By decision rendered on 9 June 2016, the French Competition Authority ("FCA"), in accordance with the Conseil Supérieur de l'Audiovisuel (the French broadcasting authority), rejected a request by French pay TV pioneer Canal Plus to obtain clearance for the acquisition of exclusive broadcasting rights for the Qatar sports channel, beIN Sports, on the grounds that "the conditions are not currently satisfied to lift the ban on exclusive broadcasting of premium sport channels pronounced against Canal Plus".
In 2006, the Canal Plus Group company ("CPG") had been authorized by the Minister of Economy to buy TPS, its main pay TV competitor, and to merge it with CanalSat in which it held a majority stake, subject to 59 commitments. On 20 September 2011, the FCA sanctioned the non-compliance by CPG with certain of these commitments by withdrawing the merger authorization and imposing a 30 million euro fine. The proposed operation was the object of a new merger review after which the FCA, by decision rendered on 23 July 2012, gave its authorization subject to compliance with 33 injunctions designed to restore sufficient competition in the pay TV market. These injunctions were imposed for a five-year period, after which a further competitive analysis is to take place. Moreover, the FCA provided that the parties could seek a lifting or an adjustment of the injunctions in the event of fundamental changes.
Notably; among these measures is injunction no. 4(a) which prohibits the broadcasting of premium sports channels by CPG under an exclusive distribution contract.
On 16 February 2016, CPG sought clearance from the FCA to enter into an exclusive distribution contract with beIN Sports before the expiry of the commitment. It was argued that circumstances had changed since 2012, in particular that the competition situation had evolved with the emergence of new players and a wider choice for consumers since the merger of SFR and Numericable. Moreover, in order to relieve anticompetitive concerns, CPG proposed another range of commitments.
Nevertheless, the FCA rejected this review request due to what it considered to be a lack of sufficiently changed circumstances of law and fact since the 2012 decision - it considered "the anticipated review of the injunctions no.4(a) and 8(a) to be unjustified to this date, even if it were accompanied by the adoption of the commitments proposed by CPG".
The FCA considered that, as was the case in 2012, the market structure is still close to a duopoly with CPG and beIN sports holding the broadcasting rights of the quasi-entirety of the most appealing sports competitions (particularly football rights). Likewise, on the downstream market of distribution of pay TV services, CPG also holds a dominant position with a market share comprised between 70% and 80% (according to the FCA).
Therefore, the FCA considers that the measures implemented in 2012 form a coherent whole and that injunction no.4(a) cannot be analysed independently of others, in order to preserve competition while maintaining sufficient consumer access to differentiated offers.
This is considered to be a setback for CPG, which counted on the beIN Sports agreement to revive its client base after a recent period during which Canal Plus has been losing subscribers and suffering recurrent financial losses, a difficult situation that even the Conseil Supérieur de l'Audiovisuel acknowledged (although those circumstances were not sufficient for it to issue a favourable opinion on the project).