COMMISSION DECISION
of 25 June 2007
on the compatibility with Community law of measures taken by Austria pursuant to Article 3a(1) of 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
(2007/477/EC)
THE COMMISSION OF THE EUROPEAN COMMUNITIES,
Having regard to the Treaty establishing the European Community,
Having regard to 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, (1) and in particular Article 3a(2) thereof,
Having regard to the opinion of the Committee established pursuant to Article 23a of Directive 89/552/EEC,
Whereas:
(1)
By letter of 12 March 2001, Austria notified to the Commission measures to be taken pursuant to Article 3a(1) of Directive 89/552/EEC.
(2)
The Commission verified, within three months from this notification, that such measures are compatible with Community law, in particular as regards the proportionality of the measures and the transparency of the national consultation procedure.
(3)
In its examination, the Commission took into consideration the available data on the Austrian media landscape.
(4)
The list of events of major importance for society included in the Austrian measures was drawn up in a clear and transparent manner and a far-reaching consultation had been launched in Austria.
(5)
The Commission was satisfied that the events listed in the Austrian measures met at least two of the following criteria considered to be reliable indicators of the importance of events for society: (i) a special general resonance within the Member State, and not simply a significance to those who ordinarily follow the sport or activity concerned; (ii) a generally recognised, distinct cultural importance for the population in the Member State, in particular as a catalyst of cultural identity; (iii) involvement of the national team in the event concerned in the context of a competition or tournament of international importance; and (iv) the fact that the event has traditionally been broadcast on free television and has commanded large television audiences.
(6)
A number of the events listed in the Austrian measures, including the summer and winter Olympic games, the World Cup and the European Championship football matches involving the Austrian national team as well as the opening matches, the semi-finals and the finals of these tournaments (men), fall within the category of events traditionally considered to be of major importance for society, as referred to explicitly in recital 18 of Directive 97/36/EC. These events have a special general resonance in Austria, as they are particularly popular with the general public, not just with those who usually follow sport events.
(7)
The final of the Austrian Football Cup has a special general resonance in Austria, as football is the most popular sport in that Member State.
(8)
The FIS Alpine World Ski Championships and the FIS Nordic World Ski Championships have a special general resonance in Austria given that skiing is a very popular sport forming part of general school sports education in that Member State. Moreover, the distinct cultural importance of these events as catalysts of Austrian cultural identity is due to the success of the Austrian participants in those competitions and to the importance of skiing tourism in Austria.
(9)
The Vienna Philharmonic Orchestra’s New Year’s concert has a distinct cultural importance as a keystone of Austrian cultural identity in view of the extremely high quality of this cultural event and the fact that it commands a very considerable world-wide audience.
(10)
The Vienna Opera Ball has a special general resonance in Austria as a ‘popular culture’ event and as a symbol for the ball season with a specific importance in the Austrian cultural tradition. The important contribution of this event to the world-wide reputation of the Vienna State Opera House, as it usually involves world-famous opera singers, confirms its distinct cultural importance for Austria.
(11)
The listed events have traditionally been broadcast on free television and have commanded large television audiences.
(12)
The Austrian measures appear proportionate so as to justify a derogation from the fundamental EC Treaty freedom to provide services on the basis of an overriding reason of public interest, which is to ensure wide public access to broadcasts of events of major importance for society.
(13)
The Austrian measures are compatible with EC competition rules in that the definition of qualified broadcasters for the broadcasting of listed events is based on objective criteria that allow actual and potential competition for the acquisition of the rights to broadcast these events. In addition, the number of listed events is not disproportionate so as to distort competition on the downstream free television and pay television markets.
(14)
After communication by the Commission to the other Member States of the Austrian measures and consultation of the Committee established pursuant to Article 23a of Directive 89/552/EEC, the Director-General for Education and Culture informed Austria, by letter of 31 May 2001, that the European Commission did not intend to object to the measures notified.
(15)
The Austrian measures entered into force on 1 October 2001.
(16)
Those measures were published in the C Series of the Official Journal of the European Communities (2) in accordance with Article 3a(2) of Directive 89/552/EEC.
(17)
It follows from the judgment of the Court of First Instance in Case T-33/01, Infront WM v Commission, that the declaration that measures taken pursuant to Article 3a(1) of Directive 89/552/EEC are compatible with Community law constitutes a decision within the meaning of Article 249 of the EC Treaty, which must therefore be adopted by the Commission. Accordingly, it is necessary to declare by this Decision that the measures notified by Austria are compatible with Community law. The measures, as finally taken by Austria and set out in the Annex to this Decision, should be published in the Official Journal in accordance with Article 3a(2) of Directive 89/552/EEC,
HAS DECIDED AS FOLLOWS:
Article 1
The measures pursuant to Article 3a(1) of Directive 89/552/EEC notified by Austria to the Commission on 12 March 2001, as published in the Official Journal of the European Communities C 16 of 19 January 2002, are compatible with Community law.
Article 2
The measures, as finally taken by Austria and set out in the Annex to this Decision, shall be published in the Official Journal in accordance with Article 3a(2) of Directive 89/552/EEC.
Done at Brussels, 25 June 2007.