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The regulation of media concentrations in Europe, by Stephanie Schiedermair

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The specific media concentration law

The aim of the specific media concentration law is to prevent "predominant power over opinions”, How one is to understand the undefined legal term "predominant power over opinions” is laid down in § 26 RStV (www.kjm-online.de), which applies the affected numbers of television viewers as the central criterion.[1] With an audience proportion of 30 %, predominant power over opinions is suspected. With an audience proportion of 25 %, the activities of the concern on other media-relevant markets must be included in the total examination.
The idea of media as a cultural asset is the basis for these regulations. As a consequence, the EC has no competence in this area. A specific media concentration control therefore takes place exclusively at a national level, in Germany via the Kommission zur Ermittlung der Konzentration im Medienbereich (Commission for evaluation of concentrations in the field of media) (KEK, see www.kek-online.de). At a European level, we merely see cooperations between national media supervisory authorities, such as for example the "European Platform of Regulatory Authorities” (EPRA, see http://www.epra.org/).

The European Wettbewerbsrecht (Competition Protection Act)

In as much as the economical interpretation of the media is affected, the European Wettbewerbsrecht (Competition Protection Act) can be applied. The European Commission, whose decisions are in turn controlled by the European Court of Justice, are responsible here. The European Wettbewerbsrecht (Competition Protection Act) is based on three columns: the embargo on competition-limiting agreements, the embargo on misuse of a dominant market position and the merger control which is particularly important for the media concentration law, which runs according to the EC Fusionskontrollverordnung (merger control regulation) (FKVO) from January 20, 2004 (www.jusline.eu).

For both material and procedural law aspects, the merger control is based on the principle of the "one-stop shop”, also known as the "one-barrier theory”. This means that only one level respectively, either the European or the member states level – can be responsible. Mergers which have Community-wide relevance are therefore controlled exclusively by the European Fusionskontrollrecht (Merger Control Law). The European Commission is then exclusively responsible, so that the affected concern only has to deal with one Commission. In merger control proceedings, the European Fusionskontrollrecht (Merger Control Law) differentiates between taking-up and intervention criteria. The taking-up criteria specify under which conditions the FKVO is applied and therefore which the Commission may accept in the event of each case. The intervention criteria, on the other hand, specify under which conditions the Commission is allowed to forbid a merger.

The European merger control extends to "all mergers of Community-wide importance”. A merger of "Community-wide importance” is when the world-wide total turnover of all participating companies totals more than 5 billion euros or a Community-wide total turnover of at least two participating companies of more than 250 million euros respectively is made. This is not only the case in a merger of one or more companies, but also when share deals or asset deals are purchased.

Mergers which would substantially hamper effective competition in the Common Market or a major part of it are to be declared incompatible with the Common Market. The mergers must be applied for formally to the Commission within one week, whereby an execution embargo is applied before legal innocuousness is defined. The affected concern can take claims against the Commission's decision to the European Court of First Instance.

However, the merger control regulations make clear that the member states have the right to measure mergers which fall under the European Commission's responsibility against the criterion of pluralism, meaning that they ensure diversity of opinion. For one thing, this allows the Community limited competence in this field. At the same time, the aspect of plurality, meaning ensuring a diverse media landscape in Europe, is paid deference to. The European Court of Justice (EuGH, see the Court of Justice webpage at http://curia.europa.eu/de/instit/presentationfr/index_cje.htm) considers namely that ensuring a diverse media landscape is also a legitimate, recognised target for the EC.[2] The European Court of Justice hereby follows the legal practice for the European Court of Justice for Human Rights) (EGMR, see the Court of Justice webpage under http://www.egmr.org/), which has recognised for Art. 10 of the European Human Rights Convention (EMRK, see the convention text under www.institute fuer-menschenrechte.de) that as well as individual media freedom, media pluralism must also be secured.[3] The European Basic Rights Charter, too, whose future however is presently uncertain, declares in Art. 11 Paragraph 2 that the plurality of the media must be respected (see www.europarl.europa.eu). A merger which appears for antitrust reasons innocuous to the European merger control regulations can therefore still be forbidden according to the national directives in §§ 26 ff. RStV (www.kjm-online.de/public/kjm/bogus.php?download_id=3), if predominant power over opinion would occur due to the intended alteration in participation. This too shows the parallelity of antitrust on the one hand and media-specific concentration law on the other.

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