Irish Competition Authority Decisions

1. This decision concerns an Option Agreement between David Allen Holdings Limited (DAH) and Adsites Limited (Adsites), which was notified to the Authority on 30 October 1992, with a request for a certificate or a licence. The agreement gave DAH an option to purchase some 200 48 sheet advertising panels from Adsites, at any time up to and including 12 noon on 30 September 1994, provided DAH complied with its obligations under the terms of a related licence agreement. DAH has exercised the option under the terms of the agreement. Under the terms of the licence agreement DAH obtained from Adsites an exclusive licence to market and sell the advertising panels owned by Adsites up to 31 December 1994. The Authority refused the request for a certificate or licence in respect of that agreement. [1] The Authority issued a Statement of Objections to the parties in respect of the notified agreement on 13 September 1994 and an Oral Hearing was held on 27 October 1994.

2. This decision concerns an Option Agreement between DAH and Adsites dated 2 January 1992 under which DAH acquired the option of purchasing Adsites right, estate or title in the 48 sheet outdoor advertising panels owned by Adsites and marketed by DAH under the exclusive licence agreement referred to earlier, at any time up to and including 12 noon on 30 September 1994. Some 200 48 sheet advertising panels located throughout the State were covered by this agreement. DAH exercised its option to acquire the panels in early September 1994.

3. DAH is an English registered company established in 1859 and is part of the Avenir Havas Media Group. DAH has operated through a branch (David Allen) in Ireland since 1859. It is an outdoor advertising contractor and is involved in the business of providing space for use in outdoor advertising. It negotiates a site rental with a property owner, constructs and maintains an advertising structure on the property and rents the space to advertisers in fortnightly units.

4. The Avenir Havas Media Group (AHM), is a Paris based multinational, whose shares are publicly quoted. It is 97% owned by Havas which was established in 1835 and which is now France's largest media and communications group. Havas is also engaged in seven major business areas in France and worldwide, including publishing, tourism and audiovisual. Havas' total revenue in 1992 was FF28 billion. Adsites is an outdoor advertising company which comprises Adsites Limited, Campaign Poster Sites Limited and Adsites (Northern Ireland) Limited.

5. The agreement relates to large (48 sheet) panels which are used for poster advertising. There are a large number of alternative media available for firms wishing to advertise their products to consumers. In its submission to the Authority DAH argued that the market could be broken down into two expenditure categories, i.e. traditional forms of media and ´below-the-line' expenditure. Media advertising includes television, radio, press and outdoor advertising. According to DAH, industry estimates indicated that expenditure on traditional forms of advertising in Ireland in 1991 was IR170m. ´Below-the-line' activity refers to sponsorships, supermarket tasting and any other activity which does not involve employing a media company. It is difficult to assess the level of expenditure in this area but according to DAH it was in the region of IR100m. Table 1 below indicates the level of advertising expenditure in Ireland in 1993. It is based on figures which the Authority has obtained on the national advertising market from Advertising Statistics Ireland Ltd. (ASI), a company which specialises in monitoring the overall advertising market. Their figures are not wholly accurate since their estimates of newspaper advertising in particular are based on the ´rate card' whereas it is widely acknowledged that newspapers regularly give significant discounts from these rates. According to ASI total expenditure on media advertising in Ireland in 1993 was £235.3m. The national press were estimated to account for 45% of this with television representing a further 31%. Outdoor advertising, including posters was estimated to account for just 5% of the total.

Media £m % Market Share

National Press 105.9 45%

Regional Press 8.1 3%

Consumer Press 12.3 5%

Television 72.1 31%

Radio 22.9 10%

Outdoor 12.8 5%

Cinema 1.2 1%

Total 235.3 100

Source: ASI

6. DAH submitted that the buyers in the market are advertisers and advertising agencies. The method of advertising chosen is influenced by factors such as cost per thousand of audience, size of the audience and the number of times it can be reached, target audience and availability. The sellers in the market are the media owners or advertising contractors.

