of possible strategies of input foreclosure of competing suppliers of retail
        AV services with regard to the wholesale supply of TV channels, regardless of the
        precise product and geographic market definition retained for the upstream market.
        (as discussed in Section 5.1 and Section 5.2.3.) 210
5.4.5. Conglomerate non-coordinated effects relating to the Parties’ activities in the retail
        supply of AV services, and Telenet’s activities in the retail supply of mobile
208 Form CO, Annex 5.1.c.
209 Form CO, paragraph 629.
210 This is because, in light of the considerations in Section 5.4.4.2, it is clear that the JV will not be active
    downstream relative to the wholesale supply of channels regardless of how the latter activity is defined,
    segmented and what geographic scope it has.
                                                          59
 ---pagebreak---         telecommunication, fixed internet access and multiple play services: Possible
        foreclosure of competing retail suppliers of electronic communication services
(257) As explained in paragraph 4, the JV’s SVOD service will be provided (i) directly to
        customers in Belgium via an OTT platform (including website and smart phone app)
        and (ii) on an exclusive wholesale basis to Telenet, for distribution by Telenet
        through its cable platform (integrated in Telenet’s channel packages and/or set top
        box interface).
(258) The Transaction therefore creates a conglomerate relationship between the Parties’
        activities in the retail supply of AV services, in particular the JV’s activities as a
        supplier of SVOD services, and Telenet’s activities as a provider of multiple play
        bundles, fixed internet access and mobile telecommunication services.
(259) In the present section, the Commission analyses whether the Parties would have the
        ability and incentive to foreclose rival suppliers of electronic communication
        services by engaging in a tying or bundling strategy, then assesses whether such a
        foreclosure strategy would have an impact on effective competition in the markets
        for the retail supply of fixed internet access, mobile telecommunication and multiple
        play services.
5.4.5.1. Notifying Parties’ view
(260) The Notifying Parties submit that no conglomerate non-coordinated effects will arise
        from the potential bundling of the JV’s SVOD service with Telenet’s retail multiple
        play, fixed internet access or mobile telecommunication services, for the reasons set
        out below. 211
(261) The Notifying Parties contend that they and the JV will have no ability to foreclose
        competing suppliers of electronic communications services. First, DPG Media,
        which is not active in the markets for retail AV services, fixed internet services or
        any possible multiple play markets, would have the ability to block any attempt by
        Telenet to tie the JV’s SVOD services exclusively to its retail AV platform and/or
        electronic communications services. The JV’s incentive would be to market its
        service as widely as possible within Belgium, in order to become a strong competitor
        to international SVOD services.
(262) Second, the Notifying Parties submit that, even if the JV’s SVOD service would do
        so, the merger-specific change would be minimal, since Telenet is already vertically
        integrated with its own SVOD services, which are not available on other retail AV
        services platforms. Further, the Notifying Parties contend that, if anything, the
        Transaction is reducing (in actual fact eliminating) Telenet’s ability to tie or bundle
        these SVOD services exclusively with its retail AV services or electronic
        communications services since it will no longer be vertically integrated in this
        respect and will need its JV partners’ consent with such strategy going forward.
(263) Third, the Notifying Parties claim that the JV’s SVOD service will not be a “must-
        have” for competing retail AV providers given, that (i) it will not include sports
        content or linear channels, (ii) competing providers of retail AV services or
        electronic communications services will not need access to the JV’s product to be
211 Form CO, paragraphs 651-665.
                                                   60
 ---pagebreak---         able to compete with Telenet’s bundles as they can set up their own competing films
        and series SVOD offer, or contract with one or several of the competing SVOD
        providers to be able to offer similar bundles.
(264) Fourth, Telenet has historically not included its SVOD offerings in its multiple play
        bundles, with the exception of the Yugo offering.
(265) The Notifying Parties submit that the JV will have no incentive to pursue a tying or
        bundling strategy, and that, even if it did, there would be no material impact on
        competition, since (i) Telenet currently does not offer its SVOD services to rival
        providers of fixed internet services, mobile telecommunication services and/or
        multiple play services, which do not need access to Telenet’s SVOD offer to
        compete in the market; (ii) rivals’ customers will in any case have access to the JV’s
        SVOD service OTT through the JV’s direct-to-consumer offering; (iii) rivals can
        launch their own SVOD offering; (iv) content is only one of the many factors of
        competition (among which price, speed, and reliability of internet connection) that
        customers take into account when purchasing bundled products, and (v) and
        consumers do not expect or need a one-stop-shop.
5.4.5.2. Commission’s assessment
        (A)      Ability to engage in foreclosure
(266) The Commission considers that the Parties will not have the ability to engage in any
        hypothetical foreclosure strategy of competing providers of retail mobile
        telecommunication, fixed internet access and multiple play services by bundling the
        JV’s SVOD with Telenet’s retail mobile telecommunication, fixed internet access or
        multiple play services, for the following reasons.
(267) First, the ownership structure of the JV precludes the possibility that such
        foreclosure strategy could be adopted. The JV will be controlled jointly by Telenet
        and DPG Media, with the latter not being active on the markets for fixed internet
        services or any notional multiple play market. Moreover, DPG Media has a very
        limited presence on the market for mobile telecommunications services with a
        market share of [0-5]%.
(268) The business plan agreed upon between the Parties, 212 explicitly provides that, while
        Telenet will have the exclusivity to offer the JV’s SVOD services on a wholesale
        basis on its retail AV platforms, the JV’s SVOD services will also be made available
        independently on the market, on an OTT basis, separately from Telenet’s retail AV
        services and/or electronic communications services. Hence, the JV’s SVOD service
        will be made available on an OTT basis to subscribers of competing providers of
        electronic communications services such as Proximus and Orange. As a 50%
        shareholder in the JV, DPG Media will have the ability to block any attempt by
        Telenet to tie the JV’s SVOD services exclusively to its retail AV platform and/or
        electronic communications services. Moreover, annex 3(i) of the MoU 213 provides
        that [Details of the JV agreement].
212 Form CO, Annex 5.1.a., Annex 2
213 Form CO, Annex 5.1.a.
                                                  61
 ---pagebreak--- (269) Second, obtaining the JV’s SVOD integrated within Telenet’s retail AV platform is
        not the only way for customers to obtain a “one stop shop”. 214 That is because the
        JV’s SVOD offer will be available as an OTT app for all consumers with an internet
        connection, regardless of the identity of the provider of such connection. The OTT
        app will be available on the following platforms: smartphones and tablets running on
        iOS and Android operating systems, Android TV, Apple TV, Chromecast, Samsung
        Smart TV and LG Smart TV. The JV and/or the Notifying Parties will not have the
        technical ability - nor the incentive - to block Proximus or Orange customers from
        downloading the OTT app and/or accessing the JV’s SVOD content. E.g., if
        Proximus customers can access the Google Play Store (the Android users’ app
        store), they can automatically access the JV’s app as well and download it on any
        compatible device.
