Search

Defence date: 5 November 2015 Examining Board: Professor Giorgio Monti, Supervisor-European University Institute; Doctor Rachael Craufurd-Smith, University of Edinburg; Professor Michal Gal, University of Haifa; Professor Peggy Valcke, Katholieke Universiteit Leuven. Received the The Institute of Competition Law 2016 Concurrences PhD Award. EU Competition Law is generally believed to play a negligible role in protecting media pluralism. Three arguments are usually put forward to support this position. First, the application of EU competition law ensures market access, thereby potentially delivering an outcome that is of benefit to media pluralism, but this outcome is entirely dependent on the economic concerns the European Commission attempts to address in each individual case and hence (at best) coincidental. Second, precisely because it is driven by efficiency considerations, EU competition law is incapable of grasping the qualitative dimension of media pluralism. Third, when exercising State aid control, the Commission can (and must) play only a marginal role in the planning and implementation of aid measures aimed at promoting media pluralism. This thesis puts forward the claim that EU competition law has potential that remains unexplored by questioning the accuracy of the above three assumptions. To test this claim, it examines a number of traditional and new media markets (broadcasting, print and digital publishing, online search, and news aggregation) and competition law issues (concentrations, resale price maintenance agreements, online agencies, abuses of dominance, and State aids to public service media). The study demonstrates that if relevant assessments are conducted properly, that is, by duly taking account of the dimensions that drive competition in the media, including quality, variety and originality, and by making appropriate use of the tools provided by the applicable legal framework, EU competition law may go a long way towards safeguarding media pluralism without the need to stretch the limits of the Treaty on the Functioning of the European Union. Amidst a deregulatory trend towards the media and given that the likelihood that action with far-reaching implications under other branches of EU law is low, the normative suggestions put forward in this thesis possibly form the only realistic proposal on the contribution the EU can make to the protection of pluralism.

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.