7. Outdoor or poster advertising can be divided into three different sectors namely roadside, transport and other. Roadside advertising includes posters displayed by the side of the road and in pedestrian areas, while transport posters are those which are displayed on buses, railways and taxis. Posters may also be displayed at airports, sporting events or on vehicles in various locations. Outdoor advertising may also include neon lights and other special structures. The market is geographical and seasonal. Demand for outdoor advertising is highest for sites located in urban areas. The greatest demand occurs in the summer during the long daylight hours, with the six months from October to March accounting for only 30% of annual turnover.

8. Posters come in various sizes and are attached to structures which are known as panels. This panel is placed, possibly with other panels on a poster site. The main sizes of posters in use are as follows:

(a) 4-sheet (5' X 3'4"). This small sized panel is aimed at pedestrians and is often found in shopping centres.

(b) 6-sheet (1.8m X 1.2m). Often referred to as ´superlites', these are mainly located on bus shelters and are aimed at motorists as well as pedestrians. They are often back-lit to improve night time effect.

(c) 12-sheet (5' X 10')

(d) 16-sheet (10' X 6'8"). These posters are often attached to the sides of buildings.

(e) 32-sheet (10' X 13'4"). Again posters of this size are often attached to the sides of buildings.

(f) 48-sheet (10' X 20'). The predominant large poster size, sited on panels. Such posters are aimed at both motorists and pedestrians.

(g) 64-sheet (10' X 26'8"). This is a variant on the 48-sheet

48 sheet posters account are the most common size of outdoor advertising posters. The other most commonly used poster sizes are 4-sheet and superlites. In recent times there has been a move away from 4-sheet sites towards superlites. A DAH representative referred to the 4 sheet posters as a dying product.

9. Poster contractors own the panels on which the posters are displayed and have rights to use the sites on which they are displayed. In general the sites are not owned by contractors but are rented from the owner. The advertiser pays the contractor for the use of the panels and also pays the production costs of his poster. Advertising agencies design a campaign to meet the needs and objectives of a particular manufacturer or supplier. Outdoor specialists occupy an intermediate position between the contractor and the advertising agency. They act for advertisers and advertising agencies as planners and/or buyers of poster campaigns. The advertising agency and the outdoor specialist receive their remuneration by way of a commission from the poster contractor.

10. There are three principal ways in which poster panels are booked. A contractor may sell individual panels for a particular advertising campaign, a form of short-term spot selling known as line-by-line sales. Alternatively the contractor may collect a group of panels into 'pre-selected campaigns' or 'packages' for a single period sale. Thirdly, a contractor may accept long term bookings for a panel for at least a year or possibly for an indefinite period.

11. According to DAH two specialist companies operated in the Irish market up until 1991, Outdoor Advertising Services Limited, (OAS) and Poster Management Limited (PML). Their respective market shares were 70% and 30%. The specialists were treated as principals by the outdoor contractors. These specialists negotiated exclusive rights to sell the plant of some of the contractors thus causing distortion in the market, according to DAH, as access to sites depended on which specialist was used. In August 1991, OAS went into liquidation. Following the liquidation the poster contractors revised their terms and conditions of trading to establish the advertiser/advertising agency as principal. Payment is now arranged through the advertising agency. According to DAH there are three specialists currently operating within this system, PML, PosterPlan Limited and PosterLink Limited.

12. Within the outdoor advertising medium there are a number of alternative products. These include different poster sizes along with advertising on buses. It can be seen from Table 2 that large 48 sheet panels are the most popular outdoor advertising medium accounting for almost 46% of such advertising. Smaller size posters account for about one third of outdoor advertising with transport advertising (primarily buses) accounting for the remaining 21%.

