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The impact of EU on sport broadcasting: what does the line of recent ECJ cases signal about?

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Abstract

The Murphy case decision in 2011 in favour of a pub landlady from the UK showed that the broadcasters cannot prevent customers from buying cheaper foreign satellite TV services to watch Premier League football. While legal experts said that pubs still might be prevented from such business activity because of the intellectual property rules, the case underlined the growing complexity of policing and selling sports rights in a digital world. The case has ‘voided’ territorial exclusivity of broadcasting rights, one of the cornerstones of the sector. The FIFA and Sky Österreich cases reinforce the protection of minor broadcasters and the viewers by limiting the aggressive marketing behaviour of the rightholders and major broadcasters. Assertion of the need for a case-by-case examination of the compatibility of sporting practices with the Treaty did not change. The Commission and the ECJ will continue to be the main EU actors affecting the broadcasting market of sporting events.

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Notes

  1. Green Paper COM (2011) 427 final, p. 3.

  2. See http://www.pwc.com/en_GX/gx/hospitality-leisure/pdf/changing-the-game-outlook-for-the-global-sports-market-to-2015.pdf. Last visited 20th February 2013.

  3. See Radaelli (2004), Börzel (2001), Börzel (2002), Wallace (2000).

  4. At least three CoE Conventions are relevant to sport. The European Convention on Human Rights (Art. 6—right to fair hearing and Art. 8—right to a private life), Anti-Doping Convention and the Convention on Spectator Violence and Misbehavior at Sports Events and in particular at Football Matches. In 1992 CoE has also adopted the European Sports Charter and the Code of Sports Ethics.

  5. See, for example, recent report on ‘Combating Racism, Intolerance and Discrimination in Society through Sport’ adopted on 19–20th April 2012. Available at http://www.osce.org/odihr/91015. Last visited 20th February 2013.

  6. See the list of European Sport Federations at http://ec.europa.eu/sport/annexes-sport/european-sport-federations_en.htm. Last visited 20th February 2013.

  7. CAS was established in 1983 by the International Olympic Committee. Based in Lauzanne, Switzerland. The aim of sports movement was to create a low-cost and expedited dispute resolution system aside from ordinary courts. Nowadays, most of international sport federations affiliated to the Olympic movement refer cases to CAS. See official website http://www.tas-cas.org.

  8. WADA facilitates sport and government acceptance of the World Anti-Doping Code and its principles to ensure a harmonised approach to anti-doping in all sports and all countries, monitoring implementation of and compliance with the Code, works for the proper adjudication of results. See http://www.wada-ama.org/en/About-WADA/. See also EU Expert Group on Anti-Doping proposal for a first EU contribution to the revision of the World Anti-Doping Code at the meeting in Brussels on 8 February 2012, http://ec.europa.eu/sport/library/documents/b24/xg-ad-20120208-final-rpt.pdf. There also exists UNESCO International Convention against Doping in Sport 2005.

  9. Radaelli (2000).

  10. See Fig. 1.

  11. First European Sports Forum was held that year. See Conclusions at http://ec.europa.eu/sport/library/documents/b1/doc420_en.pdf and discussion paper on relation between sport and television at http://ec.europa.eu/sport/library/documents/b1/doc428_en.pdf. Last visited 20th February 2013. The event is annual and represents a structural dialogue with sport organisations on the European level.

  12. See COM (1999) 644 final.

  13. See the text of the Declaration at http://ec.europa.eu/sport/documents/doc244_en.pdf. Last visited 20th February 2013.

  14. COM (2007) 391 final, p. 4. See also Krejza (2007); Blackshaw (2007); Siekmann (2011).

  15. A general exemption is ‘neither possible nor warranted’. See Commission Staff Working Document SEC (2007) 935 accompanying the White Paper, p. 69, 78.

  16. See EU official press release http://europa.eu/rapid/pressReleasesAction.do?reference=IP/08/807&format=HTML&aged=0&language=EN&guiLanguage=en. Last visited 20th February 2013.

