Opinion of the Advocate General — ECLI:EU:C:2011:43
Date: 2011-02-03
Language of the case: English
Subject matter: Competition;Right of establishment;Free movement of goods;Measures having equivalent effect;Intellectual, industrial and commercial property;Approximation of laws;Quantitative restrictions;Freedom to provide services;Copyright and related rights
Procedure: Reference for a preliminary ruling
Origin: United Kingdom

summary, it must be stated with regard to Question 5 in Case C‑403/08 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. 3. Further communication to the public 102. Question 6 in Case C‑403/08 seeks clarification as to whether the showing of live transmissions of football matches in pubs infringes the exclusive right of communication to the public of protected works within the terms of Article 3 of Directive 2001/29. a) Admissibility of the question 103. Doubts could be raised as to whether this question is relevant to the outcome of the case and is thus admissible. According to the referring court, section 72 of the Copyright, Designs and Patents Act permits, in principle, television programmes to be shown in public if the person showing the programme does not receive any remuneration for doing so. Even if such showing were incompatible with Article 3 of Directive 2001/29, a directive cannot of itself impose obligations on an individual and cannot therefore be relied on as such against an individual. (26) 104. In accordance with settled case-law, in the context of the cooperation between the Court and the national courts, it is solely for the national court, before which the dispute has been brought and which must assume responsibility for the subsequent judicial decision, to determine, in the light of the particular circumstances of the case, both the need for a preliminary ruling in order to enable it to deliver judgment and the relevance of the questions which it submits to the Court. Consequently, where the questions submitted for a preliminary ruling concern the interpretation of European Union law, the Court is, in principle, bound to give a ruling, (27) and it is presumed that questions referred by national courts for a preliminary ruling are relevant. (28) This presumption may, however, be rebutted in exceptional cases, in particular where it is quite obvious that the interpretation which is sought of the provisions of European Union law referred to in the questions is hypothetical. (29) Were this the case, the question would be inadmissible. 105. In the present cases, it appears that there is a far-reaching right under national law to show television programmes in public without charge, although this does not cover all elements of programmes. In particular, musical works are excluded. Furthermore, it cannot be ruled out that an interpretation of that provision in accordance with Article 3 of Directive 2001/29 permits that right to be further restricted. 106. The question is not therefore manifestly irrelevant to the outcome of the proceedings and is for that reason admissible. b) The question 107. Consequently, it is necessary to examine whether there is communication to the public, within the meaning of Article 3 of Directive 2001/29, if a live transmission of a football match is shown in a pub. First of all, the scope of the group of protected works must be defined and then the applicability of Article 3(1) must be examined. i) The protected works 108. Article 3 of Directive 2001/29 requires the introduction of exclusive rights to authorise or prohibit certain actions with regard to works. Article 3(1) concerns the rights of authors, whilst Article 3(2) relates to the rights of certain other persons, in particular producers of films (c) and broadcasting organisations (d). 109. Paragraphs (1) and (2) do not contain the same rights. Article 3(1) grants the right to any communication to the public of works, by wire or wireless means, including the making available to the public of works in such a way that members of the public may access them from a place and at a time individually chosen by them. The right under Article 3(2) applies only in regard to this latter form of access, that is to say, where the works covered are accessed by members of the public from a place and at a time individually chosen by them. 110. According to the explanatory memorandum on the proposal for Directive 2001/29, ‘access … from a place and at a time chosen by [members of the public]’ is intended to cover on-demand transmission, which is not relevant here. (30) Non-interactive transmissions, that is to say, the conventional reception of television programmes, are, by contrast, not the subject-matter of Article 3(2). The existing provisions, namely Article 8 of Directive 2006/115 and Article 4 of Directive 93/83, were intended to continue to apply to such transmissions. (31) 111. Under Article 8(3) of Directive 2006/115, broadcasting organisations are given the exclusive right to authorise or prohibit the rebroadcasting of their broadcasts by wireless means, as well as the communication to the public of their broadcasts, if such communication is made in places accessible to the public against payment of an entrance fee. No entrance fee was charged in the cases in the main proceedings, however. 112. There would appear to be no specific provision relating to non-interactive communication of films. If football transmissions were to be regarded as films, a national provision governing the right of communication to the public at most could therefore be taken into consideration. 113. As European Union law stands at present, there are thus no comprehensive rights protecting the communication of a broadcast to the public in the absence of an entrance fee. Rather, Article 3(1) of Directive 2001/29 grants only rights relating to copyright works which are included in the broadcast. In the present cases, for example, one could think of the Premier League Anthem, which is transmitted in conjunction with the broadcast, but also of various other works mentioned in the orders for reference. 114. Under Article 12(2) of Directive 2001/29, but also under Article 14 of Directive 2006/115, the protection of these works is left intact or is not affected by protection of rights related to copyright under each of the directives. However, the referring court will have to examine whether those works may possibly fall under national provisions implementing Article 5(3)(i) of Directive 2001/29. Under Article 5(3)(i), Member States may provide for exceptions or limitations to the right of communication to the public in the case of incidental inclusion of a work or other subject-matter in other material. 115. Article 3(1) of Directive 2001/29 is therefore relevant only in so far as works are communicated with the football matches shown in pubs, in respect of which United Kingdom law does not provide for any exception to the application of the provisions implementing Article 3(1). ii) The applicability of Article 3(1) of Directive 2001/29 116. With regard to the works thus falling under Article 3(1) of Directive 2001/29, it is necessary to examine whether a showing in a pub represents ‘communication to the public … by wire or wireless means’. 117. Satellite broadcasting itself is in principle communication to the public of protected works. It must be assumed, however, that the relevant rights-holders have given their consent. Rather, it is questionable whether showing the transmission in a pub, instead of showing it for domestic or private purposes, constitutes a retransmission to the public which requires further consent from the rights-holder, which is absent in the present cases. 118. In cases which appear to be similar, namely those regarding transmissions of television programmes in a hotel, the Court has assumed further communication to the public to exist. (32) In principle, it is conceivable that visitors to a pub are, like guests in a hotel, to be regarded as an indeterminate number of potential television viewers who represent a new public vis-à-vis private recipients. (33) The Court has also stated that communication in the hotel cases was of a profit-making nature. (34) Such profit-making purposes are certainly also pursued by publicans when they show transmissions of football matches, and authors have an underlying interest in sharing in the profit derived from the commercial exploitation of their works. 119. The practice of marketing decoder cards follows this logic, since the broadcasting organisations charge pubs a higher fee for using decoder cards, whilst they enjoin private customers to use their cards only for domestic or private purposes. 120. It is, none the less, necessary to examine whether communication to the public within the meaning of Article 3(1) of Directive 2001/29 should actually be assumed to exist. This is suggested by an interpretation in the light of the rules of international law. However, recital 23 in the preamble shows, against the background of the drafting history of Article 3(1), that the European Union legislature did not intend to create any rights for authors in respect of free public showings of television broadcasts. The Berne Convention 121. Indications as to the meaning of communication to the public can be derived in principle from Article 11bis(1) of the Berne Convention. Article 11bis(1)(i) to (iii) grants authors the exclusive right of authorising three different forms of public communication of their works: (i) the broadcasting of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images; (ii) any communication to the public by wire or by rebroadcasting of the broadcast of the work, when this communication is made by an organisation other than the original one; (iii) the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. 122. According to the WIPO Guide, (35) an interpretative document drawn up by the WIPO which, without being legally binding, nevertheless assists in interpreting that Convention, Article 11bis(1)(iii) is applicable: the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work. That provision is specifically intended to cover the presentation of radio and television programmes in places where people gather: cafés, restaurants, hotels, large stores, trains or aircraft. (36) 123. The fact that the broadcast, including the protected works, is shown on the screen to the audience present would, from this perspective, constitute communication to the public. 