On 23 July 2012, the Authority cleared the acquisition of TPS and CanalSatellite by Vivendi Universal and Canal Plus, subject to compliance with several injunctions, considering that the commitments that had been proposed by Canal Plus group failed to guarantee sufficient competition on pay TV markets. These injunctions, imposed for a period of five years, specifically concern (i) movie rights, (ii) the distribution of special-interest channels and (iii) video on demand. An independent trustee, approved by the Authority, will be responsible for monitoring compliance. The Authority will carry out a new competitive analysis before the end of this five-year period so as to determine the appropriateness of maintaining these injunction measures. To our knowledge, this is the first time that the Authority has made use of its power of injunction since replacing, in 2009, the Minister of the Economy as the main competent merger control authority. This decision by the Authority rules on the new merger filing, which followed the withdrawal by the Authority, on 20 September 2011, of its initial clearance decision in 2006.
In this respect, it should be noted that Canal Plus group made an application for a priority preliminary ruling on the issue of constitutionality that is currently under examination by the French Constitutional Council (Conseil constitutionnel), challenging the compatibility of the Authority’s power to impose such a withdrawal ,with the principle of impartiality and entrepreneurial freedom.