  17. See http://www.uefa.com/uefa/stakeholders/europeanunion/news/newsid=1772144.html. Last visited 20th February 2013.

  18. In 2003 UEFA opened its permanent representative office in Brussels. See Garcia (2007).

  19. It was the second EU Sport Forum since the adoption of the White Paper on Sport took place in Madrid on 19–20 April 2010. See http://ec.europa.eu/sport/documents/sport_forum_madrid_report_11_05_10.pdf. Last visited 20th February 2013.

  20. A supporting competence is the ‘weakest’ type of the three principal types of competences, provisioned in Title I, Part One of the TFEU. See Art. 6(e) TFEU.

  21. See Parrish (2009).

  22. 'The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in member states which have as their object the establishment and functioning of the internal market'.

  23. For example, see recitals of Directive 2001/84/EC (Resale Rights Directive) and Directive 2006/24/EC (Data Retention Directive).

  24. See the Common position of the Olympic and Sports Movement on the implementation of the new Treaty on the Functioning of the European Union (TFEU) on sport (Lisbon Treaty) adopted in January 2010, http://www.euoffice.eurolympic.org/cms/getfile.php?98. Last visited 20th February 2013. The document stresses once again the need to take into account the specific nature of sport and promote diologue between EU and sport governing bodies. See also UEFA’s position on Article 165 of the Lisbon Treaty. The document states that the absence of a clear EU legal framework and the resultant ‘case-by-case’ approach has a destabilising effect on sport, creating a sense of ambiguity and legal uncertainty http://www.uefa.com/MultimediaFiles/Download/uefaorg/EuropeanUnion/01/57/91/67/1579167_DOWNLOAD.pdf. Last visited 20th February 2013.

  25. See Art. 45–48 TFEU on free movement of workers, Art. 49–54 on rights of the self-employed and legal persons, Art. 56–62 on a right to provide services, Art. 101–102 on competitive prohibitions of the conduct of undertakings in sport sector.

  26. See Case 36/74, Walrave and Koch [1974], par. 4, 8 and Case 13/76, Gaetano Donà v Mario Mantero [1976], par. 12.

  27. See, for example, Case C-415/93 [1995], par. 106; Case C-51/96 and Case C-191/97 [2000], par. 41–42; Case C-176/96 [2000], par 32–33; Case C-519/04P [2006], par. 47; etc.

  28. See UEFA Champions League decision 2003/778, OJ L291/25; Bundesliga Decision 2005/396, OJ 2005 l134/46; Football Association Premier League Decision C(2006)868, OJ 2008/C 7/10.

  29. See Case T-185/00, Metropole Television (SA)(M6) and others v. Commission [2002] and Commission Decision 2001/478/EC, UEFA Broadcasting Regulations (2001), OJ L171/12.

  30. Hoehn and Lancefield (2003), p. 560.

  31. IPTV is the delivery of a video feed channeled over a dedicated part of the telephone network. The feed is separate from the Internet stream, and the content channeled onto the TV via a set-top box dedicated both to linear TV and on-demand services. The service is increasingly offered by telecommunications operators. Western Europe is the largest IPTV market, accounting for 40% of global subscribers in 2010. France is the leading country in the world for IPTV (23 % of the global total), followed by China (16 %) and the US (16 %).

  32. See Green Paper COM (2011) 427 final, p. 5. OJ C143, 22/05/2012.

  33. Nicita and Ramello (2005).

  34. It is debatable whether the sporting event itself deserves IP protection. See arguments in favour of copyrightability in Andriychuk (2009).

  35. See Article 13 of the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations. Text is available at official website of WIPO http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html. Last visited 20th February 2013.