(270) Accordingly, even if Proximus and Orange are not able to integrate the JV’s SVOD
        product into their own content proposition, their customers will have access to the
        JV’s offer at all times through the platforms listed above. This will enable an
        experience similar to the “one-stop-shop” experience which Telenet customers will
        have (e.g. watching on a TV set and/or through an Android set top box).
(271) The customer experience will also be similar to the current experience of Proximus
        and Orange subscribers in respect of other SVOD offers. The Netflix SVOD offer
        is, for example, not fully integrated in the Proximus user interface either. Proximus
        subscribers accessing Netflix content are effectively directed to the Netflix user
        interface for access to the Netflix content.
(272) Orange is promoting streaming through Chromecast and Apple TV (platforms
        through which the SVOD service of the JV will also be available) as the most
        appropriate way to access the SVOD offers of Netflix and others.
(273) Third, alternative SVOD offers remain available such as Netflix, Amazon Prime,
        Apple and Disney+ with whom competing providers of electronic communications
        services could partner. The market investigation confirmed that the JV’s SVOD
        service competes with these international SVOD offers. 215 Therefore, competitors of
        Telenet can develop effective and timely counter strategies and contract with one or
        several competing SVOD providers.
(274) Fourth, the market investigation confirmed there is sufficient content available. 216
        Therefore competitors can set up their own competing SVOD offer, as for instance
        Proximus has already done. In this respect, the Commission notes that barriers to set
        up a new non-linear service are significantly lower than those to set up a new linear
        channel, in particular because there are a significant number of providers of off-the-
        shelf one-stop-shop online video platforms that a party wishing to launch an online
        service can choose from (e.g. Datacast, IBM Cloud Video, etc.). These providers
        offer fairly inexpensive OTT platforms ‘as a service’, including content ingestion,
        storage, delivery, user interface, payment integration, etc. It is also fairly
214 Notifying Parties’ reply to RFI 10, question 5.
215 Replies to Questionnaire Q2, question 27.
216 Responses to questionnaires Q1 to content providers, question 22.
                                                         62
 ---pagebreak---        inexpensive to set up a simple OTT streaming website (using open source software
       and cloud storage). 217
       (B)        Incentive to engage in foreclosure
(275) The Commission considers that the Parties will not have the incentive to engage in
       foreclosure of competing providers of retail mobile telecommunication, fixed
       internet access and multiple play services by bundling the JV’s SVOD with
       Telenet’s retail mobile telecommunication, fixed internet access or multiple play
       services, for the following reasons.
(276) DPG Media would not benefit from such a foreclosure strategy. It has a very limited
       presence on the mobile market and none on the fixed internet market. If it tried to tie
       the JV’s SVOD service to its mobile service, it would forego significant revenues
       that it is likely to incur by suppling the JV’s SVOD services to subscribers of other
       providers of electronic communications services (mobile service providers). On the
       contrary, DPG media will have the incentive to make the JV’s SVOD services as
       widely available as possible. As DGP Media has negative control over the JV, this
       alone suffices to show that such strategies are unlikely to be pursued.
(277) The Commission also notes that Telenet has not historically included its SVOD
       offers in its multiple play bundles, which indicates that this is not a profitable
       strategy.
       (C)        Impact on effective competition
(278) The Commission considers that due to the lack of ability and incentive, there is no
       need to assess whether a hypothetical foreclosure strategy due to the conglomerate
       relationships created by the Transaction would have any negative impact on effective
       competition.
(279) It is sufficient to note that, even if the JV’s offer would only be available via
       Telenet’s platform or in bundles with Telenet’s electronic communications services,
       competing providers of such services would have several other business possibilities
       available to them.
(280) First, competing providers of electronic communications services would be able to
       market a bundle of TV, mobile and/or broadband services with the JV’s SVOD
       service if they were to enter into a reseller agreement with the JV. In such case, the
       JV’s app could be offered e.g. on the competing provider’s decoder itself (such as is
       currently the case with the Netflix app, which is available on the Proximus decoder
       as a result of the reseller agreement which has been concluded between both parties).
(281) Entering into a reseller agreement with a connectivity services provider and/or media
       company (as well as consenting to any possibility of integration of the JV’s product
       by any reseller) is a reserved matter under the Joint Venture Agreement and [Details
       of the JV agreement].
217 Form CO, paragraph 770.
                                                  63
 ---pagebreak--- (282) Second, competing providers of electronic communications services would be able
         to market a bundle of TV, mobile and/or broadband services with an alternative
         SVOD offer. Several other SVOD offers are available.
         (D)        Conclusion
(283) In light of the above considerations, the Commission considers that the Transaction
         does not give rise to serious doubts as to its compatibility with the internal market
         relative to any hypothetical foreclosure strategy resulting from the conglomerate
         relationships between the Parties’ activities with respect to the retail suppliers of AV
         services, and to Telenet’s activities as a retail supplier of fixed internet access,
         mobile telecommunication and multiple play services, given the lack of possibility,
         incentive or possible effects of such strategy to foreclose competing retail suppliers
         of electronic communication services. 218
5.4.6. Conglomerate non-coordinated effects relating to the Parties’ activities in the retail
         supply of AV services, and Telenet’s activities in the retail supply of mobile
         telecommunication, fixed internet access and multiple play services: Possible
         foreclosure of competing retail suppliers of OTT SVOD services
(284) The Transaction creates a conglomerate relationship between the Parties’ activities
         in the retail supply of AV services, in particular the JV’s activities as a supplier of
         SVOD services, and Telenet’s activities as a provider of multiple play bundles, fixed
         internet access and mobile telecommunication services.
(285) In the present section, the Commission analyses whether the merged entity would
         have the ability and incentive to foreclose rival suppliers of OTT SVOD services by
         engaging in a tying or bundling strategy, then assesses whether each of any
         foreclosure strategy would have an impact on effective competition in the possible
         market for the retail supply of SVOD services.
