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FINANCIAL STATEMENTS AND MANAGEMENT. ANNUAL CORPORATE GOVERNANCE REPORT. BALANCE SHEETS 2012
•
It is thus not considered necessary to apply the terms of the Anti-Trust Law: a procedural error cannot be considered
a very serious violation, and is thus unworthy of a 3,660,000 fine, as this sum is totally disproportionate to the
infringement in question.
•
Finally, the fine is a frontal violation and breach of the principles which prohibit reformatio in peius (Articles 89.2 and
113.3 of Law 30/1992), since the CNC only chose to initiate disciplinary proceedings against MEDIASET ESPAÑA
once it had decided to appeal the CNC-approved Action Plan, and not when the alleged violation took place.
Thus, the accompanying consolidated balance sheet does not include a provision for this contingency, as the directors
and legal advisors do not consider it likely that this risk will materialize.
PROCEEDINGS RELATEDTO MEDIASET ESPAÑA COMUNICACIÓN, S.A.’S FAILURE TO
COMPANYWITHTHE TELECINCO-CUATRO MERGER
On February 6, 2013, the el Comisión Nacional de Defensa de la Competencia (CNDC - Anti-trust authorities) handed
down a ruling on Dossier SNC/0024/12 Mediaset (the “resolution”), in which Mediaset España Comunicación, S.A.
(“Mediaset España”) failed to comply with certain commitments and obligations established in the C-0230/09Telecinco/
Cuatro merger dossier; a fine of 15,600,000 was set.
The resolution states that Mediaset España failed to comply with four of the twelve commitments upon which the
Telecinco/Cuatro merger was authorized (commitments (ii), (iii), (vi) and (xii)), as well as different requirements for
providing information to the CNS regarding these obligations.
The commitments set Mediaset España restrictions in order to neutralize or compensate for potential anti-trust issues
arising from the transaction.These include:
•
Regarding the sale of TV ad space: Mediaset España agreed that it would not jointly place advertisements with Cuatro
and Telecinco or groups of channels whose overall audience topped 22%. Specifically, commitment (ii) prohibited
formal or de-facto joint sales of advertising space with Telecinco and Cuatro. Among other stipulations, commitment
(iii) established a functional split between Publimedia and Publiespaña, in order to handle free-to-air and pay TV
separately.
•
Limits were imposed for the acquisition of audiovisual contents from third parties. Commitment (vi) limited exclusive
contracts to three year durations (in general terms), also excluding automatic renewal and other similar terms, while
commitment (xii) prevented exclusive rights or first options on the entirety of national contents production/products.
The commitments were later developed unilaterally as part of the CVC-imposed Action Plan, which also set certain
obligations regarding informing the authorities, to guarantee their compliance.
The Action Plan’s interpretation of the commitments was strict to the point that it substantially modified its content,
thereby significantly making Mediaset España’s commitments more difficult to assume; this affected advertising as well
as content acquisition. For example, the duration of contracts for acquiring content was to be calculated at their signing
date, rather than when the rights commenced; thus, this was legally disputed, and a sentence is still pending.
Mediaset España did not fail to comply with any of its commitments with the CNC.
• Mediaset España did not violate commitment (ii) after the merger finalized: in 2011, it lowered its share of the
advertising market as well as the average per-ad price, while managing to keep its audience numbers constant.
Reports prepared by external advisors conclude that Publiespaña has not failed to meet its commitments, and that
it has not violated anti-trust laws.
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