  36. Council Directive 93/83/EEC (Satellite Broadcasting Directive), OJ L 248, 06/10/1993, p. 15–21.

  37. Hoehn and Lancefield (2003). The European Broadcasting Union (EBU) is the largest association of national broadcasters in the world, serving 85 national media organisations in 56 countries across Europe and beyond. member broadcasters reach an audience of 650 million weekly. See official website http://www.eurovision.net/about/ebu.php. Last visited 20th February 2013.

  38. Recently UEFA addressed this problem by adopting so-called ‘Financial Fair Play’ rules. Those rules, however, apply only to European competitions. See http://www.uefa.com/uefa/footballfirst/protectingthegame/financialfairplay/index.html. Last visited 20th February 2013.

  39. Bolotny and Bourg (2006).

  40. The 2002 FIFA World Cup in Japan and Korea and the 2011 Rugby World Cup in New Zealand both resulted in games being shown in the early morning in the big European markets. This factor surely reduced the potential income.

  41. The text of the document is available at http://www.uefa.com/MultimediaFiles/Download/uefaorg/Clublicensing/01/50/09/12/1500912_DOWNLOAD.pdf. Last visited 20th February 2013.

  42. FIFA World Cup 2002 in Korea and Japan, UEFA EURO 2000 in Belgium and Netherlands, UEFA EURO 2008 in Austria and Switzerland and UEFA EURO 2012 in Poland and Ukraine. The last example is most striking in a sense that one country, namely Poland, is the EU Member, while another country, namely Ukraine, has not even signed an Association Agreement with the EU. Moreover, there were serious discussions in last two decades suggesting to merge and create international leagues such as Baltic, Benelux, Britain, Scandinavian, etc. Nowadays hotly debated proposal is a merged Russian-Ukrainian league.

  43. See http://www.uefa.com/uefa/aboutuefa/organisation/executivecommittee/news/newsid=1913839.html?rss=1913839+Thirteen+cities+to+host+UEFA+EURO+2020. Last visited 20th February 2013.

  44. See Ian Blackshaw (2009).

  45. See http://news.bbc.co.uk/2/hi/business/298072.stm. Last visited 20th February 2013.

  46. Bolotny and Bourg (2006)..

  47. For example, the ‘sad’ story of Kirch in Germany, Gioco Calcio in Italy and ITV Digital in the UK.

  48. Highlights of the review are available at http://www.deloitte.com/view/en_GB/uk/industries/sportsbusinessgroup/sports/football/annual-review-of-football-finance/index.htm. Last visited 20th February 2013.

  49. For a general overview of the markets see Fig. 1.

  50. Tonazzi (2003).

  51. Hoehn and Lancefield (2003).

  52. Massey (2007).

  53. See Case No. IV/33.245, BBC, BSB and Football Association (1993), OJ C94. For details see Van Rompuy and Pauwels (2009).

  54. See Deloitte Annual Review of Football Finance 2012 Highlights.

  55. See http://www.guardian.co.uk/media/2012/jun/13/premier-league-tv-rights-3-billion-sky-bt. Last visited 20th February 2013.

  56. For more details about media rights in the UK see Whittaker et al. (2003) and Barr-Smith (2009).

  57. See Deloitte Annual Review of Football Finance 2012 Highlights.

  58. See http://www.bundesliga.de/en/liga/news/2011/210163.php. Last visited 20th February 2013.

  59. For more details about media rights in Germany see Schimke (2003) and Schimke (2009).

  60. See details of broadcasting rights commitments made by the German Football League at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/05/16&format=HTML&aged=0&language=EN&guiLanguage=en. Last visited 20th February 2013.

  61. See Wilbert (2005) http://ec.europa.eu/competition/publications/cpn/2005_2_44.pdf. Last visited 20th February 2013.

  62. See Commission Decision of 19 January 2005 at http://ec.europa.eu/competition/antitrust/cases/dec_docs/37214/37214_90_1.pdf. Last visited 20th February 2013.