5.4.6.1. Notifying Parties’ view
(286) The Notifying Parties contend that the Transaction will give rise to no conglomerate
         effects relating to the foreclosure of competing OTT SVOD services for the
         following reasons. (i) rival SVOD suppliers have sufficient alternative providers of
         retail telecommunication services, fixed services and multiple play services with
         whom they can partner (Proximus, Orange, MVNOs); (ii) regulation restricts Telenet
         from degrading its service offering by prohibiting zero rating practices that may
         favour the JV’s SVOD service; (iii) Telenet has an incentive to maintain the
         relevance of its retail AV services by including content from rival SVOD providers;
         and (iv) a bundling strategy would have no material impact on competition because
         it is possible to successfully launch and compete with an OTT SVOD service
218 Such conclusion applies regardless of regardless of which precise product and geographic market
    definition discussed in Section 5.1. and Section 5.2.4. applies. This is because the only merger-specific
    conglomerate relationship is the tying or bundling related to the JV’s SVOD offer as opposed to the
    existing retail AV offers of the Parties. Thus, under any of the market definitions discussed in Section 5.1
    and Section 5.2.4, the analysis would focus on whether competing suppliers of fixed internet access,
    mobile telecommunication and multiple play services could be foreclosed by tying the SVOD offer to the
    Parties’ (and mostly Telenet’s) telecommunications services. Thus the analysis would be the same under
    all the above mentioned market definitions.
                                                           64
 ---pagebreak---          without partnering with an electronic telecommunications provider, as the
         experience of Netflix shows. 219
5.4.6.2. Commission’s assessment
         (A)       Ability to engage in foreclosure
(287) The Commission considers that the Parties will not have the ability to engage in any
         hypothetical foreclosure strategy of competing suppliers of OTT SVOD services by
         bundling the JV’s SVOD service with Telenet’s retail mobile telecommunication,
         fixed internet access or multiple play services, for the following reasons.
(288) First, competing SVOD providers in Belgium have sufficient alternative providers of
         retail mobile telecommunications services, retail fixed services and retail multiple
         play services remain to partner with. Proximus and Orange both offer fixed internet
         (with combined market share of [50-60]% in 2019 in Belgium), mobile
         telecommunications (with a combined market share of [60-70]% in 2019 in
         Belgium), retail AV services (with combined market share of [20-30]% in the
         Telenet-footprint in 2019) and multiple play services (with e.g. combined market
         share of [30-40]% in 4-play bundles in the Telenet footprint in 2019). Other
         competitors will also remain active in these markets (e.g. TV Vlaanderen in retail
         AV services and several MVNO’s in mobile telecommunications).
(289) Second, competing SVOD providers in Belgium do not need to partner with a
         provider of retail mobile telecommunications services, retail fixed services and retail
         multiple play services. This is shown by the fact that set-top-box integration with
         Proximus and Telenet did not change at all the trajectory of Netflix uptake in
         Belgium. 220 It appears that SVOD services can launch competitively without an
         explicit telecoms supplier and only require that the customer has a broadband
         connection, which most customers do.
(290) Third, the Commission considers that any ability to implement zero rating practices,
         i.e., not deducting the consumption of data related to the JV’s SVOD service from
         the data volume included in the customer’s subscription, would be restricted by the
         provisions in the Open Internet Regulation. 221 Article 2 thereof foresees that
         “[p]roviders of internet access services shall not engage in traffic management
         measures […], and in particular shall not block, slow down, alter, restrict, interfere
         with, degrade or discriminate between specific content, applications or services, or
         specific categories thereof”. This regulation is enforced by the Belgian federal
         regulator BIPT. In its recent decision of 12 November in case M.9064 – Telia
         Company/Bonnier Broadcasting, the Commission concluded on similar grounds that
         the merging parties did not have the ability to foreclose competing OTT providers. 222
219 Form CO, paragraphs 666-672.
220 Ampere analysis, referred to in paragraph 666 of the Form CO
221 Regulation (EU) 2015/2120 of the European Parliament and of the Council of 25 November 2015 laying
    down measures concerning open internet access and amending Directive 2002/22/EC on universal service
    and users’ rights relating to electronic communications networks and services and Regulation (EU) No
    531/2012 on roaming on public mobile communications networks within the Union (Text with EEA
    relevance)
222 Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 785.
                                                         65
 ---pagebreak---         (B)        Incentive to engage in foreclosure
(291) The Commission considers that the Parties will not have the incentive to engage in
        foreclosure of competing suppliers of OTT SVOD services by bundling the JV’s
        SVOD with Telenet’s retail mobile telecommunication, fixed internet access or
        multiple play services, for the following reasons.
(292) First, Telenet will have the incentive to maintain the relevance of its retail AV
        services for consumers by including relevant content from competing SVOD
        providers. The Parties have explicitly clarified in article 4.7.5. of the MoU that
        [Details of the JV agreement]”.
(293) Second, the Notifying Parties will also not have the incentive to significantly
        degrade their service offerings in breach of Open Internet requirements.
        Infringements of these requirements could trigger administrative fines of up to 5% of
        their Belgian telecommunications turnover, which would by far exceed the
        hypothetical benefits of breaching the regulatory requirements.
        (C)        Impact on effective competition
(294) The Commission considers that due to the lack of ability and incentive, it is not
        needed to assess whether any foreclosure strategy would have a negative impact on
        effective competition.
(295) In any event, even if Telenet would exclusively offer the JV’s SVOD service,
        competing SVOD providers would still have access to alternative providers of retail
        telecommunication services, fixed services and multiple play services with whom
        they can partner (such as Proximus, Orange and MVNOs) for partnering or to
        distribute their SVOD service.
(296) As discussed above and in line with the Commission’s findings in a previous case, 223
        cooperating with providers of fixed internet access services and mobile
        telecommunications services is not necessary for providers of OTT SVOD services
        to compete. The example of Netflix shows that it is possible to launch a successful
        OTT SVOD service without such cooperation.
(297) Finally, an increased number of fixed internet and/or mobile data subscribers have
        tariff plans with either unlimited data or very high data allowances and only a small
        minority (less than [0-5]%) exceed such data allowance. This significantly limits the
        relevance of zero rating practices because these subscribers have sufficient data
        allowances to consume data thanks to their tariff plans. Allowing these subscribers
        to deduct the consumption of data related to the JV’s OTT SVOD service from the
        data included in the customer’s subscription of fixed or mobile internet access
        services is therefore not providing a benefit to these subscribers.
