Magazine / Economy / Mediamarkets / Facts | 20/12/2007

The regulation of media concentrations in Europe

Concentrations and power over opinions are only two key phrases in the debate centred on European media markets. The free circulation of goods and media products is an EU target and makes it easier for media concerns to become active Europe-wide. How can the EU guarantee medial plurality while at the same time preventing too intensive media concentrations?

The media between art and commerce

In order to understand the regulation of media concentration in Europe, one must gain a clear grasp of both principle functions of the media. On the one hand, the media and the services connected to it form important economical goods whose significance for the market is generally increasing, although the use of newspapers as a classic medium is decreasing.

Digitalisation, Internet TV and online services are disintegrating regionally and temporally-bound use of media
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At the same time, the use of new media, above all the internet, is increasing. This is especially so for teenagers, who already spend more time on the internet than in front of the television. The new media and the new, diverse business models related to it have developed into a fast-moving, dynamic media market with a high profit potential.

As well as its function as an economical unit, the media are simultaneously an essential part of cultural life, in particular in their role as a factor towards political decision-making. This Janus face on the media between "art and commerce” results in two different functions of media concentration control, which thereby leads to a double-tracked control of media concentrations. The concentration control must on the one hand guarantee the control of economic power. This takes place via the classic antitrust laws for which the Federation possesses the legislative competence. Equally important is, however, the control of power over opinions, for which the states have the competence. This double-tracked control is not only necessary due to the split competences, but also because economical power and power over opinions can coincide, but don't have to. This makes it possible to have a concern which does not have a dominant position on the market but nonetheless holds power over opinions because it is present on many markets thereby having in total a dominant position after all (the so-called Cross-Ownership phenomenon).
In addition to this, the case of a concern which already has a presence on many media markets, then also founds a broadcasting services company, is as little included in the antitrust law as the case of inner growth within a company. In these cases, specific media concentration laws become particularly important.

The responsibility of the EC in the field of media

On top of this, media concentrations are controlled both at national and at European levels. The principle of limited representative power, however, only allows the European Community to act in those areas in which the member states have assigned it appropriate competences as "Lords of the contracts”. The European Community itself has no "competence for competence”[1]. This means that the European Community may not become active according to its will in those areas in which it sees a need for action, but rather only there where the member states have expressly assigned it the competence to do so.

As the member states of the European Community are neither assigned with express competence in the field of broadcasting services nor in the field of media, the following question arises: how are the responsibilities in these fields to be divided between the member states and the Community? The EC competence is limited to the economical aspect of the media. This means that the organisation of broadcasting services represents a transborder service for which the EC contract freedom of services (http://europa.eu.int) can be applied. Media products fall under the EC contract goods transport freedom. The basic freedoms in the EC contract serve the economic target of establishing a domestic market within the European Union in which free exchange of goods, services, people and capital can take place. For this purpose, trade constraints are being abolished between the member states. This makes it easier for media concerns to become active on the European media market.

As broadcasting services and the media both form important elements of cultural life in the member states, the Culture Article Art. 151 EC, which leaves the culture competence to the member states, sets limits on the EC's ruling competence in the field of media.
The purport of Art. 151 EC, which speaks of the "cultures of member states”, and not about a unified European culture, shows that Art. 151 EC does not justify the EU competence in the field of culture, but rather the member states. The Culture Article forbids the Community to decree harmonising regulations in the field of media which focus on the cultural aspect of the media. The only exceptions to this are pure promotion measures. The EC is therefore only responsible for economic aspects of the media. As soon as the cultural aspect of the media is affected, the member states take over responsibility.

The Bundesverfassungsgericht (Federal Constitutional Court), too, has always made clear in its broadcasting service jurisdictions that it sees the broadcasting services as a major component of the cultural field. In the so-called first television judgment in 1961, the Bundesverfassungsgericht (Federal Constitutional Court) described the broadcasting services as being "also a cultural phenomenon”.[2] At the same time, however, the Bundesverfassungsgericht (Federal Constitutional Court) is aware of the economical dimension of the broadcasting services.[3] The doubled function of the media requiring the member states' responsibility on the one hand and the EC responsibilities on the other leads to each individual media case being examined as to which level is responsible, for which in particular the purpose and aim and the objective focus of each measure must be applied.

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