  63. See van der Wolk (2006).

  64. For more details about media rights in Spain see Rey et al. (2009).

  65. See http://www.dailymail.co.uk/sport/football/article-2152076/Barcelona-Real-Madrid-prepared-share-TV-rights-make-La-Liga-competitive.html. Last visited 20th February 2013.

  66. Implementing the so-called ‘Television without Frontiers Directive’, more precisely, amended version 1997 of original Directive 1989, which would be discussed in more detail elsewhere in this article.

  67. It's worth to recall that Spain is a decentralised state constituted by the central government and the governments of seventeen autonomous communities.

  68. See http://www.cncompetencia.es/Inicio/Noticias/TabId/105/Default.aspx?contentid=483816. Last visited 20th February 2013.

  69. A 6 month investigation was initiated before the end of which the CNC would have to make its decision. However, on 20th July 2012 the case was extended to include FC Real Madrid. And on 8th August 2012 CNC fined Mediapro €200,000 for breaching its duty to collaborate. See http://www.cncompetencia.es/Inicio/Noticias/tabid/105/Default.aspx. Last visited 20th February 2013.

  70. With a maximum period of 18 months for the investigation. See http://www.cncompetencia.es/Inicio/Noticias/tabid/105/Default.aspx?Contentid=562254&Pag=4. Last visited 20th February 2013.

  71. For more details about media rights in Italy see Ferrari (2003), (2005), (2010), (2009).

  72. For more details about media rights in France see Verheyden (2003), Kamina (2009).

  73. However, sanctions for infringement apply under general civil liability. For more details see Kamina (2009).

  74. In many countries at least one central match of the internal competition is available on free-access television. As regards France see Commission Decision 2007/480/EC, OJ L 180/33, 10/07/2007, p. 33–37.

  75. See Deloitte Annual Review of Football Finance 2012 Highlights.

  76. See http://www.goal.com/en-gb/news/3264/france/2012/06/29/3208312/new-television-deal-helps-french-football-narrowly-avoid. Last visited 20th February 2013.

  77. This demotivates the local market to pay more money (if any at all) to view the Dutch league. While the British viewers are interested only in their own English football, the Dutch viewers are deemed to be more interested in German and English leagues.

  78. See Olfers (2004) and European Commission press release at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/01/1043&format=HTML&aged=1&language=EN&guiLanguage=en. Last visited 20th February 2013.

  79. Dutch Supreme Court, KNVB v Feyenoord, 23 May 2003, LJN AF4607, Case No. CO1/255HR. The Court ignores an argument that a sporting event can never be produced solely by one (host) FC.

  80. See Deloitte Annual Review of Football Finance 2012 Highlights.

  81. For details about Netherlands (and Belgium) broadcasting market see Mak and van den Akker (2003), Olfers (2004), Olfers (2009), Valcke et al. (2009).

  82. The agreement was approved by the KNVB, member FCs and TV partner Endemol. Fox will now broadcast the Dutch league for 12 years, starting in 2013–2014, paying an average of €80 mln to FCs per season. See http://www.goal.com/en/news/462/netherlands/2012/08/08/3295244/fox-buys-eredivisie-broadcasting-rights-in-1bn-deal. Last visited 20th February 2013.

  83. Official press release dated 30th November 2012. See http://www.nma.nl/en/documents_and_publications/press_releases/news/2012/53_12_NMa_clears_acquisition_of_Dutch_soccer_broadcasting_rights_by_Fox.aspx. Last visited 20th February 2013.

  84. See Art. 345 TFEU. There are no direct regulations pertaining to intellectual property either.

  85. See Fig. 1.

  86. For details see, for example, Olfers (2004), van der Wolk (2006), p. 84–88; Parrish and Miettinen (2009).

  87. Council Directive 89/552/EEC, OJ L 298, 17/10/1989, p. 23–30.

  88. Council Directive 93/83/EEC, OJ L 248, 06/10/1993, p. 15–21.

  89. Parrish (2008), p. 82.

  90. Case 155/73 Sacchi [1974], OJ Vol 17, No C 91, 03/08/1974, p. 4.

  91. Parrish (2008), p. 82.

  92. The text of the document is available at http://aei.pitt.edu/3120/. Last visited 20th February 2013. For more details on history see Collins (1994).

