The European Commission has cleared, for a second time and without imposing any ‘remedies’, the joint venture between music companies Sony and BMG, which had been set aside by the European Court of Justice in 2006.
The Court of First Instance criticised, among others, the following points:
Collective dominant position after the concentration: The Court criticised the Commission, claiming that it had “carried out an extremely cursory examination” in this regard and had presented “only a few superficial and formal observations on that point”.
Promotional discounts: The Commission argued that those have the effect of reducing the transparency of the market to the point of preventing the existence of a collective dominant position. The Court criticised this, however, saying this theory was not supported by sufficient arguments and data.
Retaliatory measures: The Court found that the Commission had too easily relied upon the lack of evidence that such measures, for example “sanctioning a deviating record company by excluding it from compilations” had been used in the past. It added: “In addition, even if the appropriate test in that regard were to consist of determining whether retaliatory measures had been exercised in the past, the Commission’s examination was inadequate. At the hearing it was not in a position to indicate the slightest step which it had completed or undertaken for that purpose.”