SONY/BMG MERGER - IMPALA BACKGROUND NOTE- December 2007
The story so far…
The European judges found that the Commission had ignored overwhelming evidence that competition would be severely damaged by Sony/BMG and had made an unexplained u-turn when it walked away from the serious objections that it had previously highlighted. It is this 2006 judgement of the CFI which is being appealed by Sony and Bertelsmann.
The SonyBMG merger was then renotified to the Commission who once again issued a second approval decision without remedies in October. The full decision should be available in early 2008, when it can be properly assessed by IMPALA’s lawyers.
The European Court is also expected to rule in early 2008 on the Sony Bertelsmann appeal of the pro-IMPALA judgement. The court Advocate General has already concluded that the Court should reject the appeal by the merging parties. More importantly, the opinion confirms that there is NO presumption in favour mergers. It rejected the attempts by the merging parties to rewrite merger rules in their favour.
Second merger approval decision - inconsistencies
* In 2000 the Commission insisted that remedies were required to counteract the anti-competitive impact of the proposed EMI and Warner (leading to both parties walking away from the merger).
In light of all of this it seems implausible that the Commission could justifiably conclude that the Sony/BMG merger required no remedies.
Earlier this year IMPALA had offered to work on remedies and called on the Commission and the majors to work together with the independents towards market recovery through broad and constructive remedies, such as those already agreed with Warner Music Group.
The fact that the majors have been able to operate since 2004 without any system of market recovery or remedies in place has exacerbated the market decline. If the Commission had at least addressed the issues promptly following the judgement, we would have already saved time. They should have done so within five or 6 months but instead delays meant that 15 months lapsed between the judgement and new decision, during which time the market declined significantly. The additional 10 month delay since July 2006 has cost the industry at least 10% when it should have been working together to develop new markets and tackle the challenges of on-line innovatively to grow the market instead of concentrating it even more in the hands of the majors. The resultant level of concentration shows a market which is becoming one of the most closed in Europe.
The music market
Twenty years ago, the market was completely different. It was balanced by an array of big independents who competed effectively with the majors because they had scale.
Waves of consolidation have reduced music’s competitiveness as well as consumer choice and cultural diversity. Now over 95% of what most citizens hear on the radio and see on television or on the internet is controlled by four companies.
The Sony BMG merger has also comforted the development of a duopoly with SonyBMG and Universal. This has made it harder for independents to promote new artists. The market share figures speak volumes. These two companies alone have over 50% of the total market and 70% of the vital Top 100 in many key EU territories (EC’s own market share analysis in UniBMG). Even the “mini majors” EMI and Warner no longer have critical mass - they only have 10% and 14% respectively of the national Top 100s. Their market share has plummeted in two years. As for the other competitors, no independent has even 1.5%. In the last twelve months alone, many of the biggest European independents have been bought up by Universal, from Vale Music in Spain, ARS in Belgium, Magic in Poland, Lionheart in Sweden, Sanctuary and now V2 in the UK. Universal is the worlds biggest music recording and publishing company controlling nearly half of the world’s most popular repertoire. Its recording market share in hits at national level across Europe is currently as high as 40% in some territories.
The squeeze on the remaining independents is compounded by the loss of these big players which in many territories has reduced the power of the independents to counter the majors’ dominance by at least one third.
It is vital that this trend is reversed given the crucial role the independents play in terms of innovation and employement. At the moment SMEs in the music sector create more jobs than the majors and represent 99% of the actors in the market as well as 80% of the innovation in the sector. As in other sectors, it is the SMEs in music that drive creativity and innovation. There is no issue competing if they have the same chance as the big companies. The problem lies where the playing field is not level due to severe market access problems created by over concentration in a cultural industry. With some action from the regulators, the independents would also be able to effectively contribute to a properly competitive and diverse market.
EC policy and rules
In competition policy terms, other problem markets, such as energy have been given Commissioner Kroes’ full attention. This is ironic, considering that the market share figures show music to be a market which is more marginalised and closed than energy. IMPALA has requested the Commission to review the whole sector.
Regarding SMEs, all the European Heads of State called on the Commission in May to ensure that there is proper support for small operators in the creative sector because this is essential to Europe's innovation and growth. They highlighted this as key to the Lisbon agenda. By agreeing to more and more concentration without any remedies, the Commission is reducing the SMEs ability to access the market and compete. They cannot continue to innovate if they can’t get to market.
There are some indications that the Commission’s approach in competition terms is catching up – Neelie Kroes recently recognised that preferential treatment for SMEs is both “politically and economically justified” (November speech on SMEs).
At the EU Cultural Forum in September, the importance of the creative industries and the fundamental role of SMEs in promoting innovation was again underlined. Market concentration was identified as a key issue for creative SMEs, along with under-capitalisation. The Cultural Forum was hosted by the Portuguese Presidency in Lisbon and was attended by the EU President Barroso and Culture Commissioner Jan Figel.
In terms of cultural diversity Article 151 (4) of the EC Treaty obliges the Commission to take cultural diversity into account in ALL decisions. In March this year, the UNESCO Convention came into force in Europe and the rest of the world. One of its basic principles is that “cultural diversity needs diversity of artistic creation and production”. Another is the need for equitable access to the means of creation and production. This Convention will now need to be implemented by the EU and other countries which are signatory.
At the same time, the EC is currently working on an “Agenda for Culture” to make sure that creative industries are properly supported and that culture is effectively mainstreamed into all key policy areas. The main issue for SMEs is to make sure they are are free to realise their creative and commercial potential on behalf of artists and other music makers in Europe. This translates into a need for a fundamental rethink and concrete action on market access, competition, innovation, entrepreneurship and fiscal policies.
Regarding the second Commission decision on SonyBMG, once the final version decision is published, IMPALA will be able to decide its next steps in terms of appeal and action for damages. IMPALA is also lodging a complaint with the European Ombudsman who is based in Strasbourg and investigates complaints about maladministration in the EU institutions. The current Ombudsman is Mr P. Nikiforos Diamandouros.
The Commission’s decision and the Court’s judgement are both expected early 2008.
IMPALA expects the Commission to review competition rules in cultural markets and issue new guidelines in 2008.