48 sheet panels 45.8

Bus shelters 25.0

4 Sheets 8.3

Transport advertising 20.9

Total 100.0

Source: DAH

13. The arrangements in this notification relate to 48 sheet posters. In their submission DAH indicated the breakdown of 48-sheet panel holdings was as follows:

David Allen 1,425 (56%)

Adsites 207 ( 8%)

1,632 64%

MOF Adshel Ltd. 311 12%

Metro Advertising Ltd 176 7%

Computer Advertising Network 278 11%

Summerbrook Ltd. 140 6%

2,537 100%

Source: DAH

14. The exercise of the Option Agreement increased the share of DAH in the 48 sheet outdoor advertising market from 56% to 64%. This represents 29% of all forms of outdoor advertising or 37% of all poster advertising. It is also relevant that there are only a relatively small number of firms engaged in the overall poster advertising business. The top two poster advertising firms each account for more than 30% of poster sites of all sizes, while the top four have in excess of 90%. While David Allen has a large share of the the 48 sheet market, the other main firm engaged in outdoor advertising has around 90% of the smaller posters. There are a number of smaller poster advertising firms but they each have only a tiny share of the poster business.

15. There is a degree of overlap between roadside posters of different sizes as well as some complementarity in their use. The value to an advertiser of particular panels depends upon their location as well as other factors such as design features in terms of angle to passing traffic, illumination and the number and size of panels on a site. Indeed evidence presented by DAH indicated that the prices which advertisers will pay even for large posters vary considerably depending on the site of the poster. There is considerable variation not only between Dublin and other parts of the country but prices can also vary depending upon the specific location and other features of poster panels even within Dublin. The price of the top grade of poster in Dublin, according to the DAH rate card is more than five times that of the cheapest grade. In contrast price differentials for the same grade vary far less between geographic locations. The rate card also indicates that price changes for different grades and in different geographic areas have varied considerably over the past 3 years raising some question as to whether all 48 sheet panels should be regarded as substitutes for one another. In fact it would appear that a 48 sheet panel in a rural location is not a substitute for a 48 sheet panel in a prime location in Dublin City suggesting that there are a number of separate market segments in the case of 48 sheet panels.

16. The operation of the poster market depends on the availability of sites. No advertisement can be displayed without first obtaining planning permission from the local authority. DAH submitted that entry to the market requires that a contractor negotiate for advertising rights with a property owner, obtain planning permission for an advertising display and erect an advertising structure. This would cost £2,000 per 48 sheet site. The planning regulations which limit the number of new structures that can be erected, significantly constrain the extent to which a new entrant can construct panels or a small firm can expand. The past decade has also seen a shift towards the development of poster networks. The AHM Annual Report for 1991, for example, stated that the development by it of the network concept meant that outdoor advertising had become a powerful new mass medium. The network concept involves thinking ´no longer in terms of single billboards but in terms of sets of billboards which target groups of people.' [2] The Report points out that a poster network was made up of a set of billboards linked by the same marketing idea, with local networks for cities, for urban areas, for regions or even national networks. This tends to imply that effective entry to the market would require firms to establish a widespread range of poster sites. Technical advances within the industry, the growth of packages by leading firm and other improved services tend to make it more difficult and more expensive for smaller firms to compete.

17. All of the advertising media may be considered to be substitutes, to some degree, with clients deciding which forum to choose based on cost, audience and product. The extent to which other media are substitutes for roadside posters will vary according to the product being advertised and to the nature of the campaign and over time. In general an advertiser makes use of more than one advertising medium and may use various media to portray different messages or concentrate on particular aspects of a product. In choosing which media to use an advertiser will take into account a broad range of factors. Television advertising, although expensive is capable of portraying a strong image, reaches a wide audience and has a high impact inside the home. Press advertising includes national newspapers, local and regional newspapers and specialist periodicals. It costs less than television and may be aimed at different population segments or particular groups. Posters are relatively cheap, and large sized panels in particular offer strong visual impact. They may be used close to the point of sale and can be geographically directed. Posters are often used in conjunction with another medium to reinforce the message which the advertiser is trying to portray. To this extent posters should be regarded as complements rather than substitutes to other forms of advertising. Thus the Authority believes that outdoor advertising constitutes a distinct advertising medium.

