Competition Protection Agency issues decision in one of its longest-running cases

As the concentration was notified too late, only in 2013, AVK imposed a fine of EUR 3.7 million. Regarding the assessment of merits of concentration, it took AVK five years to issue a decision, on 4 September 2018, finding that the concentration was incompatible with competition rules and ordering the United Group to sell the services of transmitting Sport Klub TV channels to an entity unrelated to the United Group. The latter (or one of the group’s companies) then filed an action against this decision before the Slovenian Administrative Court. 

In May 2020, the Slovenian Administrative Court upheld the lawsuit on the grounds that AVK failed to conduct a market analysis among final consumers and that AVK did not adequately explain why in the relevant case it is appropriate to determine the market for the supply of sports TV channels in the Slovene language. The case was therefore remitted to AVK. 

In the re-examination of the case AVK decided at the end of October that the above-mentioned concentration is compatible with competition rules for two main reasons. First, all television services providers have stopped broadcasting Sport Klub TV channels as part of their programme packages, opting instead to broadcast Arena Sport TV channels, which began broadcasting in Slovenia in the summer of 2020. And second, AVK conducted a survey of final consumer preferences and found that the average Slovenian viewer would not switch service provider if their existing service provider did not have Sport Klub TV channels as part of its programme packages. 

The conclusion drawn is that at this time or at the time of the decision there is most likely no impact on competition. AVK’s decision may be open to question in regard to competition impact during the period 2012 – 2020 when a new competitor appeared on the Slovenian market which had a wide range of sport competition transmitting rights. AVK apparently did not assess the facts from this period (the decision has not been made public yet) since it decided to make its assessment taking into consideration the factual situation prevailing on the date of the decision. AVK therefore decided (considering only the facts in the year 2021) that the concentration from the year 2012 is not in dispute wherein for this conclusion the event from 2020 is crucial. It appears that AVK is set to leave us in the dark as to the state of competition between 2012 and July of 2020. 

Decision-making of this nature may be controversial from the point of potential injured parties who are entitled to damages for infringement of competition rules. In accordance with Article 62.g of the Competition Act (“ZPOmK-1”), the court is bound by final decisions issued by AVK concerning infringements or final decisions concerning infringements issued in judicial proceedings challenging AVK decisions. In the case at hand, the AVK did not adjudicate whether there were any possible infringements during the period 2012 – 2020; this will be left to the civil court to rule on, if, of course, it hears the case at all. 

Author: Matevž Klobučar, Attorney-at-Law