# CE2004078EN.01000501.xml

| 27.3.2004 | EN | Official Journal of the European Union | CE 78/5 |
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27.3.2004

EN

Official Journal of the European Union

CE 78/5

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(2004/C 78 E/0005)

WRITTEN QUESTION E-3522/02

by Bart Staes (Verts/ALE) to the Commission

(10 December 2002)

Subject:   Television rights relating to Champions League matches — dispute as to what constitutes news gathering and what is covered by copyright

Subject:

The European Commission recently decided that the manner in which UEFA sold its television rights to football matches to just one national broadcaster was unlawful. While matches might be broadcast by several TV stations, broadcasting rights for each country were actually held by just one TV station.

Belgium was recently faced by a variation on this theme. The regional TV station — TV Limburg — wanted to film not the action on the pitch but what was going on in the stadium before, during and after Racing Genk FC's home matches in the Champions League. However, the Flemish public TV station VRT and UEFA officials refused TV Limburg access to the stadium. TV Limburg immediately applied to the courts and won at first instance.

That ruling would appear to undermine all the agreements that UEFA has concluded with TV stations for all Champions League matches and may well set a precedent. Since TV Limburg regularly broadcasts news about what is happening on and off the field at Racing Genk, it did not take the action any further. The ultimate result was a kind of ‘code of practice’, but that is not enforceable in law.

| 1. | Can the Commission indicate whether, by claiming the right to free news gathering, regional TV stations are actually at liberty to do this, despite the fact that the event may be protected by copyright? |
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1.

Can the Commission indicate whether, by claiming the right to free news gathering, regional TV stations are actually at liberty to do this, despite the fact that the event may be protected by copyright?

| 2. | Should a local court act in accordance with European law whenever the settlement of this dispute is involved? |
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2.

Should a local court act in accordance with European law whenever the settlement of this dispute is involved?

| 3. | Does the Commission share my view that copyright as administered by UEFA is being exploited in a monopolistic manner? |
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3.

Does the Commission share my view that copyright as administered by UEFA is being exploited in a monopolistic manner?

| 4. | Does the Commission deem it desirable that this sport, which is so popular with the masses, should actually belong completely to a private interest group such as UEFA? |
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4.

Does the Commission deem it desirable that this sport, which is so popular with the masses, should actually belong completely to a private interest group such as UEFA?

| 5. | Does the Commission agree that the events surrounding a football match unprecedented in this region are of great importance for society and that the attitude of UEFA and of VRT is in breach of Directive 97/36/EC (1) which seeks to ensure that the public may have access to such events? In other words, does it agree that the unique nature and the scale of this event are such that what is involved here is news, all the more so since the TV station in question regularly reports about the activities of the people concerned? |
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5.

Does the Commission agree that the events surrounding a football match unprecedented in this region are of great importance for society and that the attitude of UEFA and of VRT is in breach of Directive 97/36/EC (1) which seeks to ensure that the public may have access to such events? In other words, does it agree that the unique nature and the scale of this event are such that what is involved here is news, all the more so since the TV station in question regularly reports about the activities of the people concerned?

1

Answer given by Mrs Reding on behalf of the Commission

(29 January 2003)

(29 January 2003)

| 1. | The Commission has not been a party to the Court proceedings mentioned by the Honourable Member and has no grounds to take a formal position on this decision.
  The Commission has no grounds either to predict the possible outcome of litigation before higher or European courts.
  At this stage of development of Community law, it is up to the Member States to regulate the access to news, taking into account the relevant Community law instruments on intellectual property (which in turn take into account the fundamental right of freedom of expression as laid down by Art. 11 of the EU Charter of Fundamental Rights) (2).
  In the Work Program annexed to the Commission's Fourth Application Report on the Directive ‘Television without Frontiers’ (3), the Commission has announced its intention to reflect on the question of whether there are grounds for introducing, in future, provisions on access to short extracts of events subject to exclusive rights.
  Bearing in mind the interests at stake (event organisers, rights holders, agencies, television broadcasting bodies, the public) and taking into account the fact that some Member States have already adopted specific provisions on the subject, this question will be adressed with a view to analysing whether the absence of Community provisions creates obstacles to the internal market. |
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1.