(298) VRT raised whether the Transaction could give the Notifying Parties an incentive to
        favor the JV’s on demand content, possibly to the detriment of the findability and
        visibility of VRT’s on demand content, in particular because the Telenet user
223 Commission decisions of 12 November 2019 in case M.9064 – Telia Company/Bonnier Broadcasting
    Holding, recital 793.
                                                   66
 ---pagebreak---          interface allows Telenet to actively influence and steer viewer preferences by
         promoting certain content. 224
(299) The Commission notes that, pre-Transaction, the linear channels of VRT are
         included in Telenet’s entry level basic Pay TV Channel on all its TV-platforms.
         They have fixed pre-programmed Electronic Programme Guide (“EPG”) positions in
         the EPG on all these platforms. These EPG positions […] and they are also covered
         by the commitment to the BCA discussed in Section 5.4.4.2. 225
(300) VRT’s near-linear content (e.g. catch up services) is integrated in the Telenet user
         interface (in a manner that does not materially differ from the integration in the
         Proximus or Orange user interfaces. The visibility, findability and accessibility of
         this VRT content is also covered by the commitment to the BCA.
(301) As to VRT’s non-linear content, it is present in different forms: (i) Free VOD and
         Broadcaster TVOD: these appear in the VRT catalogue which is fully integrated in
         the Telenet user interface. The content and structure of the catalogue are defined by
         VRT; (ii) VRT library SVOD catalogue ‘Net Gemist’: VRT owned SVOD service
         which contains SVOD content of VRT that was aired on their linear channels in the
         last 7 days. Price: €5.95/month. Integrated in Telenet user interface. Non-exclusive
         service, also available on Proximus; and (iii) VRT SVOD licensed programs for Play
         and Play More (non-exclusive): […]. Integrated in the Telenet user interface in the
         Play and Play More catalogues. […].
(302) The Transaction will not change how VRT’s linear TV channels and near-linear
         content will be integrated in Telenet’s AV offering post-Transaction. 226
(303) VRT’s TV channels will continue to be included in Telenet’s entry level basic Pay
         TV package. Inclusion in this entry level package is mandatory as a result of the
         must carry status of these channels (i.e. they must be included in the package that is
         most widely available to subscribers in Belgium). The Transaction will also not
         change the way in which VRT’s ‘Net Gemist’ SVOD services will be integrated in
         Telenet’s AV offerings. 227 The Transaction will not bring about any merger-specific
         changes in this respect.
         (D)        Conclusion
(304) In light of the above considerations, the Commission considers that the Transaction
         does not give rise to serious doubts as to its compatibility with the internal market
         with reference to any hypothetical strategy resulting from the conglomerate
         relationships between the Parties’ activities as retail suppliers of AV services, and
         Telenet’s activities as retail suppliers of fixed internet access, mobile
224 Response by VRT to questionnaire Q2 to AV market participants, question 57.2.
225 Parties’ reply to RFI 10, question 2.
226 Parties’ reply to RFI 10, question 2.
227 For completeness, the same would hold for VRT’s Free VOD and Broadcaster TVOD. See Parties’ reply
    to RFI 10, question 2.
                                                     67
 ---pagebreak---          telecommunication and multiple play services, given the lack of possible foreclosure
         of competing retail suppliers of OTT SVOD services. 228
5.4.7. Possible foreclosure of competing suppliers of SVOD services by denying access to
         the Notifying Parties’ TV advertising and radio advertising space (input foreclosure)
(305) The Notifying Parties are both active on the upstream market for TV advertising, and
         DPG Media also on the upstream market for radio advertising, while the Notifying
         Parties and the JV are active in the downstream market for retail supply of AV
         services.
(306) The merger-specific change brought about by the Transaction is the addition of the
         JV’s downstream activities as supplier of a SVOD service.
(307) Given that the combined market share of the Notifying Parties in the market for TV
         advertising, (including on the markets pursuant to the plausible alternative market
         definitions discussed in Section 5.1 and Section 5.2.8), and the market share of DPG
         Media in the radio advertising market are above 30%, the market for the supply of
         retail AV services in the Flemish (including the markets pursuant to the plausible
         alternative market definitions) region is vertically affected (input foreclosure). As the
         only merger specific change brought about by the Transaction is the addition of the
         JV’s downstream activities as supplier of a SVOD service, the Commission has
         assessed the risk of foreclosing competing SVOD providers. 229
5.4.7.1. Notifying Parties’ view
(308) The Notifying Parties submit that the Transaction will not lead to any vertical
         concerns regarding the foreclosure of access to TV/radio advertising space by
         customers/companies competing with the JV (input foreclosure). 230
(309) The Notifying Parties claim that they would lack the ability to engage in input
         foreclosure, since, over the period of 2017-2019, not a single competing SVOD
         provider has acquired TV/radio advertising space from either of the Notifying Parties
         for the promotion of its SVOD products, whilst Netflix’s customer base in Flanders
         expanded significantly over that period (from 21% to 40%). 231
(310) In addition, the Notifying Parties claim that, since they will continue to operate as
         separate and independent suppliers, the Transaction would not materially change the
         existing market situation. According to the Notifying Parties, post-Transaction,
228 This conclusion holds regardless of which precise market definition discussed in Section 5.1., Section
    5.2.5 and Section 5.2.7 applies. This is because the only merger-specific conglomerate relationship is the
    tying or bundling related to the JV’s SVOD offer. Thus, under all of the market definitions discussed in
    Section 5.1., Section 5.2.5 and Section 5.2.7, the analysis would focus on whether competing suppliers
    SVOD services could be foreclosed by tying the SVOD offer to the Parties’ (and mostly Telenet’s)
    telecommunications services. Thus the analysis would be the same under all the plausible market
    definitions relating to fixed internet, multi-play bundles or mobile telecommunications.
229 The Commission considers that the Notifying Parties will not likely engage in customer foreclosure post-
    Transaction, since (despite the Parties’ high combined share of retail supply of AV services of [50-60]%),
    they only account for less than [0-5]% of the demand market and the JV’s share will most likely also be
    minimal post-Transaction, given the large amount of companies across a variety of sectors acquiring such
    advertising space. See Form CO, paragraphs 508-510.
