COMMISSION DECISION
of 25 June 2007
on the compatibility with Community law of measures taken by Ireland 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
(2007/478/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 7 November 2002, Ireland 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 Irish media landscape.
(4)
The list of events of major importance for society included in the Irish measures was drawn up in a clear and transparent manner and a far-reaching consultation had been launched in Ireland.
(5)
The Commission was satisfied that the events listed in the Irish 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 Irish measures, including the summer Olympics, the World Cup and European Championship football matches involving the Irish national team, as well as the opening games, the semi-finals and the finals of these tournaments, 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 Ireland, as they are particularly popular with the general public, not just with those who usually follow sport events. Moreover, Ireland’s games in the World Cup and in the European Championship have a generally recognised, distinct cultural importance as a catalyst of Irish cultural identity. Those games act as a focal point for society at large, helping to create a sense of national identity and pride in being Irish.
(7)
Ireland’s home and away qualifying games in the European Football Championship and the FIFA World Cup have a special general resonance in Ireland, extending well beyond those who ordinarily follow the sport.
(8)
Gaelic football and hurling are distinctively Irish sports. Therefore, the All Ireland Senior Inter-County Football and Hurling Finals have a generally recognised, distinct cultural importance for the Irish population as a catalyst of national cultural identity.
(9)
In Ireland, rugby is played on an organised basis throughout the entire country. Therefore, Ireland’s games in the Six Nations Championship and in the Rugby World Cup finals tournament have a special general resonance for the people of Ireland. Ireland’s games in the Rugby World Cup finals tournament involve the Irish national team in a major international tournament, thus having an impact on Irish national identity.
(10)
The special general resonance of the listed horse racing and equestrian sports events in Ireland results from the major impact that the Irish horse industry has on rural communities throughout the country. The Irish Grand National and the Irish Derby are the most important horse races in Ireland. Given the importance of horse racing for tourism and the international reputation of Ireland, those events have a generally recognised, distinct cultural importance for the Irish population as a catalyst of national cultural identity. The Nations Cup at the Dublin Horse Show also has a distinct cultural importance as it promotes the discipline of Irish show jumping and attracts the strongest teams in the show jumping world.
(11)
The listed events have traditionally been broadcast on free television and have commanded large television audiences in Ireland.
(12)
The Irish 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 Irish 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 Irish measures and consultation of the Committee established pursuant to Article 23a of Directive 89/552/EEC, the Director-General for Education and Culture informed Ireland, by letter of 10 February 2003, that the European Commission did not intend to object to the measures notified.
(15)
The Irish measures were adopted on 13 March 2003.
(16)
Those measures were published in the C Series of the Official Journal of the European Union (2) in accordance with Article 3a(2) of Directive 89/552/EEC, as amended by Directive 97/36/EC.
(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 Ireland are compatible with Community law. The measures, as finally taken by Ireland 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 Ireland to the Commission on 7 November 2002, as published in the Official Journal of the European Union C 100 of 26 April 2003, are compatible with Community law.
Article 2
The measures, as finally taken by Ireland 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.