18. Pricing is a significant factor in determining the substitutability of posters by other media. Posters tend to be significantly cheaper than other forms of media advertising. Expenditure on poster advertising also tends to constitute a relatively small proportion of an advertiser's total marketing expenditure. In such circumstances it might be expected that it would require a significant increase in the cost of poster advertising before users would switch to other forms of advertising. Two other factors must also be considered in defining the market. Firstly there are legal restrictions in respect of certain types of advertising in specific media, e.g. tobacco advertising is banned on television. Such restrictions restrict the number of alternative outlets available to advertisers of such products. In addition the UK Monopolies and Mergers Commission found that poster advertising appeared to be favoured more by advertisers of particular products. A similar pattern is also true of Ireland with poster advertising more frequently used by some advertisers than others.

19. The Authority believes that the relevant market is primarily that for large (48 sheet) outdoor advertising panels. It considers that smaller outdoor advertising panels may, to some extent, constitute substitutes to larger panels. However, in its view they are only substitutes to a limited degree, since they do not have the same visual impact as larger size posters. Other advertising media are also not sufficiently close substitutes to be regarded as in the same market as large outdoor panels.

20. The Option Agreement gave DAH an option to acquire from Adsites 200 48 sheet advertising panels located throughout the State. [3] These panels had been marketed by DAH under the licence agreement since early 1992. DAH exercised the option to acquire the panels in September 1994. Clause 6.1 requires Adsites to notify DAH if it acquired any new panels, giving full details of such acquisitions including the anticipated revenue to be derived from them and DAH has the right within 30 days to decline to include such panels in the agreement.

21. DAH argued that the agreement was not anti-competitive since there were no post-term non-compete restrictions. DAH submitted that outdoor advertising had experienced decline in relation to other media fora in recent years due to innovations in other media and lack of investment in this area of the market. They stated their intention to concentrate on broadening the base of advertisers using outdoor advertising. They pointed out that the market was subject to variations that arose from such a highly competitive industry. Competition took place at media expenditure level, between owners of different sizes of outdoor advertising sheets and between different owners of 48 sheets and also between transport advertising, press, radio and TV. In order to compete with other media, outdoor advertising had to be able to sell audiences to advertisers/advertising agencies. While other media forums could advise advertisers of viewing figures there were at present no figures indicating measurement of the outdoor advertising audience. Therefore other forms of advertising had an advantage over outdoor advertising. DAH submitted that the use of Adsites sites and their investment would improve the service available and make it more efficient and competitive, thus increasing the quality of the market and the product available and resulting in benefit to the consumer.

22. DAH submitted that the purpose of the arrangement was to provide a sound commercial base for investment in the medium. The beneficiaries of the arrangement would be users and owners of the medium. Users would have a medium that could compete effectively with other forms of media while owners would benefit when market share for outdoor advertising had been regained. DAH concluded that the arrangements were not regarded as being anti-competitive and would effectively develop outdoor advertising to a higher standard so that it would be in a position to compete with other fora with higher market shares of advertising.

23. The Authority received a submission from an outdoor advertising company [ ], in which they claimed that DAH, by marketing the outdoor sites of Adsites, had achieved control of the 48 sheet market and currently had a 70% market share. They claimed that in addition to Adsites, DAH had also acquired approximately 100 X 48 sheet sites from More O' Ferrall in exchange for regional bus shelter sites and had also acquired Phoenix Poster Sites which had a small number of 48 sheet sites.

24. [ ] argued that DAH's dominance in the market enabled them to dictate prices and availability. It was likely that the cost of advertising would rise and the cost would be passed on to the consumer. In addition it was claimed that DAH were in a position to dictate rents paid to landowners/siteowners thereby ensuring that small contractors were unable to compete on rental offers for sites. It was claimed that this eliminated competition and minimised the income potential of the landlord.

