EMFA Article 22. Assessment of media market concentrations

Media market concentrations are assessed differently across the Union from a media pluralism standpoint. The rules and procedures related to the assessment of media market concentrations vary across the Union. Some Member States rely on competition assessments only, whereas others have dedicated frameworks for specific media pluralism assessments of concentrations. In the latter case, there are considerable differences. In some cases, all media transactions are scrutinised, irrespective of whether they reach certain thresholds, while in other cases an assessment is conducted only when specific thresholds are exceeded or certain qualitative criteria are met. For instance, for the purposes of such an assessment, some Member States apply revenue multipliers in order to ensure that competitive threats do not pass undetected and are brought under scrutiny even when the outlets involved have low revenues. Where they exist, there are also differences in the procedures applicable to the scrutiny of market transactions for media pluralism purposes. That scrutiny is often carried out independently by the media regulator through a self-standing assessment or by the competent authority with the involvement of the media regulator by means of an opinion, which could be a stand-alone contribution or take the form of written views or comments in the context of an ongoing assessment. Certain national rules enable ministries or governmental bodies to intervene in the scrutiny of media markets on non-economic grounds, ranging from the protection of media pluralism to the safeguarding of public security or other general interests.

The divergence and lack of coordination between Member States’ rules and procedures applicable to media market concentrations can result in legal uncertainty and regulatory, administrative or economic burdens for media undertakings willing to operate across borders, thus distorting competition in the internal market for media services. In some cases, national measures in the area can effectively prevent a media undertaking established in the Union from entering another national market, without being genuinely aimed at promoting media pluralism . Ultimately, instead of achieving greater media plurality, that might reinforce the oligopolistic dynamics in the media market. In order to reduce obstacles which hinder media service providers’ ability to operate in the internal market, it is important that this Regulation set out a common framework for assessing media market concentrations across the Union.

Media play a decisive role in shaping public opinion and providing citizens with information which is relevant for actively participating in democratic processes. That is why Member States, independently from competition law assessments, should provide for rules and procedures in national law to allow for the assessment of media market concentrations that could have a significant impact on media pluralism and editorial independence. In that context, media pluralism should be understood as the possibility to have access to a variety of media services and media content which reflect diverse opinions, voices and analyses. National rules and procedures can have an impact on the freedom to provide media services in the internal market and need to be properly framed and be transparent, objective, proportionate and non-discriminatory. Media market concentrations subject to such rules should be understood as covering those which could result in a single entity controlling or having significant interests in the market concerned and thus having a substantial influence on the formation of public opinion in a given media market in one or more Member States. An important criterion to be taken into account is the reduction of competing views within that market as a result of the media market concentration.

National regulatory authorities or bodies, which have specific expertise in the area of media pluralism, should be involved in the assessment of the impact of media market concentrations on media pluralism and editorial independence where they are not the designated authorities or bodies themselves. The involvement of those national regulatory authorities or bodies should be substantive, for instance by ensuring that their views are taken into account in the competition assessment. In order to foster legal certainty and ensure that the national rules and procedures that allow for the assessment of media market concentrations that could have a significant impact on media pluralism and editorial independence genuinely aim to protect media pluralism and editorial independence, it is essential that objective, non-discriminatory and proportionate criteria for notifying and assessing the impact of media market concentrations on media pluralism and editorial independence be set out in advance.

Where a media market concentration constitutes a concentration falling within the scope of Regulation (EC) No 139/2004, the application of this Regulation or of any rules and procedures adopted by Member States on the basis of this Regulation should not affect and should be distinct from the application of Article 21(4) of Regulation (EC) No 139/2004. Any measures taken by the designated national regulatory authorities or bodies or the national regulatory authorities or bodies involved on the basis of their assessment of media market concentrations that could have a significant impact on media pluralism and editorial independence should therefore aim to protect legitimate interests within the meaning of Article 21(4), second subparagraph, of Regulation (EC) No 139/2004 and should be in line with the general principles and other provisions of Union law. This Regulation should be without prejudice to more detailed national rules applicable to media market concentrations occurring, in particular, at regional or local level.

With a view to ensuring pluralistic media markets, the national authorities or bodies and the Board should take account of the elements provided for in this Regulation. In particular, the national authorities or bodies and the Board should consider the expected impact that media market concentrations have on media pluralism, including, in particular, the effect they have on the formation of public opinion, taking into account the online environment. In that respect and particularly where relevant in order to assess the possible impact they have on the formation of public opinion in significant parts of a given media market, the national authorities or bodies and the Board should take into account the geographical reach of the entities involved in media market concentrations. Concurrently, they should consider whether other media outlets that provide different and alternative content would still coexist in the given market or markets if the media market concentration in question is implemented. When assessing safeguards for editorial independence, the national authorities or bodies and the Board should examine the potential risks of undue interference by the prospective owner, management or governance structure in the editorial decisions of the acquired or merged entity. The national authorities or bodies and the Board should also take into account the existing or envisaged internal safeguards which aim to preserve ethical and professional standards as well as the independence of editorial decisions taken within the media undertakings involved. In assessing the potential impact of media market concentrations on media pluralism and editorial independence, the national authorities or bodies and the Board should consider the effect of the concentration in question on the economic sustainability of the entity or entities involved in the concentration. They should also consider whether, in the absence of the concentration, the entity or entities involved in the concentration would be economically sustainable, in the sense that, in the medium term, they would be able to continue to provide and further develop financially viable, adequately resourced and technologically adapted quality media services in the market. Where applicable, the national authorities or bodies and the Board should also take into account the commitments that any of the parties involved might offer in order to ensure that the relevant media market concentration guarantees media pluralism and editorial independence. Where relevant, the national authorities or bodies in their assessments and the Board in its opinions should also take into account the findings of the Commission’s annual rule of law reports related to media pluralism and media freedom.