The publisher is not obliged to extend its collaboration with Blendle

Online news platform Blendle and media publisher DPG Media have worked together over the past few years under licensing agreements that have allowed Blendle to offer DPG Media’s publications. Blendle initially sold individual items to its subscribers. This turned out to be unviable for Blendle. Blendle gradually moved to a subscription model that allowed users to access select articles for a flat fee, and thus began to compete with publishers. Publisher Mediahuis had already terminated its collaboration with Blendle for this reason. DPG Media also recently ended the collaboration.

Blendle then instituted a preliminary relief procedure to impose the continuation of the collaboration. Blendle claimed 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 from which it sources its content. Since only DPG Media still sells its publications to Blendle, DPG Media would have a 90% market share. Blendle argued that DPG Media was abusing this dominant position. The court disagreed.

In the court’s view, Blendle’s product could only constitute a separate market if customers did not revert to purchasing separate items when prices increased. This can be the case if Blendle is sufficiently unique and distinctive. According to the court, this is not the case, because the articles in question are exactly the same. Both Blendle and DPG Media operate in the marketplace that offers general online information to consumers. It is established that DPG Media does not occupy a dominant position on this market and that there can therefore be no abuse, according to the court.

This analysis is questionable from the point of view of competition law. The court seems to have overlooked the fact that Blendle itself does not create content, but depends on publishers for this. The question further is whether Blendle’s online news platform service is actually the same as the services offered by DPG Media, given that 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. This argument by Blendle was doomed.

Even if DPG Media did indeed have a dominant position, the question would be whether it is required to supply its content to Blendle. It follows from European case law that an obligation to supply is exceptional. It doesn’t help in this regard that Blendle itself chose to move to a subscription model, which allowed it to compete with publishers. DPG Media was prepared to continue the collaboration if Blendle returned to selling only individual items.

Blendle announced that he would appeal the court’s decision.

This blog was also published in the Snelrecht part of the Mr. log. The article can be read here.