25. The AHM Annual Report states that one of its subsidiaries, Mills and Allen, which operated in the outdoor poster advertising market in the UK, had acquired another firm operating in that market. This acquisition had been investigated by the MMC and had been found likely to operate against the public interest. The MMC Report found that, while outdoor advertising represented only a small proportion of total advertising, it nevertheless constituted a distinct product market. It also found that large outdoor posters constituted a separate market from other forms of outdoor advertising. Although the acquisition would have increased Mills and Allen's share of the market to 33.8 per cent, the MMC found that this was likely to reduce competition and choice of supply in the relevant market and would in time lead to higher prices. While it found that Mills and Allen had introduced improvements to the industry which were beneficial it concluded that there were unlikely to be sufficient benefits from the merger to offset the adverse effects identified and that it would therefore offend against the public interest. An earlier investigation of a previous acquisition by Mills and Allen had reached similar conclusions but had been permitted on condition that Mills and Allen divest itself of a substantial number of panels. [4] The later acquisition would have given it control of these panels.

26. The Authority issued a Statement of Objections to the parties in respect of the notified agreement on 13 September 1994 and an Oral Hearing was held on 27 October 1994. DAH argued that the arrangements were not anti-competitive. They stated that the relevant market was not that for large size posters but rather was that for all forms of advertising since they claimed that these were all substitutes for one another. They stated that the ability of poster firms to raise their prices was constrained by the ability of customers to switch to other forms of advertising. They also submitted that at the very least the relevant market should be regarded as that for all outdoor advertising.

27. DAH submitted that there was no evidence that they had been able to secure significant price increases since they secured the right to market Adsites poster panels under the licence agreement in early 1992. They stated that their prices had only increased in line with inflation and that this showed that they were not in a position to impose significant price increases on their customers.

28. DAH argued that section 4(1) of the Competition Act was not applicable in the case of an agreement such as this which was effectively an acquisition. They argued that Article 85(1) did not apply to mergers and acquisitions and by analogy section 4(1) should not apply to them either. They claimed that while the arrangements might result in DAH achieving a dominant position in the market any abuse of such a dominant position was not a matter coming within section 4(1) of the Act and so the arrangements could not be regarded as anti-competitive for this reason. DAH also argued that the position in Ireland was somewhat different to that applying in the UK and that therefore the conclusions of the MMC Reports in the case of Mills & Allen were not applicable. They also stated that advertisers in the UK were preparing a submission to the OFT disputing the MMC definition of the market. It was put to DAH that the agreement to swop their smaller poster sites for 48 sheet panels with one of the other major outdoor advertising firms appeared to contradict their contention that small and large posters were part of a single market. In response the former MD of DAH stated that in his view, this arrangement had been a mistake.

29. In a written reply to the Statement of Objections, Adsites stated that they agreed with the Authority's assessment. They stated that DAH had raised prices since the licence agreement first came into force. They also argued that the rate card had been revamped and that the effect of this had also been to raise prices. They also claimed that DAH were incorrect in stating that there were no audience figures available for outdoor advertising thereby placing it at a disadvantage relative to other media, since extensive research had been undertaken in this area in recent years and the results were known to market participants.

30. Section 4(1) of the Competition Act states that 'all agreements between undertakings, decisions by associations of undertakings and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition in goods or services in the State or in any part of the State are prohibited and void'.

31. Section 3(1) of the Competition Act defines an undertaking as ´a person, being an individual, a body corporate or an unincorporated body engaged for gain in the production, supply or distribution of goods or the provision of a service.' DAH is a corporate body engaged for gain in the business of providing outdoor advertising space. Adsites is also an outdoor advertising company and is engaged for gain. Therefore, they are both undertakings and the arrangements constituted an agreement between undertakings.

