On 12 November 2019, the Spanish Competition Authority ("CNMC") imposed a total fine of EUR 77.2 million on Mediaset and Atresmedia, the largest media companies in Spain, for including clauses in their contracts with advertisers and media agencies that foreclosed the access of competitors to the television advertising market.
In particular, the CNMC identified three practices that breached Articles 1 of the Spanish Competition Act ("LDC") and 101 TFEU:
(1) bundling the acquisition of television spots in their channels with the highest audience shares with all their other channels. The advertisers' freedom to design an advertisement campaign was further diminished by imposing the so-called simulcast (i.e. the simultaneous broadcasting of the advertising content on all the channels of each company);
(2) establishing minimum advertising quotas that committed advertisers to devote a significant percentage of their funds for a general advertising campaign to the contracting of television advertising with Mediaset and Atresmedia. The anticompetitive effects were reinforced by the fact that both media companies set mutually compatible quotas, reducing the competition between them; and
(3) paying additional premiums to media agencies which acted as intermediaries with advertisers in the form of conditional and retroactive rebates with the objective of increasing the allocation of advertising to Mediaset and Atresmedia's channels.
Interestingly, the CNMC did not reach the conclusion that these practices were the result of an agreement or concerted practice between the two media companies. Instead, the CNMC found that each company independently infringed article 1LDC/101 TFUE by entering into the agreements with the advertising companies. Nevertheless, the cumulative negative effects of the conduct of both companies (their joint share in the television advertising market accounts for more than 85%) was taken into account.
The CNMC concluded that, as a result of these practices, other independent channels faced problems to compete under equal conditions with the comparable channels -in terms of audience shares- owned by Mediaset and Atresmedia. The CNMC opined that, in the long term, these practices would foreclose competitors in the television advertising market by hampering the ability of third-party channels to make their programs profitable.
For more information, please find the CNMC's final decision here (in Spanish).