Media Ownership Rules - The Netherlands

07 November 2002

Pauline Kuipers













THE NETHERLANDS


Introduction


 

In The Netherlands, there few many restrictions on non-EU or cross-ownership in the media sector. Since 2001, however, the Dutch Media Authority (Commissariaat voor de Media) has been assigned to monitor media concentrations in The Netherlands in relation to the pluriformity, independence and accessibility of the media. The Commissariaat publishes its annual market study on media concentrations and advises the Minister of Education and Culture in relation to the government’s media policy.

In relation to foreign ownership, there are restrictions on the acquisition of television (DVB-T) and radio licences by non-EEA entities, but these can simply be overcome by establishing a subsidiary within the EEA.

The only cross-media ownership rules relate to the convergence between commercial radio or commercial television on the one hand and newspapers on the other hand. There are no specific competition rules which apply to the media sector. The general competition rules apply to the media sector as they would apply to any other sector.

1. Television


  • Foreign Ownership Restrictions – Can a non-EU entity control the following broadcasting interests in The Netherlands?


Satellite yes
Cable yes
Terrestrial (analogue) yes
Terrestrial (digital (DVB-T)) no
[1]


  • Ownership Aggregation Limits -


There are no restrictions on ownership of television broadcasting interests, other than compliance with general competition law principles.


2. Radio

  • Foreign Ownership Restrictions - Can a non-EU entity control the following broadcasting interests in The Netherlands?


Cable (analogue) yes
Cable (digital) yes
Terrestrial FM & AM no [1]


  • Ownership Aggregation Limits -


National Level



i. Each broadcasting entity may only use one FM frequency.

Local Level

i. A regional radio broadcaster may use more than one regional FM frequency, provided that the overlap between the radio coverage of the different regions does not exceed 20%.


3. Newspapers

  • Foreign Ownership Restrictions - Can a non-EU entity control the following publishing interests in The Netherlands?


National (daily) newspapers yes
Regional (daily) newspapers yes


  • Ownership Aggregation Limits -


Presently there are no statutory limits in place. However, discussions concerning the introduction of a statutory limit on the concentration of newspaper publishers for the purpose of protecting cultural pluralism have been going on for years.

Until the introduction of new competition law in 1998, the Dutch Association of Newspaper Publishers applied a merger code which provided that a newspaper publisher could hold not more than 33.3% share of the market for daily newspapers. Whilst this threshold has been abolished, it is still often used as a “rule of thumb”.


4. Cross-media Ownership Restrictions -


TV/Newspapers:

National Level

i. A publisher with a market share exceeding 25% of the newspaper market cannot acquire either more than a 33.3% interest in a commercial TV broadcasting entity nor appoint more than 1/3 of that entity’s supervisory or management board.
ii. A broadcasting licence may be withdrawn from a TV broadcasting entity that is part of a corporate group that has enjoyed (jointly or individually) at least 25% share of the market for daily newspapers for a period of two consecutive years.

Local Level

i. A publisher with a market share in excess of 50% of a newspaper market which is also the area of coverage for a local/regional broadcast service may not acquire joint/sole control over that broadcasting company.

TV/radio:

No limits apply, except for general competition law rules.

Radio/Newspapers:

National Level

i. A newspaper publisher with a market share exceeding 25% of the newspaper market is prohibited from either acquiring more than 33.3% interest in a commercial radio broadcasting entity or appointing more than 1/3 of that entity’s supervisory or management board.
ii. A broadcasting licence may be withdrawn from a radio broadcasting entity that is part of the same group of companies that has enjoyed (either individually or jointly within the group) at least a 25% share of the market for daily newspapers for a period of two consecutive years.

Local Level

i. A newspaper publisher with a market share in excess of 50% of a newspaper market which is also the relevant cachement area for a local/regional radio broadcast service may not acquire joint/sole control over that broadcasting company.


5. Local Competition Law Policy


There are no specific merger rules applicable to the media sector. The Dutch Competition Authority (Nederlandse Mededingingsautoriteit or NMa) is competent to assess mergers in the media sector that meet quantitative (turnover) thresholds. The qualitative merger control analysis is similar to that applied at EU level. That means that, for a proposed vertical concentration or a cross-media merger, the NMa can only intervene if there is a clear contravention of (the Dutch equivalents of) Articles 81 or 82 EC.


Footnotes



[1] Except where the entity is based in the EEA. An application for a commercial broadcasting licence can only be made by an EU or EEA incorporated entity, but this entity may have a foreign parent.

Authors

Kuipers-Pauline

Pauline Kuipers

Managing Partner
Netherlands

Call me on: +31 (0)70 353 8800