The Dutch antitrust authority’s approval of the DPG-RTL merger marks the first time media plurality has been used in its assessments of media mergers. The analysis in this decision closely mirrors the forthcoming media-plurality test under the new European Media Freedom Act — a development that could broaden merger reviews in the sector. This raises important questions for national regulators across Europe about the emerging interplay between media mergers assessed under standard competition law — or under the new media-plurality test.
The Dutch antitrust authority’s approval of a 1.1 billion-euro ($1.3 billion) merger between DPG Media and RTL Nederland sheds light on how regulators may view media mergers in the future after new EU legislation kicks in. That’s because the Dutch agency examined the deal’s impact on media plurality — applying a similar analysis to what will be introduced imminently by the European Media Freedom Act.
“We applied our national standard merger control test on a significant lessening of competition. The way we see it is that media plurality is a potential outcome of competition,” Martijn Snoep, chair of the Autoriteit Consument & Market, said in an interview with MLex.
“We were inspired by the EMFA for the theory of harm, although we did not do a full anticipatory interpretation.”
Just as the EMFA’s new media plurality test foresees, the ACM used the concept of opinion power, a counterfactual analysis and remedies to safeguard media plurality and editorial independence (see here).
The EMFA is a recent piece of EU legislation, adopted in 2024, which introduces a novel media-plurality test for the assessment of media concentrations across the EU. This test is not yet in place, as most of the Act's provisions are meant to be applied starting Aug. 8.
This test has the potential to produce a paradigm shift for deal-makers in media sectors, for example expanding in some countries the type of press deals that would come under scrutiny, as well as potentially forcing digital platforms to gain regulatory approval when buying media assets.
Traditional European media companies have in recent years been seeking scale to counterbalance US studio giants such as Netflix and Disney on the content front and tech heavyweights — notably Google — in the advertising space.
DPG Media and RTL Nederland themselves described their deal as “responding to the changing viewing behavior and increased competition from international streaming services.”
And yet, at the same time, European policymakers have been concerned that media concentration might lead to lower quality and less diverse information for public opinion, leading to the adoption of the EMFA.
That’s why the ACM’s assessment will be read carefully by many in the media sector.
— Media plurality: a new theory of harm? —
The new media-plurality test under the EMFA requires that a deal’s effect on the formation of public opinion is taken into account in the review. This provision outlines the concept of “opinion power,” or the power to shape public discourse.
That same concept was central to the Dutch authority’s own review. In an academic study it commissioned for the probe, two professors at Utrecht University argued that opinion power can overlap with market power.
They say that a “lessening of media plurality” can itself be a legitimate theory of harm under competition law. In this view, competition law doesn’t only protect consumers-as-buyers, but also society as a whole.
— Moving toward media concentrations in the digital era —
Importantly, the ACM did a counterfactual analysis, looking at what would happen if the deal collapsed. It found that RTL Nederland would be sold in any event.
This closely resembles the new media-plurality test, when it says that regulators must do a counterfactual analysis on the companies’ economic sustainability.
RTL Nederland’s most profitable product is the video streaming platform Videoland and its app.
Some experts warned of an alternative scenario where RTL Nederland would be sold anyway, but to a foreign streaming service that would keep Videoland, but allow news service RTL Nieuws to die.
In that case, there would be less market concentration in the Netherlands, but also Dutch citizens would have fewer choices for news.
What’s more, the media sector currently does not fall under the scope of the Dutch law for assessments of mergers for risks to national security. This makes the broadcaster vulnerable to a possible acquisition by foreign media companies with their own political agendas.
— Semi-structural commitments for media plurality —
The EMFA foresees possible remedies offered by merging parties to offset concerns over media plurality and editorial independence.
Indeed, the Dutch investigators said that they applied “semi-structural,” permanent conditions for the approval of the deal, which could give us an idea of how remedies might look in future decisions.
They considered that the forced divestment of NU.nl — the free online news app of DPG — would not be proportionate in this transaction, and accepted a different set of conditions.
First, independent foundations will take stakes in RTL Nieuws and NU.nl, and will have veto powers over things like the firing of the editor-in-chief or changes that affect the websites' identity.
In addition, DPG can neither sell nor shutter national news brands without the approval of its shareholder, the Democracy & Media Foundation, an organization set up to defend media’s role in democracy.
DPG committed not to put a paywall around the free offerings of the news sites of RTL Nieuws and NU.nl, and their newsrooms will not be integrated. For example, they won’t exchange any content or data.
DPG will tighten its existing editorial statutes, bolstering the newsrooms' independence.
Importantly, any future buyer of DPG would be required to respect a new DPG Media Charter for editorial independence. RTL Nederland will fall under national oversight by the Commissariaat Voor De Media.
— EMFA or not EMFA: what’s next for media and competition law? —
For some it may be surprising that DPG Media agreed to the sweeping conditions — and did so indefinitely. Other press barons and media tycoons doing deals in the future might refuse.
At the same time, the ACM could be said to have taken a moderate interpretation of media plurality.
For example, the CVDM initially advocated blocking the DPG Media deal. And even after the ACM negotiated the remedy package, the CVDM still saw risks to media plurality.
Similarly, the Nederlandse Vereniging van Journalisten is still questioning whether the safeguards imposed by the ACM are sufficient.
This exemplifies the possible difference of views between national competition and media regulators. Some national capitals might hand the power to enforce the EMFA to the competition regulator; others might hand it to the media regulator, with a possible risk of conflicting decisions.
“We put more weight on the changing media landscape and the counterfactual analysis than the media regulator did,” said Snoep of the ACM. “This was the hardest decision I've taken in my tenure. Not so much because it was factually more complicated than another second-phase investigation. But because we felt that if we get it wrong, that's not collateral damage.”
Having many news services plays “a crucial role in our democracy,” he said.
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