230 Form CO, paragraph 709.
231 Form CO, paragraphs 686-692.
                                                            68
 ---pagebreak---         significant competitors will remain present on the TV and Radio advertising markets
        and substantial alternative advertising channels (online, newspapers, magazines) will
        remain available. 232
(311) The Notifying Parties consider that they would also lack the incentive to engage in
        an input foreclosure strategy post-Transaction because advertising revenue is critical
        for them as content-providers. Moreover, the Notifying Parties submit that any input
        foreclosure strategy is unlikely to be profitable due to the many alternative
        advertising channels available to competing SVOD providers. 233 In particular,
        Telenet and DPG Media realised advertising turnover of respectively EUR [Parties’
        TV and radio advertising sales] and EUR [Parties’ TV and radio advertising sales]
        through the sale of TV advertising space, representing respectively [Parties’ TV and
        radio advertising sales] and [Parties’ TV and radio advertising sales] of their total
        advertising revenue; and DPG Media realised advertising turnover of EUR [Parties’
        TV and radio advertising sales] through the sale of radio advertising space,
        representing [Parties’ TV and radio advertising sales] of its total advertising
        revenue. 234
(312) Even if the Notifying Parties had the ability and incentive to engage in an input
        foreclosure strategy, they submit that such strategy would not have any significant
        detrimental effect on the marketing strategy and the success of competing SVOD
        providers as these competing SVOD providers do not rely on TV advertsing to
        market their services as they already have other preferred advertising channels which
        they can continue to use. 235
5.4.7.2. Commission’s assessment
(313) The Commission’s assessment of anticompetitive input foreclosure, in light of the
        results of the market investigation, is set out in the following paragraphs. For this
        purpose, consistent with paragraph 32 of the Non-Horizontal Merger Guidelines, in
        relation to each of these practices, the Commission examines, (i) whether the
        Notifying Parties would have the ability to foreclose access to inputs (i.e. advertising
        space on TV or radio), (ii) whether they would have the incentive to do so, and (iii)
        whether a foreclosure strategy would have a significant detrimental effect on
        competition in the downstream markets.
        (A)      Ability to engage in foreclosure
(314) The Commission considers that the Notifying Parties will not have the ability to
        engage in input foreclosure of competing SVOD players by denying access to their
        TV/radio advertising space, for the following reasons.
(315) First, even though the Commission cannot exclude that, given the market shares (as
        shown in Tables 22-24 in Section 5.2.8 above) the Notifying Parties would have a
        significant degree of market power in the upstream markets for (i) TV advertising
        and (ii) radio advertising, including all possible sub-segments, the Commission
232 Form CO, 686-687.
233 Form CO, paragraphs 693-707.
234 Form CO, paragraph 693.
235 Form CO, paragraph 708.
                                                  69
 ---pagebreak---          considers that access to the Notifying Parties’ advertising space has so far not been
         an important input for competing SVOD players.
(316) Whilst TV/radio advertising space may be considered an “important input” within
         the meaning of the Non-Horizontal Merger Guidelines 236 for certain downstream
         activities, in line with the Commission’s conclusions in precedent cases, 237 the
         Commission, in the context of this case, does not consider the Notifying Parties’
         TV/radio advertising to be a critical or important input for SVOD players competing
         with the JV downstream.
(317)     This is because, as demonstrated by the Notifying Parties, over the past years (2017-
         2019), not a single competing SVOD provider has acquired TV/radio advertising
         space from either of the Notifying Parties for the promotion of its SVOD
         products. 238 Without purchasing any TV/radio advertising space from the Notifying
         Parties, SVOD players like Netflix have still managed to grow significantly in
         Flanders during this period. 239
(318) Second, even though advertisers and AV providers responding to the market
         investigation confirmed the importance of the parents’ advertising channels, 240 it is
         also clear from the market investigation that international SVOD players like Netflix
         and Discovery are not concerned about being denied access to advertising space on
         the parents’ channels. 241 Also a local competitor and substantial advertiser on DPG
         Media’s TV and radio channels responding to the market investigation indicated that
         “the transaction is not likely to have a detrimental impact on the acquisition of
         advertising space (also because advertising is still very limited for SVOD service.”
         (B)        Incentive to engage in foreclosure
(319) For the reasons set out below, the Commission considers that the Notifying Parties
         will not likely have the incentive to engage in total or partial input foreclosure of
         their TV/radio advertising space, irrespective of any plausible segmentation of the
         product market in pay TV and FTA TV; and inclusion or exclusion of AVOD
         services.
(320) First, the merger-specific change brought about by the Transaction relates to the
         Notifying Parties jointly controlling an (additional) SVOD service in the
         downstream market post-Transaction. Both Telenet and DPG Media, however, were
         already pre-Transaction selling advertising space on the upstream TV/radio
         advertising markets while supplying retail AV services on the downstream market.
236 Non-Horizontal Merger Guidelines, paragraph 35. For input foreclosure to be a concern, a vertically
    integrated entity must have a significant degree of market power in the upstream market. It is only in those
    circumstances that the entity can be expected to have significant influence on the conditions of
    competition in the upstream market and thus, possibly, on prices and supply conditions in the downstream
    market.
237 See case M.7023 Publicis/Omnicom (2014), paras ; case M.7194-Liberty Global/Corelio/W&W/De Vijver
    Media (2015) para 202; case M.9064 – Telia Company / Bonnier Broadcasting Holding (2019), sections
    8.5.1.9. and 8.5.2.9.
238 For 2020, the Notifying Parties noted that [Parties’ TV and radio advertising sales]. See Form CO,
    pargraph 686. See also Notifying Parties’ response to RFI 11 of 28 July 2020.
239 Customer base in Flanders from 21% to 40% during this period. Form CO, paragraph 686.
240 Responses to Questionnaire Q2 to AV market participants, questions 77-79.
241 Responses to Questionnaire Q2 to AV market participants, questions 77-79.
                                                          70
 ---pagebreak---         The Commission thus considers that the Notifying Parties were already vertically
        integrated pre-Transaction.
(321) Second, with respect to access to the Notifying Parties’ advertising space to local
        players such as Proximus, it noteworthy that Proximus’s advertising spend with DPG
        Media on OTT is [DPG Media’s TV and radio advertising sales]. For example, in
        2019, Proximus spent EUR [DPG Media’s TV and radio advertising sales] on
        TV/radio advertising with DPG Media for its OTT services, compared to (and
        representing only [DPG Media’s TV and radio advertising sales]) of its total EUR
        [DPG Media’s TV and radio advertising sales] TV/radio advertising spend with
        DPG Media. 242 Therefore, the Commission considers it unlikely that the Notifying
        Parties would risk losing the other [DPG Media’s TV and radio advertising sales]
        (EUR [DPG Media’s TV and radio advertising sales]) of Proximus’s TV/radio
        advertising spend by enging in an input foreclosure strategy, rendering such input
        foreclosure strategy unprofitable.