32. Under the Option Agreement DAH has an option to acquire all of the large poster panel sites of Adsites. DAH have argued that such an arrangement does not come within the scope of section 4(1). The Authority has given its views on this point in a number of earlier decisions and it is not necessary to restate its views at length for the purposes of the present decision. The Authority has stated in a number of previous decisions that, in its opinion, a sale of business per se does not offend against Section 4(1). [5] It has indicated, however, that where such an agreement is likely to result in a significant diminution of competition in the market it would be regarded as offending against section 4(1). Specifically the Authority has stated that, where in the aftermath of an acquisition the level of concentration as measured by the four firm concentration ratio or the Herfindahl-Hirschman Index exceeded certain thresholds, a detailed examination of the arrangements would be necessary to establish whether or not it could be considered anti-competitive. [6]

33. The effect of the acquisition by DAH of the Adsites 48 sheet panels is to increase DAH's share of such panels to 64%. The market is therefore a highly concentrated one and the effect of this agreement is to increase that level of concentration. According to figures supplied by DAH there are five other outdoor advertising companies operating in the 48 sheet poster market, but these all have much smaller market shares. Where there are only relatively few competitors and one firm has a large market share, the elimination of a competitor and its acquisition by the largest firm may be expected to restrict or at the very least distort competition unless there are offsetting factors at work. Even if all outdoor posters were deemed to constitute the relevant market, the level of market concentration would be sufficiently high for an acquisition by one of the largest firms to have adverse implications for competition. This is particularly so given that one firm accounts for a major portion of small posters.

34. As pointed out earlier there are significant regional variations even within the large advertising panel market. A firm with a large number of sites in rural areas would not constitute an effective competitor to one with a large number of sites in Dublin. As a result of the agreement DAH now has over 700 large panels in Dublin and more than 400 in the other main urban centres. It has increased the number of panels it has in Dublin by more than 20%. Thus although the Authority does not have a detailed breakdown of market shares within the Dublin region, it is clear that the arrangements result in the elimination of a significant competitor within that region and a considerable increase in the market share of the largest firm. Urban centres and, in particular, Dublin are very important in the outdoor advertising business. The arrangements also restrict and/or distort competition within Dublin.

35. In this instance the Authority believes that there are significant barriers to entry. The requirement to obtain planning permission and the cost involved in assembling a large number of suitable poster panel sites reduce the threat of new entry. DAH have argued that some poster site developments do not need planning permission. Nevertheless the Authority believes that in most instances planning permission would be required and that this would constitute a significant barrier to entry. Poster advertising by its nature is not subject to competition from imports. The Authority therefore concludes that the arrangements will result in a significant diminution of competition in the relevant market. This would still be the case even if it considered that all outdoor posters came within the definition of the market since it would still be a highly concentrated one and the arrangements result in one of the two largest firms increasing its market share.

36. DAH had sought to argue that the relevant market was that for all advertising media. While the availability of other media outlets for advertising would represent some constraint on the ability of DAH to exercise market power, the Authority believes that this would be somewhat limited as it does not believe that the relevant market includes all media fora. In particular it believes that it would be possible for DAH to increase prices significantly for the rental of large poster sites. DAH has submitted an extensive amount of material on price changes over the past few years in support of its arguments that prices have not increased significantly. In particular DAH claimed that in many instances poster prices had fallen since 1991 and that it had only increased rate card prices by about 3% per annum since it had started marketing Adsites panels. The position is complicated by the fact that DAH has changed the basis on which it sets its poster rates since 1991. Rates are now related to periods of 14 rather than 28 days. In addition the classification of posters was revised in 1992 so that in comparing prices in 1994 with 1991 it is difficult to ensure that one is comparing like with like. This is important since the claim that poster prices have not increased to any significant extent is highly dependent on the figures quoted by DAH for 1991. These suggest that prices for many poster categories fell between 1991 and 1992, some quite sharply. Direct comparisons are possible for the past two years and these are summarised in Table 4 below.

Table 4: % Increases in Poster Rates.

1993 1994 Cumulative

Dublin 5.3 5.2 10.9

Other Urban 5.2 5.3 10.8

Regional 4.4 0.0 4.4

Note: Posters are graded into five categories. The price changes shown above are a weighted average for the 5 poster categories for each region.

