New Momentum for Reform of Media Concentration Control

In Germany, initial steps have been taken to implement the European Media Freedom Act (EMFA). These could fundamentally change the regulatory framework for transactions in the media sector.

Media concentration control under the Interstate Media Treaty (MStV) applies to certain transactions in the media sector in addition to merger control under antitrust law. It is intended to prevent dominant influence on public opinion. However, due to its focus on traditional (private) television (so-called audience share model), its scope of application is limited. Other media markets are only considered above a TV audience market share that (currently) none of the broadcasting groups active in Germany reach (at least when counting in deductions under the MStV for program elements promoting plurality of opinion).

Overcoming this TV-centered approach has repeatedly been the starting point for reform discussions. The EMFA, which came into force last year, could help turning these largely academic discussions into actual law. The EMFA requires Member States to lay down rules for the assessment of certain concentrations “on the media market” (Art. 22). This no longer only concerns private TV broadcasting, but all “media services” (Art. 2 No. 1), including non-linear services, public broadcasters' services (Art. 2 No. 2) and press publications, as well as online platforms within the meaning of the Digital Services Act (Art. 2 No. 9). This EMFA requirement vis-à-vis the Member States applies from 8 August 2025 (Art. 29).

However, implementation efforts in Germany are only slowly gaining momentum. One of the reasons likely is that they raise difficult questions of delineating federal and state legislative competences for audiovisual media. The head of the State Chancellery of Schleswig-Holstein recently mentioned in a plenary debate in the state parliament that a system of "sector-specific control" modelled after antitrust law has been developed. It looks at "all opinion-relevant players along the entire value chain" and identifies "media sectors with influence on the formation of opinion" to determine "whether a company or the interaction of different companies on the markets is unduly impairing competition for free formation of opinion". If that is the case, "various measures are taken".

Although that model's details have not been disclosed, it is already foreseeable that the EMFA requirements and their transposition will have a major impact on transactions in the media sector. Procedurally, the notification requirement for changes in shareholdings under media concentration control could be significantly extended. This obligation already extends to all direct and indirect participants to such change to a broadcaster's ownership (Section 63 MStV). In future, it could extend to all parties involved in a media service or an online platform. However, the EMFA requirement is expressly limited to “mergers”, i.e., not every shareholding change. The subsequent procedure is also likely to be more complex and lengthier: currently, the Commission on Concentration in the Media (KEK), a joint body of all state media authorities, assesses the effects of a notified change in shareholding on plurality of opinion (in Germany). In the future, the European Media Services Board must be granted a say (Art. 22 Para. 4 EMFA).

Substantively, it will be decisive whether, and how, the German legislator and other Member States will transpose the assessment criteria for mergers in the media market (Art. 22 para. 2 EMFA) and whether they will define quantitative (presumption) thresholds in this regard. The latter is not an easy task under a cross-media approach. This was already shown twenty years ago in the proceedings on the takeover of ProsiebenSat.1 by Axel Springer. At that time, the KEK "converted" the circulation of press publications into TV audience market shares. However, quantitative thresholds are necessary for a minimum level of legal certainty. As the EMFA does not set out any requirements in this regard (although the pending Commission's guidelines still may), it is likely that there will be differing transposition in the Member States. The same applies to the associated legal consequences. This would counteract the EMFA's harmonization objective and further increase the complexity of cross-border transactions.

Even though the State Chancellery of Rhineland-Palatinate announced the week before last that it was “only at the beginning of the evaluation process” of a “Digital Media State Treaty” (in Germany), the developments should be closely monitored due to their impact and should already be taken into consideration now for potentially affected transactions.