124. Whilst the European Union is not party to the Berne Convention, it has, under Article 9(1) of the TRIPS Agreement and Article 1(4) of the WIPO Copyright Treaty, undertaken, together with the Member States, to comply with Articles 1 to 21 of the Berne Convention. It would therefore be consistent with the European Union’s obligations under international law to implement Article 11bis(1)(iii) of the Berne Convention in European Union law. 125. Furthermore, Article 14(3) of the TRIPS Agreement expressly provides that broadcasting organisations must be given the right to prohibit the communication to the public of television broadcasts when undertaken without their authorisation. States which do not grant such rights to broadcasting organisations must at least provide owners of copyright in the subject-matter of broadcasts with the possibility of preventing communication, subject to the provisions of the Berne Convention. 126. Communication to the public would accordingly have to be assumed to exist in the present cases. The intention of the European Union legislature 127. Although the Commission proposal for Directive 2001/29 sought also to implement Article 11bis(1)(iii) of the Berne Convention in European Union law, the Council and the Parliament did not follow the Commission on this point. They did not wish to create any rights at all for authors in respect of free public presentation of works as part of a television broadcast. 128. Article 3(1) of Directive 2001/29 is not expressly designed to implement Article 11bis of the Berne Convention. However, it can be seen from the explanatory memorandum on the Commission’s proposal for the directive that the intention was to implement Article 8 of the WIPO Copyright Treaty, the wording of which is largely identical to that of Article 3 of the directive. (37) That provision fails expressly to mention communication to the public by means of public presentation. However, in view of the fact that that Treaty expressly requires compliance with Article 11bis of the Berne Convention, it would be reasonable to construe ‘communication to the public’ in Article 8 of the WIPO Copyright Treaty, and thus in Article 3 of Directive 2001/29, in the same way as in Article 11bis of the Berne Convention. 129. It is correspondingly evident from the explanatory memorandum on the Commission’s proposal for a directive that Article 3(1) of Directive 2001/29 is intended to cover all forms of public communication. (38) Accordingly, the three forms of public communication mentioned in Article 11bis of the Berne Convention would be included. 130. Nevertheless, the Commission and QC Leisure argue that Article 3 of Directive 2001/29 does not implement Article 11bis(1)(iii) of the Berne Convention. In this regard they rightly rely on the discussions on the directive following the Commission proposal, which resulted in recital 23. 131. At first reading, the Parliament proposed that Article 3(1) of Directive 2001/29 should not cover ‘direct representation or performance’. (39) The Commission amended its proposal accordingly. (40) Whilst the Council did not take up the amended Commission proposal, some Member States nevertheless secured the restriction contained in the second to fourth sentences of recital 23, (41) which is also mentioned by the referring court. 132. According to the second sentence of recital 23 in the preamble to Directive 2001/29, the author’s right of communication to the public should be understood in a broad sense covering all communication to the public not present at the place where the communication originates. The third sentence, more specifically, states that this right should cover any such transmission or retransmission of a work to the public by wire or wireless means, including broadcasting. The fourth and final sentence makes it clear that this right should not cover any other acts. 133. It follows from those three sentences, taken together, that Article 3(1) of Directive 2001/29 is intended to implement only Article 11bis(1)(i) and (ii) of the Berne Convention, that is to say, the rules on broadcasting and on communication by an organisation other than the original broadcaster. In those cases, different places and transmission by wire or wireless means are to be taken into consideration. 134. By contrast, the public communication by loudspeaker or any other analogous instrument transmitting, by signs, sounds or images, the broadcast of the work within the meaning of Article 11bis(1)(iii) of the Berne Convention typically occurs at the place where the communication originates. No transmission takes place. 135. This restrictive effect of recital 23 in the preamble to Directive 2001/29 was also discussed within the Council and the European Union legislature was therefore aware of it. The Council Presidency stressed that acts other than those referred to in that recital, in particular placing a computer with internet connection at the disposal of the public in a cybercafé or a library, would not be covered. (42) In this connection, the Italian delegation even questioned the appropriateness of excluding Article 11bis(1)(iii) of the Berne Convention from the scope of Article 3(1) of Directive 2001/29. (43) 136. The restriction of the scope of Article 3(1) of Directive 2001/29 is confirmed by the fact that a number of rules of international, European and national law give the impression that television programmes could in principle be shown in pubs without further consent from rights-holders. 137. At the level of European Union law, mention should be made, first and foremost, of Article 8(3) of Directive 2006/115, which provides a right of objection for broadcasting organisations only in cases where an entrance fee is charged. That provision is not an isolated case, but corresponds to Article 13(d) of the Rome International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 26 October 1961. Although the European Union is not a Contracting Party to that Convention, which is subject to participation only by States under Article 24, the Member States are required to accede to it under Article 5(1)(c) of Protocol 28 on intellectual property to the Agreement on the European Economic Area. (44) (45) 138. Similarly, section 72 of the Copyright, Designs and Patents Act provides that a television broadcast may be shown in principle in the United Kingdom if no admission fee is charged. In Germany there is a similar provision regarding the rights of broadcasting organisations, (46) although Article 11bis(1)(iii) of the Berne Convention is implemented by Paragraph 22 of the Urheberrechtsgesetz in respect of authors. (47) 139. Consequently, the European Union legislature has thus far not intended to implement Article 11bis(1)(iii) of the Berne Convention or Article 14(3) of the TRIPS Agreement as part of European Union law. This decision must be respected in particular because the rights of authors stemming from Article 11bis(1)(iii) are not directed against State authorities, but necessarily restrict the rights of others in private-law relations. 140. It is not necessary in the present preliminary-reference proceedings to decide whether Article 11bis(1)(iii) of the Berne Convention or Article 14(3) of the TRIPS Agreement are directly applicable; furthermore, the provisions of the TRIPS Agreement are not such as to create rights upon which individuals may rely directly before the courts by virtue of European Union law, (48) and the Court has not yet considered the direct applicability of the Berne Convention as part of European Union law. (49) 141. However, the hotel cases are understood by some parties to these proceedings as meaning that the Court none the less takes the view that Article 3(1) of Directive 2001/29 does implement Article 11bis(1)(iii) of the Berne Convention. In particular, it relies on the statements contained in the WIPO Guide on that provision. (50) It also states that Directive 2001/29 applies to all communications to the public of protected works. (51) 142. However, recital 23 in the preamble to Directive 2001/29 was not the subject of the hotel cases. Above all, those rulings related to a different situation, namely communication within the meaning of Article 11bis(1)(ii) of the Berne Convention, that is to say, a communication made by a broadcasting organisation other than the original one. (52) Such communication is naturally directed at a public not present at the place in which the communication originates. Consequently, the Court did not decide in those cases whether Article 11bis(1)(iii) of the Berne Convention is implemented by Article 3(1) of Directive 2001/29. 143. Article 3(1) of Directive 2001/29, in conjunction with recital 23 in the preamble thereto, must therefore be understood as covering only communication of works to a public which is not present at the place in which the communication originates. Application to the communication of broadcasts in pubs 144. Where a publican shows a television programme to his customers on a television in the pub, it must in principle be assumed, with regard to his action, that the relevant public is present at the place in which the communication originates. The communication originates on the screen. 145. The referring court asks under Question 6(b)(iii) whether it is relevant if the television broadcast signal is received by an aerial or satellite dish on the roof of or adjacent to the premises where the television is situated. This cannot be relevant, however. In practice, any form of communication requires such transmissions of signals between aerials, decoders and screens and within those devices. It would be arbitrary to take into consideration the length of the cables. (53) Such technical requirements for any communication must therefore still be attributed to the original broadcast. 146. The situation might be different if the signal were not only communicated on a receiver, but – as in the hotel cases – were distributed to various other receivers. The distributing device could then be regarded as the place in which the communication originates and reception would take place at a different place. This would be retransmission by wire or wireless means, as in the hotel cases, which the legislature specifically did not intend to exclude from Article 3(1) of Directive 2001/29. 