The freezing of Vivendi's stake in Mediaset, or the obligation to review the share positions in Tim and Mediaset, would be a rewrite of the current regulatory framework, not an interpretation of it, and would fuel the suspicion of discrimination against a French subject who has acquired stakes in several Italian companies. These are the conclusions – based on the reconstruction of Radiocor Plus – advanced by Vivendi in the hearing before Agcom which took place in recent days.
The hearing, requested by Vivendi itself after the "technical" one which took place in February with the officials of the Authority, is part of the investigation launched in December after the entry of Vivendi (formerly a partner of Tim with 23,9 %) in Mediaset's shareholding with 28,8% for alleged violation of article 43 of Tusmar on the matter of concentration between telecommunications and media.
On the basis of paragraph 11 of the article subject to the investigation, "companies, also through subsidiaries and associated companies, whose revenues in the electronic communications sector" are "exceeding 40% of the total revenues of that sector" cannot achieve integrated communications system (the basket that collects revenues from license fees, advertising, pay TV and other) «revenues exceeding 10 per cent of the system itself».
One of the main arguments used by Vivendi in the preliminary investigation concerns precisely the attribution of revenues to a company as a consequence of its shareholdings: according to the arguments put forward, reiterated in recent days, it would in fact not be possible to attribute the revenues of Telecom and Mediaset to Vivendi (ie what counts for the purposes of article 43 paragraph 11) simply on the basis of a situation of "connection" without having a situation of control or at least of joint control.
On the basis of the civil code, companies over which significant influence can be exercised are considered associated companies and this situation occurs for listed companies when it is possible to cast at least 10% of the votes in the meeting. Other arguments by Vivendi against the alleged violation concern the interpretations of the concept of "connection" and "concentration" as well as the analysis of the relevant companies for the purposes of calculating the SIC (the Integrated Communications System) headed by Mediaset.
