European Media Freedom Act and its Implications for Both Merger Control and Media Pluralism: The Polish Perspective

This paper critically discusses the implications of the European Media Freedom Act on both merger control and media pluralism. My aim in this paper is not to describe and analyse the provisions of the Act in detail, as at large they do not tackle issues relevant to competition law scholars. Rather I focus on the one solution with which the Act attempts to tackle the systemic, substantive and procedural issues of national competition laws’ control of mergers which may impact media pluralism, which is of high relevance to competition law and should be of interest to doctrinal debates. Hence, in this paper I outline and assess the proposed media pluralism test in merger control. While appreciating the efforts of the European Commission, my review is mainly critical and points to various shortcomings, from the scope of the Act, to its substantive and procedural aspects. In my assessment I refer to the experiences of the recent Polish media mergers and the Polish institutional and procedural setting, and I try to juxtapose them against the solutions offered by the EMFA. In doing so, I aim to answer the question to what extent the European Media Freedom Act actually addresses the issues media pluralism and freedom face on media markets. Aware that the Act is currently under review, rather than unequivocally judging the proposed media pluralism test in merger control, with this paper I wish to contribute to the debate on the interrelationship between competition law enforcement and media (pluralism) regulation.