The Commission has not been a party to the Court proceedings mentioned by the Honourable Member and has no grounds to take a formal position on this decision.

The Commission has no grounds either to predict the possible outcome of litigation before higher or European courts.

At this stage of development of Community law, it is up to the Member States to regulate the access to news, taking into account the relevant Community law instruments on intellectual property (which in turn take into account the fundamental right of freedom of expression as laid down by Art. 11 of the EU Charter of Fundamental Rights) (2).

2

In the Work Program annexed to the Commission's Fourth Application Report on the Directive ‘Television without Frontiers’ (3), the Commission has announced its intention to reflect on the question of whether there are grounds for introducing, in future, provisions on access to short extracts of events subject to exclusive rights.

3

Bearing in mind the interests at stake (event organisers, rights holders, agencies, television broadcasting bodies, the public) and taking into account the fact that some Member States have already adopted specific provisions on the subject, this question will be adressed with a view to analysing whether the absence of Community provisions creates obstacles to the internal market.

| 2. | Yes, where applicable. |
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2.

Yes, where applicable.

| 3. | The Commission opened proceedings under Regulation No 17 in order to investigate to what extent Union of European Football Associations (UEFA) arrangements for the joint selling of the TV rights to the UEFA Champions League (4) entail a restriction of competition within the meaning of Article 81 (2) of the EC Treaty and may benefit from an exemption under Article 81(3) of the EC Treaty.
  The Court of Justice has ruled on several occasions that sport, in its economic aspect is, subject to Community law, but at the same time recognised certain special characteristics of the sector. The declaration on the specificity of sport adopted by the European Council in Nice (7 to 9 December 2000) stresses the need to take account, in all action by the Community, of ‘the social, educational and cultural functions inherent in sport and making it special, in order that the code of ethics and the solidarity essential to the preservation of its social role may be respected and nurtured’.
  The Commission found UEFA's standard broadcasting rights agreement for the UEFA Champions League, because of its duration and its scope, to be a restriction of competition and could not benefit from an exemption in its initial form.
  This made UEFA change its policy. As from the 2003/2004 football season, UEFA will sell the rights in several packages for shorter periods of time, and individual football clubs will also be able to exploit some of the rights with their fan base. This settlement proposal does not, however, contain specific arrangements for news access, since this specific issue is in most cases regulated by national rules on free news gathering mentioned above.
  In the light of this settlement proposal, the Commission published a Notice pursuant to article 19(3) of Regulation No 17 inviting third parties to submit their comments and indicating the Commission's intention to give its approval to the modified arrangements. The comments received from third parties are currently being investigated by the Commission. |
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3.

The Commission opened proceedings under Regulation No 17 in order to investigate to what extent Union of European Football Associations (UEFA) arrangements for the joint selling of the TV rights to the UEFA Champions League (4) entail a restriction of competition within the meaning of Article 81 (2) of the EC Treaty and may benefit from an exemption under Article 81(3) of the EC Treaty.

4

The Court of Justice has ruled on several occasions that sport, in its economic aspect is, subject to Community law, but at the same time recognised certain special characteristics of the sector. The declaration on the specificity of sport adopted by the European Council in Nice (7 to 9 December 2000) stresses the need to take account, in all action by the Community, of ‘the social, educational and cultural functions inherent in sport and making it special, in order that the code of ethics and the solidarity essential to the preservation of its social role may be respected and nurtured’.

The Commission found UEFA's standard broadcasting rights agreement for the UEFA Champions League, because of its duration and its scope, to be a restriction of competition and could not benefit from an exemption in its initial form.

This made UEFA change its policy. As from the 2003/2004 football season, UEFA will sell the rights in several packages for shorter periods of time, and individual football clubs will also be able to exploit some of the rights with their fan base. This settlement proposal does not, however, contain specific arrangements for news access, since this specific issue is in most cases regulated by national rules on free news gathering mentioned above.

