On 14 May 2025, the Financieel Dagblad (FD) reported that the Authority for Consumers and Markets (ACM) plans to conditionally approve the acquisition of RTL Media by DPG. Earlier reporting had suggested that the ACM planned to prohibit the transaction, so this apparent change of direction came as a surprise to many. Even more noteworthy are the commitments reportedly adopted. While the ACM is yet to take a decision, the parties will reportedly be required to adopt a number of measures designed to keep news outlets separate and foster media plurality.
Media plurality is without a doubt important. Because of this, many countries have a separate merger control regime to protect media plurality. The Netherlands does not have such a regime, meaning the ACM assessed this transaction under conventional merger control rules. However, media plurality doesn’t easily fit into the economics-based test that the ACM must apply when assessing mergers under the Dutch Competition Act (Mededingingswet, DCA). This blog post will examine to what extent the ACM can take media plurality into account when assessing transactions and contextualize this decision within the broader push to take wider public interests into consideration in merger control.
- The ACM’s Phase 1 decision in DPG/RTLand remedies
Before discussing the role of media plurality within competition law, it is worth briefly examining how the ACM applied this concept in its Phase 1 decision in DPG/RTL.
Media plurality is primarily relevant in the ACM’s analysis of the effects of the transaction on the cross-medium market for general news. General news is defined as news about national and international developments, without focusing exclusively on a specific subject. The ACM found that, since consumers tend to use different media throughout the day, a separate market exists for the provision of news sources across all types of media (the cross-media general news market).
In assessing the effects of the transaction on the cross-media market for general news, the ACM directly addressed media plurality’s role in merger control. According to the ACM, media plurality and competition law both serve the common good, meaning they overlap (DPG / RTL, 93). For the purpose of merger control, the ACM states that media plurality should be treated as a quality of general news (DPG / RTL, 94). Consequently, a decrease of media plurality resulting from the transaction can be considered a negative effect on one of the parameters that competition law aims to safeguard (i.e. quality).
Based on this reasoning, the ACM’s theory of harm with regard to the cross-media market revolves around quality and plurality. DPG and RTL indicated that post-transaction they plan to share content creation between their various outlets to save costs. According to the ACM, this could lead to a reduction in the range and plurality of general news across media platforms (DPG / RTL, 101-104).
It is worth noting that the parties would only have a 36% combined market share on this market (DPG / RTL, 98). While substantial, this is far below the 50% needed to presume the existence of a dominant position. The merged entity’s biggest competitor, NPO, would have a 45% market share, meaning the parties will not be the largest player on the market post-transaction. Under these circumstances it is relatively rare that mergers are blocked or conditionally cleared, and this requires solid argumentation on the part of the competition authority.
While the Phase 2 decision has yet to be taken (and published), the FD publication indicates that the ACM will accept several commitments aimed at remedying this issue. These would entail that the websites RTL Nieuws and Nu.nl will remain organisationally separate and have their editorial independence strengthened, including by placing them under ownership of foundations.
- Media plurality in merger control
As previously mentioned, it can be debated if and how the ACM is competent to consider media plurality when assessing transactions. The ACM may only prohibit a transaction where this significantly impedes effective competition on the Dutch market, known as the SIEC-test (Article 37 DCA). This will particularly be the case where the transaction creates or strengthens a dominant position on the part of the acquiring entity of merging parties. This test revolves around economic concepts like price, output, quality, choice, and innovation (Horizontal Merger Guidelines, 8). In some jurisdictions media plurality is a directly relevant factor in the review of mergers. In the UK for example the Secretary of State can intervene in competition law merger control in cases involving media companies to protect plurality (See Enterprises Act 2002, Article 56-58A).
In accepting commitments, the ACM must also consider the SIEC test, even if it has broad discretion in how it goes about this. The ACM will only accept remedies to remove significant impediments to competition. To that end, remedies must be suitable and effective, meaning that they remove the identified competition concerns, while not creating any new problems (ACM Remedies Policy Rule, 14-16).
The relevant question then is whether (and how) the ACM can consider media plurality in its application of the SIEC test. If one takes the ACM’s statements in Phase 1 at face value, media plurality is a quality of general news services (DPG / RTL, 94), and therefore a transaction that decreased plurality can significantly impede competition. However, it is not clear that media plurality can always be linked to the parameters on which undertakings compete. Moreover, the ACM seems to directly – and without much explanation – equate the number of media companies in the Netherlands with the quality of news media.
Media plurality has two components: diversity in the opinions, values and information contained within a single outlet (internal plurality), and diversity in ownership of media outlets (external plurality) (Independent Study on Indicators for Media Pluralism in the Member States – Towards a Risk-Based Approach, pg. 5). In its Phase 1 decision, the ACM does not clearly distinguish between these two concepts, mentioning both diversity of ownership and diversity of viewpoints throughout.
External pluralism seems at first sight difficult to square with merger control. Undertakings cannot compete on diversity of ownership. Furthermore, all mergers reduce external plurality, as more outlets are brought under common ownership. If a reduction of external plurality could constitute a ground for blocking a merger, then all media mergers could be prohibited.