147. The answer to Question 6 in Case C‑403/08 must therefore be that a copyright work is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite broadcast at commercial premises (for example, a bar) or shown at those premises, free of charge, via a single television screen and speakers to members of the public present on those premises. C – Directive 93/83 148. The first part of Question 7 in Case C‑403/08 asks whether it is compatible with Directive 93/83 if national copyright law provides that when transient copies of works included in a satellite broadcast are created inside a satellite decoder box or on a television screen, there is an infringement of copyright under the law of the country of reception of the broadcast. The national court also asks whether the position is affected if the broadcast is decoded using a satellite decoder card which has been issued by the provider of a satellite broadcasting service in another Member State on the condition that the satellite decoder card is authorised for use only in that other Member State. 149. Under Article 2 of Directive 93/83, Member States must provide an exclusive right for the author to authorise the communication to the public by satellite of copyright works. 150. Under Article 1(2)(b) of Directive 93/83, the act of communication to the public by satellite occurs solely in the Member State where, under the control and responsibility of the broadcasting organisation, the programme-carrying signals are introduced into an uninterrupted chain of communication leading to the satellite and down towards the earth. 151. In the present context that would be Greece. The signals are transmitted to satellites from there and return there. By contrast, Directive 93/83 is not relevant in regard to the use of Arab decoder cards. 152. Those provisions would not appear to contain any rules regarding the cross-border reception of satellite broadcasts, in particular the reception of Greek signals by pubs in the United Kingdom. However, according to recital 14 in the preamble to Directive 93/83, that provision is intended to avoid the cumulative application of several national laws to one single act of broadcasting. 153. As recital 7 in the preamble to Directive 93/83 explains, prior to the adoption of the directive, there was legal uncertainty as to whether broadcasting by a satellite whose signals can be received directly affects the rights in the country of transmission only or in all countries of reception together. A cumulation would not only give rise to the simultaneous application of different legal orders. The rights to the broadcast could also be enjoyed by different holders in different Member States. A cumulation could therefore render satellite broadcasts excessively difficult or even impossible. 154. According to recital 15 in its preamble, Directive 93/83 is therefore intended to guarantee that the broadcasting rights are awarded in accordance with the law of a single Member State, that is to say, the State in which the broadcast occurs under Article 1(2)(b). According to this country-of-origin principle (recital 18), the broadcasting right for that State includes the right also to transmit the broadcast into other Member States. 155. However, the FAPL is essentially correct in its view that Directive 93/83 does not permit other rights to the broadcast works to be infringed. Under Article 5, protection of copyright-related rights under the directive leaves intact and in no way affects the protection of copyright. (54) 156. In particular, Directive 93/83 does not explicitly call into question the reproduction right for the broadcast. The referring court and various parties to the proceedings therefore take the view that the broadcasting right makes no implication as to the right to create transient copies of the broadcast in connection with reception and communication of the broadcast. (55) 157. Nevertheless, under Article 1(2)(a), Directive 93/83 expressly applies only to signals intended for reception by the public. Consent for the transmission of the broadcast must therefore include the right to the acts of reproduction which are necessary for its reception. 158. On the other hand, the FAPL relies on recital 16 in the preamble to Directive 93/83, according to which the principle of contractual freedom on which the directive is based will make it possible to limit the exploitation of these rights, especially as far as certain technical means of transmission or certain language versions are concerned. 159. However, that recital concerns contractual restrictions which, by their nature, have effect only between contracting parties. Consequently, it also cites as examples only measures which the contracting parties can take, namely technical measures in connection with the broadcast, such as encryption and the language version of the broadcast. It is not possible to derive from that recital any rights vis-à-vis recipients of broadcasts who are not bound contractually. 160. My interpretation is confirmed by recital 17 in the preamble to Directive 93/83. That recital states that, in arriving at the amount of the payment to be made for the rights acquired, the parties should take account of all aspects of the broadcast, such as the actual audience, the potential audience and the language version. The legislature thus proceeded on the basis of the assumption that the transmission of a satellite broadcast goes together with its reception and the payment must include such exploitation. The payment should obviously also cover reception outside the State of broadcast, whilst such reception must be forecast in particular with reference to the language version of the broadcast. 161. The right to communicate copyright works by satellite under Article 2 of Directive 93/83 therefore goes together with the recipients’ right to receive and to watch such broadcasts. 162. It is uncertain whether the foregoing considerations also apply to encrypted satellite broadcasts. Since encryption makes it possible to control access, it is conceivable that the broadcasting right is limited to the reception area agreed between the rights-holder and the broadcasting organisation. However, Article 1(2)(c) of Directive 93/83 states that there is communication to the public of encrypted broadcasts by satellite on condition that the means for decrypting the broadcast are provided to the public by the broadcasting organisation or with its consent. If these conditions are satisfied – as in the present case – the encrypted satellite broadcast will be equivalent to an unencrypted satellite broadcast. Encryption does not therefore affect the scope of the broadcasting right which justifies reception. 163. The broadcasting right is also not limited by conditions relating to the issue of decoder cards. These can at most have a contractually binding effect, but do not create any obligations for third parties. 164. As far as Directive 93/83 is concerned, I therefore propose that Question 7 in Case C‑403/08 be answered to the effect that the right to communicate copyright works by satellite under Article 2 of Directive 93/83 includes the right also to receive and watch that broadcast abroad. D – The fundamental freedoms 165. The significance of the fundamental freedoms with regard to the use of the Greek decoder cards is addressed in particular in Questions 6 and 7 in Case C‑429/08, but also in Questions 7 and 8(b) and (c) in Case C‑403/08. The High Court wishes to ascertain whether Articles 28 EC, 30 EC and/or 49 EC preclude enforcement of a national law which makes it a criminal offence or a breach of copyright to receive a programme included in a broadcasting service provided from a place inside the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme. The Court mentions three sets of circumstances in Case C‑429/08, which may exist alternatively or cumulatively: (i) The conditional access device was made by or with the consent of a service provider and originally supplied subject to limited contractual authorisation to use the device to gain access to a protected service only in a first Member State. It was nevertheless used to gain access to that protected service in a second Member State (in this case the United Kingdom) (this is also the purport of Question 8(b) in Case C‑403/08). (ii) The conditional access device was made by or with the consent of a service provider and was originally procured and/or enabled by the provision of a false name and false residential address in the first Member State, thereby circumventing contractual territorial restrictions imposed on the export of such devices for use outside the first Member State. (iii) The conditional access device was made by or with the consent of a service provider and was originally supplied subject to a contractual condition that it be used only for domestic or private use, and not for commercial use (for which a higher subscription charge is payable). The device was nevertheless used in the United Kingdom for commercial purposes, namely showing live football broadcasts in a public house (this is also the purport of Question 8(c) in Case C‑403/08). 166. I will begin by considering the first case and then go on to discuss whether the other two cases lead to a different conclusion. a) The applicable fundamental freedom 167. As decoder cards have been brought from Greece into the United Kingdom, the free movement of goods under Article 34 TFEU (formerly Article 28 EC) (56) may be applicable. In practice, however, such cards constitute a means, the key as it were, to gain access in the United Kingdom to a television programme broadcast from Greece. The provision of that programme is a service within the meaning of Article 56 TFEU (formerly Article 49 EC). (57) 168. Where a national measure affects both the freedom to provide services and the free movement of goods, the Court will, in principle, examine it in relation to just one of those two fundamental freedoms if it is clear that, in the circumstances of the case, one of those freedoms is entirely secondary in relation to the other and may be attached to it. (58) 169. As the Commission rightly states, the Court has already found, in connection with the sale of decoder devices for encrypted satellite television, that it is impossible to determine generally whether it is free movement of goods or freedom to provide services which should take priority. (59) However, the case in question concerned restrictions which were specifically directed at the trade in decoder devices and thus also indirectly made access to satellite television services more difficult. 