  93. COM (1995) 86 final. The text is available online at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:51995DC0086:EN:NOT. Last visited 20th February 2013.

  94. The definition of events of ‘major importance for society’ is a matter to be decided by the Member States, but recital 21 of the Directive suggests that they should be outstanding events of interest to the general public in at least an important component of a given Member State.

  95. See, for example, Commission Decision of 21 December 2011 on the capability with EU law of measures to be taken by Italy pursuant to Article 14 Directive 2010/13/EU, OJ L187, 17/07/2012, p. 57-61.

  96. Directive 2007/65/EC, OJ L 332, 18/12/2007, p. 27–45. In 2010 the codified version of the AVMSD was published in OJ L 95, 15/04/2010, p 01-24.

  97. See the table and consolidated list of the measures at http://ec.europa.eu/avpolicy/reg/tvwf/implementation/events_list/index_en.htm. Last visited 20th February 2013.

  98. See the UK House of Commons Standard Note SN/HA/802 ‘Listed sporting events’, available at http://www.parliament.uk.

  99. For example, in 2009 the EBU won open tender for broadcasting rights of UEFA EURO 2012 and 2010 and 2014 FIFA World Cups in South Africa and Brazil accordingly. See http://www.ebu.ch/en/union/news/2009/tcm_6-66154.php. Last visited 20th February 2013.

  100. Parrish (2008), p. 84.

  101. See EU press release at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/12/306&format=HTML&aged=0&language=EN&guiLanguage=en. The text of the Report COM(2012) 203 final is available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52012DC0203:EN:NOT. Last visited 20th February 2013.

  102. The European Commission is now focusing on public consultations on Connected TV in order to produce a policy paper. See, for example, http://www.connectedtveuconference.com/index.htm. Last visited 20th February 2013.

  103. See Commission Decision 2000/400/EC in Case IV/32.150, OJ L151, 24/06/2000, p. 18–41; also Case IV/M469, MSG Media Service, OJ 1994 L364/1 and Commission Decision 94/922/EC available at http://ec.europa.eu/competition/mergers/cases/decisions/m469_19941109_610_en.pdf. Last visited 20th February 2013. In public TV there is a financial relationship between the broadcaster and the advertiser, while in pay-TV such relationship is between the viewer and the broadcaster.

  104. See Commission Notice on the best practices for the conduct of proceedings concerning Articles 101 and 102 TFEU, OJ C 308, 20/10/2011, p. 6–32.

  105. See Ferrari (2009), p. 402, footnote 7.

  106. See footnote 27 above. The matter concerned UEFA, Bundesliga and FAPL.

  107. Joint sales of sporting audiovisual rights are not restrictive of competition when there is public, transparent and non-discriminatory bidding procedure, guaranteeing to all broadcasters the possibility of entering the market. In many countries it is, however, forbidden by national law for a single operator to purchase the exclusive rights to all live packages (the so-called ‘No Single Buyer’ rule). As regards the activity of a single broadcaster see Commission Decision COMP/38.173 and UK Commitments available at http://ec.europa.eu/competition/antitrust/cases/dec_docs/38173/38173_132_7.pdf. Last visited 20th February 2013.

  108. To identify the stakeholders see Fig. 1.

  109. For more details on political disposition see Parrish (2008), p. 85–87.

  110. See Helberger (2003).

  111. Weatherill (2006).

  112. See Art. 9 of the Convention. The document is available at http://conventions.coe.int/treaty/en/treaties/html/132.htm. Last visited 20th February 2013.

  113. See considerations on finding a proper balance between the interests of sports organisations and the free flow of information in Mak and van den Akker (2003), p. 23–29.