(322) In addition, DPG Media already entered into an agreement with [DPG Media’s
        commercial negotiations]. DPG Media has also entered into an agreement with
        [DPG Media’s commercial negotiations]. DPG Media is also in negotiations with
        [DPG Media’s commercial negotiations]. 243 These examples further support the
        notion that the Notifying Parties will not have the incentive post-Transaction to
        foreclose access to their advertising space, as they clearly demonstrate DPG Media’s
        willingness to launch advertising campaigns promoting SVOD services which will
        compete with the JV’s offering.
(323) In light of the above, the Commission considers that the Notifying Parties are
        unlikely to have the incentive to engage in total or partial input foreclosure of their
        TV/radio advertising space, irrespective of any plausible segmentation of the product
        market in pay TV and FTA TV; and inclusion or exclusion of AVOD services.
        (C)         Impact on effective competition
(324) The Commission considers that due to the lack of ability and incentive for the
        Notifying Parties to engage in an input foreclosure strategy, as set out above, it is not
        needed to assess whether any foreclosure strategy would have a negative impact on
        effective competition.
        (D)         Conclusion
(325) In light of the foregoing, the Commission concludes that the Transaction would not
        raise serious doubts as to its compatibility with the internal market relative to any
        hypothetical total or partial input foreclosure strategy of the Notifying Parties’ TV
        and/or radio advertising space. This conclusion holds regardless of which precise
        market definition discussed in Section 5.1. and Section 5.2.8 is retained in relation to
        the sale of TV advertising space. 244
242 Form CO, Table 3.6.4.
243 Notifying Parties’ Response to RFI 11 of 28 July 2020.
244 This is because the only merger-specific change is the new SVOD service of the JV that competes
    downstream relative to the sale of TV advertising space, where the Parties hold strong position. Thus,
    under all of the market definitions discussed in Section 5.1 and Section 5.2.8 the analysis would focus on
                                                          71
 ---pagebreak--- 5.5.    Cooperative effects
5.5.1. Introduction
(326) Under Article 2(4) of the Merger Regulation, to the extent that the creation of a joint
        venture constituting a concentration pursuant to Article 3 has as its object or effect
        the coordination of the competitive behaviour of undertakings that remain
        independent, such coordination shall be appraised in accordance with the criteria of
        Article 101(1) and (3) of the TFEU, with a view to establishing whether or not the
        operation is compatible with the common market.
(327) Under Article 2(5) of the Merger Regulation, in making this appraisal, the
        Commission shall take into account in particular: (i) whether two or more parent
        companies retain, to a significant extent, activities in the same market as the joint
        venture or in a market which is downstream or upstream from that of the joint
        venture or in a neighbouring market closely related to this market; and (ii) whether
        the coordination which is the direct consequence of the creation of the joint venture
        affords the undertakings concerned the possibility of eliminating competition in
        respect of a substantial part of the products or services in question.
(328) A restriction of competition under Article 101(1) TFEU is established when the
        coordination of the parent companies’ competitive behaviour is likely and
        appreciable and results from the creation of the joint venture, be it as its object or its
        effect.
5.5.2. Notifying Parties’ view
(329) The Notifying Parties submit that the creation of the JV will not lead to any
        coordination between them and the JV, or amongst themselves, because market
        conditions are not conducive to tacit coordination, confidentiality obligations will be
        in place to limit the use by the Notifying Parties of confidential information obtained
        from the JV, and the JV will form a small part of the Notifying Parties’ overall
        businesses. 245
5.5.3. The Commission’s assessment
(330) The Notifying Parties will remain independently active in a number of the same
        markets as the JV, notably: (i) the market for the production of AV content in
        Flanders (demand side), 246 its exhibition window segments and the scripted and non-
        scripted content segments; (ii) the market for the licensing of individual AV content
        (supply and demand side), as well as the segments for first PayTV and SVOD; 247
        and (iii) the market for the retail supply of AV services (including AVOD and
    whether competing suppliers’ SVOD services could be foreclosed by refusing advertising space or
    increasing the cost thereof. Irrespective of the exact market definition retained in TV advertising, the
    analysis would involve the same steps (ability, incentive and overall impoact) and the substantive
    arguments in the analysis, as presented in subsections A-C) would not change.
245 Form CO, paragraph 819-850.
246 On the supply side of this market, DPG Media is only active for captive use and the JV is not active. The
    Notifying Parties will also be active (without the JV) in the segment for the production for hire.
247 The Notifying Parties will also be active (without the JV) in the segments for the licensing of FTA,
    TVOD, Premium Sports and series SVOD.
                                                           72
 ---pagebreak---          SVOD services), as well as the segment for retail supply of non-linear pay AV
         services. 248
(331) The Notifying Parties will also remain independently active in a number of markets
         closely related to the activities of the JV, notably: (i) the market segment for the
         production of AV content for hire; (ii) the market segments for the licensing of
         content in the FTA, TVOD, Premium Sports and series SVOD windows; (iii) the
         market segment for retail supply of linear pay AV services 249; (iv) the sale of
         advertising space on TV channels and websites; (v) the wholesale supply of basic
         pay TV channels; and (vi) the retail supply of mobile communications services.
(332) Against this background, for the reasons set out below, the Commission considers
         that the Transaction does not give rise to serious doubts as to its compatibility with
         the internal market as a result of cooperative effects in (i) the market for production
         of AV content (demand side) and its sub-segments (potential narrower product
         markets); (ii) the market for licensing of individual AV content (supply and demand
         side) and its sub-segments (potential narrower product markets); (iii) the market for
         retail supply of AV services and its sub-segments (potential narrower product
         markets); (iv) the markets for sale of advertising space on Dutch language TV
         channels and websites (potential narrower product markets); (v) the market for
         wholesale supply of basic pay TV channels (potential narrower product markets);
         and (vi) the market for retail supply of mobile communications services.
(333) First, the Commission observes that the relevant markets are not conducive to
         coordination between the Parties. The market shares of the Parties are asymmetric
         and several competitors would remain post-Transaction, which would be likely to
         disrupt any attempts of the Notifying Parties to coordinate their activities on the
         relevant markets.
