On 31 January 2014, the College of Prosecutors (Auditoraat / Auditorat) of the Belgian Competition Authority ("BCA") published a press release containing its preliminary views on a proposed joint venture between the Jupiler Pro League and Telenet.
Under the proposed joint venture ("JV"), the broadcasting rights of the Jupiler Pro League, the Belgian first division of professional football, would be transferred by the first division football clubs (which collectively own Pro League) to the JV through an exclusive licensing contract valid for a (renewable) period of 6 years. The JV would then create one or several sports channels which would be offered to any interested broadcasting platform on a non-exclusive basis.
The College of Prosecutors reached the tentative conclusion that the proposed JV amounts to a concentration which exceeds the notification thresholds and therefore should be notified to the BCA under the merger control rules. The press release did not specify the turnover figures or any other factual element relied on by the BCA to come to this conclusion.
The College of Prosecutors took a critical stance towards the proposed JV, considering that it might eliminate any competition between platforms or TV channels as regards the Jupiler Pro League and might, as a result, freeze the existing market positions both at the wholesale and the retail levels. According to the BCA, the impossibility of acquiring exclusive rights for content would prevent platforms or TV channels from differentiating from each other on the basis of their content. The BCA also questioned the duration of the exclusivity of the broadcasting rights owned by the JV and the conditions under which the JV's sports channels would be offered to other platforms. Lastly, the BCA doubted that the proposed JV would actually lower the prices offered to the consumer.
Although this preliminary opinion does not bind the BCA or the parties, it seems likely that, if they wish to pursue these plans, Pro League and Telenet will have to notify their proposed JV and that this concentration will be subjected to intense scrutiny by the BCA.
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