  114. See, for example, CoE recommendation, available at http://www.coe.int/t/dghl/standardsetting/media/doc/cm/rec(1991)005&expmem_EN.asp. Last visited 20th February 2013.

  115. See BEUC’s response to the Commission’s Consultation on the Review of the ‘Television Without Frontiers’ Directive, BEUC/X/035/2003 at http://ec.europa.eu/avpolicy/docs/reg/modernisation/2003_review/contributions/wc_beuc.pdf. Last visited 20th February 2013.

  116. Directive 2002/22/EC (Universal Service Directive), OJ L 108, 24/04/2002.

  117. See Parrish (2008), p. 90-91, 97. The Universal Service and Users’ Rights Directive is part of the 'Telecoms Package' which, together with four other directives (“framework”, “access and interconnection”, “authorisation” and “private life and electronic communications”), aims to recast the existing regulatory framework for telecommunications and to make the electronic communications sector more competitive.

  118. See an overview of cases regarding the sale of sports broadcasting rights which the European Commission has dealt with in van der Wolk (2006), p. 84–88.

  119. Case T-385/07, Fédération Internationale de Football Association (FIFA) v European Commission (2011).

  120. Joined Cases C-403/08 and C-429/08, Murphy (2011).

  121. Case C-283/11, Sky Österreich GmbH v Österreichischer Rundfunk (2013).

  122. FIFA (The Fédération Internationale de Football Association) is the international governing body of association football, futsal and beach football. With 208 member associations it is one of the largest international organisations in the world. United Nations, for instance, consists of 193 member states.

  123. Commission Decision 2007/479/EC on the compatibility with Community law of measures taken by Belgium pursuant to Art. 3a(1) of Council Directive 89/552/EEC, OJ L 180, 10/07/2007, pp 24–32.

  124. Decree of 27 February 2003 on broadcasting (MB No 137, 17.4.2003) and the Order of 8 June 2004 (MB No 318, 6.9.2004) for the French Community, and Decree of 25 January 1995 (DCFL No 1995-01-25/38) and the Order of 28 May 2004 (MB No 295, 19.8.2004) for the Flemish Community. A consolidated list of events of major importance for Belgium is contained in the agreement concluded between the French Community and the Flemish Community on 28 November 2003 and can be also found in Annex to Commission Decision 2007/479/EC.

  125. Par. 137 of the Judgment.

  126. Par. 142 of the Judgment.

  127. Par. 150 of the Judgement.

  128. See Art. 10 of the ECHR.

  129. In 2006 and 2010 Belgium did not qualify for FIFA World Cup. The last time when the country’s national team participated in the event was 10 years ago, in 2002. The team progressed to 1/8 final, but lost the match to Brazil, future champion. Nevertheless, these facts do not undermine Belgian public interest in the once-per-4-year grand event.

  130. Par. 71–75, 94 of the Judgment.

  131. Par. 104–109 of the Judgment.

  132. See also Case C-250/06, United Pan-Europe Communications Belgium SA and Others v Belgian State (2007).

  133. The Judgments with similar outcome were actually made in several cases (Cases T-385/07, T-55/08 and T-68/08). The matter touched upon UEFA, UEFA's EURO sporting event and UK list of ‘events of major importance’..

  134. Advocate General’s Opinion in Cases C-201/11 P, C-204/11 P and C-205/11 P UEFA and FIFA v Commission delivered on 12th December 2012.

  135. It means that FAPL will appoint only one broadcaster within any particular territory and there will be restrictions on the circulation of authorised decoder cards outside the territory of each licensee.

  136. Observations were submitted by the UK, Spanish, Czech, French, Italian governments and major EU Institutions—the Commission, the Parliament and the Council.

  137. Joined Cases C-403/08 and C-429/08.

  138. Par. 57 of the Judgment.

  139. Two divisions of the High Court of Justice of England and Wales referred a total of 18 questions (excluding sub-questions) to the ECJ regarding the interpretation and application of various provisions under EU law.

