On 5 November 2015, the President of the Belgian Competition Authority ("BCA") imposed interim measures on Telenet NV and the VZW Verenigde Veldritorganisatoren ("VV") regarding the exclusive licensing of the broadcasting rights of the Superprestige cyclocross competition (a type of bicycle racing).
Telenet provides retail television services in the Flemish region and owns two television channels. In 2015, VV (the organiser of the Superprestige cyclocross races) granted Telenet an exclusive broadcasting licence for five years. No prior tender was organised by VV. A competitor of Telenet filed a complaint, claiming that Telenet had abused its dominant position and/or violated Article 101 TFEU/Article IV.1 CEL.
In line with the French rugby league decision, and given the particular popularity of cyclocross in the Flemish Region, the BCA defined a first relevant market as the market for licensing of broadcasting rights of cyclocross races. In line with the De Vijver Media decision of the Commission, a second relevant market is the retail market for provision of television services. The geographic footprint is limited to Telenet’s cable network.
The President ruled that it is not manifestly unreasonable to hold that the exclusive license agreement could serve as a means to strengthen the dominant position of Telenet on the retail market for the provision of television services, and thus constitute an abuse of a dominant position. In addition, in the absence of any tender and considering the long duration of the agreement and Telenet's market share (exceeding 30%), the agreement could also violate Article 101 TFEU/Article IV.1 CEL. According to the BCA, competing providers of television services are seriously harmed due to the potential loss of viewers or subscribers to the cable network. In particular the latter harm is difficult to redress.
The President imposed interim measures by way of two alternative solutions, from which VV can choose. In the first solution, VV and Telenet suspend the exclusivity clause until a final decision on the substance of the case is reached, during which period they offer the broadcasting rights to any interested party against fair, reasonable and non-discriminatory terms. Alternatively, they suspend the agreement altogether until a final decision has been taken and, in the meantime, VV organizes a transparent and non-discriminatory tender procedure for the broadcasting rights.
This decision is a new example of the attention given by competition authorities to the marketing of media rights of sport competitions (see e.g. EU Commission: FA Premier League, Bundesliga and UEFA Champions League; Belgium: Profliga; and France: Rugby league).