Competition and Market Risks
Media pluralism and EU Merger Control: why the Commission’s EUMR review
should remain a competition assessment
Introduction
This memorandum argues that Gerbrandy and Kozak’s Opinion, Media Pluralism and
Competition Law (2025), overstates the extent to which media pluralism can be
incorporated into EU merger control. Their core claim is that a ‘lessening of media
pluralism’ can be treated as a competition-law harm, both through classical competition
analysis and as a separate theory of harm.1 That approach may be attractive as a matter
of policy, but it is not the best reading of the EU Merger Regulation (‘EUMR’).
The better view is that, under the EUMR, the Commission’s task is confined to
competition. Media pluralism is an important public interest, but EU law addresses it
through a separate legal framework: most clearly through Article 21(4) EUMR and Article
22 of the European Media Freedom Act (‘EMFA’). This paper develops four points. First, the
text and structure of the EUMR support a competition-only test. Second, Article 21(4)
EUMR is best read as separating media plurality from the Commission’s own merger
assessment, not as importing it into that assessment. Third, Article 22 EMFA confirms that
pluralism review must remain distinct from competition review. Fourth, the main
analogies relied on in the Opinion are unpersuasive because they conflate competitive
parameters such as quality with a broader constitutional objective such as media
pluralism.
The EUMR gives the Commission a competition mandate, not a media-pluralism
mandate
The Opinion goes further than arguing that media concentration may threaten democracy
and public opinion: it treats protecting media pluralism and preventing ‘opinion power’ as
objectives of competition law and merger control.2 But that does not answer the legal
question posed by this assignment: whether the Commission, applying Article 2 EUMR,
has a duty to consider pluralism as such. The Regulation itself points the other way.
Recitals 23 and 24 frame merger control in terms of maintaining effective competition
and assessing concentrations from the point of view of their effect on competition. 3
Articles 2(2) and 2(3) then provide the operative test: whether the concentration would
significantly impede effective competition in the internal market or a substantial part of
it.4
That matters because the Opinion tends to move too quickly from constitutional context
to legal competence. The Opinion’s argument is not limited to media-specific regulation.
It explicitly contends that protecting democratic society, of which media pluralism forms
part, is an objective of EU competition law, and rejects the view that competition law is
exhausted by a narrow consumer-welfare standard.5 But even if competition law operates
within a constitutional order that values democracy and pluralism, that does not answer
the distinct institutional question whether Article 2 EUMR empowers the Commission to
prohibit a merger on pluralism grounds as such. General EU values may inform an open-
ended standard, but they cannot rewrite a specified one. Here the legislature chose a
competition test, not a general public-interest test. A reading under which the
Commission could prohibit or condition a merger because it reduced diversity of voices,
even absent a competition harm in the Article 2 sense, would not merely interpret the
EUMR. It would expand it.
1
Anna Gerbrandy and Malgorzata Kozak, Media Pluralism and Competition Law: Opinion of Prof. Dr.
Anna Gerbrandy and Dr. Malgorzata Kozak, at the request of the Autoriteit Consument en Markt
(Utrecht University, 10 March 2025).
2
Gerbrandy and Kozak (n 1) 11,18.
3
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between
undertakings [2004] OJ L 24/1, recs 23-24.
4
ibid art 2(2)-(3).
5
Gerbrandy and Kozak (n 1) 18, 21.
Media pluralism and EU Merger Control: why the Commission’s EUMR review
should remain a competition assessment
Introduction
This memorandum argues that Gerbrandy and Kozak’s Opinion, Media Pluralism and
Competition Law (2025), overstates the extent to which media pluralism can be
incorporated into EU merger control. Their core claim is that a ‘lessening of media
pluralism’ can be treated as a competition-law harm, both through classical competition
analysis and as a separate theory of harm.1 That approach may be attractive as a matter
of policy, but it is not the best reading of the EU Merger Regulation (‘EUMR’).
The better view is that, under the EUMR, the Commission’s task is confined to
competition. Media pluralism is an important public interest, but EU law addresses it
through a separate legal framework: most clearly through Article 21(4) EUMR and Article
22 of the European Media Freedom Act (‘EMFA’). This paper develops four points. First, the
text and structure of the EUMR support a competition-only test. Second, Article 21(4)
EUMR is best read as separating media plurality from the Commission’s own merger
assessment, not as importing it into that assessment. Third, Article 22 EMFA confirms that
pluralism review must remain distinct from competition review. Fourth, the main
analogies relied on in the Opinion are unpersuasive because they conflate competitive
parameters such as quality with a broader constitutional objective such as media
pluralism.
The EUMR gives the Commission a competition mandate, not a media-pluralism
mandate
The Opinion goes further than arguing that media concentration may threaten democracy
and public opinion: it treats protecting media pluralism and preventing ‘opinion power’ as
objectives of competition law and merger control.2 But that does not answer the legal
question posed by this assignment: whether the Commission, applying Article 2 EUMR,
has a duty to consider pluralism as such. The Regulation itself points the other way.
Recitals 23 and 24 frame merger control in terms of maintaining effective competition
and assessing concentrations from the point of view of their effect on competition. 3
Articles 2(2) and 2(3) then provide the operative test: whether the concentration would
significantly impede effective competition in the internal market or a substantial part of
it.4
That matters because the Opinion tends to move too quickly from constitutional context
to legal competence. The Opinion’s argument is not limited to media-specific regulation.
It explicitly contends that protecting democratic society, of which media pluralism forms
part, is an objective of EU competition law, and rejects the view that competition law is
exhausted by a narrow consumer-welfare standard.5 But even if competition law operates
within a constitutional order that values democracy and pluralism, that does not answer
the distinct institutional question whether Article 2 EUMR empowers the Commission to
prohibit a merger on pluralism grounds as such. General EU values may inform an open-
ended standard, but they cannot rewrite a specified one. Here the legislature chose a
competition test, not a general public-interest test. A reading under which the
Commission could prohibit or condition a merger because it reduced diversity of voices,
even absent a competition harm in the Article 2 sense, would not merely interpret the
EUMR. It would expand it.
1
Anna Gerbrandy and Malgorzata Kozak, Media Pluralism and Competition Law: Opinion of Prof. Dr.
Anna Gerbrandy and Dr. Malgorzata Kozak, at the request of the Autoriteit Consument en Markt
(Utrecht University, 10 March 2025).
2
Gerbrandy and Kozak (n 1) 11,18.
3
Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between
undertakings [2004] OJ L 24/1, recs 23-24.
4
ibid art 2(2)-(3).
5
Gerbrandy and Kozak (n 1) 18, 21.
