The role of media pluralism in the enforcement of EU competition law, Konstantina BANIA

Konstantina Bania

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of Concurrences. Publishers, authors and editors are welcome to send books to catherine.prieto@univ-paris1.fr for review in this section.

The present thesis by Konstantina Bania is a study undertaken at European University Institute. It deals in all facets with the enforcement of European competition law and media pluralism. Mrs. Bania works in multiple disciplines and analyses them in a multimedia way: Pluralism is analysed not only from a legal but also from an economic perspective, and all types of media from books to television to digital platforms are explored. When reading the study, it is quickly obvious that this is an extremely extensive and detailed work. The key question running through the book is the question of whether media pluralism can be protected if the Treaty does not facilitate noneconomic objectives to replace competition considerations. It examines the role the EU should play in protecting media pluralism and attempts to identify the potential of strict competition enforcement to promote pluralistic supply.

The book consists of seven chapters, with Chapters 1 and 7 being introduction and conclusion. While Chapters 2 and 3 provide a more general analysis of the main challenges of implementing pluralistic offers and of the pluralism-friendly application of European competition law, Chapters 4 to 6 deal with individual examples of the European Commission’s decision-making practice in the media sector.

In Chapter 2, she first explains that politicians from all over Europe are reassessing media pluralism as a communication policy principle. Here, the aim is not to develop a new legal definition of media pluralism, but to present developments in communication technologies and markets. To this end, Mrs. Bania notes that the old “gatekeepers” still dominate the market in Europe, since traditional media have not yet been completely displaced by newer forms of media and existing media companies got used to the new conditions and repositioned themselves. Besides the already existing problems, such as the concentration of ownership, new dangers have emerged. So she requires policy makers to create a framework in which marginalised viewpoints can reach audiences and consumers can increasingly respond to diversity.

In Chapter 3, dealing with a pluralism-friendly application of European competition law, Mrs. Bania, first of all, states that the Commission’s decision-making practice with regard to media markets protects neither competition nor media pluralism and then establishes that more precise and pluralism-friendly competition decisions are possible without arising jurisdiction conflicts. She criticises the Commission’s decision-making practice to the effect that it does not draw a clear, but rather a contradictory picture of the relationship between European competition law and media pluralism. She explains that the Commission takes both the approach that media pluralism is a spontaneous result of unhindered market access and that it is a value that could only be protected by means of competition restrictions. Consequently, the Commission has not promoted pluralism in any particular way. Mrs. Bania is therefore in favour of pluralism considerations being taken significantly into account in the competition assessment. Thus, in Chapters 4 to 6, she examines the potential of such a pluralism-based competition assessment in various media sectors.

Chapter 4 examines EU merger control in the broadcasting sector, which included 107 transactions, whereas all other media sectors accounted for only 15 notifications. Here Mrs. Bania states that the application of European competition law can be more pluralism-friendly without exceeding the limits of the Treaty. In order to analyse how the Commission evaluates the impact of mergers in the respective broadcasting markets, she is first of all drawing up the Commission’s definition of the relevant product markets in cases involving free-to-air broadcasters. In doing so, the Commission should identify the relevant viewer market and examine the interaction between viewers and advertisers. Finally, Mrs. Bania asks, on the basis of particular examples, how each step of a merger analysis could be shaped to become more pluralistic. She advises the Commission to recognise that the parameters of non-price competition in media markets are at least as important as price competition. Furthermore, she argues that it is much more efficient to take structural measures to solve competition and pluralism problems than to refer to behavioural measures that, for example, try to ensure access to infrastructure.

In Chapter 5, Mrs. Bania examines how the Commission applies Article 101 TFEU to agreements containing resale price maintenance (RPM) elements and governing the sale of (e-)newspapers and (e-)books. As it is disputed to what extent RPM promotes competition and may encourage small publishers to enter the market, RPM is treated differently across the EU. She first discusses how Article 101(3) TFEU can be interpreted to ensure that RPM agreements that promote non-price competition can benefit from the exemption. Her VBBB/VBVB analysis shows that the Commission has almost ignored the sector-specific economy and that RPM may generate certain non-price benefits. Regarding the E-Books case, she further states that the Commission did not answer the question whether the agreements between Apple and major book publishers fall within the scope of Article 101. Finally, she analyses the Commission’s approach in the Sammelrevers case, in which the institution stated that Article 101 is inapplicable to a purely national RPM agreement. It should be noted that RPM is not an indispensable condition for the preservation of media pluralism and therefore it must always be examined whether the respective agreement also generates the efficiency gains it declares.

Chapter 6 examines the application of Article 102 TFEU to digital intermediaries and in particular the Commission’s investigation into Google’s abuse of dominance in general online search. Mrs. Bania clearly shows here that the Commission’s failure to act on retention practises means that newspapers may not be able to reach Google’s large user base. It is further illustrated how users can rely on Article 102 TFEU to counter exploitative practices that may impact their content choices.

What is very interesting about this book is that the analysis—except for the justifiably missing aspect of state aids—is done holistically, both in a temporal and in an interdisciplinary perspective: Mrs. Bania analyses the past, the present and gives future perspectives in all media markets. Although these markets are very complex and constantly changing, she manages to produce a very extensive analysis of the application of European competition law and to structure this analysis logically and to explain it coherently. It stands out remarkably from comparable works because it does not only focus on the broadcasting markets, but also explores old (print) media and highly topical media such as online search.

Although the book provides very detailed legal and economic analyses, it is interesting not only for academics, but also for all lawyers, economists and media scientists who are wondering what direction European competition policy might take in the coming years. Due to the fact that it is generally assumed that the media are capable of shaping the political agenda and thus influencing the behaviour of citizens, this highly topical work also appeals to political scientists. It is thus no surprise that her work has received the prestigious Concurrences PhD Award in 2016 and the Best Paper Prize by the Academic Society for Competition Law in 2017.

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Rebekka Schlieper, The role of media pluralism in the enforcement of EU competition law, Konstantina BANIA, May 2020, Concurrences N° 2-2020, Art. N° 94129, pp. 274-275

Publisher Concurrences

Date 30 October 2019

Number of pages 360

Visites 75

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