(334) As regards the market for the production of AV content (demand side), or any of the
         segments/narrower product markets, Telenet and DPG Media will retain activities on
         the demand side of this market, with market shares of respectively [20-30]% and
         [30-40]% in 2019 in the Flemish Region. 250 The JV itself will have modest activities
         on the demand side of this market, representing an expected market share of [5-10]%
         by 2023. The Notifying Parties commission TV programmes for their respective
         FTA channels. AV production agreements are negotiated confidentially and
         bilaterally. The terms of these agreements are not made public. Hence, there is no
         transparency regarding the terms of agreements between broadcasters (and retail AV
         service providers) commissioning AV content on the one hand and AV production
         companies on the other hand. This makes reaching terms of coordination and
248 The Notifying Parties will also be active (without the JV) in the segment for retail supply of linear AV
    services.
249 Including the supply of library SVOD content.
250 The Notifying Parties estimate that their respective market shares would not be materially different if
    separate segments for commissioned TV production versus TV production for hire or separate segments
    by exhibition window were considered. Telenet and DPG market shares of respectively [5-10]% and [40-
    50]% for scripted AV content and [20-30]% and [30-40]% for non-scripted AV content. See the Notifying
    Parties’ Response to RFI 12 of 31 July 2020.
                                                         73
 ---pagebreak---         monitoring deviations difficult. 251 Competitors such as VRT, with market share of
        [40-50]%, will remain active in this market post-Transaction.
(335) As regards the market for the licensing of broadcasting rights for (pre-existing) AV
        content, or any of the segments/narrower product markets, Telenet and DPG Media
        will license the rights to individual AV content on the supply side, with market
        shares of respectively approximately [0-5]% and [0-5]% in 2019. 252 The JV is not
        expected to have a market share exceeding [0-5]%. 253 Furthermore, similar to what
        is the case for AV production agreements, the individual AV content licenses are
        negotiated bilaterally and confidentially. Hence, there is no transparency regarding
        the terms of such license agreements. 254
(336) Telenet and DPG Media will also retain activities on the demand side of the market
        for the licensing of individual AV content, with market shares of respectively [40-
        50]% and [10-20]% in 2019 in the Flemish Region. 255 The JV will only acquire
        certain content in the Pay TV and SVOD window and will run its content acquisition
        activities separately from its parents through its own dedicated content teams. 256
        Furthermore, this market is characterised by heterogeneous services and confidential
        and bilateral negotiations of agreements, and its supply side is fragmented. 257 These
        market characteristics suggest that the market is not transparent. Competitors such as
        VRT ([5-10]%), Proximus ([10-20]%), Netflix and Amazon Prime ([10-20]%) will
        remain active in this market post-Transaction.
(337) As regards the market for the retail supply of AV services, and the possible
        subsegments/narrower potential product markets, both Telenet and DPG Media will
        retain their activities as suppliers of retail AV services, with market shares of
        respectively [50-60]% and less than [0-5]% in Telenet’s footprint. 258 Contary to its
        parents, the JV will be active only in the SVOD segment. The overlap between the
        Notifying Parties, however, will be limited, as DPG Media will exit the market on 1
        September 2020 following its prior decision to shut down Stievie. The incentives of
        the Notifying Parties will remain significantly different on this market, given that
        DPG Media’s VTM GO is a purely advertising based OTT platform (free-of-charge
        for the viewer), while Telenet operates a subscription based retail AV service over
251 Form CO, paragraph 600.
252 This market share relates to Belgium. The market share would be slightly higher, but still low if the
    geographic market was Flanders. The Notifying Parties estimate that their combined market shares would
    remain below 20% under any plausible market definition as considered above. See the Notifying Parties’
    Response to RFI 12 of 31 July 2020.
253 Form CO, paragraphs 822-825.
254 Form CO, paragraph 616.
255 Telenet and DPG Media have market shares of respectively [30-40]% and [20-30]% in the market
    segment for licensing of Dutch language individul AV content; [60-70]% and [0-5]% in the TVOD
    segment; [30-40]% and [0-5]% in the First Pay/SVOD and SVOD library segments; [20-30]% and [40-
    50]% in the FTA segment; and [60-70]% and [0-5]% in the Premium Sports segment. Their respective
    market shares would be [30-40]% and [20-30]% for film, [50-60]% and [5-10]% for sport, and [20-30]%
    and [10-20]% for other genres; [40-50]% and [0-5]% for premium content; [20-30]% and [20-30]% for
    non-premium; [30-40]% and [10-20]% for scripted content; and [40-50]% and [10-20]% for non-scripted
    content. See the Notifying Parties’ Response to RFI 12 of 31 July 2020.
256 Form CO, paragraph 826.
257 Form CO, paragraph 616.
258 Telenet and DPG Media have market shares of respectively [30-40]% and less than [0-5]% in the market
    segment for non-linear pay AV services and [60-70]% and less than [0-5]% (through Stevie) in the
    market segment for linear pay AV services.
                                                         74
 ---pagebreak---         a traditional TV platform. 259 Furthermore, competitors such as Proximus and
        Orange, but also Netflix, Amazon and Disney, will remain active in this market post-
        Transaction.
(338) As regards the market for the sale of TV advertising space on TV channels and
        websites, the Notifying Parties will continue to sell advertising space on a wide
        spectrum of media, including advertising space on TV channels ((Telenet [20-30]%
        vs. DPG Media [60-70]%) and websites (Telenet [0-5]% vs. DPG Media [5-10]%) in
        the Flemish Region. The JV, as a customer, would not have access to the overall
        advertising strategies of the Notifying Parties and the Notifying Parties will continue
        to be active as independent advertising providers post-Transaction. Furthermore, this
        market is characterised by numerous and opaque rates, due to the many and
        significant rebates in this sector. 260 Competitors such as VAR ([5-10]%) and
        Transfer ([0-5]%) will remain active in the market for TV advertising post-
        Transaction, while players such as Google ([40-50]%) and Facebook ([10-20]%) will
        remain active in the market for online advertising.
(339) As regards the market for the wholesale supply of basic pay TV channels, Telenet
        and DPG Media will retain their activities as suppliers of linear TV channels and
        ancillary non-linear services separately, with market shares of respectively [5-10]%
        and [20-30]% in Telenet’s footprint. 261 The JV will not be active as either a supplier
        or a purchaser of linear TV channels and/or ancillary non-linear services.