170. The disputed point in the present proceedings, by contrast, is not primarily the trade in the cards, but their use in order to gain access to the encrypted programmes in the United Kingdom. Furthermore, if we compare the material value of the cards with the prices charged for access to the programmes, the card is entirely secondary in importance. The references have therefore to be examined with regard to freedom to provide services. b) Restriction of freedom to provide services 171. Freedom to provide services requires the abolition of all restrictions on the free provision of services, even if those restrictions apply without distinction to national service providers and to those from other Member States, in so far as they are liable to prohibit, impede or render less advantageous the activities of a service provider established in another Member State where it lawfully provides similar services. Moreover, the freedom to provide services covers both providers and recipients of services. (60) 172. In the present cases, the question whether the providers of television programmes are required to grant access to interested parties from other Member States on conditions comparable to those for nationals does not arise. Such an obligation would require freedom to provide services to have effect vis-à-vis third parties, something which the Court has not thus far accepted, at least in this form. (61) 173. It is also not relevant whether the providers of television programmes are authorised to restrict access to their programmes contractually to certain territories. (62) Such contractual rules can have effect only between the contracting parties. However, in the present cases there are no contractual relations between the rights-holders and the providers of decoder cards in the United Kingdom or the publicans. 174. Rather, it is uncertain whether freedom to provide services permits the recognition and enforcement of rights to satellite programmes on the basis of which the rights-holders can prohibit third parties not contractually linked to them from watching and showing those programmes in Member States other than those intended. By virtue of such rights, the utilisation of services from other Member States would be prevented, namely access to television programmes. 175. This impairment of freedom to provide services is particularly intensive as the rights in question not only render the exercise of freedom to provide services more difficult, but also have the effect of partitioning the internal market into quite separate national markets. Similar problems exist with regard to access to other services, for example the sale of computer software, musical works, e-books or films via the internet. 176. There is thus a serious impairment of freedom to provide services. c) The justification for the restriction 177. Since the freedom to provide services is one of the fundamental principles of the European Union, a restriction on that freedom is warranted only if it pursues a legitimate objective compatible with the Treaty and is justified by overriding reasons of public interest. If that is the case, it must also be suitable for securing the attainment of the objective which it pursues and not go beyond what is necessary in order to attain it. (63) 178. Article 52(1) TFEU (formerly Article 46(1) EC), which is applicable to freedom to provide services by reason of Article 62 TFEU (formerly Article 55 EC), allows restrictions which are justified on grounds of public policy, public security or public health. In addition, the case-law has recognised a number of overriding reasons in the general interest which can justify restrictions of the freedom to provide services. (64) Protection of industrial and commercial property 179. In the present context, protection of industrial and commercial property is particularly at issue. (65) This justifies restrictions which are necessary to safeguard rights which constitute the specific subject-matter of such property. (66) It is therefore necessary to examine whether there exist rights to satellite transmissions of football matches, the specific subject-matter of which requires a partitioning of the internal market. 180. In the field of the free movement of goods, it is primarily the exploitation of rights through the sale of copies of the work that is affected. Such exploitation is based on the exclusive right to copy the work and to place the copies on the market. This exclusive right is exhausted when a product has been lawfully distributed on the market in a Member State by the actual proprietor of the right or with his consent. (67) Apart from particular situations, such as the resale right for the benefit of the author of an original work of art, (68) there are no rights which preclude the re-sale of such goods within (69) the internal market. Rather, with the sale the rights-holder has already realised the economic value of the intellectual property in question. (70) 181. The copyright in gramophone records which were lawfully placed on the market in a Member State did not therefore preclude their sale in another Member State. (71) QC Leisure and Ms Murphy rely on this case-law in order to justify their business practices. 182. However, the FAPL takes the view that, in the field of the provision of services, there is no exhaustion comparable to the movement of goods. 183. This is surprising, because restrictions on the fundamental freedoms must, as a rule, be justified by reference to the same principles. 184. Admittedly, some services differ from goods in that they cannot be re-used per se, for example the services provided by hairdressers. With the payment for the provision of the service the economic value is realised, but the service cannot be passed on as such. In this sense, there is actually no scope for an ‘exhaustion’ of the right to the service. 185. Other services, by contrast, do not differ significantly from goods. Computer software, musical works, e-books, films etc. which are downloaded from the internet can easily be passed on in electronic form. This is also illustrated by the fact that additional digital rights management measures are needed to prevent them being passed on. In these areas such a strict delimitation of the two fundamental freedoms would be arbitrary. 186. The examples cited – music, films or books – also show that the question at issue has considerable importance for the functioning of the internal market beyond the scope of the cases in the main proceedings. A delimitation of the markets based on intellectual property rights means at best that access to the goods in question will be granted subject to differing conditions, in particular as regards prices or digital rights management. Often, however, access to such goods is completely precluded on many markets, either because certain language versions are offered only to customers from certain Member States or because customers from certain Member States cannot acquire the product at all. For example, in autumn 2010 dealers from the United Kingdom announced that they could no longer sell e-books to customers outside that Member State. (72) No comparable products are offered for sale in other Member States in the case of many English-language books. 187. At the same time, in the case of products offered which, as in the main proceedings, are based on conditional access or which are downloaded only from the internet, a market delimitation can be achieved much more effectively than in the case of physical goods such as books or CDs. The latter can be traded as a result of exhaustion in the internal market. For consumers, such barriers create unnecessary incentives to procure the corresponding goods illegally, that is to say, in particular without any remuneration for the rights-holder. 188. It is for that reason necessary to examine carefully whether the principle of exhaustion applies mutatis mutandis in the present context, that is to say, whether the specific subject-matter of the rights in question requires that the internal market be partitioned. 189. The FAPL relies, for each broadcast, on its rights to some 25 works, including films, artistic works, sound recordings and music. In some cases those works are protected under European Union law and in some cases under national law. 190. Whilst the rights to individual works which occur together in the broadcast are disputed in the present proceedings, there is no need to examine them further here. For the purposes of the present analysis, reference can be made in general to the rights to the broadcast. First of all, there are indisputably at least certain rights to that broadcast and, secondly, it must be assumed that the broadcast is transmitted with the consent of all the rights-holders concerned. The specific subject-matter of that package of rights can be seen, at least in so far as is relevant in the present context, in its commercial exploitation. (73) 191. The transmission of football matches is exploited through the charge for the decoder cards. Such exploitation is not undermined by the use of Greek decoder cards, as charges were paid for those cards. 192. Whilst those charges are not as high as the charges imposed in the United Kingdom, there is no specific right to charge different prices for a work in each Member State. Rather, it forms part of the logic of the internal market that price differences between different Member States should be offset by trade. (74) The possibility, demanded by the FAPL, of marketing the broadcasting rights on a territorially exclusive basis amounts to profiting from the elimination of the internal market. In this regard, contrary to the view taken by the FAPL, the present proceedings fall within the scope of the case-law on the exhaustion of rights to goods. 193. However, the FAPL takes the view that, according to the case of Coditel I, (75) the rights claimed by it are compatible with freedom to provide services. Coditel I concerned German television being fed into the Belgian cable distribution network. In that context, in particular, a film transmitted in Germany with the consent of the rights-holder was shown. This was challenged by an undertaking which had acquired the rights to show that film in Belgian cinemas and on Belgian television. 