19 November 2015

CNMC fines Atresmedia €2.8 million for breaching conditions of a 2012 merger

On 18 November 2015, the Spanish Competition Authority (CNMC) announced that it has imposed a €2.8 million fine on Atresmedia Corporación de Medios de Comunicación, S.A. (Atresmedia), the parent company of television channels such as Antena 3 and La Sexta.

On 13 July 2012, the now-extinct Comisión Nacional de Competencia (CNC) cleared the acquisition by Antena 3 de Televisión, S.A. (Antena 3) of Gestora de Inversiones Audiovisuales La Sexta, S.A. (La Sexta) subject to certain remedies, including a prohibition on offering bundled advertisement packages for the two channels (case no. C/0432 Antena 3 / La Sexta).  On 24 August 2012, the Council of Ministers gave its greenlight to the acquisition, partially modifying the remedies imposed by the CNC.

These remedies were imposed to mitigate the risk that the common management of networks would have an adverse effect in the market for advertising on television channels due to the reduction of competition after the transaction. Under Spanish law, undertakings must ensure that they comply with the commitments made to the CNMC for merger clearance and the watchdog may impose fines if it sees that they have failed to do so

On 6 May 2015, the CNMC issued a resolution stating that Atresmedia may have breached some of the obligations included in the commitment for the merger clearance. Following the resolution, infringement proceedings were opened in order to determine the extent, if any, of these breaches.The CNMC now considers that these breaches have been proved, which constitutes a very serious breach of the Spanish Competition Act 15/2007. The CNMC determined that Atresmedia has been linking the sale of advertisements within the TV channels it controls, eliminating the possibility for customers to freely design and select the advertisement package they want.

It should be borne in mind that the CNMC has already fined Mediaset, another TV group, three times for breaching the obligations established in the commitment for its merger clearance. In 2011, Mediaset was fined €3.6 million for failing to submit an action plan setting out how the group planned to meet the commitments. The CNC considered this conduct to be a very serious infringement of Article 62.4(c) of the Spanish Competition Act 15/2007. In February 2013, the CNC fined Mediaset a further €15.6 million for failing to comply with the aforementioned commitments, which was also considered to be a very serious breach of Article 62.4(c).  And finally, on 15 September 2015 the CNMC announced the imposition of another €3 million fine on Mediaset. 

It is important to note that according to Article 63 of the Spanish Competition Act, any conduct considered to be a very serious breach of competition law will be fined up to 10% of the turnover of the company.  In addition, the CNMC’s decisions cannot be challenged through administrative review. However, the company that has been fined may bring a complaint before the Audiencia Nacional (AN), which is the judicial body in charge of reviewing the CNMC’s administrative decisions.  Such a complaint must be brought within two months of the recipient of the fine being notified of the resolution. The AN will then decide whether the CNMC's interpretation of the company’s actions in relation to the commitments is valid or whether any appeal raised by the company is legitimate. The AN will also confirm, or may modify, the level of fine imposed. Judgements of the AN may be appealed to the Supreme Court, which may confirm the judgment or request the elimination and / or recalculation of the fine.  For instance, on 21 September 2015, the Supreme Court partially accepted the appeal brought by Mediaset against the €3.6 million imposed by the CNMC in 2011 and ordered its recalculation.

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