The EU Court of Justice rules that certain anti-concentration limits set forth by the Italian legislation for the protection of media pluralism are incompatible with the competition law (Vivendi / Mediaset)

Summary: The CJEU has established that the market concentration thresholds set forth by Article 43(11) of Legislative Decree No. 177/05, and based on the overall revenues of the so called “Integrated System of Communications,” are inadequate to detect or prevent the risk for pluralism and thus unreasonably restrict – contrary to Article 49 TFEU – the ability of an undertaking established in another Member State (Vivendi) to simultaneously hold a “material influence” over (i) Italian undertakings exceeding 10% of the total revenues of the “Integrated System of Communications” (Mediaset) and (ii) undertakings exceeding 40% of the total revenues of the electronic services sector (Telecom Italia). On September 3, 2020, the Court of Justice of the European Union (“CJEU”) issued a landmark