Article 21, Assessment of media market concentrations
1. Member States shall provide, in their national legal systems, substantive and procedural rules which ensure an assessment of media market concentrations that could have a significant impact on media pluralism and editorial independence. These rules shall:
(a) be transparent, objective, proportionate and non-discriminatory;
(b) require the parties to a media market concentration that could have a significant impact on media pluralism and editorial independence to notify that concentration in advance to the relevant national authorities or bodies;
(c) designate the national regulatory authority or body as responsible for the assessment of the impact of a notifiable concentration on media pluralism and editorial independence or ensure the involvement of the national regulatory authority or body in such assessment;
(d) set out in advance objective, non-discriminatory and proportionate criteria for notifying media market concentrations that could have a significant impact on media pluralism and editorial independence and for assessing the impact of media market concentrations on media pluralism and editorial independence.
The assessment referred to in this paragraph shall be distinct from the competition law assessments including those provided for under merger control rules. It shall be without prejudice to Article 21(4) of Regulation (EC) No 139/2004, where applicable.
2. In the assessment referred to in paragraph 1, the following elements shall be taken into account:
(a) the impact of the concentration on media pluralism, including its effects on the formation of public opinion and on the diversity of media players on the market, taking into account the online environment and the parties’ interests, links or activities in other media or non-media businesses;
(b) the safeguards for editorial independence, including the impact of the concentration on the functioning of the editorial teams and the existence of measures by media service providers taken with a view to guaranteeing the independence of individual editorial decisions;
(c) whether, in the absence of the concentration, the acquiring and acquired entity would remain economically sustainable, and whether there are any possible alternatives to ensure its economic sustainability.
3. The Commission, assisted by the Board, may issue guidelines on the factors to be taken into account when applying the criteria for assessing the impact of media market concentrations on media pluralism and editorial independence by the national regulatory authorities or bodies.
4. The national regulatory authority or body shall consult the Board in advance on any opinion or decision it aims to adopt assessing the impact on media pluralism and editorial independence of a notifiable media market concentration where such concentrations may affect the functioning of the internal market.
5. Within 14 calendar days from the receipt of the consultation referred to in paragraph 4, the Board shall draw up an opinion on the draft national opinion or decision referred to it, taking account of the elements referred to in paragraph 2 and transmit that opinion to the consulting authority and the Commission.
6. The national regulatory authority or body referred to in paragraph 4 shall take utmost account of the opinion referred to in paragraph 5. Where that authority does not follow the opinion, fully or partially, it shall provide the Board and the Commission with a reasoned justification explaining its position within 30 calendar days from the receipt of that opinion. Without prejudice to its powers under the Treaties, the Commission may issue its own opinion on the matter.
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