Media Pluralism and Competition Law: Opinion of Prof. Dr. Anna Gerbrandy and Dr. Malgorzata Kozak, at the request of the Autoriteit Consument en Markt

The Autoriteit Consument and Markt (ACM) has requested us to provide an opinion on, broadly speaking, the question of whether, within a media-merger procedure, the protection of media pluralism can be taken into account under competition law. We have structured our contribution as follows: in this introduction, we make some methodological and procedure-related remarks (chapter 1). Then, chapter 2 discusses the obligations for National Competition Authorities stemming from the European Media Freedom Act (EMFA). The analysis of chapter 2 is to a certain extent separate from the next chapters (chapters 3 – 5), which focus on competition law. Chapter 2 concludes that a National Competition Authority is able to take media pluralism concerns into account, and has an obligation not to contradict EMFA’s objectives. Next, chapters 3 – 5 taken together answer the question of the ACM – whether media pluralism can be taken into account - in the affirmative. Chapter 3 provides a general answer by analysing the relationship between competition law, democracy and media pluralism; chapter 4 includes a more specific discussion on the notion of opinion power to support this answer; and chapter 5 shows how the objective of protecting media pluralism can be operationalised. Taken together, these three chapters argue that – apart from the EMFA-obligations – there is a strong argument to be made for the ACM to take into account a lessening of media pluralism as a competition law relevant harm, both under more classical competition analyses, and as a separate theory of harm. In chapter 6 we combine the two strands of the analysis and conclude that they reinforce each other. Competition law does not stand in the way of a National Competition Authority taking EMFA’s media pluralism concerns into account; and the obligations of EMFA support the notion that in a (merger control) competition law analysis lessening of media pluralism can be taken into account