194. The Court held at the time that the right of a copyright owner to require fees for any showing of a cinema film is part of the essential function of copyright. (76) There could be no objection in principle to partitioning that exploitation on a territorial basis, possibly even on the basis of the borders of the Member States. (77) 195. This does not, however, imply anything capable of calling into question the above considerations in the present context. The broadcast was transmitted as agreed between the rights-holders and the Greek broadcasting organisation. In addition, a fee was charged for each showing of the broadcast, albeit on the basis of Greek rates. 196. Coditel I, by contrast, did not directly concern an unauthorised and unremunerated showing in a cinema, but the retransmission of an authorised showing on television. In this regard, the Court stated that the showing on television could impair the exploitation of the rights to showing in the cinema and that it would therefore seem reasonable to permit a television showing only with a certain delay. From the perspective of the 1970s, it added that television showings were possible in purely practical terms only in the context of national monopolies. (78) On the basis of the specific conditions existing on the television and cinema markets at that time, the Court therefore concluded that the allocation of television rights on a territorial basis was justified. 197. The situation in Coditel I is not comparable to the situation here. The partitioning of the internal market for live football transmissions is precisely not intended to protect any other form of exploitation of the transmitted football match. Rather, the direct aim of partitioning the markets is to optimise exploitation of the same work within the different market segments. 198. In addition, European Union law has developed in the meantime: under Directive 93/83 satellite broadcasting rights in a Member State include transmission in other Member States within the broadcasting area and are also to be correspondingly remunerated. In addition, because access to the broadcast in the present proceedings even requires the purchase of a decoder card, each individual recipient pays a fee. 199. As a further – implicit – factor, Coditel I also involved the exploitation, on the Belgian cable network, of the film transmitted on German television, without a fee having been paid. This would be regarded today as (further) communication to the public within the meaning of Article 3(1) of Directive 2001/29 (79) and Article 8(3) of Directive 2006/115 to which the rights-holder can object. Communication by a further broadcasting organisation would be relevant. (80) However, there is no need for a restriction of freedom to provide services in the case of simple communication in order to protect the specific subject-matter of the right to such communication to the public. 200. In summary, it must be stated that a partitioning of the internal market for the reception of satellite broadcasts is not necessary in order to protect the specific subject-matter of the rights to live football transmissions. 201. It could, finally, be argued, to counter this approach, that it could make access to transmissions of football matches more difficult. If the FAPL cannot prevent the use of cheaper decoder cards from other Member States, the possibility cannot be discounted that in future it will offer transmission rights only in the most lucrative market in the European Union – the United Kingdom – or make the service offered on other markets conditional on the charging of prices similar to those in the United Kingdom. It would then be more difficult to gain access to the transmissions in Member States such as Greece. 202. That would be an economic decision to be taken by the holder of the rights, however. It will ultimately depend on how that holder can best exploit his rights on the whole. In this regard it would appear relevant in particular whether alternative marketing models can be developed, as the Commission demands, or whether restricting the commentary to certain language versions might create a sufficiently effective practical delimitation of the markets in order to continue to serve the different national markets at different prices. The closed periods 203. As an additional ground of justification, which is not, however, dealt with in the orders for reference, the FAPL claims that the football associations can adopt a window of two-and-a-half hours during which no football matches are to be transmitted. This is the core period during which the vast majority of football matches in the associations’ top leagues take place. The window differs from one country to the next because it depends on the different customs for the scheduling of matches. Through a territorial allocation of transmission rights, the associations and the broadcasting organisations can ensure that no transmission infringes the national window. 204. The FAPL argues convincingly that the importation of decoder cards would make it more difficult, or even impossible, to enforce this closed period. The windows protected in the country of origin of the card may differ from those in the place where the card is used, or there may even be no such protection. At the same time, competition between pubs is impaired. Users of domestic decoder cards cannot show any matches during the closed periods, whereas users of imported cards can. Preventing such a distortion of competition is also a legitimate interest. 205. However, the closed periods can justify a restriction of freedom to provide services only in so far as they are appropriate for securing the attainment of the objective which they pursue and do not go beyond what is necessary in order to attain it. (81) Furthermore, the measures designed to implement such a policy must in no case be disproportionate in relation to that aim. (82) 206. The purpose of the closed period is to ensure that spectators are not deterred from attending local football matches of any kind and/or participating in matches at amateur and/or youth level on account of television transmissions which coincide with such matches. (83) Participation in football and its character as a direct spectator sport should not be affected by television transmissions. 207. Contrary to the view taken by QC Leisure, this is not a specific commercial interest, but primarily a sporting interest which is in principle to be recognised in European Union law. This is shown by the powers in relation to sport which were conferred on the European Union by the Lisbon Treaty (Articles 6(e) TFEU and 165 TFEU). In particular, they require account to be taken of the specific nature of sport and its structures based on voluntary activity. (84) From an economic point of view, it would certainly be more attractive to allow the live transmission of all matches. (85) 208. However, legitimate reliance on that aim as a justification for a partitioning of the internal market is called into question in the present proceedings by the economic interests in the partitioning of the market which also exist. The football associations are required to assess the need for closed periods and they should in principle enjoy a broad margin of discretion in this regard. It cannot be ruled out a priori, however, that the decision by the English Football Association to make use of a closed period is also based at least in part on safeguarding the economic interest of the most important members of the association in partitioning the internal market for live football transmissions. A particularly strict test is therefore to be applied to the demonstration of the need for closed periods. 209. It is, in fact, doubtful whether closed periods are capable of encouraging attendance at matches and participation in matches. Both activities have a completely different quality to the following of a live transmission on television. It has not been adequately shown to the Court that the closed periods actually encourage attendance at and participation in matches. Indeed, there is evidence to refute this claim: for example, in an investigation of the closed periods under competition law the Commission found that only 10 of 22 associations had actually adopted a closed period. No closed periods were adopted in France, Germany, Italy and Spain, or in Northern Ireland, that is to say, within the sphere of influence of English football. (86) Furthermore, in Germany today all Bundesliga matches are evidently transmitted live without attendance at matches in the top two leagues suffering as a result. (87) 210. This does not mean that it cannot be shown in the proceedings before the High Court that different conditions apply in English football which mandatorily require protection by means of closed periods. However, such evidence would have to show that live transmissions have substantial detrimental effects on attendance at matches and/or participation in football matches in order for enforcement of the closed periods to be able to prevail over the adverse effects on the internal market. Interim conclusion 211. Consequently, neither the specific subject-matter of the rights to the transmission of football matches nor – according to the information available to the Court – the closed periods for live transmissions justify a partitioning of the internal market. d) Justification in the event of the provision of false information in procuring the decoder cards 212. The order for reference in Case C‑429/08 also raises the question of whether the conclusion reached thus far is affected where the conditional access device was procured and/or enabled by the provision of a false name and a false residential address in the first Member State, thereby circumventing contractual territorial restrictions imposed on the export of such devices for use outside the first Member State. 213. It is clear that these circumstances were expressly not made the subject of the proceedings which form the basis of Case C‑403/08. (88) Ms Murphy claims that she was unaware of such circumstances. 