European merger control in the broadcasting sector : does media pluralism fit?

Abstract

Over the past years, the European broadcasting industry has been experiencing major consolidation trends with very large concentrations getting the green light by the European Commission (hereafter the Commission). Such operations are detrimental to competition and media pluralism, two values that the Commission is bound to protect under the Treaties, the Charter of Fundamental Rights of the EU and the Merger Regulation. An overview of the relevant decision-making reveals that the Commission has focused on securing a diversity of suppliers in the broadcasting markets with the effects of a concentration on content diversity having abundantly been ignored thus far. In that regard, media pluralism has been catered for only coincidentally and to the extent that it fits the Commission’s understanding of competitive broadcasting markets. Yet, assessing the impact of a concentration on content diversity is not only a legitimate subject for relevant merger inquiries, but also the Commission’s duty under both primary and secondary EU law. This article argues that, while it would be unlawful for the Commission to conduct a politically contentious assessment and ban a merger operation on pluralism grounds, it is also true that European competition law does not operate in a vacuum but rather as an apparatus used for the realization of the European project. Therefore, merger control needs to be exercised in a pluralism-friendly manner.