  140. Directive 98/84/EC (Conditional Access Directive), OJ L 320, 28/11/1998, p. 54.

  141. Par. 63–67 of the Judgment.

  142. Par. 69–74 of the Judgment.

  143. Par. 77 of the Judgment.

  144. Therefore, no need for articles 34 and 36 TFEU to be examined. See par. 78–83 of the Judgment. The Court refers to the case law: C-275/92 Schindler (1994), par. 22, 25 and Case C-108/09 Ker-Optika (2010), par. 43.

  145. Par. 88–89 of the Judgment. A restriction on fundamental freedoms guaranteed by the Treaty cannot be justified unless it serves overriding reasons in the public interest, is suitable for securing the attainment of the public interest objective which it pursues and does not go beyond what is necessary in order to attain it.

  146. Par. 91 of the Judgment.

  147. Par. 110–117 of the Judgment.

  148. Par. 123 of the Judgment.

  149. Par. 96–99 of the Judgment.

  150. Par. 100 of the Judgment.

  151. For the second time the ECJ stressed that Art. 165(1) TFEU protecting sporting events is a legitimate reason for which Member States may restrict a fundamental freedom. The first time the Court said so was in Bernard Case C-325/08 [2010], par. 40.

  152. Par. 102 of the Judgment.

  153. Par. 104 of the Judgment.

  154. The ‘owner-friendly’ approach, as suggested by, for example, Andriychuk (2009).

  155. Par. 139 of the Judgment.

  156. Par. 141–146 of the Judgment.

  157. In particular, the opening video sequence, the Premier League anthem, pre-recorded films showing highlights of recent Premier League matches, or various graphics. Even such fragments, which are extremely small in scope, constitute the reproduction in part of a broadcast.

  158. Directive 2001/29/EC, OJ L 167, 22/06/2001, p. 10, corrigendum at OJ 2002 L 6, 30/04/2002, p. 70.

  159. Directive 2006/115/EC (codified version), OJ L 376, 27/12/2006, p. 28.

  160. Par. 154 of the Judgement.

  161. The text of the Opinion of Advocate General Kokott delivered on 3rd February 2011 is available at http://curia.europa.eu/juris/document/document.jsf?text=&docid=84316&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=102339. Last visited 20th February 2013.

  162. Par. 81 of the AG Opinion.

  163. Par. 82–85 of the AG Opinion.

  164. Par. 68–73 of the AG Opinion.

  165. Recital 23 in the preamble to Copyright Directive provides: ‘This Directive should harmonise further the author’s right of communication to the public. This right should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. This right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. This right should not cover any other acts’. Moreover, it is interesting to follow the analysis performed in this respect by the AG in par. 121–147 of the Opinion.

  166. Kaburakis et al. 2012, p. 318. See also par. 147 of the AG Opinion and par. 207 of the Court Judgment.

  167. Par. 147–152 of the Judgment.

  168. Par. 159 of the Judgment.

  169. Par. 161 of the Judgment. The AG in par. 94–101 of his Opinion expressed that ‘transient copies of a work created on a television screen linked to the decoder box have independent economic significance within the meaning of Article 5(1) of Directive 2001/29, whereas transient copies created in a decoder’s memory do not'..

  170. Par. 176–177 of the Judgment.

  171. As expressed in recital 31 of the Copyright Directive.

  172. It is worth to consider that from the perspective of the viewers there should also be a single European broadcasting market not confined within the borders of one member state. See Fig. 1.

  173. Par. 120 of the AG Opinion.

  174. Par. 110, 112–113 of the Judgment.

  175. Kaburakis et al. 2012, p. 316.

  176. See Ferrari (2010), p. 73.

  177. See Kamina (2009), p. 338, 356.

  178. Recital 55 in the preamble to Directive 2010/13.

  179. See Rey (2009). p. 502.

  180. The payment for short news reports was EUR 700 per minute. As regards that remuneration, the parties limited the duration of the validity of the agreement to the entry into force of the amendment to Article 5 of the Federal Law on the Exercise of Exclusive Broadcasting Rights, namely 1 October 2010.

  181. See recitals 48, 55–56 and Art. 14(1) and 15 of the AVMSD. Access to short extracts must be afforded under non-discriminatory conditions.

  182. The text of the AG Opinion is available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62011CC0283:EN:HTML. Last visited 20th February 2013. Worth to remind that the Advocate General’s Opinion, being a completely independent proposal of legal solution to the case, is not binding on the Court.

  183. The right to property, like the right to freely exercise an economic activity, is one of the general principles of EU law.

  184. Par. 29 of the AG Opinion.

  185. Par. 36–37 of the AG Opinion.

  186. Par. 42 of the AG Opinion. See also recital 11 of the AVMSD.

  187. Par. 45 of the AG Opinion.

  188. Par. 50 of the AG Opinion.

  189. Par. 56–57 of the AG Opinion.

  190. Par. 59–60 of the AG Opinion.

  191. AG stressed that there is a crucial difference between broadcasting for the purpose of information and for the purpose of entertainment and that short reports on sporting events do not comprise entertainment.

  192. In par. 68 of the Opinion AG says that ‘in this respect, according to the case law of the Court, it is for the Member States, in the transposition of the Directive, to ensure that they adopt an interpretation of the Directive which allows a fair balance to be struck’.

  193. 34 countries ratified the Convention, while not all EU Member States are among them. The Council of Europe members such as Belgium, Denmark and Ireland have not even signed the Convention. See the status table at http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=132&CM=1&DF=&CL=ENG. Last visited 20th February 2013.

  194. Par. 73 of the AG Opinion.

  195. Par. 75 of the AG Opinion. With regard to the possible exceptions or limitations to those rights see Recital 55 of Directive 2001/29/EC (Copyright Directive).

  196. Par. 34, 35 of the Judgement.

  197. Par. 40 of the Judgment.

  198. Par. 44–46, 52 of the Judgment.

  199. See, for example, Weatherhill (2011).

  200. The EU, for example, has little to do with property rights or contract law.

  201. Except in very limited circumstances laid down by Article 3 of the AVMSD, e.g. incitement to hatred.

  202. Poland, for example, has only partially notified some measures to implement the AVMSD into its national law and is currently subject to an infringement procedure. See http://europa.eu/rapid/pressReleasesAction.do?reference=IP/12/631&format=HTML&aged=0&language=en&guiLanguage=en. Last visited 20th February 2013.

  203. Bolotny and Bourg (2006), p. 126–127.

  204. It was many times illustrated in the press that not once did the system preclude the stakeholders to negotiate and agree on selling arrangements in time, resulting in later starts of the sporting competition. In 2012 again a dispute over Spanish La Liga television rights arose between broadcasters Canal + and Mediapro. Timely start of the national competition was at question. See http://www.reuters.com/article/2012/07/28/soccer-spain-tv-dispute-idUSL6E8IS1DU20120728. Last visited 20th February 2013.

  205. Siekmann (2011).

  206. See Fig. 1 in the Appendix to the thesis.

  207. Kaburakis et al. (2012), p. 322.

  208. Media platforms covergence is a hot issue on EU's agenda. See, for instance, http://www.connectedtveuconference.com/. Last visited 20th February 2013.

  209. As follows back from 2006 ECJ ruling in Meca-Medina case, when the application of Articles 81–82 TEC (101–102 TFEU) to organisational sporting rules was pronounced for the first time.

  210. Spain and the Netherlands are expected to do so. Other 4 member states from top-5 have already adopted such lists.

  211. See footnote 18 above.

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    Alexander Lelyukhin

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Lelyukhin, A. The impact of EU on sport broadcasting: what does the line of recent ECJ cases signal about?. Int Sports Law J 13, 104–131 (2013). https://doi.org/10.1007/s40318-013-0008-2

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