        Furthermore, this market is characterised by confidential and bilateral negotiations of
        agreements. 262 In addition, competing broadcasters, such as VRT, or suppliers of
        retail AV services, such as Proximus and Orange, could jeopardise the effects of any
        attempt of the Notifying Parties to coordinate their behaviour on this market. 263
(340) As regards the market for the retail supply of mobile communications services, both
        Telenet and DPG Media will retain their activities as suppliers of retail mobile
        telecommunication services, with market shares of respectively [20-30]% and [0-
        5]% in Belgium. 264 The JV will not be active in this market and would not have
        access to the overall mobile strategies of its parents. In addition, there are significant
        differences between the respective market positions of the Notifying Parties on this
        market, so their incentives in this market would not be aligned. Namely, Telenet is a
        mobile network operator (“MNO”) offering mobile services on the basis of its own
        mobile network (either standalone or as part of a multiple play package), with a
        market share of [10-20]% by value in 2019, whilst DPG Media is active in this
        market as a MVNO using the mobile network of Orange Belgium and offering
        standalone mobile services exclusively to consumers, with a market share of [0-
259 See Notifying Parties’ Response to RFI 13 of 3 August 2020.
260 Form CO, paragraphs 829-831 and Notifying Parties’ Response to RFI 13 of 3 August 2020.
261 The Notifying Parties estimate that, in view of their absence and/or very modest activities in all segments
    but the general entertainment genre, the market shares identified above in the segment of basic Pay TV
    channels also provide a good proxy for their market shares on the demand side of the market segment for
    the wholesale supply of TV channels in the general entertainment genre. See Notifying Parties’ Response
    to RFI 12 of 31 July 2020.
262 These are complex agreements negotiated for relatively long periods of time (i.e. 3 to 5 years). Their
    terms vary from one broadcaster to another and from one retail AV provider to another, depending on, for
    example, the rights included (which technologies, which footprint, which ancillary services, …), the
    business model of the parties, etc. See Notifying Parties’ Response to RFI 13 of 3 August 2020.
263 See Notifying Parties’ Response to RFI 13 of 3 August 2020.
264 Volume market shares of respectively [20-30]% and [0-5]%.
                                                           75
 ---pagebreak---         5]%. 265 Competitors such as Proximus and Orange and other MVNOs will remain
        active in this market post-Transaction.
(341) Second, the JV represents […] of the activities of the Notifying Parties which makes
        it unlikely that the Notifying Parties would have any incentive to coordinate their
        competitive behaviour. Namely, the JV’s expected revenues will be […]. According
        to its business plan, the JV is expected to generate revenues in the range of
        approximately EUR […] by 2023, which represents approximately […] of Liberty
        Global’s and […] of DPG Media’s EU-wide turnover. Even when considering the
        Notifying Parties’ Belgian revenues only, the JV’s revenues will still represent only
        […] of Liberty Global’s and […] of DPG Media’s revenues. 266 In line with the
        Commission’s conclusions in precedent cases, this suggests that the conduct of the
        Notifying Parties on the markets is unlikely to be influenced by their cooperation in
        the JV. 267
(342) Third, given the diversification of the Notifying Parties’ businesses and the relative
        differences in their business strategies, it is unlikely that their incentives could be
        effectively aligned. Telenet is in essence a B2C company, providing communication
        services (broadband internet, fixed telephony services and cable television) to
        consumers, whilst DPG Media is a B2B company, which finances AV content by
        providing commercial communication on its media brands to advertisers. Moreover,
        Telenet is the owner of a fixed cable network covering Flanders and (partially)
        Brussels and of a mobile network covering the entire territory of Belgium, whilst
        DPG Media does not own a fixed and/or mobile network and mainly supplies its AV
        content via licensing deals with operators of such networks. 268
(343) Fourth, information barriers set out in the Joint Venture Agreement, will make it
        difficult for the Notifying Parties to coordinate their behaviour post-Trasnsaction. 269
        Information barriers will be in place between Notifying Parties on the one hand and
        the JV on the other hand, and between the Notifying Parties. These information
        barriers will prevent information flows that could otherwise help to coordinate the
        retained activities of the Notifying Parties. More specifically, the information
        barriers will ensure that (i) confidential information relating to the retail supply of
        library SVOD content services, including the cost per subscriber charged, will not be
        shared by the JV from one parent to the other; (ii) the Notifying Parties will not use
        the information obtained from each other in their capacity as contract
        party/shareholder/director of the JV (in particular for their own business purposes);
        (iii) the JV will not use information regarding Telenet’s retail supply of SVOD
        services as disclosed in the context of their wholesale agreement (“Chinese walls”)
        and (iv) the JV will not share confidential information about the advertising rates
        charged by one of its parents with the other parent. 270
265 See Notifying Parties’ Response to RFI 13 of 3 August 2020.
266 Form CO, paragraphs 799-800.
267 See case M.5841, Cathay Pacific Airways/Air China/ACC, para 30; case M.5838,
    Bertelsmann/Planeta/Circulo, paras 69-73; case M.3542, Sony Pictures,/Disney/ODG/JV, paras 17-19.
268 See the Notifying Parties’ Response to RFI 13 of 3 August 2020.
269 Form CO, Annex 5.1.c.
270 Form Co, paragraphs 833-848.
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 ---pagebreak--- (344) Fifth, the ongoing growth in the viewing of AV content via OTT platforms 271 will
       likely undermine attempts at coordination in the markets for the retail supply of AV
       services between Telenet and DPG Media because such traditional players are
       required to adjust the way they deliver their content to consumers. Similarly, the
       growth in non-linear viewing 272 will likely undermine attempts at coordination in the
       markets for the wholesale supply of TV channels and the growth in online
       advertising 273 will likely undermine attempts at coordination in the market for the
       sale of TV advertising space on TV channels.
(345) As already referred to in Section 5.3.2, the Commission notes again that coordinated
       effects on this market can be excluded for similar arguments as why cooperative
       effects are excluded in this market in this section.
5.5.4. Conclusion
(346) In conclusion, in light of the above considerations, the Commission considers that
       the Transaction does not give rise to serious doubts as to the compatibility with the
       internal market relative to the possibility of coordination as resulting from
       cooperative effects, with respect to: (i) the market for production of AV content
       (demand side) and its relevant sub-segments; (ii) the market for licensing of
       individual AV content (supply and demand side) and its relevant sub-segments ; (iii)
       the market for retail supply of AV services and its relevant sub-segments; (iv) the
       markets for sale of advertising space on Dutch language TV channels and websites;
       (v) the market for wholesale supply of basic pay TV channels; and (vi) the market
       for retail supply of mobile communications services.
6.     CONCLUSION
(347) For the above reasons, the European Commission has decided not to oppose the
       notified operation and to declare it compatible with the internal market and with the
       EEA 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
271 Form CO, paragraphs 32-41 and Annex 1.1.a.
272 Form CO, paragraphs 32-41and Annex 1.1.a.
273 Form CO, paragraph 465-470.
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