Month: April 2013

The hands of China over Telecom Italia: how antitrust rules may perturb the deal

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Immagine

The envisaged purchase of a controlling stake of Telecom Italia by Chinese investors (Hutchison) is shaking the debate about the future of the Italian telecommunications market, and also raising questions about consequent implications: will Telefonica stay or leave? Should Telecom Italia’s fixed network be separated? And so on.

However, a preliminary analysis should be dedicated to the fact that antitrust authorities (the European Commission, eventually in coordination with the Italian competition authority) will have a say on the entire operation. To time, an authorization to the merge appears unlikely, at least on the basis of the information publicly available.

Hutchison is reported to contribute its Italian assets, i.e. the company 3 Italia (a mobile operator owning around 10% of the Italian mobile market) into Telecom Italia, so as to get a corresponding shareholding. The industrial integration resulting thereof is likely to rise competition concerns, because of the relevant market position of Telecom Italia in Italy (being the biggest operator in the mobile market, together with Vodafone, and the dominant one in the fixed). A consolidation of the market to the benefit of a dominant player will not be welcomed by antitrust authorities, while a similar operation taking place amongst minor players would have more chances to succeed. To make an example, last year in Austria a merge between two minor players (Orange and Hutchison, respectively n. 3 and 4 in the Austrian mobile market) was finally cleared, although with difficulties and subject to the imposition of specific remedies (a mandatory MVNO access, inter alia). Therefore, it is unlikely that a merge between Telecom Italia (the n. 1 in Italy) and 3 Italia (the n. 4 in the mobile market) will receive an easy green light.

Remarkably, this is a problem not only for Telecom Italia. The other Italian mobile players, namely Vodafone and Wind, would welcome 3 Italia to disappear by whatever merge, because this operator is the more aggressive one in the market in terms of tariffs. The consolidation of the market into only three operators (Telecom, Vodafone and Wind) would decrease competition and allow the operators left to stabilize their businesses and maybe even increase prices.

Telecom Italia is well aware of the above antitrust constraints and since months, supported by other historical operators such Dutsche Telekom ecc., is going around in the EU claiming that the European Commission (namely DG Competition headed by Commissioner Almunia) should lift mergers conditions in order to favour  industrial consolidation and especially market integration. This campaign is however based on fragile assumptions: in order to enhance markets integration, Telecom Italia and other incumbents should propose cross-border merges (i.e. between operators based and operating in distinct European markets), not transaction taking place within national borders. Even Almunia confirmed in various occasions that national consolidation is not helping European integration, while cross-border merges would.

(in other posts in my blog I explained that European historical operators have no interest in European integration, since they can extract more profits from territorial fragmentation, like in the case of international roaming)  

To conclude: the purchase of Telecom Italia’s stake by Hutchison cannot take place by way of exchange and integration with 3 Italia. The Italian subsidiary of the Chine Group will likely need to be sold to a third party to let the entire transaction to go ahead. A potential purchaser will likely be an operator already present in Italy, which could get benefits from the integration. It could be the case of other mobile operators (Wind), fixed altnets (Fastweb, Tiscali or BT) or even MVNOs wishing to climb the infrastructure ladder. Therefore, Telecom Italia will have to be carefull in order no to reinforce too much the competitors.

Liberalization of collecting societies: an accident, not a stop, from the European judges

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A kind of accident for the liberalization of the collecting society sector, occurred today in Luxembourg at the European courts, will not however stop the process. 

The General Court of the European Union has partially annulled a very important decision of the European Commission concerning anticompetitive coordination in the field of copyright management. The decision at stake accused CISAC (an association representing around 100 collecting society in the world) together with around 20 of its European member to restrict competition by way of concerted practices as well as by recommending the use of anticompetitive contractual clauses (exclusive and affiliation conditions).

This decision will be certainly flagged with excitement by European collecting societies, a sector which in the recent times was regularly accused of of a variety of sins: lack of transparency and innovation, excessive prices, ridicule administrative costs, old-fashioned business models, artificial market fragmentation and anticompetitive practices. Fact is, a directive aimed to radically reform the sector is currently discussed between Parliament and European Council.

However, the annulment decision does not mean declaration of innocence. Firstly, parts of the anticompetitive allegations (namely exclusivity and affiliation clauses) have been confirmed. Secondly, with regard to the existence of concerned practices, the court was not convinced of the evidences brought by the European Commission, which does not mean – however – that the conducts at stake are legitimate. It will be up to the European Commission to be more convincing at higher levels (Court of Justice) or to start another investigation in order to collect more substantial evidences. Thirdly, the simple fact that the court confirmed that the contractual clauses recommended by CISAC were anticompetitive is a clear indication that the sector is affected by a large competitive problem. However, this presumption is not sufficient to prove the existence of a concerted practice under antitrust legislation, and the Commission failed on that.

Despite the outcome of the above decision, we can say that the effects of the European Commission’s investigation have been somehow achieved in any case. Following the condemnation in 2008, some collecting societies started to modernize and move ahead, developing practices which previously were rare: multi-territorial licenses, exception to territorial limitations, representations of foreign authors and commercial users ecc. Although the sector continue to be rigid and delayed by historical legacies and interests, there is no doubt that a mechanism has been started, and some collecting societies are moving faster then others. The current annulment decision may reinforce in some of them (the most conservative) the temptation to resist, however the clock will not turn back anymore. More liberalization and competition are naturally expected in this sector, and despite the accident caused by the European court’s decision, other factors will continue to push for this change to happen: stakeholders (including consumers), authors (most of them not happy about the current system), European Institutions (aiming at consolidating the digital european activities into a unique single market).

Background:

CISAC (International Confederation of Societies of Authors and Composers) is a non-profit non-governmental organisation representing collecting societies, on worldwide basis, managing copyright relating to, inter alia, musical works.

The collecting societies acquire the management of those rights either by direct transfer from the authors or by transmission from another collecting society managing the same categories of rights in another country. They grant exploitation licences to commercial users, such as broadcasting undertakings or organisers of live shows. The prices of those licences are the source of the royalties that the authors receive, after the management expenses of those collecting societies have been deducted.

CISAC’s members use a model contract for reciprocal representation agreements. That contract serves as a non-binding model for reciprocal representation agreements concluded between CISAC’s members for the purposes of conferring licences covering public performance rights of musical works. Each collecting society agrees, reciprocally, to confer the rights over its repertoire to all of the other collecting societies for the purposes of their exploitation in the respective territories of those collecting societies. Because of the network created by all of those reciprocal representation agreements, each collecting society can propose a worldwide portfolio of musical works to commercial users, but only for use in its own territory.

Following various complaints by commercial users since 2000, the European Commission started an investigation ending in 2008 with a prohibiton upon 24 European collecting societies  from restricting competition, in particular by limiting their ability to offer their services to authors and commercial users outside their domestic territory. The Commission decision, which concerns solely the exploitation of copyright via the internet, satellite and cable retransmission, does not call into question the very existence of reciprocal representation agreements. It does, however, prohibit:

– membership clauses: clauses in the model contract which restrict authors’ ability to affiliate freely to the collecting society of their choice;

– exclusivity clauses: clauses in the model contract which have the effect of providing all collecting societies, in the territory in which they are established, with absolute territorial protection vis-à-vis other collecting societies as regards the grant of licences to commercial users;

– a concerted practice which was found to exist between the collecting societies and by which each collecting society limits, in the reciprocal representation agreements, the right to grant licences relating to its repertoire in the territory of another collecting society party to the agreement.

The Commission did not impose fines on the collecting societies but did require that they remove the clauses in question from the model contract and bring an end to the concerted practice.