A high degree of concentration of ownership can of course result in an impediment to competition (e.g. by reducing quality). However, the competition issue remains the impediments created by increased concentration, not concentration itself. External plurality however treats concentration as a problem in and of itself. As acknowledged by the European Commission, while merger control is purely economic, media plurality concerns issues such as, ‘whether the number, range and variety of persons with control of media enterprises will be sufficient’ (See News Corp/ BSkyB). Considering the DCA does not have a special provision allowing the ACM to consider media plurality in its decisions, this suggests the ACM cannot intervene in transactions based on external media plurality concerns.
Internal plurality seems more compatible with the SIEC-test but still does not fit easily into this analytical framework. While outlets may report the news from different viewpoints (e.g. left-leaning, right-leaning), this concerns the ideological quality of an outlet, not media plurality. Internal plurality concerns diversity itself. To compete on internal plurality, undertakings would have to include diverse viewpoints within their outlets, not a specific viewpoint. While this is theoretically possible, it is far from clear that this occurs in practice. The onus is then on the ACM to prove that undertakings compete to provide more pluralistic news, something which it did not do in its Phase 1 decision.
The above is not meant to suggest concentrations in the media industry cannot lead to a reduction of quality or choice. Merger control exists because concentration can sometimes remove competitive constraints, allowing the remaining firms to profitably reduce quality and choice (Horizontal Merger Guidelines, 8). Rather, the issue is that the ACM appears to be introducing non-economic issues into ordinarily economics-based analysis. The ACM could base its theory of harm on a reduction of quality or choice rather than media plurality. This would be difficult to prove in DPG / RTL given the lower market share, but it would utilize well-established parameters of competition. By opting instead for a theory of harm based on media plurality, the ACM unnecessarily risks going beyond its competences under the DCA.
Despite this, the commitments seem designed to support both external and internal plurality. The separation of the editorial boards and strengthening of editorial statutes seems aimed at guaranteeing internal plurality. By requiring Nu.nl and RTL Nieuws to remain under ownership of a foundation and stay organisationally separate, the ACM is essentially creating simulated separate ownership of these outlets, which addresses concerns about reduced external plurality. Taken together, such editorial and organisational separation will ensure the merged entity’s outlets maintain their diverse character and viewpoints. The parties have addressed the ACM’s concerns around media plurality, even if these concerns potentially fall outside the boundaries of competition law.
- Broader trends
The ACM’s reported remedies are not the first time that media plurality has played a role in merger control. Between 2007 and 2010 the Temporary Act on Media Concentrations (Tijdelijke wet mediaconcentraties) prohibited media concentrations with market shares above a certain level. This legislation was repealed in 2011, as consolidation was necessary to maintain the viability of some media businesses (See Explanatory Note).
Outside of the Netherlands, many Member States have different merger control rules for mergers in the media sectors. As previously mentioned, fourteen Member States have a sector-specific media merger control regime separate from competition law designed to protect plurality. The existence of such specialised regimes suggests that competition law in isolation is not considered well suited to guarantee media plurality.
Other Member States have different merger control thresholds under competition law for media mergers. Interestingly, some competition authorities, such as the German Bundeskartellamt are not permitted to take into account non-economic issues like diversity of opinion (Concurrences). The French competition authority on the other hand has previously required that a merged entity maintain separate editors-in-chief (See La Dépêche du Midi / Les Journals du Midi).
Outside of competition law, consolidation’s impact on media plurality has become a broader concern. Many national FDI screening regimes apply to media outlets and the European Parliament has recently proposed expanding the scope of the EU FDI Regulation to include media companies. The European Media Freedom Act requires Member States to create national rules for media market concentrations that could impact media plurality. Article 22(1) of this act seems to highlight the different nature of competition law, as this new regime is explicitly distinct from national competition law.
Looking more broadly, non-economic factors have taken on an increasingly prominent role within competition law. The last five years have seen an increased focus on sustainability issues, with both the ACM and Commission publishing guidelines on sustainability agreements. The current review of the Horizontal Merger Guidelines is explicitly considering not only sustainability, but also public security and supply chain resilience. The ACM has also expressed public security concerns, with Martijn Snoep recently arguing competition law should help create European suppliers. This is peculiar, given the ostensibly anti-protectionist nature of competition law.
- Conclusion
The ACM’s decision to take media plurality into account in merger review has potentially far-reaching consequences. For media transactions, the ACM’s decision means legal advisors should not only analyse a transaction’s effect on competition in the Dutch market, but also on media plurality. This could complicate competitive assessments of mergers in the sector significantly.
A broader consequence of the ACM’s decision on this point is reduced legal certainty. The ACM justifies its decision to invoke media plurality by stating that plurality – like competition law – serves the public interest. However, this raises the question of what other non-economic, public interest issues the ACM can consider when screening mergers. The economic focus of competition law limits the scope of the ACM’s analysis, creating a certain degree of predictability. Extending the ACM’s powers in this manner will make it more difficult to predict the outcome of merger control proceedings.
Finally, it is not necessarily self-evident that the ACM is at all well-placed to screen mergers for effects on media plurality. As previously noted, many countries have specific merger control regimes for protecting plurality and the Netherlands already has a regulator tasked with promoting media plurality, the Media Commission (Commissariaat voor de Media). ACM is an expert on competition, consumer, telecommunications, and energy law. One can wonder whether the ACM has the expertise needed to take such fundamentally non-economic issues into account in its decision making or indeed whether it is democratically appropriate for it to seize that power.
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