214. As Ms Murphy rightly submits, those circumstances cannot influence the application of the fundamental freedoms in relation to the final customers for the decoder cards. Agreements between individuals and the associated circumstances cannot restrict the exercise by third parties of the fundamental freedoms; such agreements would otherwise be to the detriment of third parties. Furthermore, third parties cannot know, as a rule, how the cards were acquired and would have no opportunity to assess whether they could invoke the fundamental freedoms should those agreements be relevant. 215. It is therefore irrelevant whether decoder cards were procured and/or enabled in the other Member State by the provision of a false name and a false residential address. e) Effects of the restriction to private or domestic use 216. Lastly, both in Case C‑429/08 (Question 6(iii)) and in Case C‑403/08 (Question 8(c)), questions are asked as to the significance of a contractual restriction on using decoder cards in the State of origin only for domestic or private use, but not for commercial use, for which a higher subscription charge is payable. 217. Such an agreement can, as such, also have effects only between the contracting parties. 218. As has already been explained, Article 3(1) of Directive 2001/29 likewise does not require the creation of rights which can be enforced vis-à-vis third parties. (89) 219. However, the referring court in Case C‑403/08 considers it possible that such rights may exist under national law, in particular with regard to the Premier League Anthem, which is played in connection with broadcasts. European Union copyright law, in particular Directive 2001/29, would not preclude such a provision since it is restricted to a single legal context. As recital 7 in the preamble to that directive in particular stresses, differences between domestic rules not adversely affecting the functioning of the internal market need not be removed or prevented. 220. It is therefore necessary to examine whether freedom to provide services would be an obstacle to such national rights. 221. If the cards are authorised in Greece only for domestic or private use, preventing their use in British pubs would not be discriminatory. It would nevertheless be a restriction of freedom to provide services because the pubs would be unable to avail themselves of that service. 222. This would be justified if it were recognised in the internal market that there are rights which allow the authorisation to receive television broadcasts to be restricted to domestic or private use. In principle, authors have an interest in sharing in the profits generated as a result of profit-oriented use of their works. Although the European Union does not protect this interest, it has at least recognised it at the international-law level. (90) If the national legislature recognises that authors have a right in relation to such use with a corresponding specific subject-matter, that right can justify a restriction of freedom to provide services. 223. Although a contractual restriction on using decoder cards in the State of origin only for domestic or private use cannot therefore justify a territorial restriction of freedom to provide services, the Member State in question may, none the less, in principle set out rights which allow authors to object to the communication of their works in pubs. f) Question 9 in Case C‑403/08 224. The answer to Question 9 in Case C‑403/08 follows from the foregoing considerations. 225. The High Court asks, first of all, whether freedom to provide services precludes enforcement of a provision of national copyright law which makes it unlawful to perform or play in public a musical work where that work is included in a protected service which is accessed and played in public by use of a satellite decoder card, in the case where that card has been issued by the service provider in another Member State subject to the condition that the decoder card is authorised only for use in that other Member State. 226. In this regard the findings for the rest of the broadcast stand: on the one hand, freedom to provide services precludes such a partitioning of the internal market; on the other, the Member States may provide for more extensive protection of rights-holders with regard to communication to the public, for instance for musical works. 227. The second part of this question is more problematic, namely whether it makes a difference if the musical work is an unimportant element of the protected service as a whole and the showing or playing in public of the other elements of the service are not prevented by national copyright law. 228. In the cases in the main proceedings, the protection of such rights under purely national law gives rise to a restriction of freedom to provide services. This can be justified if it is proportionate in relation to the protection of the rights in question. (91) 229. A prohibition of reception would clearly be reasonable if rights existed to the whole broadcast or substantial parts which permitted an objection to be made to its communication in a pub. 230. If, on the other hand, secondary elements are involved, the economic value of which represents only a very small portion of the value of the broadcast as a whole and which are only of very low importance or are even without importance for viewers, it would be disproportionate to prohibit the reception of the broadcast as a whole for their protection. (92) This does not rule out ensuring an adequate remuneration in some other way. A flat-rate levy paid to a collecting society by publicans who show the television programme might be imagined, for example. (93) 231. It is for the referring court to decide which of the two cases applies. 232. Freedom to provide services does not therefore preclude national rules which permit the holder of rights to a broadcast – for example, pursuant to Article 14(3) of the TRIPS Agreement – to object to the communication of the broadcast in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast. g) Question 7 in Case C‑429/08 233. This question concerns the prohibition of discrimination on grounds of nationality under Article 18 TFEU (formerly Article 12 EC). Such discrimination could exist in so far as the criminal provision applied to Ms Murphy relates only to broadcasts provided from a place in the United Kingdom, whereas broadcasts from other Member States are not protected. Apparently, regard is not had to the Greek broadcaster for the purpose of applying that national provision, but to the fact that the broadcast was originally produced in the United Kingdom. 234. This question is relevant only in so far as the national rule is not already precluded by freedom to provide services and Directive 93/83. 235. The Commission correctly argues that, apart from freedom to provide services, Article 18 TFEU has no independent significance in principle. (94) This question must therefore be examined from the perspective of freedom to provide services. 236. The alleged discrimination could stem from the fact that providers from the United Kingdom are protected, whereas providers from other Member States are not. The latter would have to fear that their services will be used in the United Kingdom without remuneration or at least that the rates which they charge will be circumvented in the United Kingdom by means of the importation of decoder cards from other Member States. There is no clear justification for discrimination against foreign providers. However, there is no need for the Court to examine this point any further in the present proceedings. 237. The point at issue is not the rights of foreign providers, but whether domestic providers can rely on these protective provisions. Even if the form of protection were to discriminate against foreign providers, this could not preclude domestic providers from availing themselves of the protection which they enjoy under national law. Rather, the question would arise whether the protection must also be extended to foreign providers. (95) 238. It is consequently irrelevant for the purposes of the present reference for a preliminary ruling whether the national law infringes the freedom to provide services because it applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not to programmes from any other Member State. h) Conclusion on Questions 6 and 7 in Case C‑429/08 and on Questions 7, 8(c) and 9 in Case C‑403/08 239. As an interim conclusion, it must be stated that freedom to provide services under Article 56 TFEU precludes provisions which prohibit, on grounds of protection of intellectual property, the use of conditional access devices for encrypted satellite television in a Member State which have been placed on the market in another Member State with the consent of the holder of the rights to the broadcast. It is irrelevant whether such devices were procured and/or enabled in the other Member State by the provision of a false name and false residential address. An individual agreement to use decoder cards only for domestic or private use also cannot justify a territorial restriction of freedom to provide services. 240. Freedom to provide services does not preclude national rules which allow the holder of rights to a broadcast to object to its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast. 241. It is irrelevant, for the purposes of the present references for preliminary rulings, whether the provision of national law infringes freedom to provide services because it applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not to programmes from any other Member State. 242. Lastly, it should be pointed out that the Commission decision on the joint selling of the media rights of the FA Premier League on an exclusive basis does not call that conclusion into question. (96) Even if the decision were to be construed as meaning that the Commission regards the territorial partitioning of the internal market as a condition for authorisation, the Commission may not impose any restrictions on the freedom to provide services which extend further than the Treaties. (97) E – Competition law 243. Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08 are identical. With regard to the application of the prohibition of anti-competitive practices under Article 101(1) TFEU (formerly Article 81(1) EC), the referring courts are seeking to ascertain whether it is sufficient that a licence agreement concerning the territorially limited transmission of a broadcast has the object of preventing, restricting or distorting competition or whether an actual impairment of competition must be shown. 244. A concerted practice pursues an anti-competitive object for the purpose of Article 101(1) TFEU where, according to its content and objectives and having regard to its legal and economic context, it is liable in an individual case to result in the prevention, restriction or distortion of competition within the common market. It is not necessary for there to be actual prevention, restriction or distortion of competition or a direct link between the concerted practice and consumer prices. (98) It is thus not necessary to examine the effects of an agreement in order to establish its anti-competitive object. (99) 245. It must therefore be examined in the present cases whether licence agreements pursue an anti-competitive object where a programme content provider enters into a series of exclusive licences, each for the territory of one or more Member States, under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory. 246. In order to assess the anti-competitive object of an agreement, regard must be had, in particular, to the content of its provisions, the objectives which it seeks to attain and the legal and economic context of which it forms a part. (100) 247. An agreement between a producer and a distributor which might tend to restore the national divisions in trade between Member States might be such as to frustrate the Treaty’s objective of achieving the integration of national markets through the establishment of a single market. Thus, on a number of occasions, the Court has held agreements aimed at partitioning national markets according to national borders or making the interpenetration of national markets more difficult, in particular those aimed at preventing or restricting parallel exports, to be agreements the object of which is to restrict competition within the meaning of Article 101(1) TFEU. (101) 248. A contractual obligation linked to a broadcasting licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory has the same effect as agreements to prevent or restrict parallel exports. Such an obligation is intended to prevent any competition between broadcasters through a reciprocal compartmentalisation of licensed territories. Such licences with absolute territorial protection are incompatible with the internal market. (102) There is therefore no reason to treat such agreements any differently from agreements intended to prevent parallel trade. 249. The examination of freedom to provide services (103) confirms this conclusion since conflicting assessments of the fundamental freedoms and competition law are to be avoided in principle. (104) 250. It must also be pointed out that an anti-competitive agreement within the meaning of Article 101(1) TFEU can be justified pursuant to Article 101(3) TFEU. However, a person who relies on that provision must demonstrate, by means of convincing arguments and evidence, that the conditions for obtaining an exemption are satisfied. (105) In this connection, it would appear that similar considerations should apply as in the examination of whether a restriction of freedom to provide services is justified. 251. Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08 must therefore be answered to the effect that where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, such licence agreements are liable to prevent, restrict or distort competition. They are therefore incompatible with Article 101(1) TFEU; it is not necessary to show that such effects have actually occurred. V – Conclusion 252. I therefore propose that the Court answer the questions referred for preliminary ruling as follows: 1. Question 1 in Case C‑403/08: Being ‘designed’ or ‘adapted’ within the meaning of Article 2(e) of Directive 98/84/EC means the manufacture or modification of equipment with the intention of providing access to a protected service in an intelligible form without the authorisation of the service provider. Where a conditional access device is made by or with the consent of a service provider and sold subject to a limited authorisation to use the device only to gain access to the protected service in particular circumstances, that device does not therefore become an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84 if it is used to obtain access to that protected service in a place or in a manner or by a person outside the authorisation of the service provider. 2. Question 3 in Case C‑429/08: Article 3(2) of Directive 98/84 does not preclude a Member State from invoking a provision of national law that prevents use of a conditional access device in the event of breach of contractual agreements concerning the accessibility of programmes in certain Member States, following the provision of false names and/or addresses in the acquisition of the access device, or the use, for commercial purposes, of an access device intended for private or domestic use. 3. Question 4 in Case C‑403/08: (a) The question whether works have been reproduced in whole or in part must be answered by means of an interpretation of Article 2 of Directive 2001/29/EC. (b) Acts of reproduction occur where frames of digital video and audio are created within the memory of a decoder, as those frames constitute part of the broadcast author’s own intellectual creation. (c) The display of a broadcast on a screen also constitutes reproduction. 4. Question 5 in Case C‑403/08: 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. 5. Question 6 in Case C‑403/08: A copyright work is not communicated to the public by wire or wireless means, within the meaning of Article 3(1) of Directive 2001/29, where it is received or viewed as part of a satellite broadcast at commercial premises (for example, a bar) or shown at those premises, free of charge, via a single television screen and speakers to members of the public present in those premises. 6. Question 7 in Case C‑403/08: The right to communicate copyright works by satellite under Article 2 of Directive 93/83/EC includes the right also to receive and watch that broadcast abroad. 7. Questions 6 and 7 in Case C‑429/08 and Questions 7, 8(c) and 9 in Case C‑403/08: (a) Freedom to provide services under Article 56 TFEU (previously Article 49 EC) precludes provisions which prohibit, on grounds of protection of intellectual property, the use of conditional access devices for encrypted satellite television in a Member State which have been placed on the market in another Member State with the consent of the holder of the rights to the broadcast. It is irrelevant whether such devices were procured and/or enabled in the other Member State by the provision of a false name and false residential address. An individual agreement to use decoder cards only for domestic or private use also does not affect that conclusion. (b) Freedom to provide services does not preclude national rules which allow the holder of rights to a broadcast to object to its communication in a pub, provided that the restriction of freedom to provide services stemming from the exercise of that right is not disproportionate to the share of the protected rights to the broadcast. (c) It is irrelevant for the purposes of the present references for preliminary rulings whether the provision of national law infringes freedom to provide services because it applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not from any other Member State. 8. Question 10 in Case C‑403/08 and Question 8 in Case C‑429/08: Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, such licence agreements are liable to prevent, restrict or distort competition. They are therefore incompatible with Article 101(1) TFEU; it is not necessary to show that such effects have actually occurred. 1 – Original language: German. 2 – Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 (OJ 1998 L 320, p. 54). 3 – Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 (OJ 2001 L 167, p. 10). 4 – Council Directive 93/83/EEC of 27 September 1993 (OJ 1993 L 248, p. 15). 5 – OJ 1994 L 336, p. 1. 6 – OJ 2000 L 89, p. 6. 7 – As set out in the German Bundesgesetzblatt 1965 II, p. 1245. 8 – OJ 1994 L 1, p. 194. 9 – OJ 1992 L 346, p. 61. 10 – Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (codified version) (OJ 2006 L 376, p. 28). 11 – Council Directive 89/552/EEC of 3 October 1989 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1989 L 298, p. 23), codified by Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (OJ 2010 L 95, p. 1). 12 – See Articles 6 TFEU and 165 TFEU, Declaration No 29 in the Final Act of the Intergovernmental Conference on the Treaty of Amsterdam signed on 2 October 1997 (OJ 1997 C 340, p. 136) and the ‘Declaration on the specific characteristics of sport and its social function in Europe, of which account should be taken in implementing common policies’, Nice European Council (7, 8 and 9 December 2000), Presidency conclusions (paragraph 52 and Annex IV; see in particular points 1, 7 and 17 of that declaration). 13 – Case C‑49/07 MOTOE [2008] ECR I‑4863, paragraph 22 and the case-law there cited. 14 – Case C‑308/06 Intertanko and Others [2008] ECR I‑4057, paragraph 69. 15 – Case C‑308/06 Intertanko and Others, cited in footnote 14, paragraphs 70 and 71. 16 – Case C‑5/08 Infopaq International [2009] ECR I‑6569, paragraph 27 et seq.; see also, with regard to Directive 2001/29 in general, Case C‑467/08 Padawan [2010] ECR I‑0000, paragraphs 32 and 35. 17 – Infopaq International, cited in footnote 16, in particular paragraph 37 et seq. 18 – Infopaq International, cited in footnote 16, paragraph 45. 19 – Infopaq International, cited in footnote 16, paragraph 55. 20 – Infopaq International, cited in footnote 16, paragraph 64. 21 – Infopaq International, cited in footnote 16, paragraphs 56 and 57. 22 – Infopaq International, cited in footnote 16, paragraph 58. 23 – COM(97) 628, Article 5, paragraph 3 (p. 29 of the English version). 24 – See below, points 105 and 108 et seq. 25 – See above, point 68 et seq. 26 – Case 152/84 Marshall [1986] ECR 723, paragraph 48; Case C‑91/92 Faccini Dori [1994] ECR I‑3325, paragraph 20; and Case C‑555/07 Kücükdeveci [2010] ECR I‑0000, paragraph 46. 