Source: DAH

37. Over the past two years the national average DAH base card rate has increased by almost 10%. This is almost double the rate of inflation over the period. Increases in urban areas have been greater running at almost 11% over the two years. In the case of the most common poster categories the rates of increase have been even greater with some poster categories showing increases of almost 17% in Dublin. The increases in the rate card do not fully capture what has happened to prices. There have been some changes to the rates of discount offered so that average prices for the year as a whole in 1994 increased by between 1 and 3% more than the rate card figure. In addition some areas previously included within the regional category up to 1993 now come within the other urban rate, implying a significant increase in the case of those sites, which admittedly are rather limited in number. Nevertheless the substantial increase in poster sites in urban areas, particularly in the case of the most common categories, together with other changes in the rates of discount offered and the re-classification of certain sites from regional to other urban do not, in the Authority's view, support claims that competition from other media sources has imposed a serious constraint on DAH increasing its prices. When questioned about the figures DAH executives stated that, while some prices increased by more than others, they were obliged to keep their overall price increases in line with inflation or face the prospect of losing business to other media.

38. As pointed out DAH have pioneered the concept of poster campaigns whereby advertisers purchase a number of poster sites as part of a package rather than renting individual sites. In effect only DAH have a sufficient number of 48 sheet sites to offer such a package. In the case of some of these campaigns the price per site has increased by a considerable amount over the past two years, (20% or more in some instances). When asked to comment on this DAH stated that this was attributable to an improvement in the quality of the sites available. DAH stated that about 50% of their sites are included in campaigns. In the case of Dublin the ratio may be much higher since the total number of Dublin sites available for inclusion in campaigns accounts for 74% of DAH's Dublin sites. (The fact that sites are available for inclusion in campaigns does not mean that all such sites are booked for campaigns at any given point in time).

39. It is relevant that the MMC in the UK found that an acquisition by another member of the same group which would have given it a much lower share of the relevant market would reduce competition. In the Authority's opinion the extent of competition, both national and local, from other media in the form of television, radio, national and local newspapers would be likely to be much greater in the UK given the larger number of firms in those markets. The Authority therefore concludes that the Option Agreement offends against section 4(1).

40. Under Section 4(2), the Competition Authority may grant a licence in the case of any agreement which offend against Section 4(1) but which, ´having regard to all relevant market conditions, contributes to improving the production of goods or provision of services or to promoting technical or economic progress, while allowing consumers a fair share of the resulting benefit and which does not -

(i) impose on the undertakings concerned terms which are not indispensable to the attainment of those objectives;

(ii) afford undertakings the possibility of eliminating competition in respect of a substantial part of the products or services in question.'

41. The Authority does not believe that the notified agreements will contribute to improving the production of goods or the provision of services or to promoting technical or economic progress. The parties have offered no convincing arguments to show how the notified agreements would produce such benefits. Since all four of the tests must be satisfied in order for a licence to be granted the fact that the agreements fail to satisfy this requirement is of itself sufficient for the Authority to refuse a licence. Nevertheless the Authority believes that it should set out its views in respect of the other tests for purposes of clarity. In the Authority's view the agreement produces no benefit in which consumers may share. Essentially as the agreement themselves are anti-competitive and do not produce any benefits the question of the indispensability of individual terms does not arise. The large share of the relevant market afforded to DAH by virtue of the notified agreement means that it affords the undertakings the possibility of eliminating competition in respect of a substantial part of the products in question. The Authority considers that 64 per cent of the market constitutes a substantial part of the market.

42. In the Authority's opinion DAH and Adsites are undertakings within the meaning of Section 3(1) of the Competition Act and the notified arrangements constitute agreements between undertakings. In the Authority's opinion the Option Agreement dated 2 January 1992, whereby DAH secured the option to acquire all of Adsites 48 sheet advertising panels has the object and effect of preventing, restricting or distorting competition and consequently offends against Section 4(1). The Authority does not believe that the agreement satisfies the requirements for a licence set out in Section 4(2). The Authority therefore refuses to issue a certificate or grant a licence to the Option Agreement of 2 January 1992 between David Allen Holdings Limited and Adsites Limited (notification no. CA/1127/92), notified on 30 October 1992 under Section 7 of the Competition Act, 1991.

For the Competition Authority

Patrick Massey

Member

15 December, 1994.