In the assessment procedure of the concentration between the undertakings Slovenia Broadband and Tele2 the CCA took into account all relevant facts, the results of the legal and economic analysis and the effects of the vertical concentration on competition in the relevant markets concerned, primarily its non-coordinated effects.
In the course of the procedure it has been established that SBB has been present in the provision of media services market in Croatia or, more precisely, in several stages of these market, such as the production of audiovisual content and acquisition of licencing rights of third parties’ audiovisual content broadcasted its own TV channels, wholesale of general and specialised TV channels (Nova TV, Doma TV, N1, Mini TV, Sport Klub channels, SK Golf, Lov i ribolov, Fight Channel etc.) to cable, satellite and IPTV operators, of which Nova TV and Doma TV provide free DVB-T access at the national level, and in the TV advertising market in which it holds a significant market share mostly through Nova TV, in which market Tele2 is the buyer of the advertising space.
Tele2, as a target company in this transaction, provides electronic communication services in mobile networks. It has been established that Tele2 is not engaged in any of the business activities that are carried out by SBB in the territory of Croatia. At the same time, Tele2 is the smallest of three mobile operators in the Croatian market and the only one that does not have its own infrastructure but uses the infrastructure services of another operator.
The parties to the concentration (SBB and Tele2) are not present in the transmission of pay-tv programmes in Croatia, where another two mobile network operators (HT and A1) provide these services and are at the same time present in the fixed-line electronic communications network and, beside other services, also provide the pay television transmission services.
Thus, there is no overlapping of the activities of SBB/United Group and Tele2 in the affected relevant markets in Croatia.
In the assessment of the concentration concerned the CCA appropriately applied the criteria arising form the application of competition rules in the EU, taking into consideration all relevant decisions of the European Commission. The CCA also consulted the decisions of the EU competition authorities listed in the submitted comments of the parties to the concentration and those named by one interested party in its reply to the request for information.
It is essential, that in the compatibility assessment of the concentration concerned the CCA particularly took into consideration the fact that there is a de facto a legal barrier to entry the pay television transmission services market by SBB/United Group. Namely, Article 61 of the Electronic Media Act stipulates that any operator that performs the activity of a TV broadcaster and is at the same time engaged in the provisions of media services cannot be engaged in the pay-tv transmission activities. This legal provision of the Croatian regulatory framework to a certain extent makes the relevant comparative practice different from the assessment of the concentration concerned.
Given the fact that the preparations for a new electronic media act are under way, the CCA referred to the specific sector regulator – the Agency for Electronic Media and the Ministry of Culture – competent for the drafting of the proposal of the new act, and sought their opinion regarding the current regulatory limitation and the likely upcoming changes of the legal framework concerned.
The reply received from the Agency for Electronic Media reassured the CCA that the existing prohibition of ownership ties between the TV broadcaster and the pay-tv operator must be kept in the new electronic media act, whereas the Ministry of Culture explicitly informed the CCA that this prohibition has remained in the proposed draft of the piece of legislation concerned.
The Electronic Media Act also regulates the electronic media advertising by specifying the length of the advertising space.
In its assessment the CCA also factored in the comments received from the surveyed undertakings – advertisers, media lease companies and the Croatian Association of Communication Agencies that essentially reported that to their knowledge no one has experienced a refusal of the provision of advertising services by Nova TV. In addition, the majority of the undertakings questioned by the CCA stated that the criteria for and the way of the provision of advertising services have been defined by the general terms of business by Nova TV.
The Croatian Regulatory Authority for Network Industries (HAKOM) – specific regulator in the area of electronic communications commented that this concrete concentration will not have any anticompetitive effects in the electronic communications market affected by the concentration concerned.
Taking everything into account, the CCA found that this concentration will not raise any competition concerns, and particularly, it will in no way create or strengthen a dominant position in the market by the parties to the concentration and approved the concentration within the meaning of competition rules.