1999/242/EC: Commission Decision of 3 March 1999 relating to a proceeding pursuant to Article 85 of the EC Treaty (Case No IV/36.237 - TPS) (notified under document number C(1999) 387)

• Articles: 4

Article 1

On the basis of the facts in its possession, the Commission has no grounds for action pursuant to Article 85(1) of the Treaty in respect of the creation of TPS by TF1, France Télévision Entreprises, M6 and Suez Lyonnaise des Eaux.

Article 2

The Commission has no grounds for action pursuant to Article 85(1) of the EC Treaty during the launch period, namely until 15 December 1999, in respect of the non-competition clause set out in the codicil amending Article 11 of the Agreement of 11 and 18 April 1998 and Article 5.3 of the Associates' Pact.

Article 3

In accordance with Article 85(3) of the EC Treaty, the provisions of Article 85(1) of the EC Treaty are hereby declared inapplicable, for the period from the date of notification to 15 December 1999, to the clause concerning TPS's special-interest channels and television services, set out in Article 6 of the Agreement of 11 and 18 April 1996, and to the provision concerning the exclusive transmission of the four general-interest channels on TPS, also set out in Article 6 of the Agreement of 11 and 18 April 1996.

Article 4

This Decision is addressed to:

(1) Télévision Française 1 33, rue Vaugelas F - 75015 PARIS

(2) France 2

Maison France Télévision

7, esplanade Henri de France F - 75907 PARIS CEDEX 15

(3) France 3

Maison France Télévision

7, esplanade Henri de France F - 75907 PARIS CEDEX 15

(4) France Télécom 6, place d'Alleray F - 75015 PARIS

(5) Métropole Télévision 16, cours Albert 1er F - 75008 PARIS

(6) Suez Lyonnaise des Eaux 72, avenue de la Liberté F - 92000 NANTERRE.

Done at Brussels, 3 March 1999.

For the Commission

Karel VAN MIERT

Member of the Commission

(1) OJ 13, 21.2.1962, p. 204/62

(2) OJ C 65, 28.2.1998, p. 5.

(3) OJ L 395, 30.12.1989, p. 1; corrected and republished in OJ L 257, 21.9.1990, p. 13.

(4) OJ L 180, 9.7.1997, p. 1.

(5) The ratio of actual subscribers to the number of possible connections.

(6) OJ L 364, 31.12.1994, p. 1, at recitals 32 and 33; Case No 1V/M.779 - Bertelsmann/CLT of 7 October 1996; Case No IV/M.993 - Bertelsmann/Kirch/Premiere of 27 May 1998.

(7) OJ C 364, 4.12.1996, p. 3.

(8) OJ L 53, 27.2.1999, p. 1.

(9) See footnote 8.

(10) A comparison of prices charged in 1996 shows that the subscription for Canal+ broadcast via analog terrestrial transmission (FRF 175) was similar to that charged for CanalSatellite Numérique (FRF 98 for the basic subscription plus FRF 55 for the cinema option plus FRF 30 for the music option).

(11) However, the NumériCâble network controlled by Canal+ does not carry the TPS cinema channels.

(12) Pay-TV refers to the encrypted transmission, by whatever means, of television programmes or channels which can be accessed on payment of a subscription.

Pay-per-view offers access to individual encrypted programmes, for which a charge is made per viewing, at a time scheduled by the operator. Near video-on-demand is a pay-per-view service accessible on several channels (multiplex); video-on-demand offers the consumer access to a programme, for which a charge is made per viewing, at a time chosen by the consumer.

(13) See footnotes 6 and 8.

(14) OJ L 284, 3.10.1989, p. 36.

(15) Satellifax, 24 July 1998.

(16) Avica publication, January 1998. These figures include only subscribers who have an individual contract with the cable operator and exclude subscribers to the "antenna service". The latter relays the channels broadcast in clear and does not constitute a pay-TV service proper since there is no direct relationship between the subscriber and the cable operator (the price of the service is billed along with the building maintenance charges).

(17) Traditionally, a company producing special-interest channels acquires broadcasting rights, devises programmes and manages and markets the channels it produces.

(18) Opinion 98-A-14 delivered on 31 August 1998 by the Conseil de la concurrence concerning the takeover of Havas by Compagnie Générale des Eaux - Bulletin officiel de la concurrence, de la consommation et de la répression des fraudes of 7 October 1998.

(19) AB group presentation, September 1997.

(20) French legislation requires the general-interest channels to invest 15 % of their turnover in commissioning audiovisual works filmed in French and to devote 3 % of their turnover to developing the production of French-speaking and European cinema films.

(21) Canal+ is under the obligation to invest 9 % of its turnover in the acquisition of cinema films made in French.

(22) CNC Info No 268, April 1998.

(23) Report by the Conseil supérieur de l'audiovisuel entitled "La télévision a péage par satellite", August 1997.

(24) Third parties voiced their concern to the Commission at the possibility of collusion between the broadcasters with shares in TPS as regards the acquisition of broadcasting rights, quoting the example of TCM. The company TCM was set up by some of the broadcasters with shares in TPS (TF1, M6 and CLT, which subsequently withdrew) when an overall agreement was concluded with Paramount. That agreement, which was vitally important to the creation of movie channels and therefore to the launch of TPS, provided for the purchase not only of pay-TV and pay-per-view rights, but also of unencrypted broadcasting rights, which were acquired by TCM with funds provided by its shareholders. The Commission sent the parties to the agreement setting up TCM, which was the subject of a separate investigation, a comfort letter stating that the agreement did not restrict competition provided that TCM's activities were confined to the conclusion of agreements essential to the operation of TPS; it took that view particularly because the parties undertook to place all the unencrypted broadcasting rights on the market and to resell them at market prices and without discrimination.

(25) Médiamétrie, bi-monthly initialisation survey, November of December 1997.

(26) Parts of this text have been edited to ensure that confidential information is not disclosed; those parts are enclosed in square brackets.

(27) Opinion 98-A-14 delivered on 31 August 1998 by the Conseil de la concurrence concerning the takeover of Havas by Compagnie Générale des Eaux.

(28) Paris Première, whose main shareholder is Suez Lyonnaise des Eaux, is broadcast exclusively on CanalSatellite.

(29) Ecran Total magazine Nos 176 and 232.