In the light of this settlement proposal, the Commission published a Notice pursuant to article 19(3) of Regulation No 17 inviting third parties to submit their comments and indicating the Commission's intention to give its approval to the modified arrangements. The comments received from third parties are currently being investigated by the Commission.

| 4. | The EC Treaty does not in any way prejudice the rules in Member States governing the system of property ownership (Article 295 of the EC Treaty). Matches subject to exclusive rights may have different right holders according to the respective national law and depending on the circumstances (UEFA, International Organisation of Football Associations (FIFA), national organisations/the participating clubs, etc.). Article 3a of Directive 97/36/EC of the Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, hereafter the Television without Frontiers Directive (TVWF), aims at ensuring a balance between the interests of the rightsholders and those of the public in general, taking into account the particular importance for society of such matches. |
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4.

The EC Treaty does not in any way prejudice the rules in Member States governing the system of property ownership (Article 295 of the EC Treaty). Matches subject to exclusive rights may have different right holders according to the respective national law and depending on the circumstances (UEFA, International Organisation of Football Associations (FIFA), national organisations/the participating clubs, etc.). Article 3a of Directive 97/36/EC of the Parliament and of the Council of 30 June 1997 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, hereafter the Television without Frontiers Directive (TVWF), aims at ensuring a balance between the interests of the rightsholders and those of the public in general, taking into account the particular importance for society of such matches.

| 5. | According to Article 3a of the Television without Frontiers Directive, Member States may take measures (in accordance with Community law) to ensure that broadcasters under their jurisdiction do not broadcast on an exclusive basis events which are regarded as being of major importance for society in such a way as to deprive a substantial proportion of the public of the possibility of following such events via life or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events which it considers to be of major importance for society. No such list is in force for Belgium. Therefore, it is not possible to breach any Belgian national legislation based on Article 3a of the Directive. An assessment of possible measures to be proposed by Belgium according to Article 3a of the Directive can only be made pursuant to the procedure foreseen in that Article.
  Moreover, the Commission points out that Art. 3a of the Directive cannot be interpreted in a way that would remove the possibility of exclusive selling of the rights to a designated event.
  Art. 3a is aimed at ensuring that the public can follow the designated event through at least one free television broadcaster, but it is not aimed at ensuring that the public can follow the designated event through every free television broadcaster possibly interested in its transmission. |
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5.

According to Article 3a of the Television without Frontiers Directive, Member States may take measures (in accordance with Community law) to ensure that broadcasters under their jurisdiction do not broadcast on an exclusive basis events which are regarded as being of major importance for society in such a way as to deprive a substantial proportion of the public of the possibility of following such events via life or deferred coverage on free television. If it does so, the Member State concerned shall draw up a list of designated events which it considers to be of major importance for society. No such list is in force for Belgium. Therefore, it is not possible to breach any Belgian national legislation based on Article 3a of the Directive. An assessment of possible measures to be proposed by Belgium according to Article 3a of the Directive can only be made pursuant to the procedure foreseen in that Article.

Moreover, the Commission points out that Art. 3a of the Directive cannot be interpreted in a way that would remove the possibility of exclusive selling of the rights to a designated event.

Art. 3a is aimed at ensuring that the public can follow the designated event through at least one free television broadcaster, but it is not aimed at ensuring that the public can follow the designated event through every free television broadcaster possibly interested in its transmission.

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(1)  OJ L 202, 30.7.1997, p. 60.

1

2

Article 11 of the EU Charter of Fundamental Rights reads as follows:

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

2. The freedom and pluralism of the media shall be respected.

(3)  Fourth Report on the Application of Directive 89/552/EEC Television without Frontiers', COM(2002) 778 final, http://europa.eu.int/comm/avpolicy/regul/twf/applica/comm2002_778final_en.pdf.

3

(4)  OJ C 196, 17.8.2002.

4

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