Opinion of the Advocate General — ECLI:EU:C:2012:341
Date: 2012-06-12
Language of the case: German
Subject matter: Right of establishment;Freedom to provide services;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Austria

summary document drafted by the Commission in July 2005 for the Liverpool audiovisual conference entitled ‘Right to information and right to short extracts’, the issues in relation to the introduction of a right to extracts were as follows. First of all, ‘the lack of coordination of legislative, regulatory or agreements for the provision ... of extracts ... puts at risk the cross-border movement of news programmes and the exercise of the fundamental right to information’. secondly, ‘the absence of any right [to] extracts ... may constitute a threat to pluralism, many of the broadcasters in the Union ... having neither the technical means ... nor sufficient financial means to bear the cost of the systematic commercialisation of exclusive distribution rights in certain major media events’. 19 – I note that Article 10 of the ECHR includes not only the right to communicate but also to receive information, See Observer and Guardian v United Kingdom, judgment of 26 November 1991, Series A No 216, paragraph 59, and Guerra and Others v Italy, judgment of 19 February 1998, Reports of Judgments and Decisions 1998-I, paragraph 53 . 20– Case C-260/89 ERT [1991] ECR I-2925, paragraph 45. 21 – Case C-250/06 United Pan-Europe Communications Belgium and Others [2007] ECR I-11135, paragraph 41. 22 – See, inter alia, Joined Cases C‑92/09 and C‑93/09 Volker und Markus Schecke and Eifert [2010] ECR I‑11063 paragraph 74. 23 – Joined Cases C-402/05 P and C-415/05 P Kadi and Al Barakaat International Foundation v Council and Commission [2008] ECR I-6351, paragraph 360 and case-law cited. 24 – Case C‑380/03 [2006] ECR I‑11573. 25 – Paragraph 145 and the case-law cited. 26 – Case C-227/07 UTECA [2009] ECR I-1407, paragraph 19. See also in that connection recital 11 and Article 4(1) of the Directive. 27 – See, in this sense, the statement of the Council’s reasons, at II B vi of Common Position (EC) No 18/2007 of 15 October 2007 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a directive of the European Parliament and of the Council amending Directive 89/552/EEC of the Council aimed at the coordination of certain laws, regulations and administrative provisions of the Member States relating to the exercise of television broadcasting activities (OJ C 307E, p. 1). 28 – Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, paragraph 4. 29 – See also, along the same lines, recital 10 of the Directive that stressed the importance of a ‘true European market for audiovisual media services’. 30 – See recital 55 and Article 15(1) of the Directive according to which access to short extracts must be afforded under non-discriminatory conditions. 31 – In this connection, I note that, according to figures published recently by the European Audiovisual Observatory, local and regional channels account for approximately 40 per cent of the total available channels in Europe (see press release of 29 March 2012 available at http//www.obs.coe.int/about/oea/pr/mavise-miptv2012.html). 32 – See, in this regard, Schoenthal M., ‘The right of retransmission of major events’, IRIS plus, legal observations of the European Audiovisual Observatory, 2006-04. The author notes that ‘short and informative reports [are] limited to key moments of an event’ and that ‘a gradual mounting of suspense, which provides the distinctive charm of a sporting event, is solely reserved to the actual broadcast transmission’ (p. 3). 33 – Paragraph 43, particularly note 19. 34 – See Case C-275/06 Promusicae [2008] ECR I-271, paragraph 68, and C‑461/10 Bonnier Audio and Others [2012] ECR, paragraph 56. 35 – As to the costs incurred by the television broadcasting organization which holds the exclusive broadcasting rights, ORF said that, even when the body which enjoys the right to make short news reports has access to the satellite signal (for example, through direct satellite interception), the granting of this right gives rise to appreciable work for the organisation whose duty it is to grant the said right (verification of the right, establishment, where appropriate, of an agreement on conditions, supervision of compliance with legal and contractual arrangements, etc.). 36 – See, in this regard, communication from the Commission to the European Parliament in accordance with Article 251(2), second paragraph, of the EC Treaty concerning the Council’s common position on the adoption of a proposal for a directive of the European Parliament and of the Council amending directive 89/552/EEC of the Council for the coordination of certain laws, regulations and administrative provisions of the Member States relating to the exercise of television broadcasting activities (‘Audiovisual Media Services directive’) [COM(2007) 639 final]: ‘This wording was chosen to ensure that the right to short reporting cannot be construed as a mandatory licence which would have given the receiving broadcasters wider rights. This solution is largely supported by all stakeholders, broadcasters as well as rights owners’. 37 – According to the explanatory report on this convention, this article is founded in the public’s right to receive information and is intended to ensure that the exercise of this right is not called into question in a transfrontier context. Another objective is to ensure the pluralism of information sources in the framework of transfrontier television. 38 – Recommendation on the right to extracts on major events that are the subject of exclusive rights for TV broadcasting in a transfrontier context. 39 – Paragraph 47. 40 – See on this point Sudre, F., Droit européen et international des droits de l’homme, PUF, Paris, 10th edition, 2011, p. 655 et seq. 41 – See ECHR judgment in Brosset-Triboulet and Others v France of 29 March 2010, paragraph 86. 42 – Ibid. (paragraph 94). 43– OJ 1992 L 167, p. 10. 44 – It is interesting, in this respect, to compare Article 15 of the Directive with Article 5(3)(c) of Directive 2001/29, which allows the Member States to provide for exceptions or limitations to the rights provided for in Articles 2 and 3 of this directive (respectively, right of reproduction, and right of communication to the public of works and the right to make available to the public other protected items) ‘use of works or other subject-matter in connection with the reporting of current events, to the extent justified by the informatory purpose and as long as the source, including the author’s name, is indicated, unless this turns out to be impossible’. See also in the same vein, Article 10(1)(b) of 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 (OJ 2006 L 376, p. 28). 45 – Joined Cases C‑20/00 and C‑64/00 Booker Aquaculture and Hydro Seafood [2003] I‑7411, paragraph 85. 46 – See point 21 of this Opinion. 47 – Directive 2007/65/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 2007 L 332, p. 27). 48 – 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).