The Amsterdam Court has ruled in preliminary relief proceedings that the licence agreement between Blendle and a publisher need not be extended. No abuse of a dominant position by the publisher is involved.
Online news platform Blendle and media publisher DPG Media worked together in recent years under licence agreements that allowed Blendle to offer DPG Media’s publications. Blendle initially sold individual articles to its subscribers. That proved to be unviable for Blendle. Blendle gradually switched to a subscription model that gave users access to a selection of articles for a fixed fee, and thereby started to compete with publishers. Publisher Mediahuis had already terminated its collaboration with Blendle for that reason. DPG Media recently also put an end to the collaboration.
Blendle then instituted preliminary relief proceedings to enforce continuation of the collaboration. Blendle argued that DPG Media was abusing its dominant position (Article 24 of the Dutch Competition Act and Article 102 of the TFEU). According to Blendle, there is a separate wholesale market for newspaper content on which it purchases its content. Because only DPG Media is still selling its publications to Blendle, DPG Media allegedly has a 90% market share. Blendle argued that DPG Media was abusing this dominant position. The court disagreed.
In the court’s opinion, Blendle’s product could constitute a separate market only if customers did not switch to purchasing separate articles in the event of a price increase. That may be the case if Blendle has a sufficiently unique and distinctive character. According to the court that is not the case, because the articles in question are exactly the same. Both Blendle and DPG Media operate on the market that offers general online news to consumers. It is an established fact that DPG Media does not have a dominant position on that market and no abuse can therefore be involved, according to the court.
This analysis is questionable from a competition-law perspective. The court appears to have ignored the fact that Blendle itself does not create content, but is dependent in that regard on publishers. The question is furthermore whether Blendle’s online news platform service really is the same as the services offered by DPG Media, since Blendle aims to offer the services of multiple publishers in a bundled form. On the other hand, the fact that only DPG Media was still willing to make its publications available to Blendle obviously does not mean that DPG Media therefore has a dominant position. That argument of Blendle was bound to fail.
Even if DPG Media did have a dominant position, the question would be whether it is under any obligation to supply its content to Blendle. It follows from European case law that a supply obligation is exceptional. It does not help in this regard that Blendle itself opted to switch to a subscription model, as a result of which it competes with publishers. DPG Media was willing to continue the collaboration if Blendle returned to selling only individual articles.
Blendle has announced that it will appeal the court's decision.
This blog was also published in the Snelrecht section of the Mr. journal. The article can be read here.