27 – Inter alia, Case C‑415/93 Bosman [1995] ECR I‑4921, paragraph 59, and Joined Cases C‑295/04 to C‑298/04 Manfredi and Others [2006] ECR I‑6619, paragraph 26. 28 – Case C‑105/03 Pupino [2005] ECR I‑5285, paragraph 30; Case C‑404/07 Katz [2008] ECR I‑7607, paragraph 31; and Case C‑82/09 Dimos Agiou Nikolaou [2010] ECR I‑0000, paragraph 15. 29 – See, inter alia, Case C‑415/93 Bosman, cited in footnote 27, paragraph 61, and Case C‑344/04 IATA and ELFAA [2006] ECR I‑403, paragraph 24. 30 – COM(97) 628, Article 3, paragraph 2 et seq. (pp. 25 and 26 of the English version). 31 – COM(97) 628, Article 3, paragraph 3 (p. 26 of the English version). 32 – Case C‑306/05 SGAE [2006] ECR I‑11519; and order of 18 March 2010 in Case C‑136/09 Organismos Sillogikis Diacheirisis Dimiourgon Theatrikon kai Optikoakoustikon Ergon, not published in the ECR. 33 – SGAE, cited in footnote 32, paragraph 37 et seq. 34 – SGAE, cited in footnote 32, paragraph 44. 35 – Guide to the Berne Convention (Geneva, 1978). 36 – WIPO Guide, Note 11bis. 11 et seq. 37 – COM(97) 628, Article 3, paragraph 1 (p. 25 of the English version). 38 – COM(97) 628, Article 3, paragraph 1 (p. 25 of the English version). 39 – Document A4-0026/99, Amendment 13 (OJ 1999 C 150, p. 171, at p. 174). 40 – Amended proposal for a European Parliament and Council Directive on the harmonisation of certain aspects of copyright and related rights in the Information Society, COM(1999) 250 final (OJ 1999 C 180, p. 6), recital 16. 41 – See Council documents 14238/99 of 22 December 1999, p. 5, footnotes 6 and 7, 5168/00 of 10 January 2000, p. 4, and 5499/00 of 24 January 1999, p. 2 et seq. 42 – Council document 5168/00 of 10 January 2000, p. 4, paragraph 9. 43 – Council document 5168/00 of 10 January 2000, p. 4, paragraph 11. 44 – OJ 1994 L 1, p. 194. 45 – With regard to the effect of this Protocol, see the Opinion of Advocate General La Pergola in Case C‑293/98 Egeda [2000] ECR I‑629, point 17. 46 – See Paragraph 87(1)(3) of the German Urheberrechtsgesetz (Law on copyright) and, in this regard, Wandtke/Bullinger-Erhard, Urheberrecht, 3rd edition 2009, paragraph 23, and Diesbach/Bormann/Vollrath, ‘PubliC‑Viewing’ als Problem des Urheber- und Wettbewerbsrechts, Zeitschrift für Urheber- und Medienrecht 2006, p. 265 (266 et seq.). 47 – It would appear to be sufficient, however, if a pub pays a relatively small royalty to a collecting society in order to comply with the obligations under that provision; see the survey of rates of the Gesellschaft für musikalische Aufführungs- und mechanische Vervielfältigungsrechte, http://www.gema.de/fileadmin/inhaltsdateien/musiknutzer/tarife/tarife_ad/tarifuebersicht_gaststaetten.pdf. 48 – See, most recently, Case C‑428/08 Monsanto Technology [2010] ECR I‑0000, paragraph 71. 49 – See the judgment in Case C‑293/98 Egeda, cited in footnote 45, in comparison with the Opinion of Advocate General La Pergola in that case, point 17 et seq., and Case C‑28/04 Tod’s and Tod’s France [2005] ECR I‑5781, paragraph 14. 50 – SGAE, cited in footnote 32, paragraph 41. 51 – SGAE, cited in footnote 32, paragraph 30. 52 – SGAE, cited in footnote 32, paragraph 40. 53 – See the Opinion of Advocate General Sharpston in SGAE, cited in footnote 32, point 63. 54 – With regard to the regulatory content of Directive 93/83 in relation to communication to the public, see Case C‑293/98 Egeda, cited in footnote 49, paragraph 25, and SGAE, cited in footnote 32, paragraph 30. 55 – See above, point 82 et seq. and point 95 et seq. 56 – With regard to the application of the provisions of the Lisbon Treaty, see my Opinion in Case C‑379/09 Casteels [2010] ECR I‑0000, point 25. 57 – Case C‑17/00 De Coster [2001] ECR I‑9445, paragraph 28. 58 – Case C‑36/02 Omega [2004] ECR I‑9609, paragraph 26 and the case-law cited. 59 – Case C‑390/99 Canal Satélite Digital [2002] ECR I‑607, paragraph 32. 60 – Case C‑42/07 Liga Portuguesa de Futebol Profissional and Bwin International [2009] ECR I‑7633, paragraph 51 and the case-law cited, and Joined Cases C‑447/08 and C‑448/08 Sjöberg [2010] ECR I‑0000, paragraph 32. 61 – However, see the Opinion of Advocate General Mengozzi in Case C‑341/05 Laval un Partneri [2007] ECR I‑11767, point 156 et seq., in particular point 159, and the case-law on collective agreements there cited. 62 – This is a matter of competition law which I will examine below in point 243 et seq. of this Opinion. 63 – See, for example, Case C‑341/05 Laval un Partneri, cited in footnote 61, paragraph 101 and the case-law cited. 64 – Joined Cases C‑447/08 and C‑448/08 Sjöberg, cited in footnote 60, paragraph 36. 65 – Case 262/81 Coditel and Others II [1982] ECR 3381, paragraph 13, and Case C‑255/97 Pfeiffer [1999] ECR I‑2835, paragraph 21. 66 – Case C‑255/97 Pfeiffer, cited in footnote 65, paragraph 22, and, with regard to free movement of goods, Case 16/74 Centrafarm and de Peijper [1974] ECR 1183, paragraph 7; Case C‑10/89 HAG GF [1990] ECR I‑3711, paragraph 12; and Case C‑115/02 Rioglass and Transremar [2003] ECR I‑12705, paragraph 23. 67 – Case 119/75 Terrapin (Overseas) [1976] ECR 1039, paragraph 6; Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International [1981] ECR 147, paragraph 10; and in Case C‑200/96 Metronome Musik [1998] ECR I‑1953, paragraph 14. 68 – Directive 2001/84/EC of the European Parliament and of the Council of 27 September 2001 on the resale right for the benefit of the author of an original work of art (OJ 2001 L 272, p. 32); see, in this regard, Case C‑518/08 Gala-Salvador Dalí and Visual Entidad de Gestión de Artistas Plásticos [2010] ECR I‑0000. 69 – On the other hand, the Court rejected international exhaustion as a result of goods having been placed on the market outside the internal market in Case C‑355/96 Silhouette International Schmied [1998] ECR I‑4799, paragraph 22, and Case C‑16/03 Peak Holding [2004] ECR I‑11313. 70 – With regard to trade mark rights, see Case C‑16/03 Peak Holding, cited in footnote 69, paragraph 40. 71 – Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International, cited in footnote 67, paragraph 10. 72 – Gallagher, Waterstones halts overseas e-book sales, report of 26 October 2010, http://www.thebookseller.com/news/132290-waterstones-halts-overseas-e-book-sales.html, visited on 9 November 2010. 73 – See Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International, cited in footnote 67, paragraph 12 et seq., and Case 158/86 Warner Brothers and Metronome Video [1988] ECR 2605, paragraph 13 et seq. 74 – See Joined Cases 55/80 and 57/80 Musik-Vertrieb membran and K-tel International, cited in footnote 67, paragraph 24, with regard to the movement of goods. 75 – Case 62/79 Coditel and Others I [1980] ECR 881. 76 – Case 62/79 Coditel and Others I, cited in footnote 75, paragraph 14. 77 – Case 62/79 Coditel and Others I, cited in footnote 75, paragraph 16, and similarly, with regard to the rental right, the Opinion of Advocate General La Pergola in Case C‑61/97 FDV [1998] ECR I‑5171, point 15. 78 – Case 62/79 Coditel and Others I, cited in footnote 75, paragraph 16. 79 – With regard to the assessment of the present proceedings on the basis of that provision, see point 107 et seq. above. 80 – The reference for a preliminary ruling in Case 62/79 Coditel and Others I was directed at the enforcement of this right laid down in Article 11bis(1)(ii) of the Berne Convention; see the Report for the Hearing in that case, cited in footnote 75, p. 884. 81 – See, for example, Case C‑76/90 Säger [1991] ECR I‑4221, paragraph 15; Case C‑46/08 Carmen Media Group [2010] ECR I‑0000, paragraph 60; and Case C‑515/08 Santos Palhota and Others [2010] ECR I‑0000, paragraph 45. 82 – Case C‑76/90 Säger, cited in footnote 81, paragraph 17; Case C‑318/05 Commission v Germany [2007] ECR I‑6957, paragraphs 133 and 136; and Case C‑250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I‑11135, paragraph 44. 83 – See recital 10 in the preamble to Commission Decision of 19 April 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case 37.576 — UEFA’s broadcasting regulations) (OJ 2001 L 171, p. 12). 84 – See also the declarations on the Treaty of Amsterdam and of the Council cited in footnote 12. 85 – This is shown by the complaint lodged by various broadcasting organisations which led to the Commission decision cited in footnote 83. 86 – See the decision cited in footnote 83, recital 55 and Annex II. 87 – For attendance figures, see DFL Deutsche Fußball Liga GmbH, Bundesliga 2010, Die wirtschaftliche Situation im Lizenzfußball, p. 20 et seq. 88 – See paragraph 66 of the order for reference. 89 – See above, point 107 et seq. 90 – See above, point 121 et seq. 91 – See the references in footnote 82. 92 – See Case 302/86 Commission v Denmark [1988] ECR 4607, paragraph 21. 93 – See the levy examined in Case C‑467/08 Padawan, cited in footnote 16. 94 – Case C‑92/01 Stylianakis [2003] ECR I‑1291, paragraph 18; Case C‑76/05 Schwarz and Gootjes-Schwarz [2007] ECR I‑6849, paragraph 34; and Case C‑56/09 Zanotti [2010] ECR I‑0000, paragraph 24. 95 – See Joined Cases C‑92/92 and C‑326/92 Phil Collins and Others [1993] ECR I‑5145, paragraph 34 et seq. 96 – Annex 23 to the FAPL’s pleadings, see the Notice in OJ 2004 C 115, p. 3, and Press Release IP/06/356 of 22 March 2006. 97 – See Case C‑97/09 Schmelz [2010] ECR I‑0000, paragraph 50; see also Article 13(2) EU and the second sentence of Article 17(1) EU. 98 – Case C‑8/08 T-Mobile Netherlands and Others [2009] ECR I‑4529, paragraph 43. 99 – T-Mobile Netherlands and Others, cited in footnote 98, paragraph 30; Case C‑534/07 P Prym and Prym Consumer v Commission [2009] ECR I‑7415, paragraph 81; and Joined Cases C‑501/06 P, C‑513/06 P, C‑515/06 P and C‑519/06 P GlaxoSmithKline Services v Commission [2009] ECR I‑9291, paragraph 55. 100 – GlaxoSmithKline Services v Commission, cited in footnote 99, paragraph 58. 101 – Joined Cases C‑468/06 to C‑478/06 Sot. Lélos kai Sia and Others [2008] ECR I‑7139, paragraph 65 and the case-law cited, and GlaxoSmithKline Services v Commission, cited in footnote 99, paragraph 59 et seq. 102 – Case 258/78 Nungesser and Eisele v Commission [1982] ECR 2015, paragraph 61. 103 – See above, point 177 et seq. 104 – See, to that effect, my Opinion in Case C‑169/08 Presidente del Consiglio dei Ministri [2009] ECR I‑10821, point 134 et seq. 105 – GlaxoSmithKline Services v Commission, cited in footnote 99, paragraph 82.