Tuesday, 20 July 2021 11:54

Press Release- Public version of the decision concerning the clearance by the HCC of the concentration ALPHA/ STAR/ GREEN PIXEL

Subject: Public version of the decision concerning the clearance by the HCC of the concentration ALPHA/ STAR/ GREEN PIXEL

The Hellenic Competition Commission will from now on publish extensive summaries of the published HCC decisions, with a view to better informing the public as well as enhancing transparency and public debate. In this context, the HCC publishes an extensive summary of HCC Decision 728/2021, in view of the publication of the non-confidential version of the decision on the HCC’s webiste.

Subject: Public version of the HCC decision (No. 728/2021) on the clearance by the Hellenic Competition Commission of the concentration concerning the acquisition of joint control by “ALPHA SATELLITE TELEVISION SA” and “NEW TELEVISION SA” over the company “GREEN PIXEL PRODUCTIONS SA”

     I.   Executive Summary

On 24 March 2021, by its unanimous Decision No. 728/2021, the Plenary of the Hellenic Competition Commission (HCC) approved, pursuant to Art. 8(3) of Greek Law 3959/2011 (the Greek Competition Act), the proposed transaction notified on 8/1/2021 concerning the acquisition of joint control by “ALPHA SATELLITE TELEVISION SA” (which operates the Greek TV station “ALPHA”) and “NEW TELEVISION SA” (which operates the Greek TV station “STAR”) over the company “GREEN PIXEL PRODUCTIONS SA” (a company active mainly in the production of television programs, movies and videos).   

     II.  Relevant markets

In examining the notified concentration, the HCC carried out for the first time a thorough analysis of all the levels of the TV value chain. Taking into account the views submitted by the notifying parties, by other companies operating TV stations in Greece, and by TV production companies, as well as taking into consideration the relevant precedents and case law at EU and national level, the HCC defined the following markets as relevant product markets for the purposes of the concentration:

  • the market for the production, supply and acquisition of TV content (upstream market) – in which the target company operates; and
  • the market for retail provision of TV services to end customers (downstream market) – in which the notifying parties operate. 

In both cases, the whole of the Greek territory is considered as relevant geographic market.

  • LegalAssessment

The HCC first looked into whether it could be considered that the two notifying parties constitute a single economic entity and, therefore, their control over the target company could be attributed to a single company. In particular, according to settled case law and the European Commission’s Guidelines, the full function character of a joint venture is established when such joint venture: (a) operates on a market; (b) performs the functions normally carried out by undertakings operating on the same market; and (c) has access to sufficient resources including finance, staff, and assets (tangible and intangible) in order to conduct on a lasting basis its business activities.

The HCC noted that, in principle, the pre-existing close family ties between the persons exercising control over the aforementioned parties are not in themselves a decisive factor in establishing the existence of a single economic entity in the case at hand, both in view of EU case law as well as precedents at national level. It is therefore necessary to consider whether, in addition to the existence of family ties, there are further economic links on the basis of which significant central management can be established between the notifying parties. For the purposes of this evaluation, an authority can take into account further evidence of financial and administrative dependence of the two companies or of the existence of control rights and decisive influence in the behaviour of each company, and analyse, in a case by case basis, the existence of shares, other contractual relationships and sources of funding (ie the existence of structural links). Ultimately, the key question is not whether the undertakings in question have a separate legal personality, but whether or not they act together on the market as a single unit.

Following an analysis of the evidence at hand, the HCC concluded that it cannot be established with certainty that, in the present case, which concerns the acquisition of joint control by “ALPHA SATELLITE TELEVISION SA” and “NEW TELEVISION SA” (STAR) over the company “GREEN PIXEL PRODUCTIONS SA”, the existence of close family ties between the shareholders who control the two notifying parties is sufficient in itself to establish the existence of a high degree of consolidation and of significant central management between ALPHA and STAR, so that it could be said that they form a single economic entity (especially in light of the absence of other structural links and evidence leading to such a conclusion).

In any event, the HCC pointed out that in order to classify a transaction as a concentration and not as an action of a single entity, one must take into consideration the relationships between the companies that pre-dated the specific transaction (in this case the acquisition of joint control over GREEN PIXEL). Therefore, for the purposes of this concentration and in view of the previous HCC Decision no. 679/2019, the HCC finds that the two companies do not have the character of a single economic entity.With regard to the competitive assessment of the notified transaction, it is noted that the concentration in question results in mainly vertical relationships, as it involves companies operating at different levels of the supply chain.

The HCC examined possible non-coordinated effects of the concentration, and concluded that the concentration at hand is not likely to either restrict downstream rivals’ access to important input (input foreclosure) or to foreclose upstream rivals by restricting their access to a sufficient customer base (customer foreclosure).

The HCC further examined possible coordinated effects, and concluded that the concentration in question is not likely to lead to coordinated effects in any of the affected markets.

Finally, the HCC also considered the possibility of coordination of the behaviour of the parent companies (“spillover effects”), and concluded that the concentration has neither the object of coordinating the competitive behaviour of the parent companies, nor such coordination is likely to occur as a result of this specific transaction. It is pointed out, however, that any other possible future form of coordination/ cooperation at horizontal or vertical level between the two parent companies, either in itself or in combination with the existence of close family ties between the shareholders controlling the two parent companies, may be subject of review by the HCC under Articles 1 and 2 of the Greek Competition Act, while further consolidation of the sector may be reviewed pursuant to Article 11 of the Greek Competition Act.

    III.  HCC Decision 

In its decision No. 728/2021, the HCC found that the proposed concentration, while falling within the scope of Art. 6(1) of the Greek Competition Act, does not raise any serious doubts as to its compatibility with the competition rules in the relevant markets involved. 

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