On 25 March 2008, the Council revoked one of the conditions imposed by the Council in 2003 when it granted conditional approval for the acquisition of the pay-TV channel Canal+ (a pay-TV channel with a market share of 50%-100% in the Dutch speaking part of Belgium) by Telenet (a cable TV operator with a market share of more than 60% in the Dutch speaking part of Belgium). As Telenet entered the market for editing pay-TV channels, there was a risk that Telenet would refuse to license its pay-TV channel to competing TV platforms, particularly in case its pay-TV channel acquired the rights to broadcast Belgian football matches. The main condition was that Telenet was obliged to license premium content (first and second pay-TV windows for movies, and live broadcasting of matches of the Belgian professional football league) to competing platforms.
The Council held that this condition was no longer relevant as far as the live broadcasting of Belgian football matches was concerned. Indeed, experience showed that this condition had never been applied, i.e. that no competing platform had ever proceeded to broadcast the Belgian football matches by relying on the obligation to license. In addition, the Council pointed out that the fact that this condition had not been applied, had not prevented the emergence of competing TV platforms (which was the aim of the condition). Indeed, Belgacom, Belgium’s incumbent telecom operator, created a competing TV platform (distribution of TV services by xDSL), as did TV Vlaanderen (distribution of TV services by digital satellite). The Council considered that the condition would also not allow for significant growth of the market share of competing platforms since only the exclusivity of such broadcasting rights could possibly work as an incentive for viewers to switch platform – if such an incentive could at all result from the wish of the viewers to see football. Finally, the Council pointed out that the broadcasting rights to Belgian football matches were now granted on the basis of a tender (won by Belgacom), which allowed for competition to take place at that level. Maintaining the condition would therefore be a disproportionate burden